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.