Re: [bitfolk] Digital Economy Act

Hi Iain, On Wed, Aug 03, 2011 at 02:39:14PM +0100, Iain Lane wrote: I became aware of the rsync.net canary in 2009 and towards the end of 2010 I sought a legal opinion as to its usefulness in UK law, with a view to possibly making use of it. The answer I got was: a) there probably isn't a means for English law to force you to update the canary, *but*; b) there doesn't appear to be any guarantee that failing to update the canary would not be considered breaching any "do not reveal" clauses of any court orders that had already been received. At most serious it would likely be down to a judge's opinion. e.g. a judge *may* decide, "the court order clearly says that the fact you've been served a court order must not be revealed. You chose to stop updating your canary with the express purpose of alerting the subject that an order may affect them, therefore you're going to be prosecuted." Now, if I were to make a promise such as that contained within the rsync.net canary and then were served with a court order, I would have to take legal advice as to my risks given the particulars of the order. By this time it would be too late for me to withdraw the canary without having the same effect as not updating the canary. If the advice was that I risked being prosecuted, I'd be risking the service of every customer for the sake of whoever was under investigation. Or I could continue updating the canary, and safely lie to customers. For this reason at this time I'm of the opinion that it's safer not to make promises (in the form of a canary like rsync.net's) that either cannot be kept or risk the entire business in keeping them. The law is heavily based on intent and tricks like the rsync.net canary can't be relied upon to get around that. Should rsync.net's canary survive an actual court order that has a non-disclosure clause then that would be interesting (although still may not set a precedent in English law). I would also be very interested in any other service provider operating under English law who is making use of such a canary, so we can compare notes. Cheers, Andy