HS 423 FBF - Beating the NSA and Censorship in Court with Dan McCall

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It's my pleasure to welcome Dan McCall to the show. Dan is founder of Liberty Maniacs, a company that extols the virtues of individual liberty and limited government with their T shirts, bumper stickers, and home and office accessories, greeting cards and other products. He's got some great parody logos and t shirts that mock the nsa and he was recently involved in litigation with the nsa and we're gonna hear all about that and I'm not a big fan of this guy, but I do like this line. As Sean Hannity says, you are a great American. I'm stealing a line from. I mean, I like some of Sean's stuff, but not all of it, certainly. So I just thought that was applicable. For Dive in and Tell Us. Last week was some big and really good news for you, right?

It was. It was. And thanks, Jason, for having me on the show and talking with your listeners. Yeah, last week it was sort of the conclusion to what had been, I guess, the better part of last year and so far this year in dealing with the NSA. Last year, about June, I think it was June 6, actually, days after the Stone revelations had come out, I decided to kind of do what I do and kind of take a stab at the issue in the way I do, which is through art and through putting it on products like shirts and mugs like that.

And just so I don't know if people heard what you just said, you were saying days after the Snowden revelation. You're talking about Edward Snowden, when those came out. Edward Snowden, I think, should rightfully be called a bit of a hero as a whistleblower. The government likes whistleblowers when they're, you know, in their favor. But when you're whistleblowing on the government, you get sent to prison. Just ask Bradley Manning.

Right.

And Edward Snowden trying to evade that. Anyway, so, yeah, so you started doing what you printed T shirts and bumper stickers and different paraphernalia. And what did they say?

Yeah, and the shirt. I kind of went to the drawing board, and what I came up with was, was basically kind of doing something that I've done for a long time, is doing kind of a classic parody and involving the actual logo of the agency. And so I changed the logo up a little bit. Instead of the United States of America, I put the NSA Peeping While youe're Sleeping, which is sort of an homage to Snoop Doggy Dog, which I thought was funny with the whole Snoop part. And then on the bottom, it just said, the nsa, the only part of government that actually listens. And so put it up. Got a giggle a little bit while I was doing it. I said, you know, I'm gonna put this up. I think this will make a good shirt. Hours later, I was contacted by my manufacturer, and they told me that indeed, they had been contacted by the NSA to take the shirt down. It had been an infringement of their intellectual property rights.

Unbelievable. So here's the funny thing about ip. You Know, with most ip, when it comes from, I think it's called just the Government Printing Office, where they create all sorts of pamphlets and brochures. And, you know, the IRS has all sorts of form, not forms, but reports on their website. And as far as I know, and I'm not an attorney, I always like to make that disclaimer. But as far as I know, all these things are in the public domain and therefore American taxpayers to use any way they wish. But funny how they were wanting to protect the NSA's intellectual property, their logo in this case.

Right, right, exactly. A very curious thing. When I got that report from them back from the manufacturer, it was a very curious thing because anyone that's gone to, you know, goes to Washington, D.C. or any, you know, on the Mall, you can see vendors everywhere, and they're selling things that, you know, FBI shirts, NSA shirts, all sorts of memorabilia like that.

Right, right. You know, it's making me think, certainly it's making me think, Dan, that soon they'll say that the American flag is their intellectual property and their trademark, and we don't get to use that one either.

Right, right. You know, at what point do we actually have to get permission to use commercially? You know, even the ideas is it going to be that the. The First Amendment is going to be copyrighted at some point? It's a bizarre thing that we ran up into. Ran up against. And essentially what they were using was a authority from a law that was, it looked like 1958, I believe, a small little subsection, basically the law that they were using basically said that you needed to have the permission from the director of the NSA to use the word nsa, National Security Agency, or any image that would represent the logo.

Well, then certainly this is a case of selective enforcement, because I really doubt that every movie, documentary and film producer, TV show that uses CIA and NSA logos and talks about the NSA in numerous movies, I really doubt they've received their permission to do that.

Right. It was such an odd thing. The interesting thing when we started to find out what was going on was, well, partly how difficult it was to find out. The manufacturer in this case was literally so afraid that their legal department would not even give us the documents, the original cease and desist. We had to go through a discovery phase. And actually they dictated the cease and desist letters over the phone. And in the process, we found out that that wasn't actually the only cease and desist. We had gotten one also from the Department of Homeland Security and their authority that they were claiming to have was there was a law on the books that stated that we couldn't deface their logo. And so I had made a shirt which was basically just a silly shirt that said the Department of Homeland Stupidity sort of replicating their logo and putting a dunce cap on there and so on and so forth. And so they had issued one as well. The funny thing is the manufacturer had not even told me that they had gotten this stuff. So it took a long kind of discovery phase before we even found out sort of the depth that this thing had gone.

Okay, so let me ask a question. So first of all, Dan, first, how do you think they found out you were making these T shirts and bumper stickers? Did you produce any of them before they tried to stop you? Or did they just. Are they just listening to all your conversations and reading all your emails with your manufacturer?

It's because I think what in this case is that they went. And the manufacturer that I was using is a third party sort of manufacturer that, you know, literally hundreds of different brands and from Disney to everyone else uses. And they have a marketplace themselves. So I think that's just what they did. They selectively, in whatever way that they found it, they found this merchandise on this manufacturer's marketplace, just like they might have found it on Amazon.com or something like that. Basically Google searching it.

Well, they're not Google searching it properly.

No, no, they're not.

And that's what concerns me. They're basically looking at every time their name is used on the Internet. And so when they saw when they were, they're massive computers that are eavesdropping on literally everything we all do all the time, in every country on the planet. The NSA has bugged the whole human race, not just the United States. So something came up and, you know, it went up the chain and probably went through a few chains of computer data banks analyzing it. And then it went to a human, and then it went to another human, and then it went to the legal department. They said, hey, let's sue this guy. I mean, is that pretty much how it all worked?

Probably that's the way it sounds. That's the way it sounds. Like at first looking at it, I figured it would basically go up that electronic chain that you were talking about. And then maybe some analysts or some bean counter had looked at it and said, well, that technically falls within. Okay, let's ascend a cease and desist, which is outrageous in and of itself. But as this story had come out by the end of last year, I mean, it had hit international press. It had been on the Wall Street Journal. It had been all over and over and over. The same public response from the NSA is that, well, we believe that we have the authority to basically to flex our muscles and take anything down that misrepresents the NSA and so on and so forth.

But here's the interesting thing. It doesn't misrepresent the nsa. No, it doesn't. It represents exactly what the NSA is doing, which is spying on us.

Right. I mean, and that's the portion of it. It wouldn't have been funny otherwise. Right. It wouldn't have been funny. And in a time when I think people have become so cynical if for good reason of their government's response to anything that they want right now, and then we find out that literally, like you've said before about every electronic transaction or anything that we do can be scanned with metadata and tracked and branded and brought, you know, and basically listen to. So we're finding out just now that it looks like the NSA has had access to Yahoo users video for years now. And I think the story has finally come out this week. But people have been talking about this for years. It's an incredible sort of situation. Some of us have kind of may have thought that this was possible before, but yeah, I don't think the joke would have been funny if it wasn't true. They seem to be the only part of government that's actually really listening, so.

Unbelievable. So tell us about this litigation. So they didn't send you a cease and desist letter? Or they did they. Or they would only call you because they wouldn't want you to have this letter that you could scan and post all over the Internet.

Exactly right. It wasn't. Yeah. It wasn't until actually Tuesday of this week that I. And I'm going to frame this bad boy. I finally got as part of the settlement that happened, I get the actual cease and desist letter. So they sent that to me and they actually rescinded the original cease and desist letters and sent those letters off to the manufacturer. So yeah, the way it happened was that they did send it. They sent it to this third party and I had no knowledge of it whatsoever. And so they sort of talk about the hushing effect or the chilling effect that these agencies, specifically the nsa, have had when they issue these things, Whether it be a takedown notice or a formal cease and desist. People seem to comply or a lot of people comply and a lot of people don't want to deal with it. I mean, it seemed to me that the legal staff of the manufacturer was very reticent to speak about anything because they really did not speak. A wall came down, you know, and these were people that I had worked with for seven, eight years, very closely, and they were not saying anything. So that was one reason that I thought it was a very important case to sort of move forward with is because the effect that it has on the Internet, on not only commerce and the First Amendment, but just in terms of communication, were very important.

I thought it's chilling, obviously. So they really did sue you, they served you with a formal lawsuit, is that correct?

Well, actually, they. They threatened legal proceedings if the manufacturer didn't follow their cease and desist on my items. When I found out that that cease and desist had been issued, or two of them had, taking down my items, I ended up suing them. I sued the NSA jointly with, with the Department of Homeland Security in violation of my First Amendment rights. So when we went back and forth, it became evident by about New Year's of this year that they were not going to want to go to trial with this. And so they offered a settlement. And so we went back and forth with that. And then we finally kind of gave them our demands and they ended up agreeing to it. And last week they finally formally signed all the papers and made it formal.

Very interesting, Very interesting. So how much money did you spend suing them?

Luckily, luckily we teamed up with very early on the guys over at Public Citizen, and it was, it was kind of a neat situation because, you know, Public Citizen sort of leans a little leftward, I think. You know, and definitely a lot of the things that they've dealt with in the past aren't something that really have been in my wheelhouse. But I think this issue was one of these things that people from all different perspectives could really agree upon. And so I thought it was neat when the lawyer, Paul Allen Levy, who is a really good lawyer with them and has dealt with a lot of these issues before in the past, he jumped on, and they did a lot of this stuff pro bono. So they really got to the bottom and they were really pit bulls going after this. So in terms of.

So Public Citizen acts in some ways then, like the aclu, in that they'll litigate cases, they'll actually file lawsuits or defend lawsuits, just like the ACLU does, right?

Indeed. Yep, they do. And they, in a lot of ways, they take on cases similar. You know, I had contact with the ACLU and others, other groups like them, and it was really public citizen that was kind of willing to take this thing on. And, you know, I would have probably tried to do it myself as well, but, you know, I have no idea how much it would have cost, you know, or how long it was at the outset. It was one of those things where I don't know how many millions it could have cost if they wanted to sort of push this, push this further and sort of drag their feet. One thing that I did understand really quick, you know, really early, was that it was important to get to let other people know what. What was going on. And the response was amazing. After that, like I said, it did hit international press and just the outpouring of support from people all over the. Literally all over the world, but mostly in the United States, was just great. And it definitely gave me some confidence to do it.

So how far through the litigation did you go? I mean, did you have depositions of NSA people?

They didn't get that far. No. They actually, once we got through the discovery, they filed in Maryland federal court and a few, boy, I suppose it was about a month afterwards they came to us looking to settle.

So what was the settlement like? Did they give you any money? Did they repay the cost of public citizens lawyers?

No, they didn't. Right. We just looked for. Basically, I did ask that they pay for the court filing fees because of course we had the filing fees for Maryland. So we did that. And to have our, you know, the, the attorneys costs in terms of their. They're being able to file to be part of the suit in Maryland, in that district. So, you know, just. It was, I think $500 was what we asked for. But then what we wanted to do was basically clarify where we stood in terms of using parity. So we needed them to admit and retract the original cease and desist and basically write that in this case specifically and in general, parody is very fine. Is a legal and supported First Amendment right. We have.

Very interesting, very interesting. So where do you stand now? Have you got all the same shirt? Did you bend at all?

No, no. Actually, throughout the whole process, what I did is I used various manufacturers. So I just decided to keep the shirts available, specifically the ones that were. That were censored by the NSA and continued to sell them as a sort of people were looking for a little piece of civil disobedience. And I was certainly willing to keep those up and sort of resist their, you know, their arm twisting. So we continue to do that. One thing that I'm changing, I think in the future is I'm just starting to do more manufacturing in house. So one thing that I learned is I want to keep sort of the supply line safe. I don't want to have one of these situations where my stuff is being messed with legally and I don't know where and how it's being messed with. And specifically, especially if a cease and desist comes from the government, I want it to come on my doorstep and not anyone else's.

Right, right. Well, that's good. But maybe you ought to just have your manufacturing done in China, where in many ways they are more free than we are. In some. In some ways. I mean, in an ostensibly communist country. Now, listen, I don't really think that I am being somewhat sarcastic. I have a friend that lives in China who's very critical of our government, and I think he's out of his mind. I think it's better, still better here. But in some ways, I mean, look at Jim Rogers talking about how, you know, in China you're more free than you are in the States. And in some ways that is true, actually.

Yeah. I mean, it's unfortunately.

Unfortunately, in some ways.

Right, right.

Well, tell me what else. What else you're working on. I mean, you've got all sorts of. I mean, you're an activist beyond manufacturing these great, great shirts and bumper stickers and so forth. I mean, you're an activist, right?

Yeah, yeah. I mean, I think it's important to sort of, you know, use your art for a purpose. And I like to do all sorts of different art, and this sort of stuff is. Is one aspect of what I do. But I'm really interested in using. Using art and using design and things like that to sort of help causes that I feel are very important and need help in that regard. So, you know, I've been. I've worked a little bit with, you know, the Snowden Defense people themselves, trying to, you know, help sort of get the whole. The whole issue of what. Not only what freedom is, but in terms of privacy rights and things like that. Worked with them graphically and stuff like that. I've worked with WikiLeaks and I've had a long history of working with Dr. Paul and doing some things for his campaigns and stuff like that and promoting those things because I just think it's a powerful thing. Years ago, I guess I started doing all this because I didn't see kind of like a lot of entrepreneurs out there. You kind of want to get shirts, you want to get some stuff like this, but you didn't quite see what you wanted and you figured, well, hell, maybe I'll start doing some of this stuff myself. And after that, it just became almost intoxicating. It was. It was so fun to do. So, yeah, trying to sort of build some. Some stuff with other artists around the world right now and do some shows out in Europe and stuff like that and sort of bring some of these issues that, you know, you just don't see in the mainstream. You don't see them dealt with. And, you know, like you said, like Snowden, I personally think that what he did was heroic. There's a, you know, there's a lot of contention from a lot of people, whether that is or not. Mostly in the United States, I think, but so, yeah, well, you know, I.

Mean, I have yet to look at. I am all for. I understand our government needs to keep some secrets. Okay. And I don't have a problem with that because at the end of the day, I'm an American and I vote for America. I just believe it should be more along the lines of the original intention of America rather than the bastardized version which it has unfortunately become. However, I have yet to see some evidence or something substantial in any way that's known as actually hurt our national defence opportunities or prospects with his leak. Now, he may well have something on his many hard drives that could be damaging, but I don't. I've never read or heard or seen any evidence at all that he's released anything like that.

Right.

Have you. I mean, honestly, I know what side you're on, but have you ever seen or heard of anything that he's actually done that has been anything beyond helping US Citizens defend themselves against their own government?

Right. Absolutely not. No, it's been one of those things where it's where he's brought to light with these things and it sounds like they're heavily vetted. It sounds like he has a lot of information, but nothing that he's put out there has done anything to hurt the American citizens. Now, certainly maybe the reputation of the intelligence agencies involved in some of these things, the reputations of maybe our leaders and political leaders that actively allow or ignore these things. But in terms of our security or anything else, I don't think that there's been anything that would justify, certainly the label of trader or some of these other things that they call, which I think are silly. So, you know, when I see something like that and I see, you know, Manning and others that I think are doing important things in putting themselves on the line, I definitely I like to kind of actively support those things and try to try to help kind of bring awareness to them in my own way, as if I can. But yeah, so those are the kind of things that I'm going to kind of continue to do as long as I'm not in Guantanamo or something like that.

Well, you know, this could have gone down another way. The NSA could have just had you arrested. They could have tried you in a FISA court. That would be behind the Iron curtain, essentially, and you could be imprisoned somewhere without any rights whatsoever, which our government has the right to do scarily. Secret prisons, secret courts. This is unconscionable.

It is. It really is unconscionable. It's the type of thing growing up as a kid and we'd watch these shows and we'd learn about the Soviet Union and things like that.

Here we are and here we are.

The same kind of things that they'd say, well, you know, my dad would wave his finger and say, well, in Russia they can take you off to the Gulag for just being, you know, having an unpopular, know, opinion and this kind of thing. Well, here we are, you know, we're, it's 2014 and we can really actively say in this country that we love, like I'm, you know, I still think that there's nowhere better in the world to live. The opportunities here are amazing. Otherwise I'd live somewhere else. But, but we're, but we're, but we can, you know, honestly have a conversation about how this kind of thing is possible, how having unpopular conversation can bring you to a, essentially a gulag in America. So, so it's just an incredible thing.

It's really insane. Well, hey, give out your website, Dan. Tell people where they can buy some of this stuff. Everybody, look, if you support the views that Dan has been talking about here, which are freedom, individual liberty, transparency for the government. I love what Julian Assange said about it. He said transparency for the organization, privacy for the individual, which the NSA is the complete opposite of that. Opposite of, you know, it's transparency for the individual and privacy for the organization. You know, that's what they believe in. The complete opposite of any, any definition of liberty that you could possibly think of. If you believe in that. Look at, even if you don't want to wear his T shirts or anything, just buy some of them to support the cause. Okay. You know, and support someone, you know, who's going to be out there, putting this message out there, taking our government to task, holding them accountable. And it's not to say everything the government does is bad. I mean, some things the government does is very good and I support that. But we have to be forever vigilant. That's what our founding fathers wanted us to do. So get some of his T shirts and his bumper stickers. And I'm not an affiliate. I don't make a penny for that. I'm just saying give out your website, Dan.

Well, thanks, Jason. Yeah, the website's libertymaniacs.com it's sort of freedom products for liberty lovers and got thousands of different things. So even if you're not into T shirts or anything like that, we've just got about everything on there. So. Really appreciate being on Jason and had a ball talking with you.

Yeah. Well, I was having breakfast with one of our clients. I have a real estate investment company. It's another business I own. And one of our clients, I was having breakfast with her and she was wearing your NSA logo, the sweatshirt. It wasn't a T shirt, it was a sweatshirt version of it.

Oh, nice.

And then I saw her again at another one of our events and she's wearing that shirt and I'm like, thumbs up to that. I think it's awesome. Yeah. So good stuff. So libertymaniacs.com and Dan, thanks for joining us today.

Well, thanks so much.

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