

When NSLs have been challenged in court, the government has withdrawn - diafygi
https://www.aclunc.org/issues/government_surveillance/national_security_letters.shtml

======
einhverfr
I have wondered about this. The gag orders are somewhat problematic but can
they mandate that one actively lies about having received a NSL?

Suppose I put up on my startup's web page (<http://www.efficito.com>), "we
have not received any NSL's and pledge to fight any we get." Suppose we always
end press releases with such a promise.

Suppose we get one one day, so when we do, we change "We have not received" to
"we cannot confirm or deny whether we have received." Close observers will
note the shift and note we have moved from a flat denial to a refusal to
disclose.

I have trouble imagining that such could be prohibited because if it is, it
either ends up being a _mandatory lie_ and _compelled speech_ or it ends up
being _prior restraint even before the NSL is issued._ Not sure I would risk
my business on it though.

~~~
rsync
We have been operating such a "warrant canary" since 2006:

<http://www.rsync.net/resources/notices/canary.txt>

Some additional details - we update the document weekly, and include a non-
vague news item from the financial press that we could not have known about -
this proves that these are not being pre-populated, or published
automatically, etc.

Further, we replicate these to our non-US (Zurich, Hong Kong) locations so
that multiple court jurisdictions are required to coerce them to be created
falsely.

I wonder how the canton of Zurich would rule in such a case ?

~~~
e12e
It is a great effort. But AFAIK -- actually putting it to use -- would put you
in danger of whatever punishment there would be for not complying. I suppose,
in the most extreme of cases, death (presumably for "treason"). More likely
some form of "aiding and abetting" or "profiting from" (or even "conspiring to
commit...").

As Zurich's interest's align more closely with the US than Hong Kong, I think
you'd stand a better chance of Hong Kong refusing, than Zurich.

The most likely scenario would be to put pressure on one or several members
with access to "put back" the warranty canaries, if at all feasible (or just
putting pressure on the only one's that were told of the warrant in the first
place, effectively forcing them to lie to their colleagues as well. A national
intelligence organisation can be a very scary thing disobey).

I still respect your willingness to have such a canary in place -- but in the
event that is truly needed, I doubt it's effectiveness (I would love to be
proven wrong, though).

~~~
einhverfr
The point though is:

Ordering you to update the canary is in effect, ordering you to make
affirmative, untrue statements about your products, namely that they are
secure against government surveillance. Do I think they'd threaten you with
obstruction? Yes. Do I think they'd threaten to send you to jail? Yes.

But do I think they'd arrest you and try you? I am not sure. They might. But
once they do that, they are in a bind. They lose the leverage against you
revealing the _specifics_ of the warrant (other than that there was one
somewhere), _and_ they go past the point of no return, where you have to fight
back and challenge the Constitutionality of the order to lie. I won't give
advice (IANAL, etc) but I think the most likely outcome would be a game of
chicken. It would be a public fight (you have a right to a free and public
trial with all evidence submitted in open, public court, obviously including
the NSL or warrant!), and they'd risk an adverse judgement handing a tool to
everyone to resist this.

So if they are willing to try you and admit the NSL or warrant as evidence,
they are then revealing more than you have, and this undercuts their case.

~~~
flyinRyan
In theory you have a right to a public trial, but it seems to me that the
government has been ignoring more and more rights lately (of course, a lot of
this is just better coverage than we had 30 years ago).

~~~
einhverfr
I don't know about more courage. Look at how many people in Washington State
lost their jobs due to being accused of Communist involvement in the Canwell
hearings in the 1940's. The mere accusation was enough to cause people to be
fired and blacklisted, setbacks from which they would never recover fully.

I think less things change than everyone likes to think. We were just living
in a more protected time after the McCarthy approach was deemed to be Un-
American. The cycle is swinging back the other way, and it will be perhaps a
few decades before it recovers (if it does).

The real danger from where I sit is actually that for things to recover we
need a vibrant middle class. We need people like John Caughlan (my mother's
uncle) who went to Harvard but then dedicated his life to fighting for the
politically persecuted to an extent he was even kicked out of the ACLU for
defending the unpopular (the ACLU later apologized and gave him their William
O Douglas Award). You can't have that if everyone comes out of college with
crushing student debt and you can't have that if small businesses and self-
employment becomes prohibitively regulated. The economic and political
realities are unfortunately intertwined in a way that makes me pessimistic
sometimes.

------
diafygi
This article is likely not updated with the fourth company: Google, who
recently lost their initial challenge.

[http://news.cnet.com/8301-13578_3-57587003-38/judge-
orders-g...](http://news.cnet.com/8301-13578_3-57587003-38/judge-orders-
google-to-comply-with-fbis-secret-nsl-demands/)

However,

> It wasn't a complete win for the Justice Department, however: Illston all
> but invited Google to try again, stressing that the company has only raised
> broad arguments, not ones "specific to the 19 NSLs at issue." She also
> reserved judgment on two of the 19 NSLs, saying she wanted the government to
> "provide further information" prior to making a decision.

and

> Illston, who is stepping down from her post in July, said another reason for
> her decision is her desire not to interfere while the Ninth Circuit Court of
> Appeals is reviewing the constitutionality of NSLs in an unrelated case that
> she also oversaw.

So it seems that we'll have to wait for the Ninth Circuit to declare NSLs
unconstitutional before deciding if Google's case counts as a loss.

~~~
notimetorelax
OT: There should be some rule about publishing articles without date on them.

~~~
heresthedate
For what it's worth, I was able to track down the date via one of their RSS
feeds:

[https://www.aclunc.org/home/features_aclu_of_northern_califo...](https://www.aclunc.org/home/features_aclu_of_northern_california.xml)

National Security Letters

05/06/2008 03:05 PM

------
declan
I think the ACLU's article was correct when it was written, probably a few
years ago. It is no longer correct. In fact, DOJ initiated the second NSL
lawsuit. That's the opposite of "withdraw[ing]."

(By way of background, I disclosed the existence of the SF NSL court order
last week and also disclosed the existence of the NYC NSL lawsuit.)

------
fnordfnordfnord
Well, of course the gov't withdraws. Even if the NSL is legit, the gov't
should probably withdraw for the simple reason of protecting their program and
their investigation from scrutiny. They already have the information they
need. And, they can simply re-file the NSL later if that becomes necessary.

Now, consider the gov't's probable reaction when the NSL isn't legit, and they
know it (I suspect this is the case for the majority of NSL's). The best
strategy is still to withdraw the NSL, and evade scrutiny as much as possible.

------
JacksonGariety
SHARE THIS ON FACEBOOK

