5 ms·

Couldn't the government make an argument that intentional removal of this language would be tantamount to violating the "gag order?" Would Apple be liable for l

by xbryanx 13y ago

Couldn't the government make an argument that intentional removal of this language would be tantamount to violating the "gag order?" Would Apple be liable for lying about something that no one would ever know is a lie?

encoderer 13y ago
Anybody can make any argument they like. But while IANAL, that sounds like a tough sell to me.
- dredwerker 13y ago
  IANAL either but now its publicised, I suspect they would be knowingly violating or at the very least they could be accused of it.
Tomdarkness 13y ago
Would not perusing it be an admission that they did in fact subject Apple to some kind of gag order?
- deleted 13y ago
  [deleted]
  - eli 13y ago
    Lavabit wasn't a secret court, nor was the case kept closed for 15 years.
baddox 13y ago
Better yet, the government could just force Apple to continue claiming that they've never received a report.
kneisley 13y ago
I'm pretty sure the government can, and would, even go a step further and order that the language be left in the next filing, and even arrange written (and of course sealed) immunity for doing so. I certainly can't imagine that SEC reporting will ever be an effective roadblock to what the government considers national security.
- jahewson 13y ago
  True, but the government would at least have to go to a judge to get such an order, which is not guaranteed to be granted. We can hope...
  - kneisley 13y ago
    The normal IANAL applies, but I think that once the gag order has been granted, the rest is just details, and is left to FISA as the presiding court. If the argument that the court has agreed with thusfar is: "saying that this action exists harms national security", then why would a judge tell them that when asked directly, they must lie, but then permit them to not lie by omitting a key line in a filing? To answer your specific point, I just don't think there is another court to take this to.
simmons 13y ago
It's quite possible that a judge might conclude that a warrant canary violates the spirit of a gag order. But I suppose there's only one way to find out.
brudgers 13y ago
I think about the flip side. I don't think Apple executives or those of any other company would be liable if a "canary" was false. Not trying to "the true messiah denies his divinity" the discussion, but the statement is entirely consistent with a state of affairs where Apple had been served with or complied with warrants. And as in a state where they had not, publishing a "canary" is good public relations.
mokus 13y ago
Perhaps they're taking a calculated risk that the government wouldn't risk picking that public-opinion fight. Not many consumers care about the LavaBit story, but "Apple exec arrested for violating secret gag order" would be quite the news event.
- alexeisadeski3 13y ago
  That's a pretty hefty risk!
- DerpDerpDerp 13y ago
  How'd fighting for the constitution work out for Qwest?
  - sbarre 13y ago
    Qwest doesn't make magical devices you all love
    - tedunangst 13y ago
      Also, Apple's profit margin isn't entirely dependent on winning a big government contract next year.
  - IBM 13y ago
    Joseph Nacchio was convicted of insider trading.
    - chris_mahan 13y ago
      Likewise an Apple executive could be charged and convicted of insider trading.
      - IBM 13y ago
        Only if they actually did insider trading, like Joseph did.
rsync 13y ago
This is one of the reasons that our warrant canary[1] is distributed to all of our storage arrays, some of which are in foreign countries (Switzerland and Hong Kong, namely). Then the question changes, and becomes: "can the US government compel a swiss national to make false statements". From 2006 to 2010 we simply had the canary on our web page, hosted in the US - but from 2010 onward we had it there, as well as in the /tmp directory on customer filesystems. [1] http://www.rsync.net/resources/notices/canary.txt http://www.rsync.net/resources/notices/canary.txt
- balabaster 13y ago
  > "can the US government compel a swiss national to make false statements" I don't think anyone can compel Switzerland to do anything. They've been militarily neutral since as long as I can remember and if Wikipedia be believed, every male in the country has military training. I'd say there's very little the U.S. (or anyone else for that matter) could do to compel them to do anything. Especially being as if the U.S. wanted to do anything more than issue a stiffly worded letter, they'd bring the entire wrath of Europe crashing down on their heads... which may or may not include a number of their greatest allies. That wouldn't be very bright politically.
  - wutbrodo 13y ago
    "a swiss national" does not mean "the swiss national government", it means a citizen of Switzerland. Nobody is talking about invading Switzerland to force the government to do something they're vehemently opposed to; they're talking about cooperating with the Swiss government to compel a swiss national to do something. Whether or not this is feasible in this case is another question, but I have no idea how you suddenly flew off into a fantasy world of conjecture about the US considering an invasion of Switzerland. As an example more in line with what the parent comment was describing, just look at what's happened to Swiss banking. Their reputation as a reliable tax haven has been horribly shaken by the US DoJ's pursuit of banks engaging in this kind of activity, and this was done with the cooperation of the Swiss government. This is the kind of compulsion that is being discussed here; compulsion with the express cooperation of the foreign government (even if this cooperation was gained through the application of diplomatic pressure).
hannibal5 13y ago
The court will take into account intention. If it can be shown that the wording was intentionally selected to work as warrant canary, it can be seen as violation of gag order.
balabaster 13y ago
I'm not a lawyer, so take everything I've got to say with a grain of salt, but I can't see why people don't just ignore gag orders as they're a clear and complete violation of your first amendment rights which "...prohibit[s] the making of any law...abridging the freedom of speech, infringing on the freedom of the press..." Thus, near as I can tell, the gag order is categorically illegal - a law which abridges your freedom of speech. Surely that's gotta stand up in court? Or what good is the Constitution? If the Constitution cannot guarantee that which it was written to guarantee, then what's the point in having it? Lest we forget the part of the Presidential oath "...and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." So the President is bound to protect the Constitution... There's no part of the Presidential oath which binds the President to protect the law. Which tacitly implies that the Constitution is more important than the law. So theoretically (actual consequences not withstanding), if you were to ignore a gag order, the President himself should stand next to you in court to guarantee your first amendment rights to freedom of speech and have the gag order thrown out as a violation of the Constitution.
- csense 13y ago
  > abridging the freedom of speech The freedom of speech isn't absolute. For example, you can get arrested for shouting "Fire!" in a crowded movie theater. > I can't see why people don't just ignore gag orders Because people don't think it's worth the consequences. Which might include: Going to jail, financially ruinous fines and/or legal expenses, company being forced out of business which destroys your workers' livelihoods and shareholder value, being sued by shareholders for breaching "fiduciary duty" (making decisions that are blatantly bad for the company). My guess is that, for a lot of people, the potential reward doesn't justify the stakes.
- Anechoic 13y ago
  Thus, near as I can tell, the gag order is categorically illegal - a law which abridges your freedom of speech. Freedom of speech is not absolute, as demonstrated by any number of SCOTUS rulings, with defamation, obscenity and incitement being the more notable exceptions.
- objclxt 13y ago
jlgreco 13y ago
In the case of the rsync canary, compelling rsync to not remove the canary would not be sufficient. They would also need to compel rsync to periodically replace the existing canary with a new one.
rsynnott 13y ago
It could make that argument, in court. It probably does not want to go to court over this with the world's most media-covered company, though.
masklinn 13y ago
Since this is a yearly transparency report, they don't have to remove anything from previous/existing report and can argue each report is created from scratch. The issue then becomes: can the government compel you to add lies to a document you're crafting?

by xbryanx 13y ago

encoderer 13y ago

Anybody can make any argument they like. But while IANAL, that sounds like a tough sell to me.

dredwerker 13y ago
IANAL either but now its publicised, I suspect they would be knowingly violating or at the very least they could be accused of it.

Tomdarkness 13y ago

Would not perusing it be an admission that they did in fact subject Apple to some kind of gag order?

deleted 13y ago
[deleted]
- eli 13y ago
  Lavabit wasn't a secret court, nor was the case kept closed for 15 years.

baddox 13y ago

Better yet, the government could just force Apple to continue claiming that they've never received a report.

kneisley 13y ago

I'm pretty sure the government can, and would, even go a step further and order that the language be left in the next filing, and even arrange written (and of course sealed) immunity for doing so. I certainly can't imagine that SEC reporting will ever be an effective roadblock to what the government considers national security.

jahewson 13y ago
True, but the government would at least have to go to a judge to get such an order, which is not guaranteed to be granted. We can hope...
- kneisley 13y ago
  The normal IANAL applies, but I think that once the gag order has been granted, the rest is just details, and is left to FISA as the presiding court. If the argument that the court has agreed with thusfar is: "saying that this action exists harms national security", then why would a judge tell them that when asked directly, they must lie, but then permit them to not lie by omitting a key line in a filing? To answer your specific point, I just don't think there is another court to take this to.

simmons 13y ago

It's quite possible that a judge might conclude that a warrant canary violates the spirit of a gag order. But I suppose there's only one way to find out.

brudgers 13y ago

I think about the flip side. I don't think Apple executives or those of any other company would be liable if a "canary" was false. Not trying to "the true messiah denies his divinity" the discussion, but the statement is entirely consistent with a state of affairs where Apple had been served with or complied with warrants. And as in a state where they had not, publishing a "canary" is good public relations.

mokus 13y ago

Perhaps they're taking a calculated risk that the government wouldn't risk picking that public-opinion fight. Not many consumers care about the LavaBit story, but "Apple exec arrested for violating secret gag order" would be quite the news event.

alexeisadeski3 13y ago
That's a pretty hefty risk!
DerpDerpDerp 13y ago
How'd fighting for the constitution work out for Qwest?
- sbarre 13y ago
  Qwest doesn't make magical devices you all love
  - tedunangst 13y ago
    Also, Apple's profit margin isn't entirely dependent on winning a big government contract next year.
- IBM 13y ago
  Joseph Nacchio was convicted of insider trading.
  - chris_mahan 13y ago
    Likewise an Apple executive could be charged and convicted of insider trading.
    - IBM 13y ago
      Only if they actually did insider trading, like Joseph did.

rsync 13y ago

This is one of the reasons that our warrant canary[1] is distributed to all of our storage arrays, some of which are in foreign countries (Switzerland and Hong Kong, namely). Then the question changes, and becomes: "can the US government compel a swiss national to make false statements". From 2006 to 2010 we simply had the canary on our web page, hosted in the US - but from 2010 onward we had it there, as well as in the /tmp directory on customer filesystems. [1] http://www.rsync.net/resources/notices/canary.txt http://www.rsync.net/resources/notices/canary.txt

balabaster 13y ago
> "can the US government compel a swiss national to make false statements" I don't think anyone can compel Switzerland to do anything. They've been militarily neutral since as long as I can remember and if Wikipedia be believed, every male in the country has military training. I'd say there's very little the U.S. (or anyone else for that matter) could do to compel them to do anything. Especially being as if the U.S. wanted to do anything more than issue a stiffly worded letter, they'd bring the entire wrath of Europe crashing down on their heads... which may or may not include a number of their greatest allies. That wouldn't be very bright politically.
- wutbrodo 13y ago
  "a swiss national" does not mean "the swiss national government", it means a citizen of Switzerland. Nobody is talking about invading Switzerland to force the government to do something they're vehemently opposed to; they're talking about cooperating with the Swiss government to compel a swiss national to do something. Whether or not this is feasible in this case is another question, but I have no idea how you suddenly flew off into a fantasy world of conjecture about the US considering an invasion of Switzerland. As an example more in line with what the parent comment was describing, just look at what's happened to Swiss banking. Their reputation as a reliable tax haven has been horribly shaken by the US DoJ's pursuit of banks engaging in this kind of activity, and this was done with the cooperation of the Swiss government. This is the kind of compulsion that is being discussed here; compulsion with the express cooperation of the foreign government (even if this cooperation was gained through the application of diplomatic pressure).

hannibal5 13y ago

The court will take into account intention. If it can be shown that the wording was intentionally selected to work as warrant canary, it can be seen as violation of gag order.

balabaster 13y ago

I'm not a lawyer, so take everything I've got to say with a grain of salt, but I can't see why people don't just ignore gag orders as they're a clear and complete violation of your first amendment rights which "...prohibit[s] the making of any law...abridging the freedom of speech, infringing on the freedom of the press..." Thus, near as I can tell, the gag order is categorically illegal - a law which abridges your freedom of speech. Surely that's gotta stand up in court? Or what good is the Constitution? If the Constitution cannot guarantee that which it was written to guarantee, then what's the point in having it? Lest we forget the part of the Presidential oath "...and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." So the President is bound to protect the Constitution... There's no part of the Presidential oath which binds the President to protect the law. Which tacitly implies that the Constitution is more important than the law. So theoretically (actual consequences not withstanding), if you were to ignore a gag order, the President himself should stand next to you in court to guarantee your first amendment rights to freedom of speech and have the gag order thrown out as a violation of the Constitution.

csense 13y ago
> abridging the freedom of speech The freedom of speech isn't absolute. For example, you can get arrested for shouting "Fire!" in a crowded movie theater. > I can't see why people don't just ignore gag orders Because people don't think it's worth the consequences. Which might include: Going to jail, financially ruinous fines and/or legal expenses, company being forced out of business which destroys your workers' livelihoods and shareholder value, being sued by shareholders for breaching "fiduciary duty" (making decisions that are blatantly bad for the company). My guess is that, for a lot of people, the potential reward doesn't justify the stakes.
Anechoic 13y ago
Thus, near as I can tell, the gag order is categorically illegal - a law which abridges your freedom of speech. Freedom of speech is not absolute, as demonstrated by any number of SCOTUS rulings, with defamation, obscenity and incitement being the more notable exceptions.
objclxt 13y ago

jlgreco 13y ago

In the case of the rsync canary, compelling rsync to not remove the canary would not be sufficient. They would also need to compel rsync to periodically replace the existing canary with a new one.

rsynnott 13y ago

It could make that argument, in court. It probably does not want to go to court over this with the world's most media-covered company, though.

masklinn 13y ago

Since this is a yearly transparency report, they don't have to remove anything from previous/existing report and can argue each report is created from scratch. The issue then becomes: can the government compel you to add lies to a document you're crafting?