The problem with this threat is that once the cat is out of the bag, you can't put it back in. It's similar as making defamatory statements in court and having it stricken from the record - "OBJECTION!"
The problem is, you can't force the jury to un-hear that. The damage is done. You can't unring a bell. You've tainted their opinion, whether the judge tries to undo it or not.
If you put a gag order on me and suggest trying me for contempt of court if I say anything and I think the value of me talking is greater than that of my freedom, I will speak up. If I can get around the gag order by using a warrant canary to implicitly say what I'm not allowed to say without being tried for being in contempt of court, then that's what I will do. Until the laws are rewritten to prevent the use of warrant canaries, there's nothing the courts can do about this. It's a valid loophole.
There's little point in killing my family if everything I know is already out there in the wind. I can't do any more harm than has already been done. All you have is retribution. Our agencies often take a pretty dim view of retribution. Chances are, I'd just end up with a contempt of court charge and be thrown in jail, potentially indefinitely. But realistically, the damage is done. Once again, you can't unring a bell.
There's little they can legally do to pursue my family, there would be political uproar. So beyond charging me, I imagine they'd be relatively safe.
I'm not sure there's much of a distinction between removing a warrant canary and breaking a gag order. Judges tend to have a low opinion of loop hole technicalities like this that provide the same function.
I'd suspect the legal punishment/risk is the same so at best they're kind of pointless and at worst they might be extra misleading since users may believe the presence of the canary means there wasn't a request when there actually might have been.
Developers often thinks laws work just like computers: If you can find a loophole where you technically follow the letter of the law, while undermining its intent, then you have hacked the law and can't be punished!
Judges do not think like that though.
Remember when Microsoft was forced by a judge to offer a version of Windows without the Internet Explorer browser? Microsoft just removed all the dll's IE used. But since some of the dll's were also used in other parts of the OS, this version of Windows could not run. But they had complied with the ruling!
Microsoft thought it was very unfair when they were ruled in contempt of court.
Does this mean that if you were screaming from the rooftops "I'VE DONE NOTHING WRONG" every day leading up to the gag order and then you stop screaming from the rooftops that you'll be in contempt of court?
Can the court compel you to continue with behaviour to cover something up?
Would that be akin to conspiracy to commit fraud or wire fraud if electronic? Wouldn't that make the court and thus the judge complicit in conspiracy to commit wire fraud?
I have a feeling a judge is not about to risk being disbarred for such behaviour.
Of course, I'm not a lawyer and this is purely conjecture on my part.
It doesn't matter if "screaming from the rooftops" seems to you _logically_ the same as a warrant canary. The courts tend to care about the _practical_ effect too. If the practical effect is to violate the gag order (because people were actually paying attention to you screaming from the rooftops, maybe), then... maybe? We aren't sure.
And dude, judges don't get disbarred even when they do CRAZY stuff. A judge getting disbarred (or even dis-judged) is _exceedingly_ rare.
A judge is _definitely_ not going to get disbarred for making a ruling _you_ think is irrational, but isn't actually inconsistent with any established case law, because it's not estabished yet.
Not even going to get _reprimanded_, let alone disbarred.
The U.S. just doesn't work how you think it works.
Has anyone been held in contempt of court for failing to update a warrant canary. I don't believe so. So it seems to be working?
Another poster pointed out that courts generally do not uphold orders to compel speech when that speech is untruthful. So a court order to untruthfully update a warrant canary will not likely survive a legal challenge.
If the warrant canary is in the company's financial statements, is the judge going to now try to force the company to introduce inaccurate information into their public financial disclosures? The SEC might take a dim view of that.
The company can take the 'can neither confirm nor deny' posture, and simply remove the warrant canary from public financial statements. Or leave the most recent accurate and dated one unchanged.
I’m guessing this depends on the judge? I was in traffic court and one of the lawyers argued that the statute did not explicitly say what his client did was illegal.
I don’t recall what it was, but he read the statute and explained the technicality and the judge agreed with him.
Part of the job of lawyers is to know the judges they interact with and what sorts of claims they'll take seriously and which ones they'll overrule. That has very little to do with the kind of immutable logic outsiders tend to try to read into the law.
Often, the law does treat action and inaction very differently. Eg: it’s illegal to poison your ailing grandparent, but legal to let them die by removing the feeding tube (because you are just “not feeding them anymore”).
The law doesn’t care if you say “let’s put him out of his misery” before pulling out the feeding tube, even though it demonstrates a clear intent to kill.
In my country (Slovenia), you would still be found in breach of the court order.
If court orders you not to reveal a certain item, and then you go and reveal it[1], at least here details of how you revealed it do not matter.
If you set up things in a way that you have to lie in order to comply with court order, that's your problem and not courts. Court will not compel you to lie. It will punish you for breaking a court order.
And that fact that you did it in advance in anticipation of such order, would only make matters worse for yourself. (willful disregard, or however it's translated)
[1]: Setting up a canary and then not updating it, is revealing it. Just because you went through convoluted means to do so, its the results that courts care about.
OK, what if you provided total read-only access, to everything on all of your machines, networks, communications and so on, to someone like me. Someone who you could trust 100%. And whose reputation depended on that. Someone who was totally anonymous (which I'm not, but I could have another persona that was). And someone with such deep backdoors into your stuff that they couldn't be evicted.
And so it's that person who maintains the warrant canary.
Or instead, it could be an ~undocumented feature of your outside counsel. Because you do have the right to outside counsel, I think, even regarding NSLs.
You don't know if it's a "valid loophole" until it's tested in court. You could later find yourself under prosecution, and possibly eventually in jail and/or with a business-destroying fine. If you are willing to risk that, because you think "the value of talking is greater than that of your freedom" -- I think that's actually quite honorable and respectful!
You could of course violate the terms of a sealed warrant or other enforced-confidential court order without a warrant canary too, although of course that goes from "we're not sure if I can get away with it", to "this is definitely going to be a really big legal battle, that _maybe_ I can come out of, if there's enough political uproar."
Using a warrant canary _might_ end up being just as much legal jeopardy, we're just not sure.
The problem is, you can't force the jury to un-hear that. The damage is done. You can't unring a bell. You've tainted their opinion, whether the judge tries to undo it or not.
If you put a gag order on me and suggest trying me for contempt of court if I say anything and I think the value of me talking is greater than that of my freedom, I will speak up. If I can get around the gag order by using a warrant canary to implicitly say what I'm not allowed to say without being tried for being in contempt of court, then that's what I will do. Until the laws are rewritten to prevent the use of warrant canaries, there's nothing the courts can do about this. It's a valid loophole.
There's little point in killing my family if everything I know is already out there in the wind. I can't do any more harm than has already been done. All you have is retribution. Our agencies often take a pretty dim view of retribution. Chances are, I'd just end up with a contempt of court charge and be thrown in jail, potentially indefinitely. But realistically, the damage is done. Once again, you can't unring a bell.
There's little they can legally do to pursue my family, there would be political uproar. So beyond charging me, I imagine they'd be relatively safe.