This would imply that the court can order you to lie to your customers. I think this is not the case.

If there is any precedence for any US court requiring public citizen to lie I definitely want to know about it.

If the courts are acting like they have this power then it will greatly change my perception of how the courts, NSA, and congress are currently acting.

There was a HN discussion about this two months ago [1]. The general consensus seemed to be that a court would not take the same kind of philosophical and logical approach that most HN types use, and would classify a failure to update the canary as effectively a communication that a NSL has been received. Since the courts only care about the facts that communication is occurring and that the court prohibited it, contempt of court would be the most likely result.

TL;DR: Judges don't philosophise about specific methods for circumventing their intentions.

[1] https://news.ycombinator.com/item?id=5871541

After reading the thread the conclusion seemed to be that courts can not order you to lie, but may try to hold you in contempt of court for failing to update your canary.

If all actions but the one the government wants are ment with punishment then it is functionally equivalent to ordering/mandating/requiring a specific action.

If there is precedence for punishing all but the course of action desired by the government I would be interested. If there is legal precedence for ordering/mandating/requiring an action being different form punishing all but the desired action I would also be interested in knowing.

I am going to read the thread now do you know if any court cases were mentioned that set precedence for requiring someone to lie to their customers?

I am definitely interested in any court cases that set a precedence for ordering/mandating/require lying.

They have in the past - there are definitely situations where you are required to lie, for example, when working on classified materials or covert operations.

Slightly different, that is an operative agreeing to be an operative with up front knowledge of what it entails. So the person lying has agreed to lie before being given the information or a mission. If you know a case where a person has been prosecuted for not lying rather then breaking an agreement I would still be interested.

I am not sure what I think about your scenario off the top of my head but I do consider it different.

You could choose to take a job where you are required to lie, but no-one can force you to take such a job.

The Military Selective Service Act disagrees with you.

You couldn't be conscripted in private and compelled to lie.

Well, there is one last piece, and that is the geographically disparate canaries that we maintain.

The question is not "can a US court compel XYZ US citizen to lie", it is "can a US court compel XYZ swiss citizen to lie".

So you should take note, of course, if our warrant canary ceases to update. You should also take note if the US one updates but the swiss (or Hong Kong) one does not ...

This is made easier as a local warrant canary is available to all account holders in their /tmp dir ...

ssh [email protected] tail -200 /tmp/canary.txt

Cheers!

I'm also unsure of their proven effectiveness, but how could they hold you in contempt for _not_ taking an action?

I'm sure they would argue that you weren't supposed to reveal that you were under an NSL, and that your inaction did reveal it, so you violated the terms. As the grandparent says, it probably just a cute legal trick that wouldn't impress a judge.

If it gets to the point that a judge is not impressed, at least the public has been warned.

The "judge is not impressed" means they would probably view it as the same as just warning the public directly, with equivalent penalties.

And thus the canary is legally useless--if you're going to have the penalties of violating a national security order, might as well just do it in a straightforward manner.

At this point, it is speculation that the judge would not be impressed. If anyone decided to test the theory, the public would be informed regardless.

I agree, but your analysis is missing something: the canary-threatener may be secretly, without a public ruling, within the refresh interval, be convinced that if he doesn't keep updating (falsely) the canary, he'll go to jail. In other words, the precommitment to stop producing the canary signal isn't fully credible (though it seems much more likely to get the message out than a promise to actively say if something happens).

The technical solution to that social problem (yeah, we know how well those work) is to set the refresh interval to be less than the time required to process a motion contesting the government's order to update the canary.

Maybe, but expecting a false oath makes a mockery of the entire testimonial system.

Canaries always stunk of that juvenile "technically correct" stuff many tech people seem to grow out of later than others.

If the judge says "don't paint your wall red" that means "or anything close by any means".

It doesn't matter you tried to hack your way out with an automatic vermillion paint flinger setup before the order. You still are supposed to "make the wall not get painted red".

The government can compel you to paint a wall green. They can't compel you to say you liked it. They especially can't compel you to break the law (assuming you set up some kind of situation where it's fraud/perjury/whatever to lie).

And look at how email retention works.

>They especially can't compel you to break the law (assuming you set up some kind of situation where it's fraud/perjury/whatever to lie).

They can most certainly hold you in contempt because you got your self in that mess.

>look at how email retention works.

Document retention policies are allowed because otherwise the civil court system would be prohibitively expensive (lawyers have to read all your email once you get sued basically). Once you get a court order that says to, you have to stop destroying email, etc, disabling your automated destruction systems.

The only reason to have canaries is to violate the terms of gag orders. Judges aren't sympathetic to that.

Hold you in contempt for something you did years before the case was filed or the investigation even started? God, that's even worse than contempt of court for failing to say passwords under the fifth amendment.

I'm pretty sure I have some truecrypt containers I've forgotten the passwords to, sure hope I never get arrested!

I think automatically breaking a gag order by a complicated mechanism is pretty contemptuous of someone trying to not get that information out?

I am not saying they're not worthy of that contempt, merely that they don't care if they are, just if you're showing contempt for the process and violating the order

It's contemptuous of the court if I set up the mechanism because I was going to get such a gag letter.

But to say that a canary I set up a decade ago is contemptuous of a court filing made a month ago is ridiculous.

>But to say that a canary I set up a decade ago is contemptuous of a court filing made a month ago is ridiculous.

No it's not: You show contempt for the idea they could demand you silently turn over information. It's seething out of your posts here on HN even.

I don't think it's right they can do this, but I do think it's quite clearly preemptively raising a middle finger to the whole thing; it is "I cross my fingers behind my back so my swears don't count" type of stuff that judges don't accept and toss you in jail for.

You don't get to outthink and out maneuver this crap: You have to beat it in the system.

Right, it shows extreme past contempt for the very idea that it could be possible, but this is in no way contempt toward the specific judge, nor must there still be contempt at this point.

Laws and ethics are rarely synonymous though.

Usually contempt of court is used for not taking an action. Examples would be in situations where the court was attempting to compel journalists to reveal their sources, and contempt of congress during the House Unamerican Activities era for not revealing information they wanted.

I have the same question. It's very odd for a court to compel positive action.

An order to appear is a positive action where you can be punished for not doing something.

I don't think it would be any different from holding you in contempt for doing something. The court notices that your inaction caused you to contravene a court order, and the court then holds you in contempt.