4 ms·

"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 t

by 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.
  - tptacek 4y ago
    The government routinely compels speech. It's weird that we'd be trying to derive this from first principles: you can just go to your pantry and pick up any packaged food item.
    - landemva 4y ago
      Product packaging is commercial commerce, which is regulated. Firms voluntarily engage in regulated commerce. Cease updates of a canary is doing nothing.
      - tptacek 4y ago
        All commerce is commercial.
        landemva 4y ago
        Yes. What do you think of this rephrasing? Product packaging is part of commerce, which is regulated. Firms voluntarily engage in commerce. Cease updates of a canary is doing nothing.
        tptacek 4y ago
        "Commercial speech", the term you're looking for, is any speech that has any nexus at all to commerce. Warning labels are commercial speech (that's why the government can compel them), as, I'd presume, are anti-warning-labels. There may very well be reasons warrant canaries will hold up in court, but "canaries aren't commercial speech" seems very unlikely to be one of them.
- rsync 4y ago
  "The idea that you'll take the warrant down because it has "expired" during your "deliberation" of a warrant ..." There is no situation where we take the warrant canary down. We either keep updating it or we don't. There is no third option where we remove it. Or put it back later, etc. It's either up and fresh or it's up and stale.
  - tptacek 4y ago
    Yes, I get that you update the canary; we can substitute "kill the canary" with "refusing to feed the canary", same deal, right?
    - rsync 4y ago
      No, I think there's a difference. Again, I liken this to a poison pill which suggests the die has already been cast - the decision was made not now, in response to a warrant but in 2006. If we do something - like remove the canary - that model starts to fall apart. Doing something is interesting and provocative and actionable, etc. But if we do nothing it fits the poison pill model very well.

by rsync 4y ago

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.
- tptacek 4y ago
  The government routinely compels speech. It's weird that we'd be trying to derive this from first principles: you can just go to your pantry and pick up any packaged food item.
  - landemva 4y ago
    Product packaging is commercial commerce, which is regulated. Firms voluntarily engage in regulated commerce. Cease updates of a canary is doing nothing.
    - tptacek 4y ago
      All commerce is commercial.
      - landemva 4y ago
        Yes. What do you think of this rephrasing? Product packaging is part of commerce, which is regulated. Firms voluntarily engage in commerce. Cease updates of a canary is doing nothing.
        tptacek 4y ago
        "Commercial speech", the term you're looking for, is any speech that has any nexus at all to commerce. Warning labels are commercial speech (that's why the government can compel them), as, I'd presume, are anti-warning-labels. There may very well be reasons warrant canaries will hold up in court, but "canaries aren't commercial speech" seems very unlikely to be one of them.
rsync 4y ago
"The idea that you'll take the warrant down because it has "expired" during your "deliberation" of a warrant ..." There is no situation where we take the warrant canary down. We either keep updating it or we don't. There is no third option where we remove it. Or put it back later, etc. It's either up and fresh or it's up and stale.
- tptacek 4y ago
  Yes, I get that you update the canary; we can substitute "kill the canary" with "refusing to feed the canary", same deal, right?
  - rsync 4y ago
    No, I think there's a difference. Again, I liken this to a poison pill which suggests the die has already been cast - the decision was made not now, in response to a warrant but in 2006. If we do something - like remove the canary - that model starts to fall apart. Doing something is interesting and provocative and actionable, etc. But if we do nothing it fits the poison pill model very well.