Isn't saying "You can't talk about this" compelling speech? Why can the courts say "You can't talk about this" legally, but can't say "You can't update your warrant canary"?
Because, in the United States, you have a constitutional right not to be compelled to say something you don't want to, but you don't have the constitutional right to say whatever you want to, especially in the case of a gag order regarding an active investigation or trial.
So if you go ahead and say "I haven't be served a warrant by X group" on your website, the government can stop you from saying the contrary, but they can't force you to lie about it, so you are free to remove the canary since it is no longer true.
If the courts ever tried to retaliate against that, they'd run into a mountain of precedent that forbids compelled speech. They would have to argue that you are required to lie, rather than be allowed to retract a non-truth. That's not something the Constitution is going to allow.
The other half is that the canary is broad, and doesn't specify which government or agency made the request / gag order.
The "I didn't really talk about it, I just didn't NOT say I WASN'T talking about it" thing feels like a flimsy technicality. I think what's really protecting these canaries is that they're non-specific and one-time-only.
I don't think we're going to see many "I have not been gagged by the CIA on April 25, 2024" canaries going around, even though that technically uses the same loophole.
So, it goes like this? If I have been served a warrant with a gag order:
If someone asks me "Have you been served a warrant with a gag order?" - I'm allowed to say "No", and lie about it if I want to. I am not allowed to say "Yes", per the gag order.
Now, if someone asks me: "have you been served a warrant with a gag order? Say no if the answer is no, but say nothing is the answer is yes". Now, I am allowed to say no, and allowed to say nothing, even though by saying nothing it directly contradicts the point of the gag order? Is it really the case that these gag orders are meaningless if someone just asks the question in the right manner?
I can't really buy that. I suspect canary warrants only "work" because they have never been tested in court yet.
a judge can compel you to do cryptographic math in your head after you have forgotten the private key? the entirety of reaching into peoples minds with law is nonsense
Well, a judge kept Tommy Thompson in jail for 7+ years on contempt of court charges after the court asked Tommy to product some gold ingots and he "forgot" where they were.
>If someone asks me "Have you been served a warrant with a gag order?" - I'm allowed to say "No", and lie about it if I want to. I am not allowed to say "Yes", per the gag order.
>Now, if someone asks me: "have you been served a warrant with a gag order? Say no if the answer is no, but say nothing is the answer is yes". Now, I am allowed to say no, and allowed to say nothing, even though by saying nothing it directly contradicts the point of the gag order? Is it really the case that these gag orders are meaningless if someone just asks the question in the right manner?
It isn't about asking or answering questions. Let's say I light a fire in my firepit each morning that I haven't been served with a secret warrant. The day after I'm served, I simply don't light it. Anyone watching the firepit then knows that I've been served. Nobody is asking me anything, and I'm not saying anything. The government can compel you to stay silent due to a gag order, but they cannot compel you to trudge out every morning to light the firepit.
As I understand it warrant canaries are controversial in the legal community or at least were last I looked. Some of the questions you are exactly what they've asked. I don't know if any of the theories have been properly tested in courts yet.
I'd be extremely skeptical of anything you read in this thread about contentious signing, dates or whateever. There are a lot of amateur lawyers with amateur opinions in here. If you are interested in ever using one, find a lawyer and check with them first.
But whatever the legal consensus is, I doubt a git commit that says "NSA wuz here" fits in with it.
So if you go ahead and say "I haven't be served a warrant by X group" on your website, the government can stop you from saying the contrary, but they can't force you to lie about it, so you are free to remove the canary since it is no longer true.
If the courts ever tried to retaliate against that, they'd run into a mountain of precedent that forbids compelled speech. They would have to argue that you are required to lie, rather than be allowed to retract a non-truth. That's not something the Constitution is going to allow.