Apple has become one of the first big-name tech companies to use a novel legal tactic to indicate whether the government has requested user information in conjunction with a gag order. Known as a “warrant canary,” this language is encapsulated on Apple’s fifth page of its new transparency report (PDF), which was published on Tuesday.
“Apple has never received an order under Section 215 of the USA Patriot Act. We would expect to challenge an order if served on us,” the company wrote, referring to the provision of federal law that compels businesses to hand over business records to American authorities, often under gag order.
Interestingly, Apple did not mention Section 702 of the Foreign Intelligence Surveillance Act (FISA) Amendments Act, which compels companies to share data on foreigners and provides the legal basis for the National Security Agency’s PRISM program.
Warrant canaries work like this: a company publishes a notice saying that a warrant has not been served as of a particular date. Should that notice be taken down, users are to surmise that the company has indeed been served with one. The theory is that while a court can compel someone to not speak (a gag order), it cannot compel someone to lie. The only problem is that warrant canaries have yet to be fully tested in court.