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Comment by matthewmarkus | Hacker News Reader

I've always wondered if there is a side-channel that could be used instead of a warrant canary. More specifically, my understanding is that witnesses have Miranda Rights. Therefore, couldn't a company promulgate a process whereby they'll publicly solicit bids for legal counsel should they receive a NSL? If they start asking for bids, you can assume they've received a NSL. If not, then no NSL has been received.

Any lawyers in the house?

* Edited slightly for clarity.

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I'm not a lawyer, but I think you almost definitely can't do that. The law is not an algorithm, at some point a human judge is going to decide if you've broken it. If the law says "you can't tell anyone" and you tell someone, you've broken the law. It doesn't matter if you told someone through the medium of a press release, or a predefined "unrelated (wink)" process.

Well, I know if you're charged, you have a right to be represented by counsel of your choice under the 6th Amendment.

https://en.wikipedia.org/wiki/Assistance_of_Counsel_Clause#C...

I wonder if that extends to witnesses not charged with a crime in some way. Or can you be denied counsel of your choice under questioning?!

I don't know, but even if you retain that right, it seems almost obvious that you don't have the right to publicly bid for counsel. Presumably the gag order would extend to any lawyer you contact.

Well, if the counsel of your choice was predefined as the one that bid the lowest in an open auction, then why would you lose that right? Could the court further restrict that right down to the specific lawyer they want representing you?

I do agree that the gag order would extend to any lawyer you contacted after the public bidding process concluded.

Why would you get to keep a right you just made up for yourself? If your random corporate process clashes with the law, the law wins. You still retain your constitutional right to counsel, you just need to contact prospective lawyers through private channels, even if that procedure conflicts with the bylaws of your board of directors.

There is no clever loophole here, it's a very simple order. The law says "no [recipient] shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section." https://www.law.cornell.edu/uscode/text/18/2709

Here the definition of "disclose" is "whatever convoluted process you can think of".

Reading further, it does say you can talk to an attorney, but that doesn't mean you can make a Craigslist post asking for lawyers with experience in the Patriot Act.

I don't necessarily agree with your reasoning; however, it looks like one's right to counsel is restricted if one is not charged with a crime:

https://supreme.justia.com/cases/federal/us/352/330/ (1957)

Further, it seems that Miranda only applies to custodial interrogations.

https://supreme.justia.com/cases/federal/us/384/436/ (1966)

I do think that if one is charged or restrained that the process might work. Of course, that's a pretty big escalation!

Why would it work? You think if you told the judge "nothing I can do, it says right here in my employee handbook that I'm not allowed to seek legal counsel without a public bidding period" they would say "wow, you really outsmarted us this time, nice job"? If part of your job involves breaking the law, then the law compels you to not do your job.

It seems like you're trying to hack in a domain that can't really be hacked, because it's not even very well defined. The spirit of the law is clear, I can't see any reason a judge would come down on your side of this. Prohibiting a bidding process does not restrict any of your rights.

I have no idea if it would work. As you state, it isn't very well-defined. I imagine it would eventually depend on a clarification of the phrase "your choice."

Not a lawyer, but according to Wikipedia, Ladar Levison ran into issues surrounding lawyer acquisition during the Lavabit case:

> Afterwards, Levison wrote that after being contacted by the FBI, he was subpoenaed to appear in federal court, and was forced to appear without legal representation because it was served on such short notice; in addition, as a third party, he had no right to representation, and was not allowed to ask anyone who was not an attorney to help find him one.

https://en.wikipedia.org/wiki/Lavabit

What if you told everyone that you would probably retain a specific lawyer if you were served a warrant such as this. If your company retains that specific council and makes a post on your website I don't see how that can be misconstrued as a warrant canary.

The law says you can't disclose that you received a letter, and in this context making a post on your website would clearly be a disclosure. You would be required to simply hire the lawyer without making an announcement.

How about company Y declares they may hire law firm X if they receive a NSL and law firm X subsequently releases a press release stating that they've been hired by company Y?

It still clearly violates the spirit of the law. I guess in this case the government could argue that your attorney represents you; you're still effectively making a disclosure. I think it would be pretty much unheard of for a law firm to unilaterally announce a new client, so it's not like you could claim you didn't know it would happen, or it was out of your hands.

I just don't think it makes sense to look for a loophole here. That's not really how the legal system works, especially in these kinds of national security cases. If you make some conscious decision at some point that ends up informing people of a NSL, that's disclosure. There's no way around it. Setting up a system beforehand probably makes things worse, since you're proving that you fully understand the purpose of your actions and the spirit of the law.

Well, I guess at some level, I think NSLs violate the spirit of the law. Thus, it is worth examining the issue.

I particularly like the above structure because it separates the hiring of the firm from the disclosure of the NSL to the firm. In fact, you might choose to never actually disclose the NSL to the hired firm! Since the firm doesn't necessarily know the reason they're being engaged, they're not making a disclosure either.

I imagine an organization like the EFF could make it a policy to publicly disclose when they've been hired or terminated by a client.

I find it all very interesting...

> an organization like the EFF could make it a policy to publicly disclose when they've been hired or terminated by a client

I've worked at EFF for a long time and I don't believe EFF could adopt such a policy as a matter of prudence -- or legal ethics. I can tell you that there are many reasons that lawyers will regard the existence of conversations, client intake, consultations, and representation relationships as confidential. In fact, they see that as an important principle of legal ethics.

You can see some discussions of the confidentiality of the fact of legal representation as a matter of legal ethics at

https://www.google.com/#q=legal+ethics+"fact+of+representati...

Many times, EFF has to talk to clients and prospective clients about matters that, for a variety of reasons, it's not EFF's place to make public. Just as a start, it's important that people feel comfortable talking to our lawyers when they have questions about their rights in a particular situation, whether or not we end up going to court for that person, and knowing that the matter won't end up in the press or be revealed to other parties as a result of those conversations. Lawyers can also become subject to protective orders issued by courts specifically instructing them not to reveal information about a case.

Legal matters are sometimes embarrassing. Many people who've been sued, arrested, indicted, investigated, subpoenaed, or who anticipate a possibility that one of those things may happen, aren't necessarily keen to draw any further attention to the situation. Often, people involved in legal issues are quite anxious and distressed about what's happened to them. Sometimes people ask lawyers for help dealing with other people's improper disclosure of personal, private information, and naturally don't want their lawyers to draw more public attention to what's happened.

And people who are considering filing a lawsuit, giving information to a journalist, launching a new product, introducing or changing a corporate policy, or responding in some way to a government request, among other things, may have various acknowledged and alleged duties and responsibilities to other people. Announcing or implying that a particular legal case, issue, or situation exists or that a person is taking legal advice on a certain matter could have significant repercussions. It could lead to claims that someone has breached a duty of confidentiality, or it could damage personal or business relationships.

This isn't an exhaustive list of reasons that lawyers will keep confidential the fact of representation or the fact that a prospective client has sought legal advice (whether or not the lawyer ends up representing that client on an ongoing basis), but hopefully it helps to illustrate that this is something that lawyers take seriously as an ethical matter.

I might go with something like this:

"We, corporation X, hereby declare as a matter of public record that our counsel of choice in any criminal proceeding pertaining to a NSL is the EFF. This notice constitutes prior informed consent to any advertisement featuring us as a client of the EFF should we chose to retain them."

Nice! That's very simple and elegant.

What about something simple, like saying, "If we ever receive an NSL, we will change the background color of our web site."

That seems like a "disclosure" as defined by the NSL.

burning karma as breadcrumbs to a fantastic idea.

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