> "Not updating a warrant canary" isn't the crime here. "Creating a warrant canary" is the crime, as it's an action whose only purpose is to violate a gag order.

It walks a really fine line IMO. The way I see it is it works in two ways:

* When you create one, you're not referencing a current gag order, but rather an imaginary future one. If creating one is a crime then doing just about anything (deleting an email or throwing away a letter) is also a crime because you can be destroying evidence in a potential future case or investigation not brought yet.

* Once this warrant is issued, then your run into this case where any associated gag order is "one way". That is the government can order you not to disclose the warrant but they cannot compel you to lie and update the canary to reflect that you still have not gotten one yet.

INAL.

Ok so for example I deleted a confirmation email that Delta sent me for a flight I had yesterday. Suppose for some reason the US Govt opens some investigation into my travel, should I be charged with conspiracy to destroy evidence since I should have "known" that I "might" be investigated.

No that would be silly and there would be no way to prove malicious intent. You could make a million arguments for a canary in the same way.

If you had reason to believe that the particular email will be called for in a court, and that is the reason you are deleting it, then it is definitely a crime yes.

You did not have a reason. You just have this general notion that any one of your emails could, hypothetically, become evidence in some unspecified court case sometime in the future.

of course the government has to prove intent (beyond reasonable doubt), which is not easy, but also getting sued in US federal criminal court, even with good odds is also not what you'd call a non-issue.

setting up warrant canaries is probably a good idea if you have the ideological conviction to face the government's bullying. spending some money on getting lawyers' opinion is also probably a very good idea.

but all this serves as evidence for intent.

so it's not that simple to do it with some persuasive/plausible alternative explanation.

the whole point of gag orders and the mandated/compelled performance is to help whatever investigation. of course if someone doesn't cooperate with law enforcement and/or the prosecutor that's their choice, and in this case it's basically itself a charge. (obstruction of justice is not a new thing after all.) the complication is that speech is a special action.

Sounds like a fancy way to do ex post facto criminalization by convenience without technically changing a law.

> Creating a warrant canary" is the crime, as it's an action whose only purpose is to violate a gag order.

There is no gag order. That's the point.

Are you suggesting that any action that might violate any future order is a crime? If so, what do you base that on?

If not, since there is no order before them, are you suggesting there is a specific statute that they are violating? If so, which one?

If not, what would make this behavior criminal?

If we have to pick between the first amendment and the courts helping to secretly enforce what are quite often shady laws, how should a people born to the Enlightenment choose?

Are you saying that you think it's currently illegal for rsync to be making this claim?

Or that if they ever receive a gag order then their earlier action was retroactively illegal?