Comment by sdoowpilihp
12 years ago
Unfortunately, the disclosure of information via negation will almost certainly not hold up in a court of law.
12 years ago
Unfortunately, the disclosure of information via negation will almost certainly not hold up in a court of law.
Fortunately, NSL gag orders themselves have not held up in a court of law either.
http://www.wired.com/threatlevel/2013/03/nsl-found-unconstit...
Twice: http://www.wired.com/threatlevel/2010/08/nsl-gag-order-lifte...
Instinctly, I would agree with you. As a counter-argument though, the gun industry has been able to pull off many legal hacks with similar spirit. See "bullet buttons", 80% lower receivers, or bump-firing attachments. These all got around the spirit of laws and are routinely done now. I don't see why the computer industry can't have their set of legal hacks.
The difference is that this doesn't get around the "spirit of the law", but directly acts in breach of it. They are essentially creating a heart beat, and using a break in that heart beat to signal that a certain event has taken place.
As best as I can tell, that is disclosing information.
If nothing else, a warrant canary would let you try an interesting defense. With the right participants, you can set things up so that if you receive an NSL then either:
a) you are able to signal that you did, or b) they compel you to lie and you then can press a "free exercise of religion" defense (this is where the 'right participants' part comes in; you'd have to be able to ensure the only people with the power to update the canary are (1) people that the NSL cannot be hidden from and (2) members of a religion that forbids lying).
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I think being arrest for it would surely disclose it as well.
Perhaps they could be sued either way. If a company states on their website that "We do not do X", and then starts doing X they are left with two choices, leaving a false message up or taking it down.
If they leave it up, and the truth eventually comes out, could they be sued for misleading their shareholders?
If they take it down does that open them up to being sued by the government?
You are correct that a company could be sued for other things, such as lying. My point is that a warrant canary _does_ disclose information; specifically through implication. I am sure that in a court of law, given that an implication made by a warrant canary is reasonably obvious, it could be argued that the party in question was indeed attempting to disclose information prohibited by the gag order, and as such, is in breach of the gag order.
but its a deniable form of disclosure - you could argue that the ISP is trying to adhere to the gag order by lying to the customer that there hasn't been any subpoenas.
What the customer gets out of that lie is none of the concern of the ISP.
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National Security Letters grant the recipient immunity from civil lawsuits if you comply in good faith. They think of everything!
Really? I'd like to learn more about this, do you have a source?
(aside: Sorry for the downvote, my finger slipped up :/)
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How does that work for international companies who end up sued in non US jurisdictions?
Well, has this been tried in court?
I wouldn't be surprised if this wasn't the case and yes, one part of the government makes you do it, and the other one sues you for it.
Say I'm a hosting company. I doubt that the authorities can compel me to lie to my customers in the form of not terminating the canary. Moreover, I think I have every right to choose to terminate any running process on my machine. The implications of the "canary understanding" between me and my customer should have no bearing on those fundamental facts.
They judge won't have to compel you to lie. He'll simply instruct you not to communicate with your customers in any way about the warrant. If you cancel the canary and your customers find out about the warrant, the judge won't care how you dressed it up.. he told you not to communicate a fact, and you did.
You can't game your way around that.. the court will care about outcome, not method.
But you never 'cancel' a canary unless you foolishly set up an automated one: you update it or you don't. Someone telling me to 'not communicate' by actively lying (by updating the canary) is at least getting creative at language. Maybe that will be the outcome, I don't know. All kinds of crazy things are the law.
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If you say they didn't hear about it from you? They can figure it out any which way. You simply issued a statement that you neither confirm nor deny you have been served. If you put an ad in the newspaper every day and then do not do it when subpoenaed, you are at fault for not putting the ad?
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This is the common sense position, but nothing about it being common sense prevents them from telling you to do otherwise. These are people that justify their system with the system that remains otherwise unjustified.
I don't see what's common sense about it. You're just trying to do something indirectly that you can't do directly (communicating the existence of the NSL). I bet there is even an information-theoretic way of equating the two courses of action.
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maybe, maybe not point is, it is a very effective idea for civil disobedience
It's effectiveness is not proven one way or another, as it has not been implemented by many people, or tested in a court of law. At best, it's a novel hack.
sure, wasn't saying it was.. and you just committed the same indiscretion. a hack is only a hack if it does something.
let's say it is a potentially very effective idea for CIVIL DISOBEDIENCE..
emphasis due to you kind of missing the point - arguing about the legality of such a thing is pure misdirection imho