If a government agency issues a secret warrant, doesn’t that imply rsync.net has to provide a valid canary at the right time as well?
I don’t get how this is useful.
Where in the US has number 1 been done? I am not aware of any places where the offender is required to alert people. Most commonly they need only to report to the local government/police who then may (and may be required) to publish that info.
Often that is also often a condition of probation, meaning they are still under the authority of the courts and are still being "punished" by the system in leiu of prison. This is seen as the individual "giving up" some of their rights either by committing the offense or agreeing to the terms of probation instead of prison. This would also apply to #2.
Neither one of those justification for infringement of the 1st amendment would apply in the cases of an NSL which are already on very very shaky legal ground and gag orders on them have been ruled constitutional in the past, currently they are only constitutional because a person getting an NSL now as the ability to appeal the NSL to a federal court, something that was previously missing
Forcing factual speech (such as disclosures, warnings, product information, truth-in-lending, etc) is a lot different than forcing someone to say something that isn't true.
The better example here is warning labels. Presumably, part of the reasons warning labels are easily compelled by the government is that they involve commercial speech, which receives a lower degree of 1A scrutiny. But then, most warrant canaries fall into the same bucket; they're basically just an inverted warning label.
For people who have become involved with national security issues, aren't they often required to deny being involved with national security issues if asked? Would that count?
No I don't think it does. The paperwork they sign when they get their security clearances put those people in a special circumstance. American journalists, not having security clearances, are allowed to spill the beans on national secrets.
This is a colorable argument, but I think it's ultimately a pretty poor argument:
First, freedom from compelled speech is not an inherently stronger (or weaker) freedom than freedom of speech. If the government can prevent you from saying something, then it can almost certainly prevent you from saying it by not not saying it.
Second, national security is one of the most powerful legal trump cards in practice. The government saying that something is necessary for national security will be treated as fact by the court, no matter how much evidence there is to the contrary.
Third, the purpose of freedom of speech is to protect freedom of expression. Speech that isn't expressive in nature has a much lower bar to clear for the government to be able to restrict it. Warrant canaries strike me as essentially commercial speech, which the government has pretty wide latitude to regulate.
>>The government saying that something is necessary for national security will be treated as fact by the court, no matter how much evidence there is to the contrary.
Citation please
>> Speech that isn't expressive in nature has a much lower bar to clear for the government to be able to restrict it. Warrant canaries strike me as essentially commercial speech, which the government has pretty wide latitude to regulate.
This case law around NSL have not been vary favorable for the government, Appeals courts have struck down the gag order provisions of the laws in the place, and are poised to do so again should a case come before them. The current make up the Supreme Court also leads me to believe they would not look favorably on Gag orders, though they would on the larger issue of National Security
This is a circular argument. If the gag orders in question are struck, the canary doesn't do anything: you can just tell people you were served with the court order. But if the canary matters, that means we're dealing with a nondisclosure order that did, at least for the moment, survive strict scrutiny. Since there isn't a legal concept of "super strict scrutiny", that leaves the question of why people believe the canary will fare any better than the objection to the gag order.
That would apply (probably) if the government put you under a gag order and ordered you to keep updating your warrant canary.
But what if they just put you under a gag order, and then when you stop updating the warrant canary they charge you with violating the gag order? Would that still fall under the compelled speech cases?
Not a lawyer, but IIRC the theory was that generally speaking the bar for compelling you to lie is higher than that for compelling you to stay silent, even when those are equivalent information-theoretically. It’s not clear if the legal exploit of a warrant canary has ever been tested in court.
I don’t think so. I think there’s a pretty significant legal difference between ordering someone not to say something, and ordering them to specifically publicly say something that’s false.
The former has been tested and is (for some reason) within the bounds of the first amendment. While forcing someone to publicly say something false almost certainly is outside the bounds of the first amendment.
If they're brave enough, they'll render themselves unable to sign the canary with the key they previously used (by "accidently" destroying it), and accept whatever punishment is headed their way because of that.
