If you say "No comment" and it leaves open more than 1 possibility then it would be unfair to ascribe any particular positive statement to that.
On the other hand, if you're pre-arranged that you will simply fail to communicate something after a certain event then there is no doubt what statement has been made. A judge will see right through this if it's tried and probably impose contempt of court. If one were to try something like this it would be essential to broaden the scope enough that it couldn't be used to reference a specific gag order.
Agree with the second half of this statement - this idea is too cute by half for the courts. Acts and omissions both have significance under the law, as does the context of acts and omissions. If the warrant canary convention was considered by the court as context for a statement, it is very likely the court would rule that a statement had been made. The only way around this would be to have an evidentiary mechanism by which a company can prove that it has no control over the canary. This gives rise to the old conundrum: it's logically impossible to prove a negative (although you might be able to under various burdens of proof like "balance of probabilities" or some such).
Edit: Ultimately, legality turns on the statutory language of the provision in the Patriot Act that obligates businesses not to disclose (anyone know what it is?). The approach as originally proposed by by Steven Schear (http://tech.groups.yahoo.com/group/cypherpunks-lne-archive/m...) was for the ISP to simply not answer a direct inquiry by a customer about whether or not a warrant has been served. The advantage of this approach is that it is far harder to provide evidence to the effect that not responding to the question in that context is a statement. The disadvantage is that a non-response might not provide certainty to the person who asked the question. Effectively, the more that a clear convention is formed around the "canary mechanism", the higher the risk that a court would hold conduct in association with the convention in breach of the statutory obligation not to disclose.
In Intuitionistic Logic, you cannot rely on ad absurdum proofs (no law of excluded middle). However, people usually believe in classical logic where proving that something is false is easy: we just need to prove it is not true.
>A judge will see right through this if it's tried and probably impose contempt of court. If one were to try something like this it would be essential to broaden the scope enough that it couldn't be used to reference a specific gag order.
[citation needed]
Has there been a case where the judge forced a civilian to lie?
Given that the whole point of the commitment to the communication was to evade a future gag order, I'm not sure what to tell you. It does sound like immovable object meets irresistable force, but it's a Catch-22 of the "cypherpunk's" own making.
The court can't compel you to lie. The court can compel you to not communicate about a gag order, and enforce that with contempt of court. So if you don't choose to "lie" (since again, we all understand the purpose of the communication is not as a factual statement but rather to signal whether a gag order is received) they can still hold you accountable for it.
On the other hand, if you're pre-arranged that you will simply fail to communicate something after a certain event then there is no doubt what statement has been made. A judge will see right through this if it's tried and probably impose contempt of court. If one were to try something like this it would be essential to broaden the scope enough that it couldn't be used to reference a specific gag order.