Comment by mokus
12 years ago
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.
I disagree. They'd probably just find other instances of you lying and say that your religion's prohibition on lying isn't that firm to begin with.
Same as if you claimed that, per your faith, you "have to" wear a yarmulke all the time, but it turns out you only wear it in courthouses that prohibit it.
If it's obviously a sham (like your yarmulke example) then sure - it shouldn't fly. They'd be right to point out "that isn't even your religion, and we have evidence X, Y, Z that proves it."
But if a person practices a religion imperfectly, to propose that their continued attempts to live by it are null and void? That's ludicrous. Moreover, it would also constitute the government telling you specifically how to practice your religion, which is to my mind even worse than forbidding it in the first place.
(EDIT: minor continuity fix)
>By that time though, the NSL's would probably have served their purpose, and something else will have taken it's place.
I don't think so. Generally, the way it works in the US court systems is you have to break the law before you can challenge it in court. This means that, regardless of the eventual decision, you would have already revealed the NSL (or removed the canary), and the question is where you allowed to.
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.
True. I like to believe that there are so many holes in those things that it's only a matter of time before they're struck down anyway, and any particular attack against them only has a small chance of ever even making it to court to be tested.
It's one thing to demand secrecy of people who are willingly agreeing to keep secrets so they can be issued a clearance. It's something entirely else to give secrets to an unwilling recipient who never agreed to keep them, and threaten to destroy their lives if they don't.
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.
I'd love to have the opportunity to try it, but I'm not in a position where I'm likely to ever get an NSL in the first place.