Reddit's Warrant Canary On National Security Letters... Disappears
from the make-of-that-what-you-will dept
Well, here's something to speculate about. On Thursday, Reddit posted its latest transparency report concerning government requests for user information or content removal. This is the second such report, following its 2014 report. As one Reddit user quickly noted, the 2014 transparency report had something of a "warrant canary" concerning National Security Letters (NSLs):
As of January 29, 2015, reddit has never received a National Security Letter, an order under the Foreign Intelligence Surveillance Act, or any other classified request for user information. If we ever receive such a request, we would seek to let the public know it existed.However, no such line is in the latest report. And, of course, that leads to plenty of speculation. Unfortunately, this tends to be the problem with non-standard warrant canaries. It might have disappeared due to a gag order around a NSL. Or it might have disappeared for other reasons. In fact, there is some argument that just posting such a warrant canary is not allowed under current law (which of course raises all sorts of First Amendment questions).
Reddit's CEO Steve Huffman responded in the comments in a manner that doesn't totally clear anything up at all:
Even with the canaries, we're treading a fine line. The whole thing is icky, which is why we joined Twitter in pushing back.From there, he links to the amicus brief a bunch of internet companies filed in support of Twitter in its ongoing legal fight over the right to disclose surveillance requests. In that lawsuit, Twitter noted that the US government claimed that some information in its planned transparency report was "classified" and Twitter was not allowed to publish it.
In the amicus brief, which Reddit was a part of along with Automattic (Wordpress), CloudFlare, Wikimedia and more, it was pointed out that they're not even sure if it's legal to have that kind of warrant canary:
... this case poses a fundamental lingering question: to what extent do companies have a constitutional right to report truthful aggregate data about national security requests? Amici believe that there is no basis in law or policy for the government to prohibit recipients from disclosing the mere fact that they have or have not received a national security request, and from publishing an accurate, meaningful account of that statistic. And while the government has taken the position that it believes “[n]othing prevents a company from reporting that it has received no national security legal process at all,” ..., it remains unclear whether the First Amendment guarantees that disclosure, or whether a company that has received a national security request in the past could report zero for subsequent periods of time.And thus, Reddit is now involved in a case over whether or not the very notion of a warrant canary itself is legal -- and that, alone, may be a reason why it chose not to include it this time around. And thus, we're still left with something of a guessing game. Of course, this is another reason why that lawsuit is so important. The level of transparency that platforms can provide to the public about how much governments (and the US government in particular) are demanding access to information is very, very important.
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Filed Under: national security letters, nsls, transparency report, warrant canary
Companies: reddit
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Who needs rights when you've got 'National Security: Because terrorists!'
Assuming they fall for the standard 'National Security!' excuse, then I could see them also buying into the idea that warrant canaries should not be allowed, as they undermine the purpose of gag clauses by exposing their use. I would absolutely think they were wrong in doing so, as it would be an extension of an already rotten idea, but it would be consistent so long as they accept the idea and implementation of gag clauses.
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Re: Who needs rights when you've got 'National Security: Because terrorists!'
[REDACTED]
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Re: Who needs rights when you've got 'National Security: Because terrorists!'
But the fact that the Reddit CEO gave the answer "I was counseled that I should not comment on that", means they were probably served. If they hadn't been served, they could just point to this argument in support of "canaries are not legally certain enough to risk in court".
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The reasons these canaries are pointless
First, they are too coarse to be useful. All the government has to do to defeat them is to issue an NSL that they don't really care about to kill the canary. From then on, there is no warning.
Second, you can't really trust that the canary will be killed as expected. Secret orders might require the canary to stay up inappropriately.
The safer (and likely correct) thing to do is to assume that all information held by a third party is also in the possession of the government. So be very, very cautious about what information you provide to a third party.
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Re: The reasons these canaries are pointless
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An NSL they don't care about
And at very least, a popped canary compromises to the public that the feds are interested in and are observing a given company. That's grounds enough to tread carefully when near that company.
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Re: An NSL they don't care about
For example, if I were to go to Reddit for the first time now, I would not know that a canary ever existed, so I wouldn't get the warning.
The best course of action (and not just because of government surveillance) is to treat every site as if they had a canary die.
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Re: The reasons these canaries are pointless
This puts it on slightly more firm footing with regards to the theory that the government cannot *compel* false speech, it can only compel inaction (e.g.: silence). Although there is plenty of room to test the theory on how well a digital signature can be equated to attestation.
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He sure did
In context he was perfectly clear. "I've been advised not to say anything one way or the other." The only reason he'd be advised not to answer that question is if they had received an NSL.
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Its Reddit...
The USA has effectively won the assault on its itself over freedom of speech, therefore the government has determined that the waters for abusing our liberties were quite warm and inviting.
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Re:
Who says they aren't?
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NSLs are not laws
https://www.eff.org/press/releases/national-security-letters-are-unconstitutional-f ederal-judge-rules
So, what changed? Why are we stepping gingerly to ensure that canary reporting is legal? Of course it’s legal—it’s speech about what should be a public activity. If the government is asserting that its privileges trump our right to speak, then it needs to be disabused of that notion through civil disobedience.
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"From there, he links to the amicus brief a bunch of internet companies filed in support of Twitter in its ongoing legal fight over the right to disclose surveillance requests."
Seems like this if/then clause is satisfied... and if the amicus is in response, it's brilliant, because if the government tries to prosecute him for this, not only would they probably lose due to the fact that he isn't actually saying anything, they'd be admitting that they did in fact issue such a request.
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Unmentionability
So the next day we stopped using N2P. Instead we called it N4P.
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If this was not due to an NSL
No, the proper thing to do right now is to assume that Reddit received an NSL. For the worst possible reasons.
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How long before "National Security"...
Or are we too late?
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Re: How long before "National Security"...
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What do you think?
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