4 ms·

I've always wondered whether this has any chance of holding up in court. I know it depends on jurisdiction, but at least in my region (EU/Poland), courts consid

by jwr 4y ago

I've always wondered whether this has any chance of holding up in court. I know it depends on jurisdiction, but at least in my region (EU/Poland), courts consider intent rather than a literal interpretation of laws. You can try to be oh-so-smart and implement a "canary" that doesn't get updated if you get a warrant, but the court would consider not updating the canary as the same thing as notifying people that a warrant has been served.

_8j50 4y ago
This whole thing I believe was a result of litigation with USGOV. Can the government entirely censor people acting onbehalf of a company from saying something? The answer was something like "It can prevent you from stating specific details but it cannot prevent you from making general statements on whether you have received a warrant or force speech by preventing you from taking down the canary" they even came up with a spefific granularity that you can state regarding the number of warrants you received. But if I was the gov, I would go to your webhost or colo provider first, the gag order would prevent them from telling the subject like rsync.net and the search warrant would allow access to read and tamper with code and data. This is why GPG signing is great, private keys won't be on devices you don't physically control if you do it right. And also why you shouldn't trust native encryption of cloud providers like iCloud where ultimately you are not managing the private key directly.
LarryMullins 4y ago
About a century ago in the UK, the Automotive Association (AA) did a similar thing. Lots of towns were setting up speed traps to catch speeding motorists, with very low speed limits, so the AA paid uniformed boys on bicycles to find the speed traps and flag down motorists to warn them before they reached the speed trap. This practice was legally challenged as obstructing the police, so the AA inverted the scheme. They instead paid boys on bicycles to salute motorists by default, except when there was a speed trap. If you saw the uniformed AA boy standing by the side of the road and he wasn't saluting you, you knew there was something wrong ahead. The idea was that the law might be able to ban saluting to warn motorists of the police, but the law couldn't ban not saluting to warn motorists. The law couldn't compel a salute. Evidently this worked, because the AA kept up the practice for a few more decades, before eventually discontinuing the practice in the 60s.
- singularity2001 4y ago
  interesting that the law interprets setting the variable salute=1 as illegal information but not_salute=1 or free_to_go=0 is not.
rsync 4y ago
"You can try to be oh-so-smart and implement a "canary" that doesn't get updated if you get a warrant, but the court would consider not updating the canary as the same thing as notifying people that a warrant has been served." The warrant canary is always thought of as a gimmick or a "legal hack" or a "smartypants" construct ... but this is the wrong way to think about it. The warrant canary is a poison pill provision. rsync.net is a real company. We have a proper board of directors and outside advisors. We have legal counsel. We have shareholders. We could not possibly respond to any kind of warrant - extrajudicial or otherwise - without careful consultation with all of these stakeholders. That takes time and that means the canary will expire. So it's wrong to think of this as an act of defiance at the time of service - that ship has long since sailed (2006). Instead, it has shifted the landscape of warrant service, irrevocably, in advance.
- tptacek 4y ago
  The idea that you'll take the warrant down because it has "expired" during your "deliberation" of a warrant is logic an order of magnitude cutesier than that of the warrant canary itself. Further, it cuts against the legitimacy of a warrant canary: the canary is defensible (if it's defensible) because it's expressive, and restraints on expression about government actions are subject to strict scrutiny. Here, you're saying that there isn't anything expressive at all about your canary being removed; you're simply not exerting the effort required to maintain it. That's not expression; that's like being told you have to put a notice on the front door of your business, and trying to avoid it by saying "I wasn't disagreeing with the notice, I just haven't had time to put it up". Yeah, they're going to shut your restaurant down. I agree with your take across the thread that this is mostly moot because of the nature of your business; I think the discussion of whether warrant canaries work is interesting, but the question of whether rsync.net is going to have to resist government searches is not, like, a major controversy. You're just not going to get searches at all, because you're not that kind of company.
  - joshuaissac 4y ago
    > The idea that you'll take the warrant down because it has "expired" I do not see rsync saying that they will necessarily take down the canary when it expires. Just that they will not update it while they consult their lawyers and stakeholders. > being told you have to put a notice on the front door of your business, and trying to avoid it In the US, the case West Virginia State Board of Education v. Barnette established that the government cannot compel speech. That is the basis of the presumption that the government cannot force a company to update a warrant canary.
philwelch 4y ago
I'm not a lawyer, but that's a double-edged sword because then the feds would be opening up questions about the constitutionality of the gag order in the first place. These secret national security warrants are still a thing in part because nobody has successfully challenged them in court. It's possible that if the government wants to argue that taking down a warrant canary constitutes violation of the gag order, the court could ultimately rule that the gag order itself is an unconstitutional prior restraint on constitutionally protected free speech.
- landemva 4y ago
  > taking down a warrant canary The canaries are set up so whoever has the website stops the updating. Nothing is taken down. Nothing is updated.
int_19h 4y ago
Updating the canary to say "we haven't been served any warrants" when there was, in fact, a warrant served would be an intentional lie. Compelling that kind of speech generally requires a much higher legal bar if it's possible at all.

by jwr 4y ago

_8j50 4y ago

This whole thing I believe was a result of litigation with USGOV. Can the government entirely censor people acting onbehalf of a company from saying something? The answer was something like "It can prevent you from stating specific details but it cannot prevent you from making general statements on whether you have received a warrant or force speech by preventing you from taking down the canary" they even came up with a spefific granularity that you can state regarding the number of warrants you received. But if I was the gov, I would go to your webhost or colo provider first, the gag order would prevent them from telling the subject like rsync.net and the search warrant would allow access to read and tamper with code and data. This is why GPG signing is great, private keys won't be on devices you don't physically control if you do it right. And also why you shouldn't trust native encryption of cloud providers like iCloud where ultimately you are not managing the private key directly.

LarryMullins 4y ago

About a century ago in the UK, the Automotive Association (AA) did a similar thing. Lots of towns were setting up speed traps to catch speeding motorists, with very low speed limits, so the AA paid uniformed boys on bicycles to find the speed traps and flag down motorists to warn them before they reached the speed trap. This practice was legally challenged as obstructing the police, so the AA inverted the scheme. They instead paid boys on bicycles to salute motorists by default, except when there was a speed trap. If you saw the uniformed AA boy standing by the side of the road and he wasn't saluting you, you knew there was something wrong ahead. The idea was that the law might be able to ban saluting to warn motorists of the police, but the law couldn't ban not saluting to warn motorists. The law couldn't compel a salute. Evidently this worked, because the AA kept up the practice for a few more decades, before eventually discontinuing the practice in the 60s.

singularity2001 4y ago
interesting that the law interprets setting the variable salute=1 as illegal information but not_salute=1 or free_to_go=0 is not.

rsync 4y ago

"You can try to be oh-so-smart and implement a "canary" that doesn't get updated if you get a warrant, but the court would consider not updating the canary as the same thing as notifying people that a warrant has been served." The warrant canary is always thought of as a gimmick or a "legal hack" or a "smartypants" construct ... but this is the wrong way to think about it. The warrant canary is a poison pill provision. rsync.net is a real company. We have a proper board of directors and outside advisors. We have legal counsel. We have shareholders. We could not possibly respond to any kind of warrant - extrajudicial or otherwise - without careful consultation with all of these stakeholders. That takes time and that means the canary will expire. So it's wrong to think of this as an act of defiance at the time of service - that ship has long since sailed (2006). Instead, it has shifted the landscape of warrant service, irrevocably, in advance.

tptacek 4y ago
The idea that you'll take the warrant down because it has "expired" during your "deliberation" of a warrant is logic an order of magnitude cutesier than that of the warrant canary itself. Further, it cuts against the legitimacy of a warrant canary: the canary is defensible (if it's defensible) because it's expressive, and restraints on expression about government actions are subject to strict scrutiny. Here, you're saying that there isn't anything expressive at all about your canary being removed; you're simply not exerting the effort required to maintain it. That's not expression; that's like being told you have to put a notice on the front door of your business, and trying to avoid it by saying "I wasn't disagreeing with the notice, I just haven't had time to put it up". Yeah, they're going to shut your restaurant down. I agree with your take across the thread that this is mostly moot because of the nature of your business; I think the discussion of whether warrant canaries work is interesting, but the question of whether rsync.net is going to have to resist government searches is not, like, a major controversy. You're just not going to get searches at all, because you're not that kind of company.
- joshuaissac 4y ago
  > The idea that you'll take the warrant down because it has "expired" I do not see rsync saying that they will necessarily take down the canary when it expires. Just that they will not update it while they consult their lawyers and stakeholders. > being told you have to put a notice on the front door of your business, and trying to avoid it In the US, the case West Virginia State Board of Education v. Barnette established that the government cannot compel speech. That is the basis of the presumption that the government cannot force a company to update a warrant canary.

philwelch 4y ago

I'm not a lawyer, but that's a double-edged sword because then the feds would be opening up questions about the constitutionality of the gag order in the first place. These secret national security warrants are still a thing in part because nobody has successfully challenged them in court. It's possible that if the government wants to argue that taking down a warrant canary constitutes violation of the gag order, the court could ultimately rule that the gag order itself is an unconstitutional prior restraint on constitutionally protected free speech.

landemva 4y ago
> taking down a warrant canary The canaries are set up so whoever has the website stops the updating. Nothing is taken down. Nothing is updated.

int_19h 4y ago

Updating the canary to say "we haven't been served any warrants" when there was, in fact, a warrant served would be an intentional lie. Compelling that kind of speech generally requires a much higher legal bar if it's possible at all.