Apple brings 'warrant canary' into Patriot Act info request coal mine

First major tech firm to deploy 'canary' statement that should show if it's been served with a Section 215 court order

Apple received kudos yesterday for inserting a "warrant canary" in its first transparency report on government information requests.

The report, which the Cupertino, Calif.-based company released Tuesday, not only listed the information requests it has received from authorities in scores of countries, including the U.S., during the first six months of 2013; it also contained this remarkable line: "Apple has never received an order under Section 215 of the USA Patriot Act," the report stated. "We would expect to challenge such an order if served on us."

"Apple is the first major technology company to implement a canary," said Nate Cardozo, a staff attorney with the Electronic Frontier Foundation (EFF), a San Francisco-based privacy advocacy group. He applauded Apple for using the tactic.

Section 215 of the USA Patriot Act allows for court orders that demand information that might be useful in anti-terrorism or intelligence activities -- names associated with email addresses, for example -- but include gag orders that forbid the holder of that information from disclosing that a court order, or warrant, has been served.

To partially circumvent the gag order, some companies have taken to posting or publishing so-called "warrant canaries," like the statement in Apple's report saying the company "has never received an order under Section 215 of the USA Patriot Act."

As long as the canary is in the report, outsiders can assume that the company or organization has not been served with a Section 215 court order. If the statement is then omitted from a subsequent report, everyone would know that the organization had been handed such a warrant, even though no one would know the purpose or target of the warrant.

Although Apple's transparency report followed similar reports from other large technology and Internet-reliant companies, starting with Google in 2010 and including the likes of Facebook, LinkedIn, Microsoft, Twitter and Yahoo, it was the first of its class to include a canary.

Some have speculated that the federal government would try to compel a company that has deployed a canary to continue to do so even after a warrant has been served. In other words, lie.

"There's no precedent that could compel Apple to lie," said Cardozo, who acknowledged that the concept of a canary had not been tested in court. But he pointed out that in light of Apple's commitment to contest any Section 215 order -- the "We would expect to challenge such an order" part of its canary -- he expected that Apple would bring its legal guns to bear if, in fact, it was pressured to forge a phony canary at some point in the future.

Cardozo also praised Apple for using the canary only in what will be a twice-yearly report, rather than, as has been proposed by some, posting it in a document or venue where it would be updated more frequently, perhaps even daily -- on a website, for example.

In this case, Cardozo argued, less is more. "Judges are risk-averse, and inherently conservative -- not necessarily politically, but legally," he explained. "If a canary was published on a daily basis, [the party requesting the warrant] might run to court and say, 'The world is going to fall apart if we don't compel them to lie.'"

"Judges don't like ruling quickly, but they might panic and agree," Cardozo continued. "In Apple's case, a judge will have months to do this, and it will be fully briefed in the light of day."

But Cardozo noticed, as have others, that Apple did not create a canary for Section 702 of the Foreign Intelligence Surveillance Act (FISA), which is believed to be one of the keystones of the National Security Agency's (NSA) Prism data-gathering program.

"The silence speaks volumes," said Cardozo, adding that given the absence of a canary there, it's safe to assume that Apple has been served with a Section 702 request.

Apple's report can be found on its website (download PDF).

Gregg Keizer covers Microsoft, security issues, Apple, Web browsers and general technology breaking news for Computerworld. Follow Gregg on Twitter at @gkeizer, or subscribe to Gregg's RSS feed . His email address is gkeizer@computerworld.com.

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