In a recent court argument, the Electronic Frontier Foundation (EFF) said that the government should not mandate that Americans go through an export licensing scheme before posting and sharing 3D printer design files on the internet. The EFF says that publishing such technical information is a form of free speech that is protected by the First Amendment.
The EFF made its arguments in the case of Defense Distributed v. United States Department of State. Defense Distributed sued the Department of State after officials stated that criminal sanctions could be brought for the publishing of a 3D printable file that was posted without a license.
According to the State Department, publishing such files on the internet is a violation of International Traffic in Arms Regulations (ITAR). These regulations control the international export of defense technology. Currently, there is no way for a content publisher to legally challenge the State Department’s determination of when a license is required to publish such material. The EFF says that this is a violation of the First Amendment.
Staff attorney for the EFF Kit Walsh said, “The First Amendment requires that speech be allowed except in the narrowest circumstances. Here, the export controls regime does not provide for judicial oversight or require the government to prove the appropriate conditions for a prior restraint of speech. Rather, the law criminalizes as a general matter the online publication of unclassified designs and documentation about a wide range of technologies. The Supreme Court has been very clear that any speech licensing regime has to be governed by definite standards of review, judicial oversight, and prompt deadlines. This process doesn’t contain any of those safeguards to prevent capricious censorship.”
The current case is quite similar to an earlier case involving the EFF. The previous case was called Bernstein v. United States Department of State. In this case, the court ruled that the source code for freely available encryption software was protected as free speech and that attempts by the government to prevent its distribution using export control licenses violated the First Amendment.