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Comment by Zak | Hacker News Reader

I have to wonder whether a person is legally obligated under such an order to actively hide the existence of the NSL request. Does he really have to lie to his clients, friends and family when asked directly about it, or would "I can't answer that" satisfy the letter of the law while giving the asker a strong clue as to the answer to their question?

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My understanding is that he was not allowed to communicate its existence to anyone else through any means.

Saying "I can't answer that" is effectively disclosing that you are gagged, which is not allowed.

It's a totally insane prospect.

You have a point there, but "I won't answer that" doesn't actually communicate anything and seems like a viable alternative.

It does communicate something. If you weren't under a gag order, you'd likely answer "no", not "I won't answer that".

From the reddit AMA:

We had been meticulous in our care to not violate the gag in any way shape or form. We didn't want to jeopardize the case, and obviously didn't want to run into any legal trouble.

I read this as him saying he didn't want any issues raised that might distract from his lawsuit. That doesn't necessarily mean that the approach I proposed wouldn't be legal. A law that compels a person to lie is a bit more absurd than one that compels a person not to talk about something. It's pretty common to hear "I can neither confirm nor deny..." from government officials who work with secret stuff. I think chances are pretty good that would work for civilians under gag orders as well.

There was a backup site, rsync.net, which sent weekly announcements saying 'we did not get a National Security Letter this week'.

Here's their "warrant canary": http://www.rsync.net/resources/notices/canary.txt

Assuming this even legal, I wonder if it would also be legal to have a warrant canary for each user.

I seem to recall that libraries did this a looong time ago and the courts ruled in their favor, but I don't have a link handy and DDG/Google were no help in that regard.

Yeah, cute idea, but I don't think it would actually work.

Failing to post the canary message would cause people to know that you received an NSL. This is the definition of "disclosure."

If you can find an instance of such a scheme being tested in court, I'd love to see it though.

IANAL but I'm pretty sure that if they did get a NSL, they would be legally obligated to continue to signal that they didn't, just as the author of the piece had to lie.

Surely this is against the US first amendment?

No, of course not. The first amendment guarantees freedom of expression, not freedom to disclose confidential information.

The courts seem to disagree with you on this point as it pertains to national security letters.

I haven't read any of the legal decisions; they're long, and I'm not a lawyer, but I see a big hole in the argument you're making. In every non-pathological case I can think of, a person receiving confidential information that they'll be prohibited from disclosing agrees to the confidentiality first. You can't send me an unsolicited letter containing information you want kept confidential and sue or jail me if I disclose that information, but the FBI can (pending the outcome of their appeal of the ruling that says they can't).

The first amendment guarantees free speech from being prosecuted criminally, not civilly. If your speech causes harm to come to someone or someone's property, then you can be prosecuted criminally just the same as you can be prosecuted criminally for using a rock to bring harm to someone. You have the right to throw rocks, but if you cause harm to come to someone then you can be held criminally (and civilly) responsible.

This is not a situation where someone's speech can be said definitely to cause harm to someone. Therefore the first amendment guarantees you will not be criminally prosecuted for it, though the government does not care.

Disclosing confidential information is not protected by the first amendment because it is a civil matter, not a criminal one. The federal government could (within the bounds of the constitution) bring a civil case against someone who violates the gag order, but it would be an uphill battle for them because the person violating the order did not sign a contract agreeing to keep quiet.

Sadly, the only "living document" argument that makes sense anymore is that the constitution has died.

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