[archmikhail]

Save people like me a trip to the Google: NSL = A national security letter (NSL) is an administrative subpoena issued by the United States federal government to gather information for national security purposes. NSLs do not require prior approval from a judge.

[tjohns]

Not only do NSLs not require approval from a judge, they also include a very intimidating gag order that prevents you from discussing the issue with anyone else (including even your own family).

One of the big problems with NSLs is that you can't let anyone know that you've received or acted on one, so there's very little accountability.

Hence the recent trend of some companies including a warrant canary on their websites, under the assumption that a NSL can't prevent you from _not_ saying something (e.g. deleting the canary).

[dak1]

I think deleting something would be considered an active action. The trick with a canary is that you're choosing not to do something, so it can't compel you to act (as compared to, for example, telling you you can't delete the canary).

So for it to work, you need to issue a statement every month that says you haven't been issued a NSL, and then simply not issue a statement the month you finally were issued a NSL. That would then require the government to actually compel speech (compel you to post a new notice saying you didn't receive a canary).

Of course, the above should make it blatantly obvious how absolutely absurd the blanket gag order on NSLs are.

[adrusi]

It's not necessarily deleting anything. Reddit states in its transparency reports that it has not received any NSLs. The idea is that if they ever received one they would simply omit that clause from the next report (not remove it from prior ones).

[dak1]

Interestingly, if you accept that code can be copyrighted, and that only things that are expressions (speech) are eligible for copyright ("A copyrighted work must be an original work of authorship which is fixed in a tangible medium of expression"), then code == speech.

So, by compelling Apple to code something that doesn't exist, the government would indeed actually be compelling speech.

[dragonwriter]

Court processes involve compelled speech all the time. Heck, compelling witness testimony, which is one of the most well-established parts of the court process, is nothing but compelling speech.

So, I'm not sure what the value is of a clever argument that compelling Apple to comply with the order here is "compelling speech" is supposed to be (likewise, the upthread one about NSL canaries.)

[dak1]

Fair points that I concede. I'll note I also forgot the nuance mentioned by morsch (that a canary is compelling a lie, which is potentially different).

On a separate note though, I've always thought it would be interesting to see a member of Congress be issued a NSL and then have them read it on the floor of the House/Senate (since they have parliamentary immunity for anything they say on the floor of the House or Senate).

[morsch]

Compelling speech is a thing that happens under certain circumstances. E.g. subpoenas, witnesses in court. Though those are clearly different from a canary, not least because producing such a canary would not just be compelling speech, but compelling a lie.

[lisper]

That's not how canaries work. You don't delete them, you fail to update them.

[iamdave]

IANAL, but how is it a subpoena if it doesn't originate from the judiciary?

[berkeleynerd]

Nicholas Merrill famously fought a 11 year legal battle (and finally won) the right to reveal all aspects of a National Security Letter (NSL) served to him. Almost all such letters are accompanied by a complete gag order.

https://www.calyxinstitute.org/news/federal-court-invalidate...

EDITED / CORRECTIONS - Thanks commenters - The battle was won by Nicholas Merrill not Ladar Levison of Lavabit fame as I originally posted.)

[uxp]

It was Nicholas Merrill from a little ISP called Calyx Internet Access that famously challenged the NSL process.

LavaBit's Lamar Levinson is assumed to be under a gag order from some request he was given by the US government, of which he declined by way of folding his company and claiming that he could not comply moving forward if he was no longer the middleman of some form of communications.

[schoen]

As a further correction, the Lavabit founder's name is spelled Ladar Levison.

Rather than making assumptions, you can read about the specific kinds of legal process involved in the Lavabit case at

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

You can also read the Fourth Circuit decision on his appeal, among other things.

[baddox]

I guess you can argue semantics, but it's an order accompanied by a credible threat of violence if the order is not obeyed.

[aback]

I know it requires Tim Cook to be willing to martyr himself, but do we really see Obama whisking the CEO of Apple Computer off to Guantanamo or some supermax prison?

I'd maybe call the bluff, and take my political stand.

[ThrustVectoring]

Cook wouldn't have to go that far. The court order specified Apple, not Tim Cook personally. He can simply resign instead of following the court order. For that matter, so can the engineers that Apple would need to work on this project.

[aback]

That's interesting.

IANAL but seems like you're missing something.

Apple can simply let Employee B take Employee A's place after A quits. When the authorities come for B, B can quit, and Apple can re-hire A.

Apple never has to comply.

[ThrustVectoring]

Employee A doesn't have to actually quit, they just have to credibly threaten to. Say, by signing an open letter that says that they'd quit before helping backdoor the iPhone. Apple can then claim that they cannot bring together a team that is willing and able to backdoor that iPhone.

When you break down the process of having a private company comply with an order to create a particular piece of software, there's many failure points.

The counter from the governmental side is "we will give your company massive fines until and unless your company complies".

As a note, the actual text of the court order (https://www.documentcloud.org/documents/2714001-SB-Shooter-O...) explicitly says that Apple can appeal it on grounds that it is an unreasonable request. Uncooperative engineers can make it an unreasonable request, and have the legal right to be as uncooperative as they want to be in this case. And, they're on the same side as the CEO of Apple ethically, so it isn't career suicide.

[dragonwriter]

If an order is directed to Apple, and Apple fails to comply, the court can order sanctions against Apple for contempt.

The authorities don't have to "come for" any person (they might follow up with orders directed at particular persons, in which case those persons would be at risk of personal sanctions, as well.)

[baddox]

I presume it would just be significant fines, or perhaps some FCC or FTC regulations that would harm Apple's business.

[ipsin]

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