[thirsteh]

It's a mix of both. There are judges that don't care about the technical details -- that's wrong. But there are also people who think they won't be convicted of a crime because of an irrelevant technical detail. The fact that you disclosed the existence of a secret warrant by removing your warrant canary, for example, is highly unlikely to make a judge think you did nothing wrong.

The argument that the Swedish judges and prosecution make is that, though ThePirateBay does not necessarily host the pirated content, the site causes pirated content to be disseminated massively, and it exists solely to facilitate piracy. I don't personally agree with this, but I can't deny it's pretty hard to refute this claim when you literally named your website "The Pirate Bay."

[jcrites]

Digression. Speaking specifically to your warrant canary example, the EFF seems to believe that there is reasonable legal theory behind them: https://www.eff.org/deeplinks/2014/04/warrant-canary-faq

The First Amendment protects against compelled speech. While courts might gag you and prevent you from speaking, they almost never compel you to speak. Compelled speech is limited to truthful speech where the statements convey important truthful information to consumers (e.g., health warnings on cigarettes). There is no precedent for a court compelling a company or person to lie.

I agree that it will be quite interesting to see how a court reacts to the idea that a person has constructed a situation in which they must lie in order to avoid disclosing the warrant. I was also interested to learn that Apple publishes a warrant canary: https://ssl.apple.com/pr/pdf/131105reportongovinforequests3.... ("Apple has never received an order under Section 215 of the USA Patriot Act. We would expect to challenge such an order if served on us.")

There must be a line, though. I suspect it would not succeed to publish many statements each like "We have received fewer than than 1,2,3,...,100 warrants of type X this year", or, "We have never received a warrant regarding an individual whose name begins with C", striking only those that are false as warrants are received. I would guess that this would cross a line, though it's difficult for me to articulate why. Ultimately there is no court precedent for warrant canaries, so the outcome is unknown.

[ObviousScience]

Warrant canaries actually are a relevant distinction: the state has the ability to compel you not to reveal something, but rarely if ever the ability to compel you to speak, outside of testifying (at least, in the US).

Dismissing them trying to exercise a different power than the one they're granted by the law as a "technicality" is a disservice to the rule of law. It's not a mere technicality, it's a fundamentally different kind of action.

[pdabbadabba]

> but rarely if ever the ability to compel you to speak, outside of testifying (at least, in the US).

I don't think this is at all true. A U.S. judge would not hesitate to issue an injunction ordering you to update your warrant canary if they thought there was a good reason to do so. I'm not aware of any law (including the Fifth Amendment -- which deals only with self-incrimination in a criminal proceeding) that would prevent them from doing so. Am I missing something?