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.
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 ?
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).
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.
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...).
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.
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.
After consultation with several attorneys and government
officials from two branches of our government, we have
opted to discontinue the warrant canary.
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?
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?).
> 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.
National Security Letters
05/06/2008 03:05 PM
common practice in science papers, which is weird as the citations invariably have date.
(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.)
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.