At what point is a plan for a weapon a weapon? At what point is a design free speech? These are the tricky question raised by 3d printed gun plan publisher Defense Distributed, which this week heard from the State Department, informing it that at no point is a 3d printed gun plan either a design or free speech.
The state department feels in all cases, gun schematics are guns.
Over the last few days, the State Department has issued two new statements asserting itself as the gatekeeper for when Americans can legally publish plans that could allow someone to fabricate a gun.
The statements show it views such publications as a controlled “foreign export” of munitions and therefor subject to regulation by that State Department.
Its a case study in legal acrobatics, given federal firearms regulation is conducted by the ATFE, not the state department.
Defense Distributed, the pioneering digital gun group, confirmed it received a letter from the State Department saying it will require the group to get specific permission from the government before publishing its 3d blueprints online.
The latest letter comes a little over two years after the State Department sent Defense Distributed an initial letter forcing it to take its gun files down pending a decision about their legality.
The State Department's request is typically vague, saying anyone who publishes online files will require prior approval if they are 'technical data' and "would allow for the creation of weapons."
The use of the 'weapons' classification represents a much broader swathe of files than just guns. The agency’s position is that because the Internet is a global connection, publishing 'guns' to it could amount to violating the International Trade in Arms Regulations (ITAR). This would make publishing a 3d printable weapons file the same as sending missile blueprints to Iran, quite a stretch of the argument.
“Before posting information to the Internet, you should determine whether the information is ‘technical data.’ You should review the [U.S. Munitions List], and if there is doubt about whether the information is ‘technical data,’ you may request a commodity jurisdiction determination from the Department,” says the State Department’s letter. “Posting ‘technical data’ to the Internet without a Department or other authorization is a violation of the ITAR even absent specific knowledge that a foreign national will read the ‘technical data.’”
The State Department’s letter represents a concerted effort by the federal government to control the spread of gun files online and thus restrict the second amendment, a legal issue in and of itself.
But the idea that weapon design files are “exports” and not free speech is another legal issue surrounding the case. Last month Defense Distributed sued the State Department on First Amendment grounds, arguing that its free speech rights are being violated by the State Department’s requirement of prior approval of all file uploads.
“Just because information can be used for some bad purpose doesn’t make it illegal to publish it,” says Matthew Goldstein, the export control lawyer representing Defense Distributed. “This isn’t just a firearms case, even though it deals with firearms. It’s really a free speech case.”
But Defense Distributed’s lawsuit also includes a claim that the group’s second amendment rights were also infringed by the State Department. Founder Cody Wilson argues that “it’s a land grab.” “With this instituted set of powers, you have a first and second amendment in name only.”
The latest controversy isn't the first time the State Department’s export controls have sought to restrict new technologies in error. In the 1990s, the same list of export-restricted munitions included encryption software. That led to cryptographer Dan Bernstein suing the State Department on first amendment grounds, a case he eventually won. The end result was that regulation of encryption moved to the Commerce Department, effectively rejecting the State Department's land grab.
So make no mistake: Defense Distributed’s lawsuit represents the biggest clash since then between the federal government and free speech.
And yet rather than listening to Americans and backing down, the State Department is raising the stakes.
Those stakes are your first and second amendment rights.