7 ms·

I don't think canaries are effective. You can't get around a court order just by mental gymnastics, they'll hold you in contempt. I'd be happy to be proven wron

I don't think canaries are effective. You can't get around a court order just by mental gymnastics, they'll hold you in contempt. I'd be happy to be proven wrong, but I suspect that they'd simply order you to keep updating the canary.

kefs 13y ago
I'm also unsure of their proven effectiveness, but how could they hold you in contempt for _not_ taking an action?
- mikeash 13y ago
  I don't think it would be any different from holding you in contempt for doing something. The court notices that your inaction caused you to contravene a court order, and the court then holds you in contempt.
- Karunamon 13y ago
  I have the same question. It's very odd for a court to compel positive action.
  - freehunter 13y ago
    An order to appear is a positive action where you can be punished for not doing something.
- cschmidt 13y ago
  I'm sure they would argue that you weren't supposed to reveal that you were under an NSL, and that your inaction did reveal it, so you violated the terms. As the grandparent says, it probably just a cute legal trick that wouldn't impress a judge.
  - jlgreco 13y ago
    If it gets to the point that a judge is not impressed, at least the public has been warned.
    - IvyMike 13y ago
      The "judge is not impressed" means they would probably view it as the same as just warning the public directly, with equivalent penalties. And thus the canary is legally useless--if you're going to have the penalties of violating a national security order, might as well just do it in a straightforward manner.
      - jlgreco 13y ago
        At this point, it is speculation that the judge would not be impressed. If anyone decided to test the theory, the public would be informed regardless.
        jongraehl 13y ago
        I agree, but your analysis is missing something: the canary-threatener may be secretly, without a public ruling, within the refresh interval, be convinced that if he doesn't keep updating (falsely) the canary, he'll go to jail. In other words, the precommitment to stop producing the canary signal isn't fully credible (though it seems much more likely to get the message out than a promise to actively say if something happens).
        patrickmay 13y ago
        The technical solution to that social problem (yeah, we know how well those work) is to set the refresh interval to be less than the time required to process a motion contesting the government's order to update the canary.
    - deleted 13y ago
      [deleted]
  - Dylan16807 13y ago
    Maybe, but expecting a false oath makes a mockery of the entire testimonial system.
    - gte910h 13y ago
      Canaries always stunk of that juvenile "technically correct" stuff many tech people seem to grow out of later than others. If the judge says "don't paint your wall red" that means "or anything close by any means". It doesn't matter you tried to hack your way out with an automatic vermillion paint flinger setup before the order. You still are supposed to "make the wall not get painted red".
      - Dylan16807 13y ago
        The government can compel you to paint a wall green. They can't compel you to say you liked it. They especially can't compel you to break the law (assuming you set up some kind of situation where it's fraud/perjury/whatever to lie). And look at how email retention works.
        gte910h 13y ago
        >They especially can't compel you to break the law (assuming you set up some kind of situation where it's fraud/perjury/whatever to lie). They can most certainly hold you in contempt because you got your self in that mess. >look at how email retention works. Document retention policies are allowed because otherwise the civil court system would be prohibitively expensive (lawyers have to read all your email once you get sued basically). Once you get a court order that says to, you have to stop destroying email, etc, disabling your automated destruction systems. The only reason to have canaries is to violate the terms of gag orders. Judges aren't sympathetic to that.
        Dylan16807 13y ago
        Hold you in contempt for something you did years before the case was filed or the investigation even started? God, that's even worse than contempt of court for failing to say passwords under the fifth amendment. I'm pretty sure I have some truecrypt containers I've forgotten the passwords to, sure hope I never get arrested!
- jaggederest 13y ago
  Usually contempt of court is used for not taking an action. Examples would be in situations where the court was attempting to compel journalists to reveal their sources, and contempt of congress during the House Unamerican Activities era for not revealing information they wanted.
davorak 13y ago
This would imply that the court can order you to lie to your customers. I think this is not the case. If there is any precedence for any US court requiring public citizen to lie I definitely want to know about it. If the courts are acting like they have this power then it will greatly change my perception of how the courts, NSA, and congress are currently acting.
- rsync 13y ago
  Well, there is one last piece, and that is the geographically disparate canaries that we maintain. The question is not "can a US court compel XYZ US citizen to lie", it is "can a US court compel XYZ swiss citizen to lie". So you should take note, of course, if our warrant canary ceases to update. You should also take note if the US one updates but the swiss (or Hong Kong) one does not ... This is made easier as a local warrant canary is available to all account holders in their /tmp dir ... ssh username@rsync.net tail -200 /tmp/canary.txt Cheers!
- jaggederest 13y ago
  They have in the past - there are definitely situations where you are required to lie, for example, when working on classified materials or covert operations.
  - davorak 13y ago
    Slightly different, that is an operative agreeing to be an operative with up front knowledge of what it entails. So the person lying has agreed to lie before being given the information or a mission. If you know a case where a person has been prosecuted for not lying rather then breaking an agreement I would still be interested. I am not sure what I think about your scenario off the top of my head but I do consider it different.
  - Flenser 13y ago
    You could choose to take a job where you are required to lie, but no-one can force you to take such a job.

kefs 13y ago

I'm also unsure of their proven effectiveness, but how could they hold you in contempt for _not_ taking an action?

mikeash 13y ago
I don't think it would be any different from holding you in contempt for doing something. The court notices that your inaction caused you to contravene a court order, and the court then holds you in contempt.
Karunamon 13y ago
I have the same question. It's very odd for a court to compel positive action.
- freehunter 13y ago
  An order to appear is a positive action where you can be punished for not doing something.
cschmidt 13y ago
I'm sure they would argue that you weren't supposed to reveal that you were under an NSL, and that your inaction did reveal it, so you violated the terms. As the grandparent says, it probably just a cute legal trick that wouldn't impress a judge.
- jlgreco 13y ago
  If it gets to the point that a judge is not impressed, at least the public has been warned.
  - IvyMike 13y ago
    The "judge is not impressed" means they would probably view it as the same as just warning the public directly, with equivalent penalties. And thus the canary is legally useless--if you're going to have the penalties of violating a national security order, might as well just do it in a straightforward manner.
    - jlgreco 13y ago
      At this point, it is speculation that the judge would not be impressed. If anyone decided to test the theory, the public would be informed regardless.
      - jongraehl 13y ago
        I agree, but your analysis is missing something: the canary-threatener may be secretly, without a public ruling, within the refresh interval, be convinced that if he doesn't keep updating (falsely) the canary, he'll go to jail. In other words, the precommitment to stop producing the canary signal isn't fully credible (though it seems much more likely to get the message out than a promise to actively say if something happens).
        patrickmay 13y ago
        The technical solution to that social problem (yeah, we know how well those work) is to set the refresh interval to be less than the time required to process a motion contesting the government's order to update the canary.
  - deleted 13y ago
    [deleted]
- Dylan16807 13y ago
  Maybe, but expecting a false oath makes a mockery of the entire testimonial system.
  - gte910h 13y ago
    Canaries always stunk of that juvenile "technically correct" stuff many tech people seem to grow out of later than others. If the judge says "don't paint your wall red" that means "or anything close by any means". It doesn't matter you tried to hack your way out with an automatic vermillion paint flinger setup before the order. You still are supposed to "make the wall not get painted red".
    - Dylan16807 13y ago
      The government can compel you to paint a wall green. They can't compel you to say you liked it. They especially can't compel you to break the law (assuming you set up some kind of situation where it's fraud/perjury/whatever to lie). And look at how email retention works.
      - gte910h 13y ago
        >They especially can't compel you to break the law (assuming you set up some kind of situation where it's fraud/perjury/whatever to lie). They can most certainly hold you in contempt because you got your self in that mess. >look at how email retention works. Document retention policies are allowed because otherwise the civil court system would be prohibitively expensive (lawyers have to read all your email once you get sued basically). Once you get a court order that says to, you have to stop destroying email, etc, disabling your automated destruction systems. The only reason to have canaries is to violate the terms of gag orders. Judges aren't sympathetic to that.
        Dylan16807 13y ago
        Hold you in contempt for something you did years before the case was filed or the investigation even started? God, that's even worse than contempt of court for failing to say passwords under the fifth amendment. I'm pretty sure I have some truecrypt containers I've forgotten the passwords to, sure hope I never get arrested!
jaggederest 13y ago
Usually contempt of court is used for not taking an action. Examples would be in situations where the court was attempting to compel journalists to reveal their sources, and contempt of congress during the House Unamerican Activities era for not revealing information they wanted.

davorak 13y ago

This would imply that the court can order you to lie to your customers. I think this is not the case. If there is any precedence for any US court requiring public citizen to lie I definitely want to know about it. If the courts are acting like they have this power then it will greatly change my perception of how the courts, NSA, and congress are currently acting.

rsync 13y ago
Well, there is one last piece, and that is the geographically disparate canaries that we maintain. The question is not "can a US court compel XYZ US citizen to lie", it is "can a US court compel XYZ swiss citizen to lie". So you should take note, of course, if our warrant canary ceases to update. You should also take note if the US one updates but the swiss (or Hong Kong) one does not ... This is made easier as a local warrant canary is available to all account holders in their /tmp dir ... ssh username@rsync.net tail -200 /tmp/canary.txt Cheers!
jaggederest 13y ago
They have in the past - there are definitely situations where you are required to lie, for example, when working on classified materials or covert operations.
- davorak 13y ago
  Slightly different, that is an operative agreeing to be an operative with up front knowledge of what it entails. So the person lying has agreed to lie before being given the information or a mission. If you know a case where a person has been prosecuted for not lying rather then breaking an agreement I would still be interested. I am not sure what I think about your scenario off the top of my head but I do consider it different.
- Flenser 13y ago
  You could choose to take a job where you are required to lie, but no-one can force you to take such a job.