Couldn't the government make an argument that intentional removal of this language would be tantamount to violating the "gag order?" Would Apple be liable for lying about something that no one would ever know is a lie?
This is one of the reasons that our warrant canary[1] is distributed to all of our storage arrays, some of which are in foreign countries (Switzerland and Hong Kong, namely).
Then the question changes, and becomes: "can the US government compel a swiss national to make false statements".
From 2006 to 2010 we simply had the canary on our web page, hosted in the US - but from 2010 onward we had it there, as well as in the /tmp directory on customer filesystems.
> Then the question changes, and becomes: "can the US government compel a swiss national to make false statements".
Does it? They can't prevent the disclosure no matter what they do, but they know who they sent the NSL to. They may not be able to arrest the person who made it public, but they can still arrest the person who failed to keep it private.
Without disclosing too much of your internal procedures, can you say if you have a mechanism in place to prevent an American being compelled by American courts to tell a Swiss national that it is okay to update the canary? Under a gag order, the American presumably cannot inform coworkers in other countries that they are under a gag order.
Unless you put the foreign nationals in charge. In that case if their cooperation is needed for compliance with the order you have to tell them or they could just reject.
True, you just need to assign them enough authority that their approval is a technical requirement for compliance. You would then have to rely on them evaluating the provenance of the order and stopping any canary related activity if they get an order that is suspect.
I don't think it is an unsolvable problem, it just takes some tricky thinking to implement if you have more than one person in your organization.
> "can the US government compel a swiss national to make false statements"
I don't think anyone can compel Switzerland to do anything. They've been militarily neutral since as long as I can remember and if Wikipedia be believed, every male in the country has military training. I'd say there's very little the U.S. (or anyone else for that matter) could do to compel them to do anything. Especially being as if the U.S. wanted to do anything more than issue a stiffly worded letter, they'd bring the entire wrath of Europe crashing down on their heads... which may or may not include a number of their greatest allies. That wouldn't be very bright politically.
"a swiss national" does not mean "the swiss national government", it means a citizen of Switzerland. Nobody is talking about invading Switzerland to force the government to do something they're vehemently opposed to; they're talking about cooperating with the Swiss government to compel a swiss national to do something. Whether or not this is feasible in this case is another question, but I have no idea how you suddenly flew off into a fantasy world of conjecture about the US considering an invasion of Switzerland.
As an example more in line with what the parent comment was describing, just look at what's happened to Swiss banking. Their reputation as a reliable tax haven has been horribly shaken by the US DoJ's pursuit of banks engaging in this kind of activity, and this was done with the cooperation of the Swiss government. This is the kind of compulsion that is being discussed here; compulsion with the express cooperation of the foreign government (even if this cooperation was gained through the application of diplomatic pressure).
Perhaps they're taking a calculated risk that the government wouldn't risk picking that public-opinion fight. Not many consumers care about the LavaBit story, but "Apple exec arrested for violating secret gag order" would be quite the news event.
Well, maybe. The NSA and other government agencies can falsify documents, in the name of National Security. Apparently there's very little they are not willing to do, in the name of "National Security".
I think about the flip side. I don't think Apple executives or those of any other company would be liable if a "canary" was false. Not trying to "the true messiah denies his divinity" the discussion, but the statement is entirely consistent with a state of affairs where Apple had been served with or complied with warrants. And as in a state where they had not, publishing a "canary" is good public relations.
I'm pretty sure the government can, and would, even go a step further and order that the language be left in the next filing, and even arrange written (and of course sealed) immunity for doing so. I certainly can't imagine that SEC reporting will ever be an effective roadblock to what the government considers national security.
The normal IANAL applies, but I think that once the gag order has been granted, the rest is just details, and is left to FISA as the presiding court. If the argument that the court has agreed with thusfar is: "saying that this action exists harms national security", then why would a judge tell them that when asked directly, they must lie, but then permit them to not lie by omitting a key line in a filing? To answer your specific point, I just don't think there is another court to take this to.
I'm not a lawyer, so take everything I've got to say with a grain of salt, but I can't see why people don't just ignore gag orders as they're a clear and complete violation of your first amendment rights which "...prohibit[s] the making of any law...abridging the freedom of speech, infringing on the freedom of the press..."
Thus, near as I can tell, the gag order is categorically illegal - a law which abridges your freedom of speech. Surely that's gotta stand up in court? Or what good is the Constitution? If the Constitution cannot guarantee that which it was written to guarantee, then what's the point in having it?
Lest we forget the part of the Presidential oath "...and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." So the President is bound to protect the Constitution... There's no part of the Presidential oath which binds the President to protect the law. Which tacitly implies that the Constitution is more important than the law. So theoretically (actual consequences not withstanding), if you were to ignore a gag order, the President himself should stand next to you in court to guarantee your first amendment rights to freedom of speech and have the gag order thrown out as a violation of the Constitution.
> the gag order is categorically illegal - a law which abridges your freedom of speech. Surely that's gotta stand up in court? Or what good is the Constitution?
A lot of people have a misconception that the Constitution guarantees total, absolute freedom of speech, when it simply does not. The rather clichéd example would be not getting to shout 'Fire!' in a crowded theater.
There are better examples to be found in real life: it would be illegal to say or print something that had the very real possibility of inciting someone to commit violence (as in Planned Parenthood vs ACLA: the ACLA was a pro-life group that encouraged people to take violent action against reproductive health workers).
So I think your mistake is in assuming the first amendment is absolute. It isn't, and for very good reasons upheld by the courts for over a century.
Is a gag order in itself bad? Not always. Sometimes gag orders serve legitimate purposes: for example, to prevent prejudicial information in a trial such as a defendant's previous, unrelated convictions from becoming public.
But regardless, the idea that the first amendment means you get to "say what you like" with no exceptions is a fallacy.
I do think the parent is overstating the case a bit, but I also think you're looking at it backwards. The constitution guarantees you the right to free speech and then carefully circumscribes what the exceptions to that are (e.g. yelling fire in a crowded theater, libel, and others) and those exceptions have sharpened by the courts. But the courts are required by precedent to place a great deal of weight to free speech, and it's generally required that the government prove in these cases that the right to free speech hasn't been violated, or that it passes the strict scrutiny test [1], which is a high bar, and doubly so when it comes to free speech.
In other words, "you're allowed to say what you want" is the default. Thus, a "well, there are exceptions to free speech" counterargument carries the burden of articulating why this particular piece of speech qualifies for such an exception. It's true that many kinds of gag orders have been considered constitutional but many have also failed to past muster and been lifted by courts. I'm no expert, but I suspect the ones in question here likely don't qualify for the exceptions they're claiming to have, because the orders (and the laws that enable them) are very broad, can not be justified by a compelling government interest, and possibly other issues. Time (and the courts) will tell.
The point is: railing that this kind of gag order is an absurd violation of free speech isn't fallacious just because yelling "fire" in a crowded theater is not free speech. It actually is the expectation being expressed in the constitution.
the Constitution guarantees total, absolute freedom of speech
Actually, the Constitution does, it's the government (specifically, the courts) that decided to add a few restrictions, ex post facto.
Whether or not that was a good thing is debatable, but the language in the Constitution could not be clearer: "no laws" means no laws, as in, zero. Nada. Zilch.
That we failed to live up to that ideal as a society is on us, not on the Constitution itself.
Oxford English Dictionary definition of Freedom: "The power or right to act, speak, or think as one wants."
Webster's American Dictionary definition of Freedom: "Unrestricted use".
Thus the dictionary definition would agree with the definition of "Freedom of speech" being absolute. The legal definition may disagree, however, my argument to that would follow:
Article 6, Clause 2 of the Constitution: "This Constitution, and the Laws of the United States which shall be made in pursuance thereof... shall be the supreme law of the land." Which loosely translated means "This Constitution and any laws which support this Constitution shall take precedence over everything else." Consequently, while the "Yelling Fire! in a theatre law," which may have been upheld by the Supreme Court, and which are probably more for the good than bad, and certainly protects more people than it harms, is actually an illegal law under the Constitution as it seeks to restrict your first amendment rights - which is quite contrary to the Constitution.
The wording is explicit. If the wording is not permissive enough for the government and legal system to cope with, then an amendment must be proposed and ratified. There are no amendments to the constitution that say "guarantees the freedom of speech, except where we can convince the Supreme Court to pass a law that restricts that in our favor." The Constitution is quite clear and explicit - "Congress shall make no law" so any law that has passed that serves to restrict your Constitutional rights are illegal in the eyes of the Constitution.
Thus your freedom of speech, in the eyes of the Constitution is absolute. It is only an illegal law, which agreed, made in the best interest of the people, in violation of the Constitution that restricts those First Amendment rights.
So what takes precedence? The Constitution or the law? What happens when they conflict? Well the Constitution covers that... "no law shall be passed" which conflicts with the Constitution. So the question becomes what is more powerful, the Constitution or the Supreme Court? I think that can only be answered by the people.
Why am I, as a non-American and non-resident of the United States, debating in defense of your Constitional rights and you as an American (is that a fair assumption?) are debating against it? That seems a little topsy turvy, no?
They are not, no where in the constitution is that stated.
To Quote Jefferson:
"to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy."
No part of the Constitution expressly authorizes judicial review, nor does the constitution need "interpreted" it was written in plain language and the words are very clear
Lawyers and Judges have supplanted their desires for expediency instead of going to correct and harder path of amendment.
Take for example the 18th amendments, in order for the federal government to ban alcohol a constitutional amendment was required because the government lack the constitutional power to regulate any substance, fast forward about 40 years, and all of the sudden the constitution has been "interpreted" to allow the government to ban any substance it wants at any time it so desires.
No no, the constitution does not interpretation, it needs protection, it needs to be upheld, it needs a court that will defend it, not "interpret" it like it was some dead language that only those chosen few can possibly understand
While seemingly a sensible limitation to free speech, the "shouting fire" line was coined to justify prosecuting a man who was protesting the draft. (This man argued that the draft was a form of involuntary servitude. I think he had a solid point.)
In a nutshell, it was argued that in this case the political speech represented a "clear and present danger" to national security.
Never concede to them anything. Any slack you give them, they will use to hang you.
> This man argued that the draft was a form of involuntary servitude. I think he had a solid point.
In a modern context, absolutely; most laws and treaties banning unfree labour specifically exempt military service, which is considered unfree labour by just about all authorities on the matter.
How much easier it would be if we could just trust that people use their own judgement to ignore nonsensical/potentially harmful things they hear (like is currently the case with advertisement).
I'm not a lawyer either, but I'm pretty sure that isn't how it works. An illegal gag order can be proven invalid and thus lifted, but you'd still be held in contempt of court for violating it before it was lifted. I know that Kafkaesque logic applies to court orders that turn out to be improper.
The freedom of speech isn't absolute. For example, you can get arrested for shouting "Fire!" in a crowded movie theater.
> I can't see why people don't just ignore gag orders
Because people don't think it's worth the consequences. Which might include: Going to jail, financially ruinous fines and/or legal expenses, company being forced out of business which destroys your workers' livelihoods and shareholder value, being sued by shareholders for breaching "fiduciary duty" (making decisions that are blatantly bad for the company).
My guess is that, for a lot of people, the potential reward doesn't justify the stakes.
Thus, near as I can tell, the gag order is categorically illegal - a law which abridges your freedom of speech.
Freedom of speech is not absolute, as demonstrated by any number of SCOTUS rulings, with defamation, obscenity and incitement being the more notable exceptions.
In the case of the rsync canary, compelling rsync to not remove the canary would not be sufficient. They would also need to compel rsync to periodically replace the existing canary with a new one.
It's quite possible that a judge might conclude that a warrant canary violates the spirit of a gag order. But I suppose there's only one way to find out.
Since this is a yearly transparency report, they don't have to remove anything from previous/existing report and can argue each report is created from scratch.
The issue then becomes: can the government compel you to add lies to a document you're crafting?
The court will take into account intention. If it can be shown that the wording was intentionally selected to work as warrant canary, it can be seen as violation of gag order.
