BY MORGAN MARQUIS-BOIRE AND LYNN OBERLANDER
Today The Intercept’s parent company, First Look Media, published a warrant “canary” — a statement that attempts to assure readers that the company has not been compelled to comply with a secret government order like a National Security Letter.
In addition to this, First Look is publishing AutoCanary: simple, free, open-source software to easily create and manage warrant canaries.
Our warrant canary lets the public know that we have not received a secret subpoena, warrant or other legal compulsion that we are prohibited from disclosing. In the event the company is issued such a legal process, our plan is to not renew the canary statement.
Gag orders can be issued to service providers to forbid them from informing users that their information has been requisitioned. For instance, in 2011, Google started a four-year legal battle with the U.S. government over a gag order which prevented the company from notifying members of Wikileaks that their emails were requested by the U.S. government.
While the government may be able to compel silence about legal processes through a gag order, it’s much more difficult to argue that it can compel a service provider to falsely state that it has not received legal process when, in fact, it has. The proposition behind a warrant canary is that you shouldn’t be forced to sign a document that you know to be untrue. Hence, if a National Security Letter or other gag order is served, the recipient would simply allow their canary to expire — to stop chirping, if you will — rather than sign a document that has become false.
In 2013, Apple became the best-known organization to publish a canary when it included such a statement in its transparency report. In 2014, it was reported that the canary statement was missing from Apple’s transparency reports covering July–December 2013 and January–June 2014. A variety of organizations have either published warrant canaries or included canary-style language in their transparency reports. A list of such organizations is kept on the Canary Watch website and includes Silent Circle, which makes software for encrypted phone calls; Tumblr, the blog publishing brand owned by Yahoo; the online community Reddit; the Medium publishing platform; Cloudflare, which accelerates the delivery of web content; and Pinterest, a product-centric social network.
To this date, First Look Media has not received any legal process that includes a gag order. Today, we publish our warrant canary affirming this for the month of April, 2015. Our canary will be updated on the first week of each month to cover the previous month. In order to simplify our process, we wrote AutoCanary, which you can download from our new First Look Code website.
There is no public record of a warrant canary ever being tested in court. You should consult a lawyer to discuss the benefits and hazards before you decide whether publishing a warrant canary is a good course for your service.