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Re:This Internet provider pledges to put your privacy first.... by anigbrowl on Wednesday April 11, 2012 @06:41PM (#3830005)
I actually don't know if the government could require you to falsely affirm the nonexistence of a legal investigation as part of a gag order - in other words, if you simply stopped publishing your canary message, whether you could be required to do so. Perhaps the failure to comply with such a request would qualify as an obstruction of justice if therre were a colorable risk of it impeding a lawful investigation by tipping off the subject of the investigation; law enforcement officers with an appropriate warrant or authority could require an explanation of how the canary mechanism worked, in the same way that they could require you hand over keys to one's safe, say. There's no right to silence for non-defendants such as material witnesses.
Re:This Internet provider pledges to put your privacy first.... by sounds on Thursday April 12, 2012 @12:45PM (#3833167)
First, thanks for adding good insights into what would (and would not) stand in court.

Would a 5th Amendment right (not witnessing against herself / self-incrimination) protect the owner of the ISP against a charge of obstruction of justice?

i.e. Owner of ISP refuses to post the canary after a gag order. She is not named as a defendant in the investigation. But she can defend herself against obstruction of justice charges: plead the 5th, and thus she is not compelled to falsely affirm the canary.

It's not clear this would work, either, but there might be some pretty solid precedents that could be used in this way.