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https://github.com/WhisperSystems/whispersystems.org/issues/34#issuecomment-49910725 https://github.com/WhisperSystems/whispersystems.org/issues/... Moxie sayi

https://github.com/WhisperSystems/whispersystems.org/issues/34#issuecomment-49910725 https://github.com/WhisperSystems/whispersystems.org/issues/... Moxie saying "Every lawyer we've spoken to has confirmed that [having a warrant canary] would not work." Which isn't surprising. When the government tells you not to communicate something, you aren't allowed to communicate it. Not not not not communicating it isn't some clever loophole.

nacs 12y ago
In that same issue you linked, there's a link to the EFF's Warrant Canary FAQ ( https://www.eff.org/deeplinks/2014/04/warrant-canary-faq https://www.eff.org/deeplinks/2014/04/warrant-canary-faq ) that disagrees with what Moxie/WhisperSystems is saying. I'd take the EFF's word over WhisperSystems'.
- danielweber 12y ago
  Note that WhisperSystems is actually concerned with the legality, because it's their own necks on the line, and they don't want to put their own neck on the line for something that their own legal counsel says won't work. While the EFF is . . . well, they don't promise to bail you out of jail and pay all your court costs and go to jail for you. The EFF is an advocacy organization, begging people to believe in magic beans, by telling everyone that magic beans work. If one of them does and finds out it doesn't work, what is the EFF going to do then? Say "I'm sorry" really nicely? The hired lawyers' viewpoint is easy to see. If the government orders you not to communicate something, then you aren't supposed to communicate that information. Doing it in a really roundabout way is still communicating it.
  - atmosx 12y ago
    That's a little bit playing with words but if next year same day, this post doesn't re-appear on Reddit then automatically: * They don't communicate anything to users * Users understand a gag-order was issued * They didn't break any laws To an interested party, a hint such as this, should be enough to act as an alarm. On the other hand if they force the party in some way to release a statement then I guess the users are toasted.
    - danielweber 12y ago
      * Users understand a gag-order was issued Right there? Communication happened. All these attempts to say "well, I'm not really communicating" are just flopping on the beach. You have information, and because of your action, a third-party now has that information. We'd call that communication any day of the week.
      - atmosx 12y ago
        If non-communiticating is taken as actually communicating you are correct. However proving that this is the case in court IMHO is not easy.
        Sharlin 12y ago
        Non-communicating would mean never actually having include the clause in the first place. Having it and then abruptly removing it, in this case, is pretty clearly communicating something. Or, in signal processing terms: ______________ |______________ information---^
  - 300bps 12y ago
    To me the problem is that a warrant canary could theoretically be completely legal, but the government could bankrupt you with legal fees before you even got to court. That is probably what WhisperSystem's attorneys have advised them.
    - duaneb 12y ago
      This makes more sense—being held in contempt of court is not in itself a ruling (i.e. canary warrants are not in themselves illegal, but disobeying the court is), and is extremely difficult to fight.
  - topynate 12y ago
    Luckily USG has issued a menu of two permitted disclosure options: http://www.justice.gov/iso/opa/resources/366201412716018407143.pdf http://www.justice.gov/iso/opa/resources/3662014127160184071... It would be a tough case to make that switching to an explicitly government-permitted method of disclosure was a violation of an order.
    - teraflop 12y ago
      If I'm reading that correctly, you're not allowed to say that you haven't received any NSLs. The best you can do is to say that you've received fewer than 250.
      - topynate 12y ago
        Exactly. And if reddit's next transparency report says that they've received 0-249 NSL/FISA notices, they'll be well within the bounds of the Deputy A.G.'s letter.
        danielweber 12y ago
        If you are saying "they can use this as the side-channel to communicate that they've actually gotten an NSL", then you've failed. By establishing that this is something that they are using to communicate information, it's clearly a method to communicate information. It's true that reddit could change to that new format. However, if they are using the change to that new format to communicate information, then they are sunk. This is the real conundrum: 1. if It Is Known that this is how reddit will communicate an NSL, then it's clearly communication 2. if it's not known, then this isn't a good way for reddit to tell its users that they got an NSL.
        topynate 12y ago
        What I'm saying is the following: In the eyes of a court, either it's reasonable to infer that a disclosure notice compliant with the Dep. A.G. letter is a sign of having received a NSL, or it isn't. If it isn't, then the court can have no objection to such a notice. If it is reasonable to make that inference, then the Dep A.G. letter amounts to a formal authorization from USG to issue a document permitting that inference. In the eyes of the internet at large, a 0-249 notice never actually means 0 – by the Gricean maxim of quantity, if a range is given then it can be assumed that it was necessary that a range be given.
  - emmab 12y ago
    The EFF doesn't suggest actually using the warranty canary without court approval: > What should an ISP do if the warrant canary is triggered? > If an ISP with a warrant canary receives gagged legal process, it should obtain legal counsel and go to a court for a determination that it cannot be required to publish false information. While some ISPs may be tempted to engage in civil disobedience, EFF believes that it is better to present the issue to a court, to help establish a precedent. If you run an ISP with a warrant canary and receive gagged legal process, contact info@eff.org if you would like help finding counsel.
    - aw3c2 12y ago
      What's the warrenty canary worth then? You have no way of knowing if it was triggered or silently ignored.
duaneb 12y ago
Wouldn't this essentially translate to the government forcing the company to mislead the public? This is different from forcing the company to be silent—that is perhaps understandable. But I would love to understand the rationale behind the government forcing a company to post a false notice with no benefit to anyone but the government itself.
- danielweber 12y ago
  Saying "the government is forcing me to lie!" is ignoring your agency is establishing the canary.
- jsprogrammer 12y ago
  >This is different from forcing the company to be silent—that is perhaps understandable. How is this understandable? The US constitution prohibits it.
click170 12y ago
Instead of not communicating it. What if you block people from viewing something else as a consequence of receiving a request. Eg there is a public mailbox folder that can be checked by anyone online and there is an email filter that directs all mail with keywords typically found in requests to that folder. When a request is received you would of course be forced to block access to the mailbox as soon as you were aware of the takedown, but losing the ability to check that the mailbox is clean is the warrant canary. There would always be a small window between when the email arrived and was visible and when the company saw the request and blocked access.
- danielweber 12y ago
  Okay, I'm getting this pattern by people who want to make warrant canaries work: 1. You receive warrant you aren't allowed to tell friend about. 2. ??? 3. Friend now knows you got a warrant! How clever! It doesn't matter what stuff you cram into #2. I'm sure you want to talk to the court at great length about how #2 means you didn't communicate. Courts have dealt with this nonsense for a long time. It's called "distinction without a difference."
  - jsprogrammer 12y ago
    What if you stuff the first amendment to the US constitution in there? It's only one sentence, and very blunt: >Congress shall make no law...abridging the freedom of speech, or of the press...
    - s_kilk 12y ago
      It should be evident by now that that one sentence is effectively meaningless in the US.
      - jsprogrammer 12y ago
        Has it been tested in court in relation to NSLs?
ikeboy 12y ago
Apple disagrees. http://www.zdnet.com/article/apple-omits-warrant-canary-from-latest-transparency-reports-patriot-act-data-demands-likely-made/ http://www.zdnet.com/article/apple-omits-warrant-canary-from... And I think they have at least one lawyer.
- danielweber 12y ago
  Here's what you know: Apple used to have a warrant canary, and now doesn't. I could put a warrant canary on my website, and then remove it. What does that prove?
Angostura 12y ago
How does the government prove that you're communicating something when you've never explicitly said 'this is a warranty canary, it's ommission next year means that something is up'. Take Apple. It had something that was assumed to be a warranty canary. It's no longer there. People made assumptions. Has Apple done anything wrong?
- danielweber 12y ago
  prove that you're communicating something when you've never explicitly said Because courts aren't that dumb. Blackmail is illegal, too, and frequently the person demanding blackmail doesn't explicitly say "give me money or I publish this evidence." (It's legal to publish information, and it's legal to get paid not to publish it, but it's illegal to demand money not to publish it.) I don't know what happened with Apple.
Lawtonfogle 12y ago
If they act in such a way that they must continue to act the same way to prevent knowledge from being transferred then I could see the courts ruling they must continue to act in such a way even if it would involve lying. The only ways around this is for the information that a warrant was received to be sent before it is received (to give an example that doesn't violate causality, a person stream 100% of everything they see/hear, so that between the time of receiving such a warrant and realizing what the warrant actually is the information that it has been received was already sent out). And even then I see the courts ruling against them because the courts will argue the spirit of the law was violated.

nacs 12y ago

In that same issue you linked, there's a link to the EFF's Warrant Canary FAQ ( https://www.eff.org/deeplinks/2014/04/warrant-canary-faq https://www.eff.org/deeplinks/2014/04/warrant-canary-faq ) that disagrees with what Moxie/WhisperSystems is saying. I'd take the EFF's word over WhisperSystems'.

danielweber 12y ago
Note that WhisperSystems is actually concerned with the legality, because it's their own necks on the line, and they don't want to put their own neck on the line for something that their own legal counsel says won't work. While the EFF is . . . well, they don't promise to bail you out of jail and pay all your court costs and go to jail for you. The EFF is an advocacy organization, begging people to believe in magic beans, by telling everyone that magic beans work. If one of them does and finds out it doesn't work, what is the EFF going to do then? Say "I'm sorry" really nicely? The hired lawyers' viewpoint is easy to see. If the government orders you not to communicate something, then you aren't supposed to communicate that information. Doing it in a really roundabout way is still communicating it.
- atmosx 12y ago
  That's a little bit playing with words but if next year same day, this post doesn't re-appear on Reddit then automatically: * They don't communicate anything to users * Users understand a gag-order was issued * They didn't break any laws To an interested party, a hint such as this, should be enough to act as an alarm. On the other hand if they force the party in some way to release a statement then I guess the users are toasted.
  - danielweber 12y ago
    * Users understand a gag-order was issued Right there? Communication happened. All these attempts to say "well, I'm not really communicating" are just flopping on the beach. You have information, and because of your action, a third-party now has that information. We'd call that communication any day of the week.
    - atmosx 12y ago
      If non-communiticating is taken as actually communicating you are correct. However proving that this is the case in court IMHO is not easy.
      - Sharlin 12y ago
        Non-communicating would mean never actually having include the clause in the first place. Having it and then abruptly removing it, in this case, is pretty clearly communicating something. Or, in signal processing terms: ______________ |______________ information---^
- 300bps 12y ago
  To me the problem is that a warrant canary could theoretically be completely legal, but the government could bankrupt you with legal fees before you even got to court. That is probably what WhisperSystem's attorneys have advised them.
  - duaneb 12y ago
    This makes more sense—being held in contempt of court is not in itself a ruling (i.e. canary warrants are not in themselves illegal, but disobeying the court is), and is extremely difficult to fight.
- topynate 12y ago
  Luckily USG has issued a menu of two permitted disclosure options: http://www.justice.gov/iso/opa/resources/366201412716018407143.pdf http://www.justice.gov/iso/opa/resources/3662014127160184071... It would be a tough case to make that switching to an explicitly government-permitted method of disclosure was a violation of an order.
  - teraflop 12y ago
    If I'm reading that correctly, you're not allowed to say that you haven't received any NSLs. The best you can do is to say that you've received fewer than 250.
    - topynate 12y ago
      Exactly. And if reddit's next transparency report says that they've received 0-249 NSL/FISA notices, they'll be well within the bounds of the Deputy A.G.'s letter.
      - danielweber 12y ago
        If you are saying "they can use this as the side-channel to communicate that they've actually gotten an NSL", then you've failed. By establishing that this is something that they are using to communicate information, it's clearly a method to communicate information. It's true that reddit could change to that new format. However, if they are using the change to that new format to communicate information, then they are sunk. This is the real conundrum: 1. if It Is Known that this is how reddit will communicate an NSL, then it's clearly communication 2. if it's not known, then this isn't a good way for reddit to tell its users that they got an NSL.
        topynate 12y ago
        What I'm saying is the following: In the eyes of a court, either it's reasonable to infer that a disclosure notice compliant with the Dep. A.G. letter is a sign of having received a NSL, or it isn't. If it isn't, then the court can have no objection to such a notice. If it is reasonable to make that inference, then the Dep A.G. letter amounts to a formal authorization from USG to issue a document permitting that inference. In the eyes of the internet at large, a 0-249 notice never actually means 0 – by the Gricean maxim of quantity, if a range is given then it can be assumed that it was necessary that a range be given.
- emmab 12y ago
  The EFF doesn't suggest actually using the warranty canary without court approval: > What should an ISP do if the warrant canary is triggered? > If an ISP with a warrant canary receives gagged legal process, it should obtain legal counsel and go to a court for a determination that it cannot be required to publish false information. While some ISPs may be tempted to engage in civil disobedience, EFF believes that it is better to present the issue to a court, to help establish a precedent. If you run an ISP with a warrant canary and receive gagged legal process, contact info@eff.org if you would like help finding counsel.
  - aw3c2 12y ago
    What's the warrenty canary worth then? You have no way of knowing if it was triggered or silently ignored.

duaneb 12y ago

Wouldn't this essentially translate to the government forcing the company to mislead the public? This is different from forcing the company to be silent—that is perhaps understandable. But I would love to understand the rationale behind the government forcing a company to post a false notice with no benefit to anyone but the government itself.

danielweber 12y ago
Saying "the government is forcing me to lie!" is ignoring your agency is establishing the canary.
jsprogrammer 12y ago
>This is different from forcing the company to be silent—that is perhaps understandable. How is this understandable? The US constitution prohibits it.

click170 12y ago

Instead of not communicating it. What if you block people from viewing something else as a consequence of receiving a request. Eg there is a public mailbox folder that can be checked by anyone online and there is an email filter that directs all mail with keywords typically found in requests to that folder. When a request is received you would of course be forced to block access to the mailbox as soon as you were aware of the takedown, but losing the ability to check that the mailbox is clean is the warrant canary. There would always be a small window between when the email arrived and was visible and when the company saw the request and blocked access.

danielweber 12y ago
Okay, I'm getting this pattern by people who want to make warrant canaries work: 1. You receive warrant you aren't allowed to tell friend about. 2. ??? 3. Friend now knows you got a warrant! How clever! It doesn't matter what stuff you cram into #2. I'm sure you want to talk to the court at great length about how #2 means you didn't communicate. Courts have dealt with this nonsense for a long time. It's called "distinction without a difference."
- jsprogrammer 12y ago
  What if you stuff the first amendment to the US constitution in there? It's only one sentence, and very blunt: >Congress shall make no law...abridging the freedom of speech, or of the press...
  - s_kilk 12y ago
    It should be evident by now that that one sentence is effectively meaningless in the US.
    - jsprogrammer 12y ago
      Has it been tested in court in relation to NSLs?

ikeboy 12y ago

Apple disagrees. http://www.zdnet.com/article/apple-omits-warrant-canary-from-latest-transparency-reports-patriot-act-data-demands-likely-made/ http://www.zdnet.com/article/apple-omits-warrant-canary-from... And I think they have at least one lawyer.

danielweber 12y ago
Here's what you know: Apple used to have a warrant canary, and now doesn't. I could put a warrant canary on my website, and then remove it. What does that prove?

Angostura 12y ago

How does the government prove that you're communicating something when you've never explicitly said 'this is a warranty canary, it's ommission next year means that something is up'. Take Apple. It had something that was assumed to be a warranty canary. It's no longer there. People made assumptions. Has Apple done anything wrong?

danielweber 12y ago
prove that you're communicating something when you've never explicitly said Because courts aren't that dumb. Blackmail is illegal, too, and frequently the person demanding blackmail doesn't explicitly say "give me money or I publish this evidence." (It's legal to publish information, and it's legal to get paid not to publish it, but it's illegal to demand money not to publish it.) I don't know what happened with Apple.

Lawtonfogle 12y ago

If they act in such a way that they must continue to act the same way to prevent knowledge from being transferred then I could see the courts ruling they must continue to act in such a way even if it would involve lying. The only ways around this is for the information that a warrant was received to be sent before it is received (to give an example that doesn't violate causality, a person stream 100% of everything they see/hear, so that between the time of receiving such a warrant and realizing what the warrant actually is the information that it has been received was already sent out). And even then I see the courts ruling against them because the courts will argue the spirit of the law was violated.