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.
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.
