FBI: Frivolous Bureaucratic Infringement

Tuesday, August 3, 2010

by CLINTON FEIN

Why, you may ask, would the cover of Annoy.com consist of nothing but the logo of the FBI? No tweaks, witty modifications or slight alterations. Just the image of the logo exactly as it is. And, of course, a disclaimer!

Because, it appears, the FBI decided to take time out from protecting the United States from terrorist attacks, and instead spend its resources on demanding that Wikipedia remove an image of their logo from their website. The U.S. Federal Bureau of Investigation has threatened Wikipedia with legal action if the online encyclopedia doesn't remove the FBI's seal from its site. The seal is featured in an encyclopedia entry about the FBI.

In a letter to Wikipedia's general counsel, Mike Godwin, FBI's Deputy General Counsel, David C. Larson wrote:

"Regulations governing authorizations to use the seals of Department of Justice - components, including the FB I, are published in Title 41, Code of Federal Regulations, Part 128-1.5007(b), and require requests for authorizations to use the FBI Seal to be referred to the Director of the FBI. The FBI has not authorized use of the FBI seal on Wikipedia. The inclusion of a high quality graphic of the FBI seal on Wikipedia is particularly problematic, because it facilitates both deliberate and unwitting violations of these restrictions by Wikipedia users."

In a response to the FBI's demand, Wikipedia's general counsel, Mike Godwin wrote:

"In your letter, you assert that an image of an FBI seal included in a Wikipedia article is 'problematic' because 'it facilitates both deliberate and unwitting violations' of 18 U.S.C. 701. I hope you will agree that the adjective 'problematic,' even if it were truly applicable here, is not semantically identical to 'unlawful.' Even if it could be proved that someone, somewhere, found a way to use a Wikipedia article illustration to facilitate a fraudulent representation, that would not render the illustration itself unlawful under the statute. As the leading case interpreting Section 701 points out, 'The enactment of § 701 was intended to protect the public against the use of a recognizable assertion of authority with intent to deceive.'"

Mr. Godwin's response raises two core issues – one in which he states "Our inclusion of an image of the FBI Seal is in no way evidence of any 'intent to deceive,' nor is it an 'assertion of authority,' and a second point where he states: "Badges and identification cards are physical manifestations that may be used by a possessor to invoke the authority of the federal government. An encyclopedia article is not. The use of the image on Wikipedia is not for the purpose of deception or falsely to represent anyone as an agent of the federal government."

The question to be asked is whether the second point -- Wikipedia's role as an encyclopedia publisher -- is a necessary defense for someone like me, simply publishing this story along with a reproduction of the seal on Annoy.com and on my blog Pointing Fingers. (Clearly not, although I did add a disclaimer to the Annoy.com cover to make sure that there is no doubt whatsoever that I have any intent to deceive.)

While there is no doubt I am not intending to deceive anyone into thinking Annoy.com is really the FBI, the question is whether the same defense raised my Mr. Goodwin can be applied to content that is not intended as an encyclopedic reference or a news story. Or the fact that Annoy.com is not a non-profit web site, just one that doesn't make a profit!

Perhaps Annoy.com is not best suited to pose this question by way of testing it, given my own history with the FBI in the Annoy.com case against the Department of Justice, which included having to answer interrogatories that were furnished by the FBI. Or a later suit, United States v. ApolloMedia. Our stories are intertwined.

There's also a similar case I was involved in that revolved around use of a seal belonging to the federal government.

In 1995, the United States Navy denied my request to use an image containing the United States Naval Academy crest for Conduct Unbecoming, my CD ROM on gays in the military based on Randy Shilts' book of the same name, using an amended provision of the Trademark Act of 1946 to support its position.

"The United States Naval Academy crest is a trademark registered with the United States Patent and Trademark Office (Reg. No. 1,810,681) pursuant to the Trademark Act of 1946, as amended (Lanham Act, 15 USC Chapter 22). The United States Naval Academy crest is predominately displayed on the poster in question which is an Academy advertisement. Its use, therefore, is subject to the approval of the United States Naval Academy."

We challenged the Navy, informing them that their reliance on the Lanham Act demonstrated a fundamental misunderstanding of its application. Not only were we planning to use the poster containing the seal, but alongside the letters refusing us permission, the letterheads of which themselves contained the navy seal. The Navy, upon seeing our resolve, capitulated, and the image was released by us without incident.

I spoke briefly with Mike Godwin today. He was clear that unlike our issue with the Navy, the Wikipedia case had nothing to do with trademark and which the FBI had not asserted. But he did state that the FBI's actions certainly raised First Amendment issues.

The First Amendment is not trumped because a contextually relevant piece of information or image can be used in deliberate and unwitting violations. Particularly an image that is so widely used and familiar, from lecterns to caps, and certainly in the telling of this very story. And even though Mr. Larson refers to the "high quality graphic of the FBI seal," suggesting that expression can be censored based simply on the resolution of an image.

It's the equivalent of prohibiting mobile phones because they can be used in violation of the law. (As evidenced by United Arab Emirates' recently announced plan to suspend Blackberry Messenger, email and Web browser functions, saying they pose a threat to national security because they cannot be monitored.)

The government cannot criminalize expression because someone may in the future violate the law. It would be difficult to come up with a clearer case of prior restraint, and the chilling effect it would have if this legislation related to an image on a Wikipedia page about the FBI. Censorship that requires a person to seek governmental permission in the form of a license or imprimatur before publishing anything constitutes prior restraint every time permission is denied.

Another point is the spirit of the statute, in which one looks at the intent of congress in writing the statute. Quite clearly, the language refers to those who would reproduce official badges, identification cards, or other insignia with the intent of deceiving another. In a conversation with the legal director of the Electronic Frontier Foundation, Cindy Cohn, she wondered the same thing she had to New York Times' John Schwartz.

Does the FBI not have better things to do?