From the article:
> Several experts described the mechanism as a “clever” workaround that could comply with the letter of the law but not its spirit.
It's not clear to me how it could comply with the letter of the law, but evidently at least some legal experts think it can? That uncertainty is probably how it made it past the legal teams in the first place.
Warrant canary depends on agreed upon inaction, which shields it somewhat. You cannot exactly compel speech by a gag order.
This, being an active process, if found out, is violating a gag order by direct action.
Warrant canaries depend on action, the removal or altering of the canary document. It’s too clever but no more clever than what Israel is requiring here.
the canary notification method is a lack of updates, not a specific update.
you update your canary to say that nothing has changed, at a known cadence.
if you ever dont make the update, readers know that the canary has expired, and so you have been served a gag order warrant.
changing or removing the canary in response to a warrant is illegal. not changing it is legal.
for an equivalent cloudwatch setup, its checking the flag for "alarm when there's no points"
Yes, the equivalent of a warning canary would be that Google pays the Israeli government a set of payment every month such as 3100 shekels (for +31, NL) and then suddenly November 2025 they stop issuing it. That would mean there's a legal investigation targeting Google by the Dutch prosecutor (OM) involving Israeli data.
I suspect they didn't go for this route as it is too slow.
I would think to stopping doing something is equally an action as to do something, in regards to warrant canaries and gag orders. You had to take make some change to your process, or if automated take an actual action to disable. In either case, there was a cognizant choice that was made
The legal theory is that in the US the first amendment prevents the government from forcing you to make a false update. I don’t know if it’s ever been tested.
As I understand, this theory wouldn’t even hold up in other countries where you could be compelled to make such a false update.
Yes but the theory, at least in the US, is that the government cannot compel you to say something. That is, they can't make you put up a notice.
More specifically, the theory is that cannot compel you to lie, there are all kinds of cases where businesses are compelled to share specific messages.
Ah, that was confusing to me. Thank you.
yea, I get that, but my gut tells me this doesn't pass the sniff test
It's a choice you make and action you take either way, be it not updating a canary or sending a covert financial transaction
That it has not been tested in court is why it's still a "theory" (hypothesis?)
My hope is that a jury of our peers would stay closer to the spirit than the letter of the law
Inaction is not action.
The choice to cease perform an act, when you have been consistently doing it, is itself an action
No, making a choice to do nothing is not considered action by any legal definition.
And this would be why warrant canaries aren't seen as a proven legal shield yet.
>Warrant canaries depend on action, the removal or altering of the canary document.
No, they can simply not publish a warrant canary in the future, which will tip people off if they've been publishing it regularly in the past.
Right - the whole premise is that the government cannot compel speech (in the US). So if you publish something every week that says, “we’ve never been subpoenaed as of this week” and then receive a subpoena, the government can’t force you to lie and publish the same note afterwards. The lack of it being published is the canary here.
Whether you can be compelled to lie under these circumstances or not is not a resolved question of law. Although it seems fairly likely that compelling speech in this way is unconstitutional, if it has been tested in court, the proceedings are not public.
Good thing no one is doing anything unconstitutional right now?
Ah, I think I get it. Violating the spirit of a law can be, often is, enough to get you convicted of a crime. Arguably more often than violating the letter of the law but not it's spirit.
However, if a judge dodesn't want to find someone guilty, "not violating the letter of the law" can provide a fig leaf for the friendly judge.
When those experts are not named one could wonder if they even exist. Why would a journalist not reveal the name of an expert who is consulting on a matter of law?
Not to get super conspiratorial, but I think this is almost certainly a weasel statement simply to avoid directly accusing Israel/google/amazon of breaking the law.
I can't imagine any "legal expert" dumb enough to say you can violate a gag order if you use numbers instead of words.
In all likelihood there's just language like "to the extent permitted by law", which The Guardian isn't telling us about. Even if they didn't write that explicitly, it's implied anyway - Israel knows any US court would void any provision requiring Google/Amazon to commit criminal acts (illegality doctrine). It's also not really possible for Israel to be break laws of foreign states, since it's not bound by them in the first place.