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I have wondered about this. The gag orders are somewhat problematic but can they mandate that one actively lies about having received a NSL? Suppose I put up

I have wondered about this. The gag orders are somewhat problematic but can they mandate that one actively lies about having received a NSL? Suppose I put up on my startup's web page (http://www.efficito.com http://www.efficito.com), "we have not received any NSL's and pledge to fight any we get." Suppose we always end press releases with such a promise. Suppose we get one one day, so when we do, we change "We have not received" to "we cannot confirm or deny whether we have received." Close observers will note the shift and note we have moved from a flat denial to a refusal to disclose. I have trouble imagining that such could be prohibited because if it is, it either ends up being a mandatory lie and compelled speech or it ends up being prior restraint even before the NSL is issued. Not sure I would risk my business on it though.

cmsmith 13y ago
That is the exact idea behind this [1]. [1] http://www.rsync.net/resources/notices/canary.txt http://www.rsync.net/resources/notices/canary.txt
DASD 13y ago
I've just submitted a post on this. What you're referring to is called a warrant canary. https://news.ycombinator.com/item?id=5837351 https://news.ycombinator.com/item?id=5837351
rsync 13y ago
We have been operating such a "warrant canary" since 2006: http://www.rsync.net/resources/notices/canary.txt http://www.rsync.net/resources/notices/canary.txt Some additional details - we update the document weekly, and include a non-vague news item from the financial press that we could not have known about - this proves that these are not being pre-populated, or published automatically, etc. Further, we replicate these to our non-US (Zurich, Hong Kong) locations so that multiple court jurisdictions are required to coerce them to be created falsely. I wonder how the canton of Zurich would rule in such a case ?
- e12e 13y ago
  It is a great effort. But AFAIK -- actually putting it to use -- would put you in danger of whatever punishment there would be for not complying. I suppose, in the most extreme of cases, death (presumably for "treason"). More likely some form of "aiding and abetting" or "profiting from" (or even "conspiring to commit..."). As Zurich's interest's align more closely with the US than Hong Kong, I think you'd stand a better chance of Hong Kong refusing, than Zurich. The most likely scenario would be to put pressure on one or several members with access to "put back" the warranty canaries, if at all feasible (or just putting pressure on the only one's that were told of the warrant in the first place, effectively forcing them to lie to their colleagues as well. A national intelligence organisation can be a very scary thing disobey). I still respect your willingness to have such a canary in place -- but in the event that is truly needed, I doubt it's effectiveness (I would love to be proven wrong, though).
  - einhverfr 13y ago
    The point though is: Ordering you to update the canary is in effect, ordering you to make affirmative, untrue statements about your products, namely that they are secure against government surveillance. Do I think they'd threaten you with obstruction? Yes. Do I think they'd threaten to send you to jail? Yes. But do I think they'd arrest you and try you? I am not sure. They might. But once they do that, they are in a bind. They lose the leverage against you revealing the specifics of the warrant (other than that there was one somewhere), and they go past the point of no return, where you have to fight back and challenge the Constitutionality of the order to lie. I won't give advice (IANAL, etc) but I think the most likely outcome would be a game of chicken. It would be a public fight (you have a right to a free and public trial with all evidence submitted in open, public court, obviously including the NSL or warrant!), and they'd risk an adverse judgement handing a tool to everyone to resist this. So if they are willing to try you and admit the NSL or warrant as evidence, they are then revealing more than you have, and this undercuts their case.
    - e12e 13y ago
      Maybe. Then again, these things (NSLs) are supposed to be about national security, aren't they? As of now I don't think the intelligence establishment is mad enough to disappear a "well standing" (white male?), resourceful citizen -- seeing as the entire idea of these secret laws are clearly illegal by any sane definition -- but how long will that last? Also, remember that if this is part of some semi extra-legal investigation, one or more of the agencies involved might pressure you with black mail of some sort. Or a mix of black mail and prison. But yeah, I think the reality of the situation is: comply, or government will frown on you and your business, and that might be the end of your business (at least you can forget about having new radio spectrum for your wireless, or any other licence you might need, etc...).
dmourati 13y ago
Read the statutes. 18 USC § 1409(c), 18 USC § 1510(c) "knowingly and with the intent to obstruct an investigation or judicial proceeding violates such prohibitions or requirements applicable by law to such person shall be imprisoned for not more than five years, fined under this title, or both." My reading is you'd have to do more than change a web page to run afoul, specifically, you'd have to intend to disrupt an investigation or judicial proceeding.
- e12e 13y ago
  I believe an argument could be made, that having and maintaining such a canary in place, could be considered obstruction -- at such a time as the canary comes into effect. I.e. having it there is probably legal, using it as intended, probably isn't. IANAL etc.
  - einhverfr 13y ago
    Yeah but here's the thing. You run straight into two problems when that happens: 1. Are you going to be ordered to affirmatively lie about claims regarding your products? Is that protected by the first amendment? 2. Suppose you have a public case and win? Now everyone knows that canaries are protected and can be used to run around the gag orders. The question comes down to this: Who is more afraid of what? You of 5 years of prison or the government of losing this tool once and for all?
    - e12e 13y ago
      Oh, absolutely. Of course, that would be 5 years in prison after sentencing. Consider the fact that both Kevin Mitnick and Jeremy Hammond (allegedly) were threatened with the "revolving door" of never having their "final" day in court, spending an indefinite time in jail (as opposed to prison) and in cross-state prison transports. Now, they were accused of committing crimes directly (hacking/so called computer "fraud") -- so it's not quite the same thing (one would hope). The chilling thing about these laws, is that they're (allegedly) only used for secret "national security" stuff. So if you go up against that, you aren't that far from being held "in the interest of national security" -- and -- there might be an honest (or seemingly so) appeal to your patriotism thrown in there, for you to actively become an agent of national security (spy on your neighbours for their safety!). I don't think it is at all clear cut (how can we know how many of these law are even legal, if some of them are secret?).
fnordfnordfnord 13y ago
I think it is clear that the gov't can force you to make a false statement, including forcing you to leave your canary unmodified. At least within the limits of what threats of violence can achieve. I'm going to assume that is the case. That carries some pretty ugly realities with it about the nature of our gov't's recent conduct, and probable future conduct. Good luck to anyone who ever has an occasion to challenge the gov't in a situation like this and does so.

cmsmith 13y ago

That is the exact idea behind this [1]. [1] http://www.rsync.net/resources/notices/canary.txt http://www.rsync.net/resources/notices/canary.txt

DASD 13y ago

I've just submitted a post on this. What you're referring to is called a warrant canary. https://news.ycombinator.com/item?id=5837351 https://news.ycombinator.com/item?id=5837351

rsync 13y ago

We have been operating such a "warrant canary" since 2006: http://www.rsync.net/resources/notices/canary.txt http://www.rsync.net/resources/notices/canary.txt Some additional details - we update the document weekly, and include a non-vague news item from the financial press that we could not have known about - this proves that these are not being pre-populated, or published automatically, etc. Further, we replicate these to our non-US (Zurich, Hong Kong) locations so that multiple court jurisdictions are required to coerce them to be created falsely. I wonder how the canton of Zurich would rule in such a case ?

e12e 13y ago
It is a great effort. But AFAIK -- actually putting it to use -- would put you in danger of whatever punishment there would be for not complying. I suppose, in the most extreme of cases, death (presumably for "treason"). More likely some form of "aiding and abetting" or "profiting from" (or even "conspiring to commit..."). As Zurich's interest's align more closely with the US than Hong Kong, I think you'd stand a better chance of Hong Kong refusing, than Zurich. The most likely scenario would be to put pressure on one or several members with access to "put back" the warranty canaries, if at all feasible (or just putting pressure on the only one's that were told of the warrant in the first place, effectively forcing them to lie to their colleagues as well. A national intelligence organisation can be a very scary thing disobey). I still respect your willingness to have such a canary in place -- but in the event that is truly needed, I doubt it's effectiveness (I would love to be proven wrong, though).
- einhverfr 13y ago
  The point though is: Ordering you to update the canary is in effect, ordering you to make affirmative, untrue statements about your products, namely that they are secure against government surveillance. Do I think they'd threaten you with obstruction? Yes. Do I think they'd threaten to send you to jail? Yes. But do I think they'd arrest you and try you? I am not sure. They might. But once they do that, they are in a bind. They lose the leverage against you revealing the specifics of the warrant (other than that there was one somewhere), and they go past the point of no return, where you have to fight back and challenge the Constitutionality of the order to lie. I won't give advice (IANAL, etc) but I think the most likely outcome would be a game of chicken. It would be a public fight (you have a right to a free and public trial with all evidence submitted in open, public court, obviously including the NSL or warrant!), and they'd risk an adverse judgement handing a tool to everyone to resist this. So if they are willing to try you and admit the NSL or warrant as evidence, they are then revealing more than you have, and this undercuts their case.
  - e12e 13y ago
    Maybe. Then again, these things (NSLs) are supposed to be about national security, aren't they? As of now I don't think the intelligence establishment is mad enough to disappear a "well standing" (white male?), resourceful citizen -- seeing as the entire idea of these secret laws are clearly illegal by any sane definition -- but how long will that last? Also, remember that if this is part of some semi extra-legal investigation, one or more of the agencies involved might pressure you with black mail of some sort. Or a mix of black mail and prison. But yeah, I think the reality of the situation is: comply, or government will frown on you and your business, and that might be the end of your business (at least you can forget about having new radio spectrum for your wireless, or any other licence you might need, etc...).

dmourati 13y ago

Read the statutes. 18 USC § 1409(c), 18 USC § 1510(c) "knowingly and with the intent to obstruct an investigation or judicial proceeding violates such prohibitions or requirements applicable by law to such person shall be imprisoned for not more than five years, fined under this title, or both." My reading is you'd have to do more than change a web page to run afoul, specifically, you'd have to intend to disrupt an investigation or judicial proceeding.

e12e 13y ago
I believe an argument could be made, that having and maintaining such a canary in place, could be considered obstruction -- at such a time as the canary comes into effect. I.e. having it there is probably legal, using it as intended, probably isn't. IANAL etc.
- einhverfr 13y ago
  Yeah but here's the thing. You run straight into two problems when that happens: 1. Are you going to be ordered to affirmatively lie about claims regarding your products? Is that protected by the first amendment? 2. Suppose you have a public case and win? Now everyone knows that canaries are protected and can be used to run around the gag orders. The question comes down to this: Who is more afraid of what? You of 5 years of prison or the government of losing this tool once and for all?
  - e12e 13y ago
    Oh, absolutely. Of course, that would be 5 years in prison after sentencing. Consider the fact that both Kevin Mitnick and Jeremy Hammond (allegedly) were threatened with the "revolving door" of never having their "final" day in court, spending an indefinite time in jail (as opposed to prison) and in cross-state prison transports. Now, they were accused of committing crimes directly (hacking/so called computer "fraud") -- so it's not quite the same thing (one would hope). The chilling thing about these laws, is that they're (allegedly) only used for secret "national security" stuff. So if you go up against that, you aren't that far from being held "in the interest of national security" -- and -- there might be an honest (or seemingly so) appeal to your patriotism thrown in there, for you to actively become an agent of national security (spy on your neighbours for their safety!). I don't think it is at all clear cut (how can we know how many of these law are even legal, if some of them are secret?).

fnordfnordfnord 13y ago

I think it is clear that the gov't can force you to make a false statement, including forcing you to leave your canary unmodified. At least within the limits of what threats of violence can achieve. I'm going to assume that is the case. That carries some pretty ugly realities with it about the nature of our gov't's recent conduct, and probable future conduct. Good luck to anyone who ever has an occasion to challenge the gov't in a situation like this and does so.