Comment by sdoowpilihp
12 years ago
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.
There is an aspect of deniability though it's weak, especially with something that is both updated at regular time intervals, and was otherwise reliably updated.
Maybe a better solution would be a system that generated an indicator with only a certain level of assurance that it is accurate, and have it err on the side of NOT giving false positives. This would have a built in level of deniability.
I wish it were as easy as that, but the thing is that there is always a human in the loop to design such a system, and that person does not have deniability. For instance, say that on days without subpoenas, bob@google flips a coin, and only updates the canary if it comes up heads. With a subpoena, he doesn't update the canary regardless of the coin flip. If I were a government prosecutor, I would simply subpoena bob@google and ask him under oath whether he ever disregarded the coin flip.
Of course, this all assumes that this disclosure even comes to the government's attention. But that's a calculated risk any canary-user will take.
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