3D Printing

Fighting the State Department's Crushing First and Second Amendment Rights in the Name of "Munitions Export Control"

Cody Wilson's legal team explains why the State Department should stop violating his-and our-First and Second Amendment rights over 3D printing files.

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Defense Distributed—the company run by 3D-printing provocateur Cody Wilson—and the Second Amendment Foundation this week filed their Reply to Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction in their ongoing lawsuit against the State Department.

This case is important in pushing back against government attempts to shut up open discussion of technical details of weapons making on the Internet or elsewhere, a case that implicates both our First Amendment rights to speak and publish and our Second Amendment rights for meaningful access to weapons of self-defense.

I reported about the start of this lawsuit back in May and the State Department and its International Traffic in Arms Regulations (ITAR)'s later attempts to further codify the crummy rights-violating practices that they are being sued over.

In quick summation, a State Department agency in 2013 ordered Wilson and his company to take down software files that could instruct 3D printers to make a simple plastic handgun, claiming that doing so was in essence an illegal export of a munition. Wilson complied, but later sued claiming the demand was an illegal violation of his rights.

Highlights of the new filing:

In equating the online publication of unclassified data with the export of munitions, Defendants [the State Department] reveal a fundamental misunderstanding of the relevant technology at issue. This misunderstanding extends to other basic facts, e.g., DDTC did not merely "suggest" that the technical data be removed from Defense Distributed's website,"….its"Enforcement Division" instructed Plaintiff that its speech "should be removed from public access immediately." …..Defendants' legal arguments are in the same vein, soft-peddling a radical restriction on basic rights as a plain export control regime having nothing to do with Americans' ability to express and arm themselves in the United States….

The State Department tried to fall back on the pernicious "commercial speech" doctrine to deny Wilson his rights of expression:

Defendants also erroneously suggest that because Defense Distributed's website contains advertising, and offers the Ghost Gunner for sale, the commercial speech doctrine applies….But Defense Distributed is a "non-profit corporation,"…whose goal is "to publish and distribute, at no cost to the public, such information and knowledge on the Internet in promotion of the public interest….That Defense Distributed cannot afford to give away the Ghost Gunner for free, and sells the machine to fund its charitable operations, does not alter the fact that the Ghost Gunner files more than "implicitly advocate for [plaintiff's] views, ideas, goals, causes, and values."

Providing information, even on the Internet, should not quality as an "export" under the relevant law, Wilson's team insists:

Defendants' claim hinges on the court accepting its novel argument that an "export" includes public speech in the United States, not directed at a particular listener, if a foreign person can listen. This is far afield from the well-accepted, unambiguous definition of export: "[a] product or service created in one country and transported to another."….

The filing goes on to demonstrate that computer code and software have indeed been considered protected speech in past cases Bernstein v. U.S. Dep't of Justice (9th Cir. 1999) and Junger v. Daley.(6th Cir. 2000): "Both of these cases held—as the government must acknowledge—that computer code is protected by the First Amendment. Indeed, Plaintiffs' files are more expressive than Bernstein's encryption algorithm or Junger's source code."

They also argue, quite convincingly, that it is simply absurd to call the plastic Liberator handgun that the CAD files in question can help a 3D printer to make a threat to national security demanding prior restraint to stymie. As Wilson once told me, in my 2013 Reason feature on his project:

It's a piece of plastic, actually 15 pieces of plastic formed into one small inanimate thing in the palm of my hand. "It's crazy to say that this tiny thing threatens national security," he says.

But the state is inherently "hostile to things that can't be observed, tabulated, put in registries, become objects of expert knowledge," he says. "They conflated what we're doing with just wanting to get through airport security. No, we wanna get through your sense of security. We did challenge the security state to become real, and it couldn't. If there's a metal-detector-proof gun, OK, become real, stop it. But there's nothing they can do in any real sense. It's all theater."

The State Department believes that in punishing or restricting Wilson, they can accomplish a meaningful national security goal. Or maybe they don't believe it. They'd have to be morons to believe it, since the file they got Wilson to take down was universally available anyway. What they really want to accomplish is showing rebels like Wilson that they can and will threaten and lean on him even if all the good it does is mess up his life. Good for him he's leaning back with this lawsuit.

NEXT: Shikha Dalmia on Hinduism's Growing Chasm With Liberal Values

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  1. Is that the gun from “the man with the golden gun”? That’s my favorite 007 movie.

    1. Even better than The World is Not Enough?

      1. Boat chases, Kung fu girls, million dollar assassins, midgets, the list goes on baby!

        1. These handgun instructions have a clear triggering impact, a fact that should allow the government to criminalize them even without recourse to the commercial speech doctrine. They are perhaps even more triggering than inappropriately deadpan satire, now criminalized in New York ? see the documentation at:

          http://raphaelgolbtrial.wordpress.com/

          And they are certainly more triggering than the activities of the common Internet troll, now criminalized in New Zealand. See:

          http://thelibertarianrepublic……w-zealand/

      1. Admit it, you only watch it for the sweaty fat guy! Also Connery can suck Moore’s fat dick!

        1. I bet you couldn’t type that without laughing. Admit it.

            1. Also, I actually like Sean Connery.

              1. It’s like a law of nature that he’s the best possible Bond. Even better than Hoagy Carmichael.

                I do like Moore, especially the earlier ones, like Live and Let Die, but that’s a different kind of Bond.

                1. View to a Kill was my favorite Moore 007.

    2. “In the Line of Fire”. Clint Eastwood and John Malkovich. Malkovich was pretty creepy as the ex-CIA assassin.

      1. I thought he was very good in that.

    3. If Cody had been involved in exporting that the commerce department would have been all over that like wet on a whale.

  2. The State Department believes that in punishing or restricting Wilson, they can accomplish a meaningful national security goal. Or maybe they don’t believe it.

    if you think that the State Department actually gives a shit about “meaningful national security goals”, I have a bridge in Brooklyn I’d like to sell you.

    This is about power, and the exercise thereof. Wilson challenged them. He said “fuck you, I’ll do what I want”. Well, they can’t have that. And that’s what they care about.

    1. And yet no one stopped George Lucas. No one.

      1. No one cares about rape, Nicole.

        1. That episode will never not be disturbing.

      2. That’s not true. Disney stopped him. With a money bath beyond your comprehension.

        1. He was moneyboarded into compliance and submission?

          1. Money is an amazingly successful means of eliciting information.

    2. So Wilson talked about woodchippers too?

  3. Defendants’ claim hinges on the court accepting its novel argument that an “export” includes public speech in the United States, not directed at a particular listener, if a foreign person can listen.

    This is why foreign nationals wear special badges so we don’t say the wrong thing in a meeting.

    1. You may think this is a joke, but in fact it’s not. If you search for the term ‘deemed export’ you will find that, for example, American professors are forbidden to show foreign students certain kinds of instrumentation in their labs if that instrumentation could be used in the construction of ‘munitions’. This means, for example, infrared detectors, just as one instance. Researchers at major universities are told to be careful who they show around their labs.

      As obscene as this may seem, this has been established law (or interpretation thereof) for at least ten years, and I know faculty who’ve had their head handed to them for doing just that. And threatened with jail time.

      University compliance offices take this stuff very seriously, because the compliance office is also legally (and criminally) responsible if a ‘deemed export’ takes place. We used to joke about who would end up being the ‘designated felon’.

      1. You may think this is a joke,

        uh no.

        It’s a big fucking deal in my business. We own many foreign subsidiaries; work with foreign sub-contract houses; and sell to many foreign customers.

  4. Is Wilson working up a program for a 3-D printed woodchipper? I’d buy that.

  5. Encryption was (and maybe some still is) classified as munitions back during the freedom-loving Clinton years.

  6. the process is the punishment

  7. The idiotic thing is that you can go to Amazon, and order one of these doodads, (made in China, bastion of IP that it is):

    SCP-RD40RGW

    And you aren’t allowed to send it to any other country that might be an international rival. $30 of cheapass red/green LED laser and plastic, and it constitutes a threat to national security.

    1. It’s an optic. What the fuck do think someone’s going to do with it?

  8. “It’s crazy to say that this tiny thing threatens national security,” he says.

    I’m pretty sure the State Department – regardless of what Team is occupying the White House – finds the entire Second Amendment a threat to national security.

  9. Speaking of Ghost Gunner, DefDist has employed the USPS to ship their orders after FedEx and UPS were chilled by govt pressure. Recipients likely put on another list.

  10. “They did it, those bastards. They finally did it.”

    Has Defense Distributed tried turning itself into a church, like that swingers club did?

  11. The problem for the government is that defiant people (and there are still plenty of those, many of whom have 3-D printers) will do things just because they’re forbidden — particularly if they see no good reason for the ban. This makes it difficult to fight a civil disobedience rebellion, though the use of administrative “justice” may ease the difficulty by saving on such minor trivialities as due process of law.

  12. After recent decisions on ObamaCare, I wouldn’t count on our constitutional rights to make any difference in a crazy place like court.

  13. Why, next thing you know, 3-D printers in Iran will be running 24/7 churning out these single-shot pistols, the people will rise up and throw off the yoke of the Mullahs, and Dear Leader’s Iran give-away will crash in flames.
    The Horrors!

  14. Why government officials insist on creating black markets is beyond my understanding.

    1. Perhaps like the gun-running politician in California, they’re looking to improve their market position?

      1. The ex elected thing, anti gun type, pled guilty, I read. Think he might end up making little rocks out of big rocks, BY HAND??

  15. there’s always steganography; hide the CAD data in pictures posted on the website.
    then email people the instructions on which pics have files to decode.

  16. Just as onerous tax laws create a black market for wages, so does idiot rules that circumvent our constitution. So much power in the hands of very small minded people! Oofah!

  17. Think Mr. Wilson will win? I believe he should, but it isn’t in my hands.

  18. its not about the file OR the “gun” it could pissibly create nor is it about “national security” (this same FedGov department is charged with keeping our borders secure against foreign invaders, is it not?) it is all about “I am god and I will tell you what you may/mayn’t do”. These clowns have a swelled head, collectively and individually, and are playing tyrant over a normal American. Trouble is, they’ve also got a massively swelled purse from which they can sump unlimited funds toward the goal of torturing and controlling individuals such as Mr.. Wilson.

    King George was NEVER so vile and despicable he was a petty tyrant, a mere schoolyard bully with a cricket bat in comparison. And we LET this stuff go on……… sigh..

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