NSA Compounds Its Assaults on Privacy by Attacking Critical Speech

by Paul Alan Levy

Over the years I have blogged several times about corporate abuses of trademark law to use litigation, or the threat of litigation to block criticism.  Because they have so many other tools to deploy against citizens, government agencies usually do not stoop to this level – the City of Memphis aside – but we have today filed suit against two government agencies, whose abuses of the public are in the news for other reasons, for using that tactic against a critic. 

Dan McCall, a Minnesota man who creates politically-relevant designs for imprinting on Tshirts, mugs and other paraphernalia, was inspired to play with the official seals of the National Security Agency and the Department of Homeland Security to express his critical views about them.  One design juxtaposed the official seal of the NSA with the words “Spying on You Since 1952”;

NSA Spying on You Mugs only

another altered the seal to add the words, “Peeping While Your Sleeping,” while placing this legend below the seal: “The NSA: the only part of government that actually listens.”  Still a third design replaced the name of the DHS in its official seal with the name “Department of Homeland Stupidity.”


McCall has neither his own printing equipment nor the resources to pre-print and store an extensive inventory of wares displaying his designs.  To enable others to join in his expression, he arranged with a third-party printer, Zazzle, to imprint the designs on order by members of the public.  Zazzle allows anybody to create designs for order by others; each seller’s designs are displayed on the seller’s own virtual storefront within the Zazzle web site; in McCall’s case, here.   The designs are then printed on particular items and mailed to consumers in response to specific orders.

Takedowns by Federal Agencies That Should Know Better

In 2011, however, both NSA and DHS took steps to shut down the use of their seals.  NSA warned Zazzle that several different sellers, including McCall, were using the NSA’s name and official seal in violation of Public Law 86-36, 50 U.S.C. § 3613, and if Zazzle didn’t stop using the name, initials, or seal, NSA would take “appropriate legal action to protect its rights.”  DHS was even more threatening, invoking a series of provisions in the federal criminal code that bar use of its official agency seals or even, in the case of one statute, 18 U.S.C. § 506,  makes it a crime to “mutilate or alter the seal of any department or agency of the United States.”  DHS warned Zazzle that use of its seal is “punishable by fines and/or imprisonment,” providing a link to a general search that called up every DHS design on the Zazzle web site  (The letters themselves are not linked here because, for reasons that I don’t understand, Zazzle was unwilling to give me a copy of the original cease-and-desist letters; it was willing only to read them to me over the telephone, although I am certainly grateful for that cooperation). 

Zazzle complied with alacrity, taking down the “Spying on You” and “Homeland Stupidity” designs and, when McCall posted his “Peeping While You’re Sleeping” design earlier this year, Zazzle removed that as well in compliance with NSA’s threat of litigation.


In a lawsuit filed today McCall has challenged both the cease-and-desist letters, arguing that statutes should not be construed to forbid his parodies because nobody could think that they reflect endorsement by NSA or DHS, and that, if the statutes are not construed narrowly, their application to McCall violates the First Amendment.  We also argue that the statutory prohibition against “alter[ing] or mutilat[ing]” the official seal of any government is unconstitutionally overbroad because it can too easily be construed, as Zazzle plainly did after receiving a threat of prosecution under that law, as criminalizing parody or expressive conduct that is protected by the First Amendment.

Zazzle’s Complicity

Although I place the blame for this problem squarely on poor judgment at the NSA and DHS — it is the government, after all, to which the First Amendment applies, and the government that should know better than to send dumb IP-based takedown threats — Zazzle, too, bears some responsibility as well.  To be sure, it is just a stakeholder here, and particularly when faced with the threat of prosecution for violations of criminal statutes, I can understand why it would not want to place its staff at risk if having to hire criminal defense lawyers. 

On the other hand, it is inconceivable that the First Amendment might not protect these uses of the agencies’ shields, and the NSA’s trademark-like statute applies, by its terms, only when the challenged use “convey[s] the impression that such use is approved, endorsed, or authorized by the National Security Agency.”  Although the NSA’s cease-and-desist letter specifically identified McCall's “Spying Since 1952" design as violating this statute, we should be able to expect a substantial commercial operation to push back against the implicit suggestion that somebody looking at that mug could have believed that NSA endorses it.  Even though the cease-and-desist letter warned Zazzle against “any” future use of its name, initials or seal, it is even more farfetched to think that NSA would have endorsed a version of its seal that says, “Peeping While You’re Sleeping.”  Consumers have a right to expect companies like Zazzle to have a thicker skin when faced with preposterous demands, and to wait for specific trademark challenges, rather than policing its service for other uses of the letters NSA, and proactively removing this sort of design in response to a cease-and-desist letter received two years before.

Happily, Zazzle faces commercial competition from others that do get tough on frivolous threats.  After Zazzle removed McCall’s designs in response to threats of litigation, McCall posted them to a virtual storefront at CafePress.com.   We don’t know whether CafePress has received similar threats from NSA or DHS, but based on previous experiences dealing with CafePress on trademark issues, I would expect CafePress to be more resistant to cease and desist letters. 

For example, a few years ago, CafePress stood up to the Republican National Committee when it tried to prevent CafePress users from using the RNC's elephant logo in conjunction with materials opposing or endorsing various candidates or, indeed, praising or condemning the Republican party.  And indeed, when the City of Memphis went after an anonymous blogger and sent a bogus takedown letter to Zazzle over the sale of parody Tshirts making fun of its police department, Zazzle’s immediate response was to cave in while CafePress was willing to stand up to the pressure, although Zazzle did restore the images after I urged it to do so

Still, until Zazzle shows itself to be more energetic in responding to threats against political humor, parodists speaking about controversial subjects should consider voting with their feet by using other vendors.

0 thoughts on “NSA Compounds Its Assaults on Privacy by Attacking Critical Speech

  1. InfinitudeTortoises says:

    Esteemed Mr. Stallman, et al.:
    Yep, perhaps I was one of those who confused this issue with one of copyright/trademark law. Sorry about that. I have, however, now reviewed Sec. 15. (a) of the NATIONAL SECURITY AGENCY ACT OF 1959, PL 86-36 (http://www.intelligence.senate.gov/nsaact1959.htm) and find that it indeed refers only to “NSA” and “National Security Agency” (as well as the agency seal) … which makes it all the more interesting that Zazzle just this evening has taken it upon itself to delete my modified design, which had used “N.S.A.” and not once referred to the “National Security Agency”. Stinks of overreach, imho. But whose?
    I’d still love to join that (hypothetical) class-action lawsuit!

  2. Richard M Stallman says:

    One of the comments confused this issue with copyright law.
    One practice that encourages people to confuse copyrights with trademarks,
    and even with very specific laws such as this one, is the misleading
    overgeneralization “intellectual property”. It conveys a false feeling
    of having understood more deeply, while encouraging people to lump
    unrelated laws together. See http://www.gnu.org/philosophy/not-ipr.html.
    Please join me in promotimg clearer understanding of each of these
    unrelated and disparate laws, by refusing to use any term that tries to
    generalize about them.

  3. Thomas D Dial says:

    While the NSA items are a bit edgy, it isn’t hard to imagine that more than just a few NSA employees have enough sense of humor to order one. NSA management (over)reaction is unsurprising from civil service functionaries, though.
    I ordered a cup.

  4. dominic de bellis says:

    nsa’s reactionary behavior will not help its legitimate mission any more than unleashing the dragoons on innocent marching peasants helped the czar to save his regime

  5. InfinitudeTortoises says:

    I, too, am a shopkeeper at Zazzle (alas!), and just today one of my t-shirt designs was eradicated on the NSA’s behalf by those ever-accomodating guardians of IP “rights” in Redwood City when someone in London tried to buy a copy. My design, dating from several years ago, had no graphics, merely the text:
    On the Internet, the NSA knows you’re a dog.
    Perhaps if one restricts oneself to praising the agency’s tireless, heroic efforts to keep Amerika safe…? Anyhow, a simple expedient — verified by consulting TESS, the Trademark Electronic Search System (http://tmsearch.uspto.gov/) — occurred to me, and the revised version of my design now reads:
    On the Internet, the N.S.A. knows you’re a dog.
    (NY Times style, as it were.) This is not to say I wouldn’t be delighted to join Mr. McCall in a class-action lawsuit, which unfortunately his suit appears not to be.

  6. Paul Levy says:

    Response to rxantos: You would be correct if DHS had advanced a copyright claim, but this is a trademark-type claim, and not one made under the Lanham Act but under statutes that particularly regulate the use of official agency seals. You can find more detail about those statutes if you read paragraphs 12 and 13 of the complaint, which is linked from the post above; the post also has a hyperlink to the text of one of the statutes that DHS cited.

  7. Terry McCall says:

    Great blog Mr Levy. I admit I’m biased as Dan’s father. We appreciate you leading the charge for liberty for us all.

  8. rxantos says:

    If the DHS is indeed a government agency, then they cannot copyright anything. As anything government makes is automatically in the public domain.
    If however DHS is a corporation they can copyright things. However that would mean that they are misrepresenting themselves as a law enforcement agency, which in turn is a felony.
    So what it is?

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