Comment by dedward
12 years ago
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.