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Unfortunately, the disclosure of information via negation will almost certainly not hold up in a court of law.
by sdoowpilihp 13y ago
Unfortunately, the disclosure of information via negation will almost certainly not hold up in a court of law.
- signed0 13y agoPerhaps they could be sued either way. If a company states on their website that "We do not do X", and then starts doing X they are left with two choices, leaving a false message up or taking it down. If they leave it up, and the truth eventually comes out, could they be sued for misleading their shareholders? If they take it down does that open them up to being sued by the government?
- eli 13y agoNational Security Letters grant the recipient immunity from civil lawsuits if you comply in good faith. They think of everything!
- gaadd33 13y agoHow does that work for international companies who end up sued in non US jurisdictions?
- gcr 13y agoReally? I'd like to learn more about this, do you have a source? (aside: Sorry for the downvote, my finger slipped up :/)
- eli 13y agoIANAL, but it appears to depend under which legal authority the letter is issued (Verizon's was 50 U.S.C. 436). See the chart on page 15: http://www.fas.org/sgp/crs/intel/RL33320.pdf http://www.fas.org/sgp/crs/intel/RL33320.pdf
- coreyja 13y agoThe chart of page 15 of the document you linked says a 50 USC 436 covers "all financial information relating to consenting, identified employee" but wasn't it used to obtain customer information from Verizon? What am I missing here? Is what the document is describing just one possible use case? Edit: typo
- raverbashing 13y agoWell, has this been tried in court? I wouldn't be surprised if this wasn't the case and yes, one part of the government makes you do it, and the other one sues you for it.
- sdoowpilihp 13y agoYou are correct that a company could be sued for other things, such as lying. My point is that a warrant canary _does_ disclose information; specifically through implication. I am sure that in a court of law, given that an implication made by a warrant canary is reasonably obvious, it could be argued that the party in question was indeed attempting to disclose information prohibited by the gag order, and as such, is in breach of the gag order.
- chii 13y agobut its a deniable form of disclosure - you could argue that the ISP is trying to adhere to the gag order by lying to the customer that there hasn't been any subpoenas. What the customer gets out of that lie is none of the concern of the ISP.
- sdoowpilihp 13y agoThere is an aspect of deniability though it's weak, especially with something that is both updated at regular time intervals, and was otherwise reliably updated. Maybe a better solution would be a system that generated an indicator with only a certain level of assurance that it is accurate, and have it err on the side of NOT giving false positives. This would have a built in level of deniability.
- btown 13y agoI wish it were as easy as that, but the thing is that there is always a human in the loop to design such a system, and that person does not have deniability. For instance, say that on days without subpoenas, bob@google flips a coin, and only updates the canary if it comes up heads. With a subpoena, he doesn't update the canary regardless of the coin flip. If I were a government prosecutor, I would simply subpoena bob@google and ask him under oath whether he ever disregarded the coin flip. Of course, this all assumes that this disclosure even comes to the government's attention. But that's a calculated risk any canary-user will take.
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- nostromo 13y agoFortunately, NSL gag orders themselves have not held up in a court of law either. http://www.wired.com/threatlevel/2013/03/nsl-found-unconstitutional http://www.wired.com/threatlevel/2013/03/nsl-found-unconstit...
- HistoryInAction 13y agoTwice: http://www.wired.com/threatlevel/2010/08/nsl-gag-order-lifted/ http://www.wired.com/threatlevel/2010/08/nsl-gag-order-lifte...
- johnpmayer 13y agoSay I'm a hosting company. I doubt that the authorities can compel me to lie to my customers in the form of not terminating the canary. Moreover, I think I have every right to choose to terminate any running process on my machine. The implications of the "canary understanding" between me and my customer should have no bearing on those fundamental facts.
- jlgreco 13y agoThis is the common sense position, but nothing about it being common sense prevents them from telling you to do otherwise. These are people that justify their system with the system that remains otherwise unjustified.
- rayiner 13y agoI don't see what's common sense about it. You're just trying to do something indirectly that you can't do directly (communicating the existence of the NSL). I bet there is even an information-theoretic way of equating the two courses of action.
- jlgreco 13y agoAs I see it: Compelled to be silent is one thing. Compelled to lie is another. To me, the notion that the second shouldn't be possible is common sense. I find it hard to express how little it surprises me that you do not share this perspective.
- rayiner 13y agoThe gag order prevents you from communicating the existence of the NSL. Whether you do so by e-mail or smoke signal or elaborate semaphore (the canary in the article) is irrelevant. The gag order doesn't compel you to lie, except to the extent you contrive to set up a situation where your only two choices are to lie or reveal the existence of the NSL. Not that I agree with gag orders attached to warrants, mind you. But saying that it's just "stopping a process running on my computer" not "communicating information" is just wrong from an information theoretic point of view. Lots of things can be used as a semaphore to communicate information. I bet in other contexts (say insider trading), you'd agree that it doesn't matter whether some CEO tipped off his buddy about insider information by carefully varying load on a server to modulate response times on a web page, thus communicating bits of information.
- milfot 13y agomaybe, maybe not point is, it is a very effective idea for civil disobedience
- sdoowpilihp 13y agoIt's effectiveness is not proven one way or another, as it has not been implemented by many people, or tested in a court of law. At best, it's a novel hack.
- milfot 13y agosure, wasn't saying it was.. and you just committed the same indiscretion. a hack is only a hack if it does something. let's say it is a potentially very effective idea for CIVIL DISOBEDIENCE.. emphasis due to you kind of missing the point - arguing about the legality of such a thing is pure misdirection imho
- patrickyeon 13y agoInstinctly, I would agree with you. As a counter-argument though, the gun industry has been able to pull off many legal hacks with similar spirit. See "bullet buttons", 80% lower receivers, or bump-firing attachments. These all got around the spirit of laws and are routinely done now. I don't see why the computer industry can't have their set of legal hacks.
- sdoowpilihp 13y agoThe difference is that this doesn't get around the "spirit of the law", but directly acts in breach of it. They are essentially creating a heart beat, and using a break in that heart beat to signal that a certain event has taken place. As best as I can tell, that is disclosing information.
- mokus 13y agoIf nothing else, a warrant canary would let you try an interesting defense. With the right participants, you can set things up so that if you receive an NSL then either: a) you are able to signal that you did, or b) they compel you to lie and you then can press a "free exercise of religion" defense (this is where the 'right participants' part comes in; you'd have to be able to ensure the only people with the power to update the canary are (1) people that the NSL cannot be hidden from and (2) members of a religion that forbids lying).
- Spooky23 13y agoSounds interesting, let us know how it works out.
- mokus 13y agoI'd love to have the opportunity to try it, but I'm not in a position where I'm likely to ever get an NSL in the first place.
- sdoowpilihp 13y agoYour second proposition would be fascinating to watch play out in the courts. If I had to make a guess, I would bet that ultimately, the individual would win out in what would probably go to the supreme court (at least in the US). By that time though, the NSL's would probably have served their purpose, and something else will have taken it's place.