Comment by johnpmayer
12 years ago
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.
You're missing the point though. The judge won't tell you not to lie. He'll tell you not to communicate a fact to people. If you already had a system to communicate that fact to people in a novel way, and you use it to do so, you have violated the judges order. It doesn't matter that you notified them by silence or whatever.
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?
There are at least two questions to consider. (1) Is your argument reasonable? (2) Is your argument legally compelling? It is important not to conflate these two questions.
Oh, if they don't know how anyone found out then that's another issue.. but if tehy are made aware that you placed this ad daily and stopped after you were ordered to not reveal that you had been subpoenad.. your intent is very clear cut as far as a judge is concerned.
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.
Information theory is basically irrelevant here, as is any formal logic -- I would think that someone with your legal background would understand that logic and the interpretation of the law do not always coincide. You can easily create a paradox by making the canary be a daily notification sent to each customer informing them that they are the target of an NSL, which may be logically problematic but is completely irrelevant in court. I also think a company could have a reasonable defense if the fact that a customer is under surveillance were revealed by a side channel e.g. an observable increase in latency, despite the clear information theoretic argument that that such a side channel "communicates" the surveillance to a customer.
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As I see it: Compelled to be silent is one thing. Compelled to lie is another.
To me, the notion that the second shouldn't be possible is common sense. I find it hard to express how little it surprises me that you do not share this perspective.
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