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When NSLs have been challenged in court, the government has withdrawn (aclunc.org)
179 points by diafygi 858 days ago | 28 comments

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.


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


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 ?


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).


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.


Maybe. Then again, these things (NSLs) are supposed to be about national security, aren't they? As of now I don't think the intelligence establishment is mad enough to disappear a "well standing" (white male?), resourceful citizen -- seeing as the entire idea of these secret laws are clearly illegal by any sane definition -- but how long will that last?

Also, remember that if this is part of some semi extra-legal investigation, one or more of the agencies involved might pressure you with black mail of some sort. Or a mix of black mail and prison.

But yeah, I think the reality of the situation is: comply, or government will frown on you and your business, and that might be the end of your business (at least you can forget about having new radio spectrum for your wireless, or any other licence you might need, etc...).


It would be easy to go through ever phone call and financial transaction until they find a true but incidental or trivial felony to hit you with.

Whether you subscribe to the Richelieu argument or not, I know 25-50% of first time home buyers are open to the head-shot. (borrowing money on the side from family or friends for their down payments - a federal felony)

Look at how they took down Joseph Nacchio for denying the 2001 (illegal) tapping requests.


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).


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.


How did you reach the conclusion that people are being murdered for doing what rsync.net is doing?


If I ever see a press-release like:

    After consultation with several attorneys and government
    officials from two branches of our government, we have 
    opted to discontinue the warrant canary.
I will know there was a court order involved ;-)


Outside of the US couldn't you just say directly where you received warrants?


That is the exact idea behind this [1].

[1] http://www.rsync.net/resources/notices/canary.txt


Read the statutes. 18 USC § 1409(c), 18 USC § 1510(c) "knowingly and with the intent to obstruct an investigation or judicial proceeding violates such prohibitions or requirements applicable by law to such person shall be imprisoned for not more than five years, fined under this title, or both." My reading is you'd have to do more than change a web page to run afoul, specifically, you'd have to intend to disrupt an investigation or judicial proceeding.


I believe an argument could be made, that having and maintaining such a canary in place, could be considered obstruction -- at such a time as the canary comes into effect. I.e. having it there is probably legal, using it as intended, probably isn't. IANAL etc.


Yeah but here's the thing. You run straight into two problems when that happens:

1. Are you going to be ordered to affirmatively lie about claims regarding your products? Is that protected by the first amendment?

2. Suppose you have a public case and win? Now everyone knows that canaries are protected and can be used to run around the gag orders. The question comes down to this: Who is more afraid of what? You of 5 years of prison or the government of losing this tool once and for all?


Oh, absolutely. Of course, that would be 5 years in prison after sentencing. Consider the fact that both Kevin Mitnick and Jeremy Hammond (allegedly) were threatened with the "revolving door" of never having their "final" day in court, spending an indefinite time in jail (as opposed to prison) and in cross-state prison transports.

Now, they were accused of committing crimes directly (hacking/so called computer "fraud") -- so it's not quite the same thing (one would hope).

The chilling thing about these laws, is that they're (allegedly) only used for secret "national security" stuff. So if you go up against that, you aren't that far from being held "in the interest of national security" -- and -- there might be an honest (or seemingly so) appeal to your patriotism thrown in there, for you to actively become an agent of national security (spy on your neighbours for their safety!).

I don't think it is at all clear cut (how can we know how many of these law are even legal, if some of them are secret?).


As an interesting data point though (which works heavily against the government here), a petition for habeas corpus requires that you specify grounds for habeas, and facts supporting the grounds claimed, so as soon as you are arrested if you aren't promptly arraigned, you pretty much must have more details filed in public court.


Yeah, I agree that if you somehow become arrested, rather than unlawfully detained, the game seems to be stacked against the government. Now, in theory, if you're unlawfully detained, the game should also be stacked against the government...


Unlawful detention is exactly what habeas petitions are for. If they arraign you, you can't file one. If they hold you without charges, that's when they come in handy.


I've just submitted a post on this. What you're referring to is called a warrant canary.



I think it is clear that the gov't can force you to make a false statement, including forcing you to leave your canary unmodified. At least within the limits of what threats of violence can achieve. I'm going to assume that is the case. That carries some pretty ugly realities with it about the nature of our gov't's recent conduct, and probable future conduct. Good luck to anyone who ever has an occasion to challenge the gov't in a situation like this and does so.


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



> 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.


> 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.


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


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


National Security Letters

05/06/2008 03:05 PM


this always annoys me..

common practice in science papers, which is weird as the citations invariably have date.


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.)


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.




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