Are “warrant canaries” legal? Twitter wants to save tech’s warning signal of government spying

Tech companies from Apple to Tumblr, faced with a growing number of secret orders from the government, have resorted to a clever legal tactic known as a warrant canary: the “canary,” popularized by libraries in the wake of the Patriot Act, is a sign that tells the public that an organization is not being investigated by the FBI. If the canary disappears, well, you can assume the worst:

FBI has not been here

Now, the federal government is trying to snuff out the use of canaries altogether, telling Twitter that it is forbidden from using “zero” when it reports on security demands in its Transparency Reports, the semi-annual documents used by [company]Twitter[/company] and other tech companies to report on FBI and NSA demands.

The fact this there is a fight over “zero” and warrant canaries is revealed through a close reading of the lawsuit that Twitter filed against the Justice Department this week. The lawsuit, which claims the government security demands violate Twitter’s free speech rights, repeatedly asks the court to declare that it may use “zero” when stating whether it has been subject to various secret legal orders from the government.

“We hope to convince the court hearing our case to give the first firm ruling that warrant canaries are legal,” said a Twitter spokesperson by email.

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Through its lawsuit, Twitter claims it has a First Amendment right to use warrant canaries to say whether or not it has received various categories of so-called NSL letters and FISA requests — secret orders that can subject the companies to criminal prosecution if they even disclose the existence of the letters in the first place. (While Twitter and other companies accept the need to conceal the target of the orders, such as the members of a suspected terror cell, they insist the First Amendment lets them tell the public about what laws the government is using in the first place.)

So does Twitter have a case on warrant canaries? Do companies have the right to tell the public that the government is not using secret laws to investigate them?

[pullquote person=”” attribution=””]Do companies have the right to tell the public that the government is not using secret laws to investigate them?[/pullquote]In the aftermath of the 2001 Patriot Act, libraries across Vermont posted “the FBI has not been here” signs to tell patrons the government had not made secret requests for their reading lists. But the tech industry’s digital version of the tactic appears to be facing tighter controls.

Never tested in court

Apple was among the first tech companies to use a warrant canary in its 2013 Transparency Report. The canary, which read “Apple has never received an order under Section 215 of the Patriot Act,” has since vanished in subsequent reports — though it’s unclear if this is because Apple has received such an order, or if it is due to a recent letter in which the government banned the use of “zero” in reports.

That letter, published in early 2014, came as part of a settlement in which the government resolved a lawsuit with five companies — [company]Google[/company], [company]Facebook[/company], [company]LinkedIn[/company], [company]Microsoft[/company] and [company]Yahoo[/company] — and set out new requirements under which those companies could disclose security demands, but only in bands like “0-999.”

Gigaom illustration

Gigaom illustration

As for Twitter, it insists that it’s not a party to the agreement described in the letter and, in any case, the requirements violate the First Amendment. And it might have a case.

“Warrant canaries have never been tested in court, but no case law suggests that they are in any way illegal,” says Nate Cardozo of the Electronic Frontier Foundation. “In fact, existing law suggests that if a court were to examine a prohibition on warrant canaries, it would likely conclude that any such prohibition would run afoul of the First Amendment, even in the case of NSL and FISA requests.”

Cardozo also noted that other companies continue to publish warrant canaries that flag various NSA and FISA procedures. One example is Tumblr, which is owned by Yahoo, a company that has been on the forefront of challenging the government’s secret surveillance orders.

As a result, these companies and civil libertarians will be watching Twitter’s lawsuit closely. The case will not only provide more details about government surveillance practices, but help to provide a better understanding of the warren of secret laws that the government has been using to demand information about citizens.

An earlier version of this story attributed Twitter’s quote to a VP of Legal. Twitter later said the quote should be attributed to a spokesperson instead.

Twitter Suit Re NSL’s by jeff_roberts881

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