I'm waiting for the first publicly released case against warrant canaries. From everything I've seen, and based on the site you linked as well, they're essentially untested. Other cases involved compelled falsehoods or compelled speech exist, but not in the same or even relatable context: in this case, it's clear that the recipient of the gag order made premeditated statements designed to allow them to make a compelled speech claim that sidesteps a gag order.
I suspect that the judicial system will not rule favorably on such a clear attempt to get around the gag order, and the end result may very well be a limitation on warrant "canaries" being published in the first place.
And, given that it's likely a case involving warrant canaries would be handled with the same level of secrecy as the actual proceedings leading up to it, this could have already happened without us even being aware.
What if there was a warrant canary service that killed the canary for you, unless you kept it alive on a regular basis (e.g., weekly, monthly) by providing a secret key and a message. The feds might be able to order you not to take the canary down, but they can't force you to post another update to a third-party canary to keep it alive. And, if they can, it might be time to revisit the role of our government.
My point is that given the clear connection the prosecution can make "they set up this system specifically so that if we served them an NSL with a gag order then they could circumvent the gag order", the odds of the judge saying "nah, they got you" is low.
I expect either they receipient would be compelled to post updates, under the grounds that by not posting updates they are speaking (the case would be that the 3rd party system does not count as speech, and in fact not posting an update would be speaking, because not updating is what conveys meaning to the audience) or they'd find that speech can't be compelled and you can't try to end-run gag orders by using a "canary", so all the warrant canaries would vanish more or less at once
Let me guess. Only a 2L? Gonna cover constitutional law in your third year? You may wish to read a bit more about the first amendment and its exceptions.
It's actually pretty simple and the text is pretty short. You should have a read sometime. There are no exceptions, and it's pretty clear about that.
Now, that isn't to say that our judicial and executive branches of government haven't ruined its enforceability, but that's a story about the resolve of our citizens, not about the first amendment.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
The latter outcome (that all canaries are banned) seems totally implausible from a first amendment point of view: it would prohibit anyone from ever saying "I've never received an NSL," period. The former (the compelled speech) seems like the more likely outcome to me.
> What if there was a warrant canary service that killed the canary for you. The feds might be able to order you not to take the canary down, but they can't force you to post another update to a third-party canary to keep it alive.
If government can punish you for communicating prohibited information by action, it can also do so for using a pre-arranged absence of action to communicate the same information. If there is a legal prohibition on communicating the information, maneuvering around the mechanism to communicate the prohibited information isn't going to make it legal.
This. The judge is not a robot, and is unlikely to be fooled by "but I'm not releasing information, I'm removing information so it's not against the rules"
There's just no technicality you can get away with here, because judges and juries are people too, and will know you're just trying to find a way to break the spirit of the law.
Providing a warrant canary through a service would expose it to more legal threats, not fewer. The more manual the process is, the better of a case you can make that it's a form of protected speech.
Why doesn't Canary Watch have a canary? They publish information that federal prosecutors might like to suppress. If a lesser-known service provider were targeted, and CW were forced to take down the relevant canary info first, how many people would realize it?
See https://canarywatch.org/faq.html for more information.