I think courts often encounter people who have clever interpretations of laws, but who then get a bit of a rude awakening when their "Air Bud" style workaround gets slapped down when it meets a surly judge who has no time for their shit. Obviously not a lawyer, so I don't know whether this is one of these, whether it's something yet to be tested in court or whether Warrant Canaries are already accepted as valid.
The is substantial precedent that the US constitution prevents the government from compelling speech, litigated all they way to supreme court. This isn't some sovcit-level workaround, there is actual legal theory behind it.
It is important to note that the more "low-effort" style of warrant canary, or simply posting a static page that says that you have not been served a warrant, is probably not safe. Taking the page down is possibly an action you can be legally prevented from doing. However, that's not what rsync.net is doing. They are specifically posting a new one every week, because no court or authority can compel them to post one if they don't want to under US law.
Then why does every food product have a "nutrition facts" label, mandated by the FDA, if said mandate is unconstitutional? Either some compelled speech is constitutional, or Nestle hasn't bothered to litgate it (strains credibility), or all the food manufacturers think that American consumers care enough about having the nutrition facts that they'd have a competitive disadvantage if they removed them (even less credible).
Edit: My point is that "compelled speech" isn't the issue, it's "compelled false speech" vs "compelled silence", either of which infringes on the right to free speech in some way.
Further, if this actually gets litigated, it seems pretty likely that the DOJ will argue that the government isn't compelling "false" speech, so much as the canary's owners deliberately created a situation where compliance with a lawful compulsion to silence would require them to lie; that they more or less "banked" a lie, and then tried to pin that on the government when it was time to make the withdrawal.
(That's not to say this argument, or any canary argument, would avail; who the hell knows, should be our watchwords in this matter.)
> why does every food product have a "nutrition facts" label, mandated by the FDA
The FDA can't compel you to say anything you don't want to. But they can refuse to let you sell your product. The right to sell food isn't as strongly protected as the right to political expression.
The government compels speech like, all the time. Can you cite this substantial precedent you're referring to? The cancer warning label on my couch wants to have words.
> On Friday, the 9th U.S. Circuit Court of Appeals joined a slowly emerging consensus among the federal circuits, holding that governments have the right to mandate corporate speech “if the information in the disclosure is reasonably related to a substantial governmental interest and is purely factual.”
The latter requirement does not seem to be held in the case of compelling rsync to post an updated warrant canary claiming not to have received a warrant if they have.
Furthermore, in the case of cancer warnings, the actual law is phrased as:
> No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual
so, it's not so much compelled speech "out of the blue", rather it's a requirement of doing business. There are other ways the business can comply with the law, such as not including the chemical in the product. In the case of warrant canaries, I'd be surprised if there's a similar law requiring them to be posted to do business.
If you force somebody (who's not even the defendent, just a witness in the case) to (cryptographially) sign a message of your own choosing, why not just take the shortcut of forcing the defendant to sign whatever confession you want them to? Much easier, quicker and cheaper than these fancy workarounds.
You must be referencing a court case where a modern warrant canary has ended with the perp in jail. Who might that be? You prefaced with "I think", but spoke with quite steadfast certainty, surely this piqued your interest for a reason.
No, nothing specifically related to Warrant Canaries but some law podcasts I listened to - ALAB and Mic Dicta for example - have referenced this phenomenon a few times. It's usually a tech bro or sovereign citizen with a novel interpretation of a law that ends up failing when they eventually have to try to argue their case it in court.
True, and it's been elaborated elsewhere that these have already been tested in the supreme court. But you have to admit that without that precedent, it does seem a little bit cheeky - "oh the law says I can't do X, well it doesn't say I can't simply not do inverse(X)" :)
For a funny / not funny example, see the attempts to ban analogs of illegal drugs. The whole research chemical thing is a result of the need to legislate exactly what’s illegal.
Supreme Court decisions can sound like sovcit stuff when they reference English common law, the Magna Carta, etc. Warrant canaries are just intended to exploit a technicality. There are a lot of technicalities in law that authoritarians don't like.
I have to agree with you. Freeman of the land come to mind.
I think the danger here is the interpretation of the prohibition on telling people you've been served with a secret warrant.
Whilst you seemingly can't force someone to do something the fact that not doing that thing is effectively telling people you've been served a warrant is grounds at least to take you to court.
I can only imagine this canary process being manual, if it were automated I'm unsure it could be considered speech (obvs: IANAL).
I think you're taking non-US[0], non-lawyers speculating about US law a little bit too seriously. I mean it could be argued that we shouldn't even be commenting if we don't know, but where's the fun in that? It's Hacker News, not Lawyer News :)
I'm not comparing them, in that paragraph I'm commenting on the parents comment about people being slapped down by surly judges. That's why is in the first paragraph on its own.
I don't think this thread had the tone of an argument at all. If there were two people seriously butting heads going back and forth on something, yeah sure. But pulling a [Citation Needed] on some people who aren't experts but want to have a sincere and pretty civil discussion feels a bit much.
