F.B.I., Challenging Use of Seal, Gets Back a Primer on the Law
By JOHN SCHWARTZ
Published: August 2, 2010
The Federal Bureau of Investigation has taken on everyone from Al Capone to John Dillinger to the Unabomber. Its latest adversary: Wikipedia.

The bureau wrote a letter in July to the Wikimedia Foundation, the parent organization of Wikipedia, demanding that it take down an image of the F.B.I. seal accompanying an article on the bureau, and threatened litigation: “Failure to comply may result in further legal action. We appreciate your timely attention to this matter.”

The problem, those at Wikipedia say, is that the law cited in the F.B.I.’s letter is largely about keeping people from flashing fake badges or profiting from the use of the seal, and not about posting images on noncommercial Web sites. Many sites, including the online version of the Encyclopedia Britannica, display the seal.

[Modnote: Remainder of article removed as copyvio -- see it at the NYT at link above -- gomi]

A version of this article appeared in print on August 3, 2010, on page A10 of the New York edition.

To: David Larson, Deputy Director of the Federal Bureau of Investigation
Cc: Brian Binney, Asst. General Counsel of the Federal Bureau of Investigation
July 30, 2010

Dear Deputy Director Larson,

First, thank you for taking my call Thursday, and congratulations on your imminent retirement after so many years of service. It’s unfortunate that on such an otherwise happy occasion I must inform you that the Bureau’s reading of 18 U.S.C. 701 is both idiosyncratic (made especially so by your strategic redaction of important language) and, more importantly, incorrect. I’m writing you, of course, regarding your recent letter reiterating the Bureau’s invocation of 18 U.S.C. 701 and your demand for removal of the image of the FBI Seal on Wikipedia (images of which are widely available elsewhere, including on the Encyclopedia Britannica website, last I checked). You may recall that in my initial email response to your estimable Assistant General Counsel, Mr. Binney, I pointed to cases construing Section 701 and that, in a subsequent email, I broadly hinted that ejusdem generis, a standard accepted canon of statutory construction, demonstrates that this statute is inapposite to the use of an image of the seal on an encyclopedia.

It’s clear that you and Mr. Binney took the hint, although perhaps not in the way I would have preferred. Entertainingly, in support for your argument, you included a version of 701 in which you removed the very phrases that subject the statute to ejusdem generis analysis. 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.

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.” 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.

May we talk a little bit further about ejusdem generis and your creative editing of the statute? I have reproduced the full statute below. (It is helpfully titled “§ 701. Official badges, identification cards, other insignia” – I note that your idealized version of the statute omitted the section title.) Certain words that you redacted, which are central to the interpretation, are bolded and underlined for your convenience:

Whoever manufactures, sells, or possesses any badge, identification card, or other insignia, of the design prescribed by the head of any department or agency of the United States for use by any officer or employee thereof, or any colorable 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 badge, identification card, or other insignia, or any colorable imitation thereof, except as authorized under regulations made pursuant to law, shall be fined under this title or imprisoned not more than six months, or both.

The underlined words are conclusive proof that the canon of statutory construction ejusdem generis applies. Under that principle, “where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-15 (2001). Courts use ejusdem generis in conjunction with common sense and legislative history to discern the legislature’s intent in writing a statute.

You will note that the phrase “or other” precedes the word “insignia”, both of which follow the enumerated items “badges” and “identification cards.” This constrains the definition of insignia to those objects which are similar in nature to badges and identification cards. This definition comports with case law interpreting 701. As I have noted above (I’m requoting this passage because I truly love it), “the enactment of section 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, 197 (10th Cir. 1975) (contrasting political use of insignia with defendants’ conduct, which “was of the dirty-trick variety and was for the purpose of enraging its victims”). 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. Using both ejusdem generis and common sense, we can see that 701 does not apply to the use of an image on an online encyclopedia.

Finally, while I sympathize with your footnoted desire to claim that “the plain meaning” of the statute supports your broad view of Section 701’s scope, we note that you specifically removed the language that communicates the plain meaning of “other insignia.” In context, this seems an ironic stroke.

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. We are in contact with outside counsel in this matter, and we are prepared to argue our view in court.

With all appropriate respect,
Mike Godwin
General Counsel
Wikimedia Foundation


wikimediafounda tion.org |
149 New Montgomery Street, 3rd Floor | San Francisco, California 94105 | United States
Tel +1 (415) 839-6885 · Fax +1 (415) 882-0495

The FBI finally got back to Wikimedia, but not about its child porn holdings--about its use of the FBI logo: http://is.gd/dZwqK
17 minutes ago via web

Wikimedia Foundation and Mike Godwin (what a maroon!): hubris, meet your nemesis. The FBI.
14 minutes ago via web

RT @zachvat Wikipedia Foundation's full letter to the FBI: http://bit.ly/aRkUT4 - would be painful to watch, if it weren't so funny
11 minutes ago via web

Is it possible the WMF doesn't know, or care, that this action from the FBI is a not-too-subtle hint to get its house in order?
10 minutes ago via web

Mike Godwin, cheekily to the FBI: "I’m requoting this passage because I truly love it." (http://is.gd/dZxmY) Is this a serious lawyer?
6 minutes ago via web

Presumably the FBI simply wants to make it marginally more difficult for people outside the US to make fake FBI badges using graphics found on the internet, but of course Godwin doesn't care about that. He also conveniently overlooks the fact that it's much more difficult, technically speaking, to grab the FBI logo off of britannica.com than it is off of Wikipedia - go ahead, try it. If you're clever you'll probably succeed at it sooner or later, but it isn't a simple matter of right-clicking or dragging it out of the window, is it?

Seems like it would be easier to order ones already fashioned.
Many of these look very different. That's not a problem because the general public has no clue what a real FBI badge looks like. When harassed by a fake FBI agent you'd have to expose him by other means.

Seems like it would be easier to order ones already fashioned.

The long and short of this seems to be that Godwin interprets the statute's intent as being to prevent the (mis)use of the FBI logo on badges and ID cards only, when in fact the statute also includes the words "...or any colorable imitation thereof, or photographs, prints, or in any other manner makes or executes any engraving, photograph, print, or impression in the likeness of..." said badges, ID cards, "or other insignia."

I'm not really qualified to say he's wrong, but it seems that the word "insignia" is vague enough in this context that it would be foolish for the WMF to make a big issue of this, at least if the FBI's counsel decides to take them up on Godwin's offer of going to court over it. Nor is it really a "freedom of speech" issue, unless you're one of those who believe that any limitation whatsoever on a person's ability to say or upload whatever they want in a globally-accessible privately-operated forum is a "freedom of speech" issue.

Presumably the FBI simply wants to make it marginally more difficult for people outside the US to make fake FBI badges using graphics found on the internet, but of course Godwin doesn't care about that. He also conveniently overlooks the fact that it's much more difficult, technically speaking, to grab the FBI logo off of britannica.com than it is off of Wikipedia - go ahead, try it. If you're clever you'll probably succeed at it sooner or later, but it isn't a simple matter of right-clicking or dragging it out of the window, is it?

I can't believe that I'm reading the correspondence between counsel in a public forum or that Godwin would write a "response" to law enforcements counsel with such a taunting tone and and to an intended audience really consisting of consumers of social media.

I was going to mention something along those lines too, but then I started thinking, maybe they want this to escalate, so they can use it as a distraction issue and possibly even stem the tide of general fractiousness among the WP'ers?

I mean, if this does somehow make it into a court and they lose, what's their exposure likely to be? A $100K fine, tops? They can afford that now, what with the big war-chest they've built up courtesy of the Alfred P. Sloan Foundation et al.

It would be nice if the FBI had the power to take away their tax-exempt "charity" status, since they don't deserve it and it might actually knock some sense into them, but like Moulton says, that's a call to be made by the IRS. Then again, the FBI and the IRS are literally across the street from each other.

If I were employed by the WMF, I would be much more afraid of negative attention from the IRS than from the FBI. There is way more at stake with regards to the Foundation's 501(‍c)(3) tax-exempt status than with the FBI's arguably debatable issues over high-resolution images of its logo.

The WikiMafia Fundation thinks they're Untouchable.

Jon

Nonetheless, I bet I could reach out to them with Projectile Vomiting.

You'd only make a Ness of yourself …

Michael Godwin, the general counsel of the Wikimedia Foundation, wrote, “we are prepared to argue our view in court.” He signed off, “with all appropriate respects.”

Good for him. Even a stopped clock is right twice a day, I guess.

He signed off, “with all appropriate respects.”

That's nice, but we're talking about WMF —

How often is a stopped toilet right?

Jon

This has something to do with Led Zeppelin?

The first two posts of this thread review the representations which the WMF makes to the IRS, the donors, and the public regarding the "public and collaborative nature of the projects" in which all "useful contributions" made to the projects will be kept available on the Internet in perpetuity. And yet empowered administrators routinely remove manifestly useful and appropriate educational content in contravention of express WMF Policy which exists to ensure that the WMF keeps its commitment to the IRS, to the donors, and to the public as a condition of receiving 501(‍c)(3) tax-free status as an educational enterprise.

I wish you were right, but the IRS code simply does not specify the level of 'educational content' an entity qualifying for 501(‍c)(3)) status under the education ambit must provide, relative to the educational content available to that entity. Every 501(‍c)(3) educational organisation is free to choose what material it does or does not publish/display/lend/broadcast etc. Pretty much the only thing (other than failure to submit an annual return) that will put a an organisation at risk of losing its 501(‍c)(3) status, is misapplication of funds, and even then it needs to be egregious and chronic to get the IRS to pay attention.

A.virosa

I wish you were right, but the IRS code simply does not specify the level of 'educational content' an entity qualifying for 501(3) status under the education ambit must provide, relative to the educational content available to that entity. Every 501(3) educational organisation is free to choose what material it does or does not publish/display/lend/broadcast etc. Pretty much the only thing (other than failure to submit an annual return) that will put a an organisation at risk of losing its 501(3) status, is misapplication of funds, and even then it needs to be egrgious and chronic to get the IRS to pay attention.

A.virosa

The IRS isn't going to care much about nature of the educational activities so long as they are arguably existent. They would care much more about self dealing and personal misuse of the resources. A board and/or sole founder spree of strippers and hash bars would get them in hot water, not low quality or spotty educational content. Even Mr. Wales seems to stay away from that kind of thing lately. The Brits care more and have determined providing hosting of the content of others who might or might not produce something educational is not a proper charitable purpose.

A fair enough observation. But it's beyond the scope of my expertise to examine and evaluate any such misappropriation of funds for extracurricular activities. I must leave it to others to investigate that.

From where I sit (in a squeaky swivel chair at the MIT Media Lab), I see it this way:

The more they promise, the more they stand to gain from credulous respondents.

But more importantly, the more they promise, the more they stand to lose from disaffected respondents who, in the fullness of time, discover (much to their chagrin) that they have been bamboozled by a fraudulent and unethical enterprise masquerading as an authentic and legitimate educational outreach program.

I would seem nice if they would impose some expectations on what constitutes "education." But remember the policy behind the tax advantaged status. It seeks to provide funds for the social good and welfare in a manner that is not decided by the government. In this sense it is a tool of pluralism and, to me, a good thing. I would not want the IRS to be more involved in defining a proper purpose. The Free Kulture extremists, of course, take advantage of this and have pushed the meaning of "charitable" and "educational" beyond recognition.

Anybody notice that the NY Times also illustrated the article with an image of the FBI seal?

Did you notice that the Encyclopedia Britannica removed the image of the FBI seal from their online article on the FBI?

Compare to this Google cache version.

It was deleted today by Amy Tikkanen, one of their corrections managers.

The seal is in the public domain, so what is "unauthorized use"?

The seal is in the public domain, so what is "unauthorized use"?

Not everything is about copyright, ya know? The concern is bad actor can use high resolution images to counterfeit badges and go on to do meatspace things like kill agents and civilians. There is a specific federal law repeatedly referenced in this thread that addresses this matter and requires Department permission. While we're obsessing on copyright it is ironic that the bad guys could do this without even running afoul of the free license or WP terms of service so they could still be valued editors.

The concern is bad actor can use high resolution images to counterfeit badges and go on to do meatspace things like kill agents and civilians.

Yes, any person or group putting high resolution images of FBI badges on the internet for anyone to access should come under close scrutiny.

That's an antique replica as are the others from Google images. Not likely to even fool a lowly TSA worker.

Whose concern?

In the first instance Congress. Now apparently the Federal Bureau of Investigation.

The FBI letter was about the seal, not the badge.

The Congressional record clearly shows that this law wasn't even supposed to apply to images of badges. And as I said above (and if you read what Sanger wrote, you would have read at the beginning), the FBI asked WMF to take down the picture of the seal, not the badge.

I know this is hard for you, Anthony. Bad guys could use the high resolution image as a basis to engrave a counterfeit badge. Wrap your little libertarian brain around it.

That does not appear to be the position of the attorney writing the letter.

That doesn't change the fact that the FBI letter was about the image of the seal, and not the image of the badge, nor that the law has nothing whatsoever to do with high resolution images of badges.

§ 701. Official badges, identification cards, other insignia

Whoever manufactures, sells, or possesses any badge, identification card, or other insignia, of the design prescribed by the head of any department or agency of the United States for use by any officer or employee thereof, or any colorable 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 badge, identification card, or other insignia, or any colorable imitation thereof, except as authorized under regulations made pursuant to law, shall be fined under this title or imprisoned not more than six months, or both.

It is clearly an "Insignia."

ejusdem generis

Goodluck to you and Mr. Godwin with that. You're both 2 Minute Experts. I'll see what the lawyer for the feds can make of it.