Look at what I have found at
www.yalelawjournal.org/forum/warrant-canaries-and-disclosure-by-design (emphasis added)
"(...)
"Finally, warrant canaries raise the specter of a new legal issue:
can the government compel a lie?80 If the government served a canary-publishing company with a secret surveillance order,
could it then force the recipient to continue to publish what would have become a false—or zombie—canary? The issue of compelled lies is now live. A Twitter lawsuit against the government seeking the right to publish a canary in the first place, filed on October 7, 2014, is a preliminary step towards resolving the issue.
81
"Mandating a canary
should provoke strict scrutiny. If the government were to force an NSL recipient to publish a false canary, it would do so precisely to further the canary’s expressive purpose (and
not in a way incidental to this purpose). Outside the commercial speech context, when the government forces true statements for their expressive purpose,
strict scrutiny review applies.
82 Hence
a fortiori, forced lies should trigger the strict scrutiny test of narrow tailoring to a compelling government interest.
"Therefore, if technology companies fail in their ongoing challenges to convince courts that NSL gag orders are classic prior restraints, they could turn instead to defending their rights to use canaries. Requiring false canaries probably would trigger strict scrutiny, while NSL gags alone might not. Hence, canaries could establish limits to otherwise permissible gags.
"Even if they faced the same level of scrutiny,
First Amendment challenges to compelled lies might be stronger than challenges to compelled silence. The optical differences between forced action and inaction may inspire in judges additional antipathy for the former, potentially leading them to engage in a more searching examination of the interests that the government claims are compelling.
83
"
The government may also find it difficult to prove that compelled publication of a false canary is narrowly tailored. In prior negotiations, it has permitted some companies to report the number of surveillance orders they receive in bands of 250.
84 Why not allow canary-publishing recipients to do the same? In other words, forcing recipients to issue zombie canaries could fail a narrow tailoring test because there is a less restrictive alternative that the government already employs.
85 To be sure, the government might respond that the bulk transparency reporting guidelines do not achieve the government’s compelling interest when those reports would reveal a jump from zero to one surveillance orders. Even so, the narrow tailoring of false canaries would be disputable in ways that NSL gags are not.
"A finding that NSL gags are classic prior restraints would render the false canary issue moot. If courts find the gags to be unconstitutional prior restraints, the government would face a larger constitutional hurdle to impose the gag in the first place than to compel a lie to maintain its efficacy after the fact. If instead the government successfully argues that NSL gags are constitutional prior restraints, then compelled false canaries should likewise be permissible. The gags would have survived the “most serious and the least tolerable” presumption against their legality.
86 False canaries might only raise a lesser challenge. Further, courts sufficiently sympathetic to the NSLs to declare them constitutional prior restraints would then be less likely to restrain them based on a novel compelled lies claim.
"(...)
"This Part details existing and hypothetical examples to elucidate
the concept of disclosure by design. Whereas transparency reports challenge government claims about who wants to speak, and canaries challenge government claims about who already isspeaking,
with disclosure by design, speakers establish their intent today about what they will say in the future. To create an effective NSL gag, the government would have to prohibit a systems design ex ante.
"Disclosure by design
challenges the efficacy of the government’s current NSL gags and, additionally, government arguments that the gags prohibit merely information the government itself has provided. From a policy perspective, disclosure by design might not only reflect a larger class of would-be-speakers than the government has claimed are suppressed by NSL gags, but could also serve to expand that class.
"(...)
"Disclosure by design is an emergent phenomenon. Journalists and activists have already proposed
partially automated canary services that would send regular prompts to post a manual message, “No secret orders yet.”88 Others have suggested a “warrant canary metatag” built into web browsers.89 Tamper-evident intrusion detection systems might serve a similar function.
"(...)
"
Conclusion
"This Essay suggests that a critical subject for future debate regarding the government’s NSL gag authority will be extrajudicial solutions that telecommunications providers can adopt unilaterally. The Essay has shown that NSL recipients already are using transparency reports and warrant canaries to reframe the government’s claims about its NSL gag authority. Moreover, and critically,
in the long-term the Essay predicts that communications service providers are likely to adopt privacy-protective design capable of notifying users when their data suffer a security breach. It may be only a matter of time before disclosure by design undermines the efficacy of the government’s NSL authority and renders obsolete the legal challenges to NSL gags that are currently underway in the courts."
