of course they have. For example, having corporate "document retention" policies that are actually destruction policies is usual to avoid risks associated with legal discovery.
And actus reus is a fairly critical technical element of the law. If a company has a policy of issuing (true) warrant canaries, the non-act of not issuing a (false) canary would be a significant technical hurdle to prosecution. And the 1st amendment would be a significant hurdle to coercing a person to issue (false) canaries.
Part of the risk that "document retention" policies mitigate is the risk of a staggeringly expensive legal discovery phase--not just the removal of potentially damaging correspondence per se. Imagine that your company kept 100,000 volumes of dense text on file, and frequently had to pay a legal team to pore over those volumes and think about which parts might be germane to routine legal disputes. Good for the lawyers' billing, but ruinous for the business.
Presumably the authorities in question avoid issuing gagged orders to anyone who would use such a thing: They're likely to fight the gag, or likely to leak— better to use another approach.
I can easily imagine an authority issuing a warrant to rsync.net without knowing that there is a canary in place. It seems less likely for an NSL with an attached gag order, but still possible.
> Have any technicalities every held up in court?
(fixed that for you)
of course they have. For example, having corporate "document retention" policies that are actually destruction policies is usual to avoid risks associated with legal discovery.
And actus reus is a fairly critical technical element of the law. If a company has a policy of issuing (true) warrant canaries, the non-act of not issuing a (false) canary would be a significant technical hurdle to prosecution. And the 1st amendment would be a significant hurdle to coercing a person to issue (false) canaries.
Part of the risk that "document retention" policies mitigate is the risk of a staggeringly expensive legal discovery phase--not just the removal of potentially damaging correspondence per se. Imagine that your company kept 100,000 volumes of dense text on file, and frequently had to pay a legal team to pore over those volumes and think about which parts might be germane to routine legal disputes. Good for the lawyers' billing, but ruinous for the business.
No, but judges often take a dim view of legal "hacks"
Presumably the authorities in question avoid issuing gagged orders to anyone who would use such a thing: They're likely to fight the gag, or likely to leak— better to use another approach.
I can easily imagine an authority issuing a warrant to rsync.net without knowing that there is a canary in place. It seems less likely for an NSL with an attached gag order, but still possible.