NSA: Spying Is Fine, But Trademark Infringement Crosses the Line
NSA: Spying Is Fine, But Trademark Infringement Crosses the Line
NSA: Spying Is Fine, But Trademark Infringement Crosses the Line

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    The NSA is misusing an obscure trademark-like law to suppress online content critical of the NSA.

    This is a story about the National Security Agency, trademark law, online content takedowns, and more irony upon irony than I could have come up with in fiction.

    As we all know, the NSA has been under fire for the last few months, over its broad national spying campaign. The NSA is of the position that its surveillance programs do not constitute a breach of Americans’ interests in privacy—they are perfectly happy to listen to us talk. But when it comes to people criticizing the NSA, suddenly the NSA doesn’t want to listen to anyone talking about them.

    Matthew Green, a cryptography professor at Johns Hopkins, wrote a post on his personal blog about the NSA’s activities in undermining Internet cryptography. He then received a call from his academic dean, directing him to remove the blog post from university servers.

    The university told Ars Technica that it had ordered the removal of the blog post because the university had been informed that the post “contained a link or links to classified material and also used the NSA logo.”

    What’s wrong with using the NSA logo?

    A T-Shirt and a Trademark

    Apparently the NSA has been on a campaign to take down content critical of the NSA, and it is using the logo as its legal weapon. Matthew Green’s blog post is the most recent example, but there was also one from a few weeks ago involving a parody t-shirt:

    The shirt includes a spoof NSA logo (the subtitle reads “Peeping while you’re sleeping”), and the caption humorously identifies the NSA as the “only part of government that actually listens.”

    Two days after Dan McCall put up the shirt design on the online marketplace Zazzle, he received an email informing him that his design had been removed because it was “in conflict with one or more of our acceptable content guidelines.”

    Again, it was the logo. Regarding the t-shirt, the NSA quoted a Federal law:

    The NSA seal is protected by Public Law 86-36, which states that it is not permitted for “…any person to use the initials ‘NSA,’ the words ‘National Security Agency’ and the NSA seal without first acquiring written permission from the Director of NSA.’

    The NSA might have been well-advised to have actually read the law before quoting it, because they would have found that it reads:

    No person may, except with the written permission of the Director of the National Security Agency, knowingly use the words “National Security Agency”, the initials “NSA”, the seal of the National Security Agency, or any colorable imitation of such words, initials, or seal in connection with any merchandise, impersonation, solicitation, or commercial activity in a manner reasonably calculated to convey the impression that such use is approved, endorsed, or authorized by the National Security Agency.

    At this point, take a look at Matthew Green’s blog post. Take a long, hard look at Dan McCall’s t-shirt. Do you think that either one is “approved, endorsed, or authorized” by the NSA?

    Any action by the NSA to take down either of their content is a clear abuse of the above law. As Sherwin Siy has discussed in a previous post on this blog, this sort of abuse of quasi-trademark law is common. But at least in the Hacker Scouts–Boy Scouts case Sherwin discussed, both of the organizations were using the names as organization names, so there was at least a non-frivolous argument of business confusion.

    With these NSA takedowns, there is no business confusion at all. This is censorship, plain and simple: the use of intellectual property law, not to advance science and the arts, but to silence critics. Indeed, one prominent law professor has observed that this sort of abuse of the statute could be a First Amendment violation of free speech.

    Basically, the NSA is taking down criticisms of its operations, to prevent the public from overseeing the NSA. Why, then, should the NSA be allowed to oversee the public?

    But Wait, There’s More

    In researching this post, I found a third instance of an NSA-related takedown, where Zazzle had removed a listing for a t-shirt with the PRISM surveillance program logo on it. It’s unclear whether the NSA was actually directly involved in this takedown, but the t-shirt maker discovered something surprising: the PRISM logo had been lifted from a British photographer’s website.

    It’s ironic enough that the NSA is asserting intellectual property law against people who borrow the NSA logo, while ignoring intellectual property law in making its own logos. It’s hard to see how anyone could reasonably think that both of these are simultaneously acceptable and consistent, regardless of one’s views on intellectual property.

    But there’s one more twist.

    The photographer offers this prism photo under something like a Creative Commons license. Among other requirements of the license are that the user not “pass this work off as your own,” and that the user “acknowledge the author” for the use. Presumably the NSA did not do either of these.

    But the license also requires users to “contribute similar material of your own creation to the Web under similar terms.” I would sure like to see the NSA contribute some of its materials to the Web.

    Image credits: NSA shield from National Security Agency. T-shirt from Liberty Maniacs. PRISM logo from Max Read of Gawker, with images taken from Adam Hart-Davis/DHD Multimedia Gallery and National Security Agency. This post is in no way approved, endorsed, or authorized by the National Security Agency.