Comment by patrickyeon
12 years ago
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).
Your second proposition would be fascinating to watch play out in the courts. If I had to make a guess, I would bet that ultimately, the individual would win out in what would probably go to the supreme court (at least in the US). By that time though, the NSL's would probably have served their purpose, and something else will have taken it's place.
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I don't think you need to go to the religion clause. A well established part of freedom of speech is that you cannot be compelled to say something, and by not updating the canary, you would be saying it is true.
Also, it is (somewhat) well established in law that you cannot be compelled to break the law. If you are a company, it is illegal to lie and say, for example, you have not received NSL`s.
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After reading and digesting rayiner's (and others') points elsewhere on this thread I realize the most likely approach the prosecution would take is to assert (c):
c) "You have signaled that you received an NSL and are therefore in violation. It's your own damn fault you were forced to choose between lying and breaking the law"
I doubt "freedom of religion" allows you to get away from any law. After all, if an atheist marries a Catholic, the marriage fails, and the atheist wants a divorce, I doubt the civil divorce could be held up by the catholic saying "My religion forbids divorce!"
Sounds interesting, let us know how it works out.
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I think being arrest for it would surely disclose it as well.