What is the legal status of "warrant canaries"?

Question

A warrant canary is a repeated claim by an individual or organization that they have not been served any warrants with an attached gag order. The idea is that you can say whatever you like if you have not been served such a warrant, but if you are ever served a warrant you simply stop publishing your warrant canary. Attentive listeners or readers would infer that you have been served a warrant, contrary to the intent of the gag order.

The EFF gives an overview of these warrant canaries here: https://www.eff.org/deeplinks/2014/04/warrant-canary-faq

What legal theories would support or harm the case of anyone attempting this technique?

Answer 1

The question actually asked, "what legal theories would support or harm...", is somewhat unclear. But what the questioner seems to be asking is, basically, what would happen if you tried it?

The answer, it seems to me, is pretty straightforward. In the hypothetical case, you have been publishing a notice for years, saying "I have not been served with a subpoena." You then get served with a subpoena that includes a gag order. The gag order, presumably, includes wording prohibiting you from revealing the existence of the subpoena.

You then cease publication of the warrant canary. By doing so, you have revealed the existence of the subpoena, and you are in violation of the gag order. You will be subject to whatever penalties you would be subject to if you violated it in some other way; for example, by publishing a notice that said, "Hey! We got a subpoena! It's a secret!"

The distinction between revealing the existence of the subpoena by action, rather than by inaction, is a false one. It's exactly the kind of cutesy legal formality that non-lawyers love to rely on, but real judges ignore. If you tell someone: "Hey, you know John Smith's three sons, Joe, Ted, and Bill? Joe and Ted are good people; they have never molested any children. As for Bill--well, I don't have anything to say about Bill." If Bill is not a child molester, you have defamed him, and you are not going to convince a judge otherwise.

The EFF link you link to tries to claim it'll "work" because courts are reluctant to enforce speech. Even if that were true, that might mean your canary would be effective in the sense of giving the public notice of the subpoena. That doesn't mean you wouldn't be liable for giving the public notice. For example: I put up a billboard saying "Bill Smith is a pedophile." Even if the court can't force me to add the word "not", that doesn't mean the billboard isn't defamatory.

Realistically, though, courts compel speech all the time. Court-ordered apologies, disclosures, and notices are not unusual. And if ever a court would be inclined to compel speech, it would be in a situation like this one, where a company intentionally set out to get around a gag order with this kind of convoluted sea-lawyering.

Answer 2

The main argument for the legality of a warrant canary is twofold.

1) If a secret order has not been given, you are allowed to say you haven't had one, because the law doesn't attach until after the order is served. Putting up a truthful warrant canary is legal because there is no law prohibiting it. The argument that "killing the canary has the same effect as performing prohibited speech" doesn't apply because of the timing issues involved.

2) Compelled speech cannot be a lie in the USA. Specifically, it cannot be a verifiably false statement. Therefore, no law can force you to keep the canary updated. This applies to ACTIVE canaries, which die automatically if they are not updated regularly. Passive canaries are much less useful, because while they can't force you to update the canary, it might be possible for them to prevent you from updating it. Example "The FBI has not been here (watch closely for the removal of this sign)" would be a passive canary, and they could possibly legally stop you from removing it.

That, said there are a few gotchas.

1) Nothing is preventing a law from being passed changing the status of number 1. It could be made illegal to publish the canary, using national security as the justification. This would kill all the canaries. The government would very much like to do this, to deny terrorists information, but oddly enough they have not.

2) The government could make a policy of killing all active canaries they spot. As soon as someone publishes one, hey, here comes the gag order. This is, sadly probably legal. Again the fact that canaries still exist probably means they have not.

3) once the canary is dead, you can't publish a new one. Once you have received even one gagged order, the law attaches, and the argument mentioned in #1 becomes valid.

4) While law cannot compel a lie, a rouge provider can lie and keep updating the canary.

All this only applies to the US, where you cannot be compelled to lie. Such stringent protections do not exist elsewhere.