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> My not-a-lawyer read on the whole warrant canary thing is that it would never fly in front of a judge. [...] So warrant canaries, while seemingly clever, are

> My not-a-lawyer read on the whole warrant canary thing is that it would never fly in front of a judge. [...] So warrant canaries, while seemingly clever, are actually pretty much worthless. "Worthless" is a pretty strong statement: do you have anything at all to corroborate your speculation in an area which you admit you have no expertise?

CapitalistCartr 13y ago
While he has no expertise, neither does anyone else. NSLs are a Brave New World.
- haberman 13y ago
  That's exactly why it seems a bit premature to preemptively dismiss them as "worthless." There's a pretty interesting question here (IMO) of whether the court can compel a false statement, or whether they can exercise prior restraint on companies saying they haven't received a warrant.
  - jasallen 13y ago
    All the same defen admitted it was speculation and that he's not a lawyer, so, it's opinion. Perhaps his opinion is "worthless" too, but since he gave you his (lack of) credentials you can judge for yourself. I get so tired of the "you need to quote sources" in simple commentary.
    - haberman 13y ago
      The latter part of what I quoted wasn't phrased as speculation, which was what irked me. But the fact that OP has heard this opinion expressed by lawyers certainly makes the comment more interesting.
  - Spooky23 13y ago
    There's another, more practical question. Does the canary-wielding party have the resources to fight the matter to conclusion. If there's no known caselaw, you're going to have to litigate with the US government over this issue. That's an uphill battle that is exhausting, outrageously expensive and fraught with risks to both the company and the principals. And guess what? Lets say you win this epic battle after spending lots of money and many months of your time. Everything that you've done was done in a secret court and will be unknown to the world. Your attorneys get a big check, and you get a pyrrhic victory that you cannot tell anyone about.
- gabrielrotbart 13y ago
  Very clever. To respond to above. An approach would be to conduct an ROI analysis for Apple to lie. For example: Goodwill for seeming to 'fight for the little guy' vs. cost of exposure.
javert 13y ago
" In other words, anyone with two brain cells can see that, if there has in fact been a 215 order by the time the next report rolls around, then deliberately removing the warrant canary language is tantamount to revealing the order's existence, which is illegal."
- masklinn 13y ago
  Assume each report is created from scratch, not adding the canary language is different from removing them.
jeremyjh 13y ago
Confirmed. Source: I have two brain cells.
defen 13y ago
> do you have anything at all to corroborate your speculation in an area which you admit you have no expertise? No. I've talked to lawyers in a non-client capacity and they all agreed that taking down a warrant canary after receiving a NSL would probably be viewed as equivalent to a straightforward disclosure, since you deliberately put yourself in that situation. There is no relevant case law that I am aware of.
- arrrg 13y ago
  But Apple has nothing to take down, no webpage or PDF document to take offline. This canary would work by not including the current language in the next report, not altering the current one. To me (also not a lawyer) that seems quite different from taking down an existing notice. It’s not as clear as an explicit sign (in whatever form) being taken down. The interpretation is much more difficult and vague (also to observers like us who would be the target audience for such a canary): Did they just forget to include this language this year or did they actually receive a request? It also requires actively doing something (including the language in the new report) instead of doing nothing (not taking down the sign). This is very vague as you can see by the many people here doubting that this is a canary at all. If it is indeed one this might afford it legality.
- jlgreco 13y ago
  I can think of a example of canaries working in practice (I am not sure if they were ever challenged, but they weren't successfully challenged at least). Also, the example is from the UK: In the early part of the 20th century, the Automobile Association (the "AA") would send 'scouts' out to find speedtraps and warn motorists to slow down before arriving at them. Within a few years cops got fed up of not catching speeders, it was decided in the courts that warning people about speedtraps was an obstruction of justice, and therefore illegal. So that put an end to that game, right? Nope. The AA developed a new technique. Their scouts would salute all passing cars at all times... unless something was wrong. If the AA scout didn't salute you, you knew there was a speedtrap. The theory here was that the law could not compel an AA scout to salute motorists. This worked for about 50 years, until the practice of warning motorists of speed traps (or perhaps rather, not signaling to them an absence of speed traps...) was discontinued for road safety reasons (basically they decided that speeding wasn't a brilliant idea). http://www.theaa.com/aboutaa/history.html http://www.theaa.com/aboutaa/history.html http://en.wikipedia.org/wiki/The_Automobile_Association#History http://en.wikipedia.org/wiki/The_Automobile_Association#Hist... So basically, while "Judges don't take kindly to tricks" does make a certain amount of intuitive cynical sense, if we remove computers from the equation (our intuition on morality/ethics seems inconsistent when computers are involved for some reason), does it seem reasonable that a judge might compel a free civilian in a free society to salute? Of course not.
spiritplumber 13y ago
I'm pretty sure that a government can compel you to be silent, but not to outright lie.
- Intermernet 13y ago
  “I responded in what I thought was the most truthful, or least untruthful manner, by saying no,”
  - emn13 13y ago
    But how much of that was due to the speaker, and how much actually coerced?

CapitalistCartr 13y ago

While he has no expertise, neither does anyone else. NSLs are a Brave New World.

haberman 13y ago
That's exactly why it seems a bit premature to preemptively dismiss them as "worthless." There's a pretty interesting question here (IMO) of whether the court can compel a false statement, or whether they can exercise prior restraint on companies saying they haven't received a warrant.
- jasallen 13y ago
  All the same defen admitted it was speculation and that he's not a lawyer, so, it's opinion. Perhaps his opinion is "worthless" too, but since he gave you his (lack of) credentials you can judge for yourself. I get so tired of the "you need to quote sources" in simple commentary.
  - haberman 13y ago
    The latter part of what I quoted wasn't phrased as speculation, which was what irked me. But the fact that OP has heard this opinion expressed by lawyers certainly makes the comment more interesting.
- Spooky23 13y ago
  There's another, more practical question. Does the canary-wielding party have the resources to fight the matter to conclusion. If there's no known caselaw, you're going to have to litigate with the US government over this issue. That's an uphill battle that is exhausting, outrageously expensive and fraught with risks to both the company and the principals. And guess what? Lets say you win this epic battle after spending lots of money and many months of your time. Everything that you've done was done in a secret court and will be unknown to the world. Your attorneys get a big check, and you get a pyrrhic victory that you cannot tell anyone about.
gabrielrotbart 13y ago
Very clever. To respond to above. An approach would be to conduct an ROI analysis for Apple to lie. For example: Goodwill for seeming to 'fight for the little guy' vs. cost of exposure.

javert 13y ago

" In other words, anyone with two brain cells can see that, if there has in fact been a 215 order by the time the next report rolls around, then deliberately removing the warrant canary language is tantamount to revealing the order's existence, which is illegal."

masklinn 13y ago
Assume each report is created from scratch, not adding the canary language is different from removing them.

jeremyjh 13y ago

Confirmed. Source: I have two brain cells.

defen 13y ago

> do you have anything at all to corroborate your speculation in an area which you admit you have no expertise? No. I've talked to lawyers in a non-client capacity and they all agreed that taking down a warrant canary after receiving a NSL would probably be viewed as equivalent to a straightforward disclosure, since you deliberately put yourself in that situation. There is no relevant case law that I am aware of.

arrrg 13y ago
But Apple has nothing to take down, no webpage or PDF document to take offline. This canary would work by not including the current language in the next report, not altering the current one. To me (also not a lawyer) that seems quite different from taking down an existing notice. It’s not as clear as an explicit sign (in whatever form) being taken down. The interpretation is much more difficult and vague (also to observers like us who would be the target audience for such a canary): Did they just forget to include this language this year or did they actually receive a request? It also requires actively doing something (including the language in the new report) instead of doing nothing (not taking down the sign). This is very vague as you can see by the many people here doubting that this is a canary at all. If it is indeed one this might afford it legality.
jlgreco 13y ago
I can think of a example of canaries working in practice (I am not sure if they were ever challenged, but they weren't successfully challenged at least). Also, the example is from the UK: In the early part of the 20th century, the Automobile Association (the "AA") would send 'scouts' out to find speedtraps and warn motorists to slow down before arriving at them. Within a few years cops got fed up of not catching speeders, it was decided in the courts that warning people about speedtraps was an obstruction of justice, and therefore illegal. So that put an end to that game, right? Nope. The AA developed a new technique. Their scouts would salute all passing cars at all times... unless something was wrong. If the AA scout didn't salute you, you knew there was a speedtrap. The theory here was that the law could not compel an AA scout to salute motorists. This worked for about 50 years, until the practice of warning motorists of speed traps (or perhaps rather, not signaling to them an absence of speed traps...) was discontinued for road safety reasons (basically they decided that speeding wasn't a brilliant idea). http://www.theaa.com/aboutaa/history.html http://www.theaa.com/aboutaa/history.html http://en.wikipedia.org/wiki/The_Automobile_Association#History http://en.wikipedia.org/wiki/The_Automobile_Association#Hist... So basically, while "Judges don't take kindly to tricks" does make a certain amount of intuitive cynical sense, if we remove computers from the equation (our intuition on morality/ethics seems inconsistent when computers are involved for some reason), does it seem reasonable that a judge might compel a free civilian in a free society to salute? Of course not.

spiritplumber 13y ago

I'm pretty sure that a government can compel you to be silent, but not to outright lie.

Intermernet 13y ago
“I responded in what I thought was the most truthful, or least untruthful manner, by saying no,”
- emn13 13y ago
  But how much of that was due to the speaker, and how much actually coerced?