T-shirt seller clashes with DHS, NSA

Sarah Hurtubise | Reporter

You might not think National Security Agency (NSA) spying is all that funny — and apparently neither do they.

Public Citizen, a public interest nonprofit, has sued the NSA and Department of Homeland Security (DHS) in response to letters the agencies sent in 2011 asking the manufacturer of parodied national security trinkets to stop production.

Minnesota small business owner Dan McCall has been making a buck ridiculing federal spies.

“Department of Homeland Stupidity” is emblazoned on T-shirts, mugs, hats, bumper stickers and other items. “The NSA: The only part of the government that actually listens” is featured on others. .

McCall has sold the merchandise on his website LibertyManiacs.com for 10 years, but in 2011 the NSA and DHS hit the manufacturer, Zazzle.com, with cease-and-desist letters warning that the parodies violate federal law.

NSA’s argument? The products are in violation of the National Security Agency Act of 1959, which includes a broad ban on the use of the words National Security Agency, the letters “NSA,” or “any colorable imitation of such words,” on any product which is “in a manner reasonably calculated to convey the impression that such use is approved, endorsed, or authorized by the National Security Agency,” without the express permission of the agency itself.

In other words, a coffee mug decorated with a parodied NSA seal along with a slogan such as “Peeping While You’re Sleeping” might be mistaken for official federal government gear.

The NSA wrote to Zazzle, warning the government would take “appropriate legal action to protect its rights,” Public Citizen attorney Paul Alan Levy reported in a blog post on the case.

“English law uses an analogy” for trademark issues, Levy told The Daily Caller News Foundation, “of a moron in a rush. I would say even a moron in a rush would not think that these seals as parodied by my client were sponsored by the NSA or the DHS.”

DHS took a slightly different tack and sent an email to the manufacturer threatening criminal prosecution, Levy told TheDCNF. It is a crime to “mutilate or alter the seal of any department or agency of the United States” according to federal law, and the DHS believes McCall’s parody products qualify.

DHS warned Zazzle in 2011 that using its seal is “punishable by fines and / or imprisonment,” Levy wrote this week on his blog. The agency then provided a link to a general search of the Zazzle web site linking to every product featuring a DHS parody.

“It’s bad enough that these agencies have us under constant surveillance,” Levy said in a a Public Citizen press release on the case. “Forbidding citizens from criticizing them is beyond the pale.”

Levy will argue that the cease-and-desist orders violate McCall’s First Amendment rights to free speech, asking the court to declare that some provisions of the National Security Agency Act cannot be enforced to ban the parody products.

In the meantime, McCall is currently disregarding the federal agencies’ requests to cease manufacturing the products and is selling the products at CafePress.com.

He’s advertising in particular the final joke that pushed the NSA over the edge in 2011, according to the budding entrepreneur:  a fake NSA seal with the tagline: “Spying on you since 1952.”

The NSA told TheDCNF that “since March 2011, NSA has not sent a cease-and-desist letter to Zazzle regarding a mug the site was selling (with the NSA Seal).”

The agency did emphasize to TheDCNF Public Law 86-36, which forbids the use of the NSA title and seal or “any colorable imitation” without the written permission of the Director of the NSA.

The DHS did not respond request for comment.

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