CEO of Reddit Steve Huffman, username "spez", writes:
"I've been advised not to say anything one way or the other." [1]
when asked whether he withdrew the canary voluntarily. The comment directly beneath sums it up:
"In case anyone is still confused or in disbelief, this is where he confirmed it. He really can't say it any more clearly without teasing the law to go after him."
I do not believe that a canary can be a reasonable defense for "Oh I didn't say anything"
There's two situations here: Either the gov't doesn't care that you say you got an NSL (without specifics on time/subject), or they do care.
If they do care, discussion with judge:
- Did you say you got an NSL, despite there being a gag order?
- Well I didn't not say anything
- You had previously had a communication strategy set up to communicate when you would get an NSL
- ...
- So you did say it.
Case where the gov't doesn't care that you mention you got one (given you hide the time/subject through delays):
- Why did you do all the crazy stuff to tell people instead of just telling people?
- It was funner this way
Is the canary really a legal defence? I can only imagine that no, it isn't. At best it lets you imply that you got an NSL even if you didn't (oops we removed it from the template). At worst you're facing the same legal issues as before
So why not publish positive canaries with an explicit expiry date that requires manual republishing? If you set in place a scheme, long before any agency contacts you, whereby you manually publish a statement saying you have not received an NSL, and that statement disappears on its own, how could they prosecute you for failing to publish that statement?
Better yet, make each canary in the form of an original haiku.
Month 1:
reddit.com
has not to date received
an NS letter
Month 2:
This, our company
As of the time this appears
Has not been silenced
Month 3:
Our routine remains
A haiku for you from us
On the month's first day
Is the USG going to claim that reddit must, in perpetuity, write a new haiku each month? That seems like a burden designed to be defeated in court.
I think the argument is that this a scheme clearly setup to flout the law. If those haikus kept going by a business exec until an associate should sell the company's stock, would that be an acceptable way of insider trading?
After some contemplation I must say I agree with you. Using technicalities like "well I didn't ACTIVELY say anything!" to get around the law shouldn't work in any situation - your example makes this very apparent.
At the same time, companies should not be forced to try and circumvent the law with cute tricks. Preventing companies from informing their users/customers that their privacy has been breached by a 3-letter-agency should be illegal.
We shouldn't be arguing about the legality of canaries, we should be arguing about the legality of gag orders. Arguing pro canaries is fighting a losing battle; it's fighting the symptoms instead of the cause.
The difference is in the timing. Prior to receiving an NSL, it's legal for you to say you didn't get one.
In the example of insider trading, it was NEVER legal for you to give inside information. So stopping your Haiku is legal, but the discussion when you agreed "sell your stock when my Haiku ends" was not.
at what point does it stop becoming "not publishing a statement" and becomes "publishing a coded statement"?
"No NSL Letter has been given for data to users with the 1st letter being P"
"No NSL Letter has been given for data to users with the 2nd letter G"
etc etc. Publishing 200 haikus a month like this would surely go against the gag order (since you could reveal the username like this).
There's two situations here: Either the gov't doesn't care
that you say you got an NSL (without specifics on
time/subject), or they do care.
There's a third option: The government might want to get rid of canaries without litigating their legality, so they concoct a reason to send NSLs to major parties with canaries and turn a blind eye to the removal of the canary.
If 100% of canaries were removed a month later, canaries would be pretty information-free, because the removal of a canary would just mean a canary was added a month earlier.
And it would be a simple matter to send a spy to use coffee shop wifi to post some bomb making instructions or something similar. Hypothetically.
Can the government compel you to lie? (I don't know). If they can't, then the canary is a legal defense, unless of course the gov't prohibits those of us who haven't got an NSL from confirming that we haven't got one. But even that could not be retroactive.
It's not about compelling you to lie. Nobody compelled you to start the canary in the first place. The gov't gives you a gag order, and a priori gag orders are constitutional, so... you're going to have a hard time finding a judge who will accept the "Oh I was going to follow the gag order but my duty to my redditors to not write my haiku was so big!" argument.
The government has no responsibility to assist you in self-perpetuating logic puzzles.
To say "you weren't compelled to lie about X because you weren't compelled to say X in the first place" is unreasonable. It involves two actions taken by parties with opposing intentions. The latter party is exclusively responsible for the consequence of the latter action. A similar line of logic would be "you weren't compelled to give me your wallet because you weren't compelled to carry one in the first place".
That being as it is, the distinction is between compelling someone to nondisclosure and compelling someone to active deception. I imagine that's a tough battle in court, particularly if it's part of a service agreement between a company and its customers. Compelling continued publication of the canary would extend well beyond 'gagging' the company and would force it to commit what is essentially contract fraud.
No, but at the point where you set up the canary, you aren't violating a gag order. You can't violate a gag order that doesn't exist yet.
And by the point where the gag order comes into force, it's too late; you can't comply with it in a way where you aren't compelled to lie, a power that the gag order does not possess. That's the point of the canary; you have preemptively removed from yourself the ability to fully comply. Which is entirely legal.
Gag orders aren't retrocausal. Either it's fundamentally illegal to say that you haven't received a gag order, or gag orders can force you to lie, or canaries work. One of those three options must hold.
What would happen if I hadn't set up the communication strategy voluntarily, but instead was asked the question "Have you received any gag order" by an outsider (which I do not know and I didn't ask them to do this or plan it with them)? Can I be forced to lie by law? Or can you just not answer that question in general, even before you've received a gag order, just so that you don't have to answer it differently once you've got a gag order? (If I always said " I can't answer this", my answer wouldn't have to change if I get a gag order).
This seems nice. A network of agents could agree to regularly ask each other (or others outside the network) this question. They could even publish the results.
Of course, agreeing ahead of time to participate in this network could be interpreted as "communicating" (see other discussions here).
You wouldn't even have to agree. I could just start myself going around and asking various companies the question, without the companies themselves knowing about my plan. But perhaps then I am myself acting against the law, because I do this with the intent of circumverting gag orders?
Canaries are vague enough that I doubt it's of much concern to the government, especially if they're site wide and once a year like this. That combined with the fact that it's harder for the government to compel speech vs a simple gag means they're fairly safe probably. Really until it's tested in court they're always going to be a little dangerous.
And, given that massive lack of specificity, should anyone care?
I mean, yes, in a general sense, it's notable, but it doesn't tell me how often it has happened or who the target is, so there's no personal value nor any substantial value from a civil liberties perspective because it doesn't tell us all that much.
> it doesn't tell me how often it has happened or who the target is, so there's no personal value nor any substantial value from a civil liberties perspective because it doesn't tell us all that much.
They never will be able to tell down to the person level. Those would definitely violate the gag order, which if you're willing to violate why go through the mess of a canary. Similarly the government is very particular about reporting just how often they're received. Testing that is a huge gamble on the lawsuit that would be filed when you get too precise for the government's tastes.
There is a legal difference: compelled speech is especially and obviously unconstitutional in the US, in contrast to a restriction on what you can say.
You do still, as you point out, need to be willing to put the law to the test. Presumably Reddit has received legal advice that it's okay to take that risk in this case.
"I've been advised not to say anything one way or the other." [1]
when asked whether he withdrew the canary voluntarily. The comment directly beneath sums it up:
"In case anyone is still confused or in disbelief, this is where he confirmed it. He really can't say it any more clearly without teasing the law to go after him."
[1] https://www.reddit.com/r/announcements/comments/4cqyia/for_y...