5 ms·

I can't help but feel canary's are missing the 'spirit of the law' (I don't like calling it that, but the phrase fits) of the gag order, and will ultimately not

I can't help but feel canary's are missing the 'spirit of the law' (I don't like calling it that, but the phrase fits) of the gag order, and will ultimately not stand up in court. The gag order says you can't do anything to notify people that you're received one. By having the canary expire, you're alerting them. No questions, end of story. I get the concept of 'they can't force you to sign a false document because of the First Amendment' line of thinking, but the gag orders themselves don't respect your constitutional rights, why would you expect it's different in regards to canaries?

downandout 11y ago
Whether you would violate the order or not depends on the details. Removing a statement saying that you have not received a warrant/NSL would almost certainly violate the order. Similarly, if you have an automated program that creates the statements and you tell the program to stop producing the statements after receiving the order, that is also likely a violation because you are undertaking an act that was specifically designed to notify people about the order. However, if you are manually creating the statement, failing to create a new statement is a different thing and most likely would not violate the order. The key difference here is doing nothing vs. acting in a way designed to violate the order.
- ceejayoz 11y ago
  I'd expect a court to treat that sort of attempt at getting around the order via technicality about as well as they treat the Sovereign Citizen folks. I'd also expect NSLs at this point to include language on warrant canaries.
  - woodman 11y ago
    From what I've seen, the government has generally avoided engaging with folks in the Sovereign Citizen camp. And with that in mind, I agree with you - they'll do the same thing with this. As long as 99% of people comply, why would you risk the loss of power by setting a legal precedent - even if you've got a 99.999% chance of winning a battle in court.
  - downandout 11y ago
    It hasn't been tested in court, but the government would have a hard time taking the position that you must continue producing statements that are false and may fraudulently induce others to engage in behaviors they otherwise wouldn't if you hadn't made the statement. I think under the scenario where you were manually producing statements and simply cease making them, you would at least have the strongest likelihood of surviving a challenge by the DOJ.
    - fleitz 11y ago
      It might work if you published them in your SEC filings perhaps under risks, eg. The risk of being served a warrant
woodman 11y ago
First I'd consider it from the angle of legislator intent, instead of attributing compulsion to an abstract concept (law). The question is then much closer to reality: "Am I behaving in a way that pleases the legislators?" That is a very difficult question to answer, and the solution was to codify the wants of the legislators into laws :) Unsurprisingly the process of translating the desires from the minds of men (and a few women) onto paper does not completely eliminate logical defects that pretty much everybody hosts. So you end up with contradictory laws, our solution was to add another layer of human reasoning onto that - the judicial system. Anyway, playing the game of finding loopholes and ignoring the 'spirit of the law' is the only reasonable course of action. The alternative, restricting your behavior to what you think the legislators would approve of - well, that would be an incredibly terrible existence... It would be an interesting project to translate our system of laws into Attempto Controlled English [0], while feeding the results into a logical reasoner. I don't think it would be long before you find serious flaws where the logic does not follow. [0] http://en.wikipedia.org/wiki/Attempto_Controlled_English http://en.wikipedia.org/wiki/Attempto_Controlled_English
mirimir 11y ago
There must be an administration team that's anonymous and hidden, both publicly and to each other. Obviously, there must be a setup for sharing and managing trust. The team sees all organizational email, and they handle the warrant canary collectively.
adevine 11y ago
Well, here's a somewhat analogous issue where the courts have decided differently. A 10b5-1 plan is set of rules set up by someone, like a company exec, to trade stock even if that person holds inside information at the time of the trade. That is, you could set up a plan that automatically sells 100 shares of stock per month. You can NOT change the rules of the plan while you have inside information. However, you CAN cancel plan orders even if you have inside info. For example, if you knew great news was coming, you could cancel a sell order. If I understand it, this is because courts have ruled that insider trading laws can only be applied when a trade occurs, not when one doesn't occur. IANAL so someone correct me if I'm wrong.
- chii 11y ago
  that is an interesting line of argument...but i think ultimately, the fight over the application of law isn't one which can be won over by sheer logic. Men in power who wish to manipulate the world for their own agenda will be able to do it, if the common folk don't care or fight back.

downandout 11y ago

Whether you would violate the order or not depends on the details. Removing a statement saying that you have not received a warrant/NSL would almost certainly violate the order. Similarly, if you have an automated program that creates the statements and you tell the program to stop producing the statements after receiving the order, that is also likely a violation because you are undertaking an act that was specifically designed to notify people about the order. However, if you are manually creating the statement, failing to create a new statement is a different thing and most likely would not violate the order. The key difference here is doing nothing vs. acting in a way designed to violate the order.

ceejayoz 11y ago
I'd expect a court to treat that sort of attempt at getting around the order via technicality about as well as they treat the Sovereign Citizen folks. I'd also expect NSLs at this point to include language on warrant canaries.
- woodman 11y ago
  From what I've seen, the government has generally avoided engaging with folks in the Sovereign Citizen camp. And with that in mind, I agree with you - they'll do the same thing with this. As long as 99% of people comply, why would you risk the loss of power by setting a legal precedent - even if you've got a 99.999% chance of winning a battle in court.
- downandout 11y ago
  It hasn't been tested in court, but the government would have a hard time taking the position that you must continue producing statements that are false and may fraudulently induce others to engage in behaviors they otherwise wouldn't if you hadn't made the statement. I think under the scenario where you were manually producing statements and simply cease making them, you would at least have the strongest likelihood of surviving a challenge by the DOJ.
  - fleitz 11y ago
    It might work if you published them in your SEC filings perhaps under risks, eg. The risk of being served a warrant

woodman 11y ago

First I'd consider it from the angle of legislator intent, instead of attributing compulsion to an abstract concept (law). The question is then much closer to reality: "Am I behaving in a way that pleases the legislators?" That is a very difficult question to answer, and the solution was to codify the wants of the legislators into laws :) Unsurprisingly the process of translating the desires from the minds of men (and a few women) onto paper does not completely eliminate logical defects that pretty much everybody hosts. So you end up with contradictory laws, our solution was to add another layer of human reasoning onto that - the judicial system. Anyway, playing the game of finding loopholes and ignoring the 'spirit of the law' is the only reasonable course of action. The alternative, restricting your behavior to what you think the legislators would approve of - well, that would be an incredibly terrible existence... It would be an interesting project to translate our system of laws into Attempto Controlled English [0], while feeding the results into a logical reasoner. I don't think it would be long before you find serious flaws where the logic does not follow. [0] http://en.wikipedia.org/wiki/Attempto_Controlled_English http://en.wikipedia.org/wiki/Attempto_Controlled_English

mirimir 11y ago

There must be an administration team that's anonymous and hidden, both publicly and to each other. Obviously, there must be a setup for sharing and managing trust. The team sees all organizational email, and they handle the warrant canary collectively.

adevine 11y ago

Well, here's a somewhat analogous issue where the courts have decided differently. A 10b5-1 plan is set of rules set up by someone, like a company exec, to trade stock even if that person holds inside information at the time of the trade. That is, you could set up a plan that automatically sells 100 shares of stock per month. You can NOT change the rules of the plan while you have inside information. However, you CAN cancel plan orders even if you have inside info. For example, if you knew great news was coming, you could cancel a sell order. If I understand it, this is because courts have ruled that insider trading laws can only be applied when a trade occurs, not when one doesn't occur. IANAL so someone correct me if I'm wrong.

chii 11y ago
that is an interesting line of argument...but i think ultimately, the fight over the application of law isn't one which can be won over by sheer logic. Men in power who wish to manipulate the world for their own agenda will be able to do it, if the common folk don't care or fight back.