NSA Listening to T-Shirts?
The National Security Agency – NSA – has been busy tracking emails and listening to phone calls. How have these hardworking public servants have managed to find the time to crack down on communications transmitted in the form of humorous t-shirts?
The Daily Dot has reported that the NSA stepped in to stop a clothing company from selling t-shirts featuring the NSA logo and the slogan “The only part of the government that actually listens.” T-shirt producer Liberty Maniacs put the shirt up for sale on Zazzle, an online marketplace.
According to the story, Zazzle informed Liberty Maniacs within two hours that the shirts were being pulled. Liberty Maniacs founder Dan McCall was later told by Zazzle that “…your product contained content which infringes upon the intellectual property rights of [the] National Security Agency. We have been contacted by legal representatives from the National Security Agency, and at their request, have removed the product from the Zazzle Marketplace.”
Many people are aware that works created by the Federal government are not subject to copyright protection. This is pursuant to The United States Copyright Act of 1976, 17 USC § 105, which states (don’t everybody recite it at once), “Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.”
Trademarks, however, are not subject to the same restriction. So, moving on to the National Security Agency Act of 1959, here’s the section that deals with the equivalent of trademark rights:
Public Law 86-36 Sec. 15. (a) 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.
Sounds like Uncle Sam owns the NSA name and logo, right? But take a look at the last bit of that subsection: “…in a manner reasonably calculated to convey the impression that such use is approved, endorsed, or authorized by the National Security Agency” Would anyone actually believe that Liberty Maniacs created its shirt so as to convey the impression that the shirts were improved, endorsed, or authorized by the NSA?
We can now arrive at one of two conclusions: either Congress didn’t mean for that language in the NSA Act to have any meaning, or the NSA was overreaching in nicely asking Zazzle to pull the shirt.
Now, maybe this isn’t the most egregious example of NSA overreach to hit the news in the last few months, but it shouldn’t win them many fans among entrepreneurs and online businesses. If they’re reading this – and so far I haven’t seen much web traffic originating from NSA.gov – it might be prudent to let this one slide.
