> wouldn't the act of compelling them to produce false declarations for the purpose of obtaining sales under false pretenses fall under conspiracy to commit (wire) fraud which is a federal crime?
No, it would not, among other reasons because that is not the purpose.
Conspiracy - In criminal law, a conspiracy is an agreement between two or more persons to commit a crime at some time in the future. E.g. the court (judge) and the seller.
Fraud - wrongful or criminal deception intended to result in financial or personal gain... for example making untruthful claims for the purpose of continuing to sell a product under false pretenses.
Mail and Wire Fraud - Fraud by facilitated through the mail system or via electronic means.
Can you elaborate as to how a compelled untruthful (electronic) declaration for the purpose of continuing to obtain sales of your product is NOT (wire) fraud?
Not trying to be an ass, I'd just like to understand.
> Can you elaborate as to how a compelled untruthful (electronic) declaration for the purpose of continuing to obtain sales of your product is NOT (wire) fraud?
I'm saying—and I said this expressly in the post you responded to—that that isn't the purpose, which is the strongest reason it isn't criminal fraud.
Your initial purpose in the warrant canary was sales, sure, but the government wasn't involved in that and it wasn't (presumably) false.
The government order isn't for the purpose of sales.
Your compliance with that order is quite likely not for that purpose, either; it's to avoid the consequences of non-compliance (which is why it's compelled and not voluntary.)
Your compliance with that order is not for that purpose. HOWEVER, your statement which was originally to generate sales went from being truthful to being untruthful.
So now that your warrant canary is false, you are making an untruthful statement supporting sales generation for your company, which is what makes it fraudulent; and in my mind at least, because you've been compelled to do so, that's conspiracy to commit fraud.
I guess they could argue that you weren't compelled to continue operating. You could have shuttered your business. So in that sense, I suppose if they made that argument, the fraud would be on your head and they'd get off on that technicality.
You should really try to learn from the well-reasoned explanation of why your initial hunch was wrong, instead of continuing to try to argue the point with increasing levels of obviously wrong grammatical and legalistic hairsplitting.
Law is a system that, to a certain degree, depends on reasonable people employing commonly accepted rules of logic and teleology. It is not a programming language that can be “tricked” by superficial attempts at “being clever”.
> HOWEVER, your statement which was originally to generate sales went from being truthful to being untruthful.
You made a true statement with the purpose of generating sales, and later a false statement with a different purpose. The fact that the two statements have the same content doesn't make the intent of one transfer to the other, or the falsity of one transfer to the other.
The required mental state for a crime must connect to the required act, not just a generally similar act at a different time.
(Of course, the government compelling your action by force means it cannot be prosecuted as a crime of yours, because when the government induces a crime you would not otherwise have committed by threats, that's called “entrapment”.)
> and in my mind at least, because you've been compelled to do so, that's conspiracy to commit fraud.
No, aside from the fact that you don't have a false statement made with the required purpose to start with, the fact that you are compelled by the government doesn't make a conspiracy.
> I guess they could argue that you weren't compelled to continue operating. You could have shuttered your business. So in that sense, I suppose if they made that argument, the fraud would be on your head and they'd get off on that technicality.
No, they’d get off because their power to issue and enforce non-disclosure directives with NSLs, etc., is an express power granted in law.
According to this argument, it seems like you don't even need a warrant canary. If you told your customers you would inform them of a warrant, and the government compelled you not to, under your arguments wouldn't that also be conspiracy to commit fraud?
No, it would not, among other reasons because that is not the purpose.