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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 lin

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.

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.