Schneier on Security

Mr C • April 3, 2016 4:05 PM

NSLs are prior restraints on speech issued by an executive agency following a procedure that in no way resembles the Supreme Court’s strict scrutiny analysis, with no notice and no hearing until after the recipient’s free speech rights have already been infringed. Of course they’re unconstitutional.

The feds have never won an NSL case. Rather, they seem to be following a strategy of delaying tactics to prevent a conclusive loss at a Circuit Court or SCOTUS — procedural wrangling, appealing everything, amending the law while an appeal is pending to force remand back to the District Court, and finally settling with individual parties when their cases cannot be dragged on any longer. (Although a Circuit Court’s decision declaring a law unconstitutional is technically only binding in that one case, because it is a controlling precedent for District Courts in that Circuit, it has the practical effect of invalidating the law in that Circuit.)

I think Dirk Praet falls very close to the mark with his point that a warrant canary pretty much dares the feds to stop dancing around and fight it out — they don’t get to play delaying games in a criminal prosecution.

But there’s something to the concept of a warrant canary that’s a shade different and even more important. Warrant canaries shift attention towards what an effective NSL enforcement regime would really entail. Because the only effective steps to defeat a warrant canary would be profoundly unconstitutional, they provide a wake-up call to judges who might otherwise get lost in abstractions. There are only two ways to stop a warrant canary from working: outlaw all warrant canaries in the first place (like Australia), or compel the NSL recipient to issue a false warrant canary. The first way could be called a “super prior restraint.” This would never withstand First Amendment scrutiny because the government’s interest in silencing any given warrant canary is purely speculative (“We might want to censor some people later under an NSL, so we need to perpetually preemptively censor everybody to make sure the NSL will be effective.”). The second way is coerced false speech. SCOTUS really dislikes coerced speech, and rarely uphold such laws. Those cases have two threads running through them: First, in all but one case, the speech at issue was commercial speech (usually advertising) and the law was upheld in part because commercial speech historically has not received full First Amendment protection. By contrast, a warrant canary is inherently political speech criticizing government action and secrecy. Second, in every case in which SCOTUS has upheld a law coercing speech, the law has required the speaker to make certain additional true factual statements in a context where such speech is prone to being misleading if those facts go unmentioned. That the government could compel false speech is absolutely unheard of. It is constitutionally unthinkable. (There’s also a Free Exercise issue here, since many religions forbid dishonesty (and thanks to Hobby Lobby, even corporations have religious rights these days).)

Some scholars believe that, from a jurisprudence standpoint, “information privacy” and “sexual privacy” are two leaves on the same branch. I’m not sure about that, but I do find it interesting that an argument about how effective enforcement would require deeply unconstitutional acts holds an important place in the history of sexual privacy law. Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965).