Legal Innovation: Warrant Canaries

I recently came across a fascinating legal concept called warrant canaries. I’m going to cover the idea briefly, but if you want to know more about them in detail, I highly recommend this Warrant Canary FAQ at the Electronic Frontier Foundation.

The context is that many online services based in the United States can be compelled by the FBI to give whatever information they have to law enforcement through National Security Letters. Those documents often gag the companies from informing their customers they are being spied on, even if the service is being provided specifically so that users can get encrypted, private communication. It’s hard to pin down the exact constitutionality of NSLs. They were ruled unconstitutional in 2013, but it looks like the case was remanded in 2015 after the passage of the USA Freedom Act. Given the government’s continued efforts to obtain information regardless of constitutionality and limitations placed on them by Congress, it would be nice if we had some way to communicate if a service was under duress from the government.

The usefulness of warrant canaries (I’ll get to what they are in a moment) is based on two legal concepts: (1) it’s not illegal to inform anyone of a warrant you haven’t been served, and (2) the state cannot compel false speech.

The first statement is common sense, since you can’t be curtailed from simply stating something hasn’t happened yet.  The second is a bit more subtle; a stronger statement is that the state cannot compel speech at all, but that’s not always true. The state can sometimes compel commercial speech to inform consumers of information so they can make accurate decisions. The EFF elaborates that “…the cases on compelled speech have tended to rely on truth as a minimum requirement”.

This is essential because it allows companies with encryption products to convey highly relevant information to their customers. Companies can publicly post a message indicating they have not received a warrant because of the first legal concept, and they can immediately take down their public message when they do receive a warrant because the state cannot compel false speech.

To ensure the authenticity of the message stating that the given company has not been subject to a NSL, many go an extra step and sign their messages with a PGP key (example here).

Of course, a foolproof way to ensure no data is lost is to simply make all data encrypted, like Apple has with the iPhone, ProtonMail does for email, and everyone who has ever sent encrypted emails has been doing since the 90s. But I still like this idea, because individuals who run encryption services should not be forced to be government puppets, like the FBI hoped to do to Ledar Levison.

The weakness is that we don’t know what we don’t know, so it’s possible the government already has a new Secret National Security Letter which it uses to compel companies to lie under some made up interpretation of an arcane piece of legislation. The only real security is end-to-end encrypted communication or being Hillary Clinton.

 

Links 20160224

Marginal Revolution has a post about an event that occurred on Shark Tank. The pitch on the show was an alternative to bee honey, made from apples. Part of the pitch was that this would save the bee population by reducing the industrial demand for it (yes, really). Spoiler from Professor Tabarrok: “Reducing the demand for honey, reduces the demand for bees”.

Politico has a nice article about the potential of Bernie Sanders’ campaign, even if he doesn’t win a majority of delegates. The way the Democrats set things up, he will be in an excellent position to make demands on the party platform, possibly reshaping the Democrats’ economic policy for many years to come.

A recent Quinnipiac poll found that head-to-head, Sanders beats Trump by 10 points in a national survey (he does better than Clinton against Trump). Things could change of course, but it seems that Trump really isn’t who I should be worried about becoming president right now, as he’s still not likely to win the Republican nomination, and it seems the Democrats poll well against him.

SCOTUSblog has a nice write up on the next court nomination fight, now that Scalia is gone, what factors will be in play, and how can the Obama administration find a nominee with a spotless record that fires up the base and ensures a left-of-center court for a long time. I doubt they nominate a classical liberal.

Tyler Cowen writes about the benefits market monetary policy can bring, as well as the shortfalls of its approach when critiquing Fed policy.

Apple CEO Tim Cook posted a public letter to Apple customers detailing a demand made by the FBI. Law enforcement wants the company to create a new version of their operating system which they could then install on a criminal’s seized phone. The new OS would have a backdoor allowing the FBI to more quickly access it.  I liked Apple just fine as a company, but this is pretty awesome. This week, it turns out the FBI was lying about this being a one-time request as the DoJ is already pursuing orders to force Apple to unlock about a dozen other phones, according to anonymous sources.

Nostalgia Critic on Channel Awesome on YouTube has a great video detailing the absolutely horrible copyright abuse rampant on YouTube.   Claimants have no repercussions for false claims, even on self-evident fair use cases because YouTube’s system is entirely automated with no oversight.  Copyright battles are not something of the past, there are still huge problems today.

An NBER study from last year found government subsidies more than account for increases in tuition. H/t Slate Star Codex.

The German government gives us another example of how you can’t have government surveillance without fundamentally breaking security. Hacker News discussion.

Second link from Alex Tabarrok, this time on drug prices and the FDA. Apparently the US has the lowest generic drug prices of any developed nation. I feel like we should switch to a prize system where drug companies are awarded $X million for successfully passing approval, and then that drug is immediately released with no patent into the market. X could be set based on the amount of patients in the previous 5 years who could have used the drug.

People like to talk about the “Uber” of some industry, trying to say a company is disrupting their space like Uber did to taxis (also in the interest of fighting monopolies, Lyft is great too).   How about Uber for welfare? The left often opposes “workfare”, or ways which incentivize welfare recipients to work, since finding jobs for everyone isn’t practical “…but today the gig economy offers the solution: It can easily and quickly put millions of people back to work, allowing almost anyone to find a job with hours that are flexible with virtual locations anywhere.”  There’s also some data that working is a really good on a cultural level, teaching discipline and responsibility. This sort of goes against my attraction to a basic income, but could go hand in hand: you get a basic income allowance if you can prove you engaged in the gig economy recently. Really cool idea.

From EconLog, some praise for the Free State Project. Apparently they’ve already got over a dozen people elected to the state legislature? Tried to find somewhere else this is being tracked, but I didn’t see anything. If you have info on this, tweet at me.

Also from EconLog, Bryan Caplan finished his summarized his extended discussion of ancestry and long run growth literature.  In sum, we can’t say that people with more advanced culture thousands of years ago had that much better outcomes today. It’s likely other institutional decisions are more important (like having stable free markets).