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What if there was a warrant canary service that killed the canary for you, unless you kept it alive on a regular basis (e.g., weekly, monthly) by providing a se

What if there was a warrant canary service that killed the canary for you, unless you kept it alive on a regular basis (e.g., weekly, monthly) by providing a secret key and a message. The feds might be able to order you not to take the canary down, but they can't force you to post another update to a third-party canary to keep it alive. And, if they can, it might be time to revisit the role of our government.

dragonwriter 11y ago
> What if there was a warrant canary service that killed the canary for you. The feds might be able to order you not to take the canary down, but they can't force you to post another update to a third-party canary to keep it alive. If government can punish you for communicating prohibited information by action, it can also do so for using a pre-arranged absence of action to communicate the same information. If there is a legal prohibition on communicating the information, maneuvering around the mechanism to communicate the prohibited information isn't going to make it legal.
- akerl_ 11y ago
  This. The judge is not a robot, and is unlikely to be fooled by "but I'm not releasing information, I'm removing information so it's not against the rules"
akerl_ 11y ago
My point is that given the clear connection the prosecution can make "they set up this system specifically so that if we served them an NSL with a gag order then they could circumvent the gag order", the odds of the judge saying "nah, they got you" is low. I expect either they receipient would be compelled to post updates, under the grounds that by not posting updates they are speaking (the case would be that the 3rd party system does not count as speech, and in fact not posting an update would be speaking, because not updating is what conveys meaning to the audience) or they'd find that speech can't be compelled and you can't try to end-run gag orders by using a "canary", so all the warrant canaries would vanish more or less at once
- apendleton 11y ago
  The latter outcome (that all canaries are banned) seems totally implausible from a first amendment point of view: it would prohibit anyone from ever saying "I've never received an NSL," period. The former (the compelled speech) seems like the more likely outcome to me.
  - mangeletti 11y ago
    I agree, banning canaries would be a first amendment breach.
- mangeletti 11y ago
  I'm pretty sure https://www.law.cornell.edu/supremecourt/text/430/705 https://www.law.cornell.edu/supremecourt/text/430/705 covers your first case, and https://www.law.cornell.edu/constitution/first_amendment https://www.law.cornell.edu/constitution/first_amendment covers your second.
  - tedunangst 11y ago
    Let me guess. Only a 2L? Gonna cover constitutional law in your third year? You may wish to read a bit more about the first amendment and its exceptions.
    - mangeletti 11y ago
      It's actually pretty simple and the text is pretty short. You should have a read sometime. There are no exceptions, and it's pretty clear about that. Now, that isn't to say that our judicial and executive branches of government haven't ruined its enforceability, but that's a story about the resolve of our citizens, not about the first amendment. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
dimino 11y ago
There's just no technicality you can get away with here, because judges and juries are people too, and will know you're just trying to find a way to break the spirit of the law.
duskwuff 11y ago
Providing a warrant canary through a service would expose it to more legal threats, not fewer. The more manual the process is, the better of a case you can make that it's a form of protected speech.

dragonwriter 11y ago

> What if there was a warrant canary service that killed the canary for you. The feds might be able to order you not to take the canary down, but they can't force you to post another update to a third-party canary to keep it alive. If government can punish you for communicating prohibited information by action, it can also do so for using a pre-arranged absence of action to communicate the same information. If there is a legal prohibition on communicating the information, maneuvering around the mechanism to communicate the prohibited information isn't going to make it legal.

akerl_ 11y ago
This. The judge is not a robot, and is unlikely to be fooled by "but I'm not releasing information, I'm removing information so it's not against the rules"

akerl_ 11y ago

My point is that given the clear connection the prosecution can make "they set up this system specifically so that if we served them an NSL with a gag order then they could circumvent the gag order", the odds of the judge saying "nah, they got you" is low. I expect either they receipient would be compelled to post updates, under the grounds that by not posting updates they are speaking (the case would be that the 3rd party system does not count as speech, and in fact not posting an update would be speaking, because not updating is what conveys meaning to the audience) or they'd find that speech can't be compelled and you can't try to end-run gag orders by using a "canary", so all the warrant canaries would vanish more or less at once

apendleton 11y ago
The latter outcome (that all canaries are banned) seems totally implausible from a first amendment point of view: it would prohibit anyone from ever saying "I've never received an NSL," period. The former (the compelled speech) seems like the more likely outcome to me.
- mangeletti 11y ago
  I agree, banning canaries would be a first amendment breach.
mangeletti 11y ago
I'm pretty sure https://www.law.cornell.edu/supremecourt/text/430/705 https://www.law.cornell.edu/supremecourt/text/430/705 covers your first case, and https://www.law.cornell.edu/constitution/first_amendment https://www.law.cornell.edu/constitution/first_amendment covers your second.
- tedunangst 11y ago
  Let me guess. Only a 2L? Gonna cover constitutional law in your third year? You may wish to read a bit more about the first amendment and its exceptions.
  - mangeletti 11y ago
    It's actually pretty simple and the text is pretty short. You should have a read sometime. There are no exceptions, and it's pretty clear about that. Now, that isn't to say that our judicial and executive branches of government haven't ruined its enforceability, but that's a story about the resolve of our citizens, not about the first amendment. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

dimino 11y ago

There's just no technicality you can get away with here, because judges and juries are people too, and will know you're just trying to find a way to break the spirit of the law.

duskwuff 11y ago

Providing a warrant canary through a service would expose it to more legal threats, not fewer. The more manual the process is, the better of a case you can make that it's a form of protected speech.