Best of 2010: Sealed with a fist
First posted August 4, 2010.
I kvetch a lot about the mania for dubious “IP enforcement” by government agencies such as New York’s Metropolitan Transit Authority, which really should both know better and which have superior options for utilization of public resources. But here’s a topper: The FBI has written to Wikipedia demanding that the online reference work remove its photograph of the Bureau’s seal. Huh?
It has come to our attention that the FBI seal is posted, without authorization, on Wikipedia at the following site: http://en.wikipedia.org/wiki/File:US-FBIShadedSeal. As the site itself notes, “Unauthorized use of the FBI seal . . . is subject to criminal prosecution under Federal criminallaw, including 18 U.S.C. 701.” The FBI Seal is an official insignia of the Department of Justice. Its primary purpose is to authenticate the official communications and actions of the FBI. Unauthorized reproduction or use of the FBI Seal is prohibited by 18 United States Code, Section 701, which provides:
Whoever manufactures, sells, or possesses any insignia, of the design prescribed by the [Department head] or any colordble imitation thereof, or photographs, prints, or in any other manner makes or executes any engraving, photograph, print, or impression in the likeness of any such insignia, or any colorable imitation thereof, except as authorized under regulation made pursuant to law, shall be fined under this title or imprisoned not more than six months, or both. . . .
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 FBI particularly problematic, because it facilitates both deliberate and unwitting violations of these restrictions by Wikipedia users.
The purpose of this letter is to advise you of these legal requirements and to seek your compliance with the law by removing the, F13I Seal from the above site and any other sites under your control on which it appears. I Please remove the FBI Seal from the Wikipedia site(s) within 14 days of receiving this letter and notify us of your compliance in writing at the following address: . . . Failure to comply may result in further legal action. We appreciate your timely attention to this matter.
Wow. Good thing these guys are protecting us from all that… stuff out there, huh.
Dumb, dumb, dumb.
CNN’s article says “Wikipedia isn’t backing down,” and quotes my online friend Mike Godwin — just the man for the job — who, as Wikimedia Foundation’s general counsel, wrote back to the FBI and told the G-Men to stop being so grimly silly. “In short, then, we are compelled as a matter of law and principle to deny your demand for removal of the FBI Seal from Wikipedia and Wikimedia Commons.”
What’s Mike’s argument, exactly? Back to the CNN report:
The FBI’s deputy general counsel, David Larson, cities a particular law that says duplicating an official “insignia” is illegal without permission. But Wikipedia strikes back on that point, saying the FBI redacted the most important part of that U.S. code, which defines an insignia as “any badge, identification card, or other insignia.” “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,” Wikipedia’s letter says. “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.”
Works for me. Actually, Mike, in his colorful way, doesn’t merely observe that the FBI left a bit out. He writes: “While we appreciate your desire to revise the statute to reflect your expansive vision of it, the fact is that we must work with the actual language of the statute, not the aspirational version of Section 701 that you forwarded to us.” Heh.
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.”
Oh, I was sure he was going to say, instead, “I hope you will agree that the adjective ‘problematic,’ as a basis for law enforcement, is ‘problematic.'” But I like his, too. More:
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.” United States v. Goeltz, 513 F.2d 193 (1975). 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,” recognizable or otherwise. If you read the cases construing Section 701, you find they center on situations in which defendants represented themselves as federal authorities. I think you will be compelled to agree that the Wikimedia Foundation has never done this.
Yeah — one thing we can agree on is Wikipedia isn’t an authority on anything!
Good work here. Presumably the FBI can find other outlets for its creativity.