> Australia just outlawed warrant canaries. Scary times.
Assuming you accept the need for the non-disclosure requirements in some court orders and administrative subpoenas, wouldn't the decision to allow canaries be a legal mistake in the first place? (Albeit AFAIK one also made by the US Department of Justice)
The argument for the legality of canaries would have to rely on the distinction between the affirmative and negative disclosure. But it is very easy to imagine a service that scrapes sites with canaries and publishes an affirmative list of those which took theirs down recently (or in a given time interval). This completely subverts the argument.
Is it perhaps yet another case where the legal minds failed to account for the current (actually... two decades old) state of technology? Am I missing something?
But it is very easy to imagine a service that scrapes sites with canaries and publishes an affirmative list of those which took theirs down recently (or in a given time interval).
Reddit released its transparency report for 2015 and the warrant canary language was missing.
Maybe that's an edit after your post. I agree that a silhouette of an expired canary lying on its back, wings spread awkwardly, tongue sticking out, eyes crossed, would make this communication more effective.
Yeah, that's odd. It's timestamped March 31st - perhaps it was serving a stale application level cache (I've not been to the site in a while, or so I thought). Now the canary-logo is taken down from the reddit listing on the front-page too.
Practically there's no difference, the consequences of a canary or blowing the whistle is the same. But the interesting thing is canaries require the government to order someone to lie, whereas the other just compels them to not tell the truth.
I don't see how such a service would invalidate the argument; you could prevent that service from affirming it, but that shouldn't impact the original canary issuer.
And I don't think canaries are really a feature of current technology; seems like one could have simply posted a weekly newspaper ad with the same content.
There's a better approach that depends on third-party scraping. You publish the canary on a schedule, but take it down as soon as it's been scraped. So there's nothing to take down when you get the warrant, NSL, etc.
Edit: And then you don't publish the canary as scheduled. Before you got the warrant, NSL or whatever, you were subject to no court order. So you were free to speak. After getting it, can you be compelled to speak falsely?
My understanding is that, no, the government cannot compel you to speak falsely or, generally, to do other things you don't want to do.
As I understand it, this is related to the argument that Apple was using vs the FBI recently, that while the FBI could compel Apple to produce things in its possession (like Farook's iCloud backups) it could not compel Apple to do things like produce a custom version of iOS.
IANAL, but, this is mostly based on what I remember reading last year when the whole warrant canary idea first started getting publicized.
IANAL: I don't believe that secret warrants 'trip' one's right to face their accuser, as that is a right for courtroom proceedings, which are significantly different from the warrants about which you speak.
Well, canaries ought to be signed with GnuPG or whatever. But then, we're back to https://xkcd.com/538/ ;) But that would be harder against a corporation.
Hypothetically, what would happen if somebody made them use their force in a very public, visible way (that is, refuse to comply, and post live video on multiple video sites)? How big of an operation can be kept secret by physical violence?
There wouldn't be some sort of black-ops, Bruce Willis style operation. You'd simply be someone being arrested by some FBI agents for violating federal law, and they could do that at noon on a Tuesday smiling to TV cameras if they wanted to.
> Assuming you accept the need for the non-disclosure requirements in some court orders and administrative subpoenas
You could distinguish between temporarily keeping particular orders a secret, permanently keeping them a secret, and permanently keeping secret even summary information about the number, kind, and scope of the orders (or what kind of matters they related to).
Assuming you accept the need for the non-disclosure requirements in some court orders and administrative subpoenas, wouldn't the decision to allow canaries be a legal mistake in the first place? (Albeit AFAIK one also made by the US Department of Justice)
The argument for the legality of canaries would have to rely on the distinction between the affirmative and negative disclosure. But it is very easy to imagine a service that scrapes sites with canaries and publishes an affirmative list of those which took theirs down recently (or in a given time interval). This completely subverts the argument.
Is it perhaps yet another case where the legal minds failed to account for the current (actually... two decades old) state of technology? Am I missing something?