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Apple’s “warrant canary” disappears, suggesting new Patriot Act demands

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When Apple published its first Transparency Report on government activity in late 2013, the document contained an important footnote that stated:

“Apple has never received an order under Section 215 of the USA Patriot Act. We would expect to challenge such an order if served on us.”

Writer and cyber-activist Cory Doctorow at the time recognized that language as a so-called “warrant canary,” which [company]Apple[/company] was using to thwart the secrecy imposed by the Patriot Act.

Warrant canaries are a tool used by companies and publishers to signify to their users that, so far, they have not been subject to a given type of law enforcement request such as a secret subpoena. If the canary disappears, then it is likely the situation has changed — and the company has been subject to such request.

Now, Apple’s warrant canary has disappeared. A review of the company’s last two Transparency Reports, covering the second half of 2013 and the first six months of 2014, shows that the “canary” language is no longer there.

The warrant canary’s disappearance is significant because Section 215 of the Patriot Act permits the [company]National Security Agency[/company] to demand companies to hand over their business records in secret.

The Patriot Act tool is also controversial because the NSA gains permission to use it by applying to the FISA Court, a body where only the government can speak and whose records are kept almost entirely secret. The tech industry has been battling to disclose the existence of so-called “FISA requests” and only won the right to do so this year; however, companies must wait six months to disclose the number of requests they receive, and can only do so as a range (such as “0-999”).

The disappearance of Apple’s warrant canary thus suggests that the company too is affected by FISA proceedings. Apple did not immediately respond to an email request for comment.

Update: As the ACLU’s Christopher Soghoian has noted, Apple’s latest report says it has not received any orders for “bulk data.” That language, however, appears in the National Security Letter section of the document (NSL letters concern domestic FBI requests, not FISA requests) and, in any event, not all FISA requests concern bulk data.

Meanwhile, as stated above, Apple is newly silent in regard to Section 215, the law that covers the FISA requests whose existence is subject to temporary non-disclosure rules. The upshot is that it is unclear if Apple has not received any FISA requests, or if it is under a gag order not to disclose such requests.

Update 2: Ars Technica suggests that the disappearance of the warrant canary is a result of Apple following new Justice Department guidelines that permit companies to immediately publish ranges of surveillance requests — so long as the figure reflects a combined number of FISA requests and NSL requests. In other words, Apple may have received NSL requests, but not FISA ones (that does not necessarily explain, however, its decision to remove the section 215 language).

This story was updated at 3pm ET to note the “bulk data” comment, and at 5:30pm ET to note the Justice Department guidelines. This story was corrected at 9:50pm to remove a sentence suggesting that section 215 of the Patriot Act was the legal basis for the NSA’s secret data collection program known as PRISM; that program was based on a different law.


13 Responses to “Apple’s “warrant canary” disappears, suggesting new Patriot Act demands”

  1. Nick, basically it comes down to whether youre a member of the Cult of Optimism. which is why Cory volunteers himself to be their spokesmodel any chance he gets. There was never a Canary.

  2. Many years ago in Britain, the Automobile Association (AA) used to warn its members (who had badges on their cars) when there were police patrols ahead. This was deemed to be obstructing the police in their duties – so instead it was decided that all AA patrol men had to salute a member’s car whenever they saw it. If a uniformed AA patrol failed to salute you, you knew there were police up ahead!

  3. Oh btw, if one installs a canary, than you carry it on for whatever timeline. If the canary dies, it for-fills it’s purpose, it signals the event. No 2nd guessing is valid. and if the original issuer made an error in this, well that’s their bad. a dead canary cannot be resuscitated, if it can than the meaning of the canary is void anyway.

    So the only assumption that can be made are:
    – There has been a warrant issued
    – Apple is not very precise with creating their transparency reports.
    (or both)

    You decide what is the worst of those two.

  4. Keith Zini

    Apple has long ago defected to the NSA. If you think apple products are really so user-friendly and independent, you are sadly mistaken. If a few hundred dollars is all it takes to make a sheep eat grass, then this world is in trouble.

  5. You never know. Perhaps the pertinent Government officials said to Apple, “If you take down the canary now, we won’t pursue any legal recourse. If you wait until we require you to perform covert action to take it down, we will fine you and throw your CEO in a low security prison cell for ten years.”

  6. Due to the six month waiting period before publishing any information, any warrant demand would likely have been made in 2013. This might have been the impetus to include in iOS 8 some of the changes they just documented yesterday.

    • No, there is no “waiting period” for a warrant canary. They can remove it as soon as the warrant is no longer true. The six month reporting restrictions are for companies positively affirming they’ve been subject to a vague number of FISA requests.
      There is some lag based on how often the company issues the report with the warrant canary. Since Apple has been doing it every six months, we can presume it happened between July 1st and December 31st. (Could a company publish a “special edition” of their report without the canary right after they had been served or would the irregularity of the publication invoke some legal retribution?)
      If Apple has made any changes in iOS 8, I’d guess is to make it less easy for the NSA to snoop. You can’t give the government what you don’t have. Apple’s iMessage is a good example of this.