It’s OK to Use the NSA Logo While Commenting on the NSA

No, the NSA did not approve this.A couple of weeks ago Salon reported that the NSA had allegedly sent a request to self-printing site Zazzle asking that it take down a parody t-shirt that used an altered version of the NSA logo. When contacted, the NSA first claimed that “[t]he 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.'” But shortly after that, the NSA updated its statement to add that it had not contacted Zazzle to request the removal of any item since 2011, when it asked that a coffee mug with the NSA seal be removed from the site.

Putting the two statements together, it looked as though someone at Zazzle, remembering the earlier incident, mistakenly thought that all uses of the logo were forbidden. It seemed to be an isolated incident.

Except that now it’s happened again. This time, a computer science professor at Johns Hopkins, Matthew Green, received a request from his dean that he pull down a blog post on university servers that linked to some of the leaked NSA documents and contained the NSA logo. The university later confirmed that the reason for the request was that it “received information” that Green’s post “contained a link or links to classified material and also used the NSA logo.”

Before this emerging folklore about the NSA logo gets any stronger, let’s be clear: the NSA misquoted the statute in its response to the Salon story. Use of the NSA logo merely to criticize or comment on the NSA is not illegal; and even if Congress tried to make it illegal, it would likely violate the First Amendment, as Eugene Volokh has noted.

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Edward Snowden: Whistleblower or Traitor?

1371935280000-AP-NSA-Surveillance-Snowden-1306221711_4_3_rx404_c534x401Earlier this month, I learned that as a Verizon Wireless customer, my cell phone records, and those of family, may very well be sitting in some National Security Agency (NSA) analyst’s cubicle.

According to The Guardian, which first reported the story June 5, Verizon is under a court order to turn over on an “ongoing, daily basis,” information such as “the numbers of both parties on a call . . . location data, call duration, unique identifiers, and the time and duration of all calls,” and more.  However, no subscriber’s personal information or contents of a call are covered by the order.

Shortly after the story broke, Edward Snowden, a 29-year-old former NSA contractor, came forward as the informant. Time Magazine quotes Snowden as saying, “The public needs to decide whether these programs and policies are right or wrong.” He has since been charged with theft of government property, unauthorized communication of national defense information, and willful communication of classified communications intelligence information to an unauthorized person.  Snowden may currently be in Moscow and is rumored to be heading to Ecuador to seek political asylum there.

Because the information that Verizon turns over is considered metadata and not communications, the NSA needs no warrant to access it. Even so, by putting together enough metadata, one can fairly easily put together a profile of who is calling whom, for how long, and from where.  While no actual content is turned over to the NSA, the breadth of this program—code named PRISM—should frighten any American because the information is handed over wholesale; no probable cause or suspicion of wrongdoing needed.  And, boom.  The NSA is keeping tabs on you.

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United States Supreme Court Cites the Marquette Intellectual Property Law Review

Law professors, like everyone else, have good days and less good days. Then, sometimes, law professors have special days. In these days, something truly unique happens, something that makes law professors especially grateful for their roles as mentors and educators. This past week, I had probably one of the most special days in my law professor career, and it was not about getting tenure, getting promoted or the like (all very special days I can promise!). It was about the success of a student I had the privilege to mentor and supervise, who was one of my very best students, and who made me so very proud. So what happened? An academic dream: the Supreme Court of the United States cited the comment that my former student Lina Monten wrote in 2005, and that we published in the Marquette Intellectual Property Review.

Here is a little more “technical” background. The Supreme Court recently issued its opinion in Kirtsaeng v. John Wiley & Sons, a closely-watched copyright case concerning the issue of whether the “first sale” doctrine of copyright law applies to imported works. Justice Breyer wrote the majority opinion holding that it does, and Justice Ginsburg wrote a dissent (on behalf of herself and Justices Scalia and Kennedy) arguing that it does not. In the course of her dissent, Justice Ginsburg argued that the United States has long taken the position in international negotiations that copyright owners should have the right to prevent importation of copies of their works that they manufactured and sold in another country. (Slip op. at 20-21.) In support of her argument, Justice Ginsburg cited two items, one of which was the comment published in the Marquette Intellectual Property Law Review, written by then-student, now-Marquette Lawyer Lina M. Montén, entitled The Inconsistency Between Section 301 and TRIPS: Counterproductive With Respect to the Future of International Protection of Intellectual Property Rights? (9 Marq. Intellectual Property L. Rev. 387 (2005)). I supervised the comments, which started as a paper that Lina wrote for the International Business Transaction class that I taught during spring 2005. 

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