3D Printing

In 3D-Printed Gun Case, Federal Court Permits Speech Censorship in the Name of Alleged National Security

Prior restraint keeps blueprints off the Internet.

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Cody Wilson
ReasonTV

Defense Distributed's blueprints for 3d-printed guns will remain offline and censored for now. Well, actually, they're probably not offline and you can find them if you know where to look. But a federal appeals court panel has rejected an attempt by the company to stop the State Department's order censoring the company itself from hosting its blueprints online.

Reason's Brian Doherty has been extensively covering Cody Wilson and Defense Distributed's fight against the State Department's unusual tactics in enforcing weapon export laws. Technically the company isn't exporting any weapons. It is providing information that allows people anywhere in the world to use 3d-printers to create the pieces that make a gun.

The State Department's demand that Defense Distributed not host the files then is clearly censorship. But is such censorship legal? Several members of Congress had submitted an amicus brief saying that the State Department had drastically overstepped its bounds by interpreting federal law as allowing them to censor online information.

But for now, the 5th Circuit Court of Appeals declined a request for an injunction to stop the State Department's censorship demands. It has ruled that the alleged harms the State Department claims will occur if the information is made available outweighs the temporary harms faced by Defense Distributed for being censored:

The fact that national security might be permanently harmed while Plaintiffs-Appellants' constitutional rights might be temporarily harmed strongly supports our conclusion that the district court did not abuse its discretion in weighing the balance in favor of national defense and national security.

That is an awful lot of heavy lifting that "might" is doing, and an awful lot of judicial deference. There is a footnote explaining further that the potential for harm to national security involves not just the existing files but potentially future files that provide for even more weapon production outside the control of the federal government.

Note that this ruling does not address whether it believes Defense Distributed arguments are legitimate. This is not a ruling about the underlying case. The panel is just going to defer to the Department of State for now while the underlying arguments are fought over.

Not all three judges agreed. Judge Edith Jones dissented, saying the panel had failed to take the issues of prior restraint and censorship seriously, pointing out that the State Department had never previously sought to block information presented on the Internet. She also argues that the court had failed to analyze the case with the right level of judicial scrutiny. She warns:

Undoubtedly, the denial of a temporary injunction in this case will encourage the State Department to threaten and harass publishers of similar non-classified information. There is also little certainty that the government will confine its censorship to Internet publication. Yet my colleagues in the majority seem deaf to this imminent threat to protected speech. More precisely, they are willing to overlook it with a rote incantation of national security, an incantation belied by the facts here and nearly forty years of contrary Executive Branch pronouncements.

Jones' dissent is actually much longer than the majority ruling and delves heavily into regulations and precedents. She concludes:

By refusing to address the plaintiffs' likelihood of success on the merits and relying solely on the Government's vague invocation of national security interests, the majority leave in place a preliminary injunction that degrades First Amendment protections and implicitly sanctions the State Department's tenuous and aggressive invasion of citizens' rights. The majority's nondecision here encourages case-by-case adjudication of prepublication review "requests" by the State Department that will chill the free exchange of ideas about whatever USML-related technical data the government chooses to call "novel," "functional," or "not within the public domain." It will foster further standardless exercises of discretion by DDTC censors.

Today's target is unclassified, lawful technical data about guns, which will impair discussion about a large swath of unclassified information about firearms and inhibit amateur gunsmiths as well as journalists. Tomorrow's targets may be drones, cybersecurity, or robotic devices, technical data for all of which may be implicated on the USML. This abdication of our decisionmaking responsibility toward the First Freedom is highly regrettable. I earnestly hope that the district court, on remand, will take the foregoing discussion to heart and relieve Defense Distributed of this censorship.

Read the full decision here. Below, ReasonTV on Wilson, Defense Distributed, and 3d-printed weapons:

UPDATE: Cody Wilson tweeted that he would be petitioning for an en banc (full court) hearing. If he's denied, he will appeal.

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93 responses to “In 3D-Printed Gun Case, Federal Court Permits Speech Censorship in the Name of Alleged National Security

  1. If it saves just ONE life!

    1. I first read that as ‘if it saves just one feel’. Yup.

  2. Technically the company isn’t exporting any weapons. It is providing information that allows people anywhere in the world to use 3d-printers to create the pieces that make a gun.

    Sounds like a book containing blueprints for guns could also be censored, under this “logic”.

    DD should put together such a book, and and ask the State Department for “permission” to put it on Amazon. It would be very difficult for a court to order the book to be banned, or to allow it to be published without blowing up its reasoning on the 3D printing files.

    1. Sorry, not the best pull quote. Should have said “under the court’s logic”.

    2. I ceetainly hope they don’t map the blueprints to English words and create a poem or something, publish the poem, and then write a program that converts the poem back to the blueprints. That would be a terrible idea.

        1. No kidding.

      1. The core of this case is that exporting the designs of a commonly available technology (firearms) is not within ITAR’s remit.

        1. I worked for a company that did business with DoD. We once got slapped with an ITAR fine for using the same screws in a commercial product as were used in a DoD product. Screws.

          1. So are you saying

            [dons Fist’s sunglasses]

            you were screwed?

            1. [this spot reserved for Swissy]

            2. Wait, is there a twist to this story?

          2. Typically ITAR vs Civilian defaults to the classification of Civilian if it’s used in both. I know that’s the case with jet engines that found a second life on the commercial market, only the things exclusive to the military build are ITAR’d.

            1. Sounds like someone from Apple’s fanbase: the iTard.

            2. Well I’m certainly not an expert on ITAR. All I know is the company got slapped with a fine, paid up, and dug up some different hardware to build the product.

        2. If ITAR can classify commonly available technology as a munition or weapon, why can’t ITAR be interpreted to consider the plans for a weapon a weapon?

          Again, I’m not disagreeing with you, but experience should tell you that expansive interpretations by overactive government agencies are the order of the day, not the exception.

    3. Drone drop USB drives.

    4. When this garbage happened last time with cryptography, people simply encoded the source code in 2D bar codes and put it on T-shirts and published it in book form. The same can be done with 3D printing.

    5. That’s roughly what happened in the 90s when the Feds pulled this nonsense with PGP.

  3. You know what else should be banned in the name of national security?

      1. Well yes, of course. And books about Hitler. And websites about Hitler. Actually, the History Channel should cease operations as well.

        Nah. I’m just kidding around with a slippery slope fallacy. Nothing like that is gonna happen. At all. Ever.

        1. Also, you shouldn’t be allowed to name your dog Hitler.

        2. But if you banned H then where am I going to get all my ancient aliens programming?

          1. AMC replays the shows from time to time.

          2. Try Coast To Coast.

    1. The State Department?

      Seriously, the State Department may pose the greatest threat of anyone to our national security.

    2. “Patriotism is the last refuge of a scoundrel”

      — Samuel Johnson

      “National Security” has been working for the steel industry, oil and gas, foreign intervention, blah blah blah.

      It will keep working.

    3. Government.

  4. There are also restrictions on exporting some kinds of encryption because they are considered “munitions” (or used to be, I don’t hear about it much anymore). So such restrictions on information isn’t a new thing (nor do I think it’s a good thing).

    It’s also ridiculous. Foreign terrorists and hostile governments apparently have no problem getting real guns that are reliable and don’t wear out after being used a few times. SOmeone wants to shut them down by whatever means is available.

    1. The Statist Department cares nothing about foreign terrorists. This is about domestic dissension.

      1. That’s what my last sentence was getting at.

  5. Not all three judges agreed. Judge Edith Jones dissented, saying the panel had failed to take the issues of prior restraint and censorship seriously, pointing out that the State Department had never previously sought to block information presented on the Internet.

    Is that true?

    Zimmerman had been under investigation for supposedly violating ITAR, the U.S. government’s International Traffic in Arms Regulations. His PGP software is strong enough to have been classified as a munition under ITAR, just like a hand grenade or a stealth bomber. In June of 1991, as Congress was considering a possible ban on the use of such strong encryption, the PGP program was uploaded to the Internet, and made available to anyone who wanted to copy it. Even though Zimmerman himself didn’t put the software on the Internet, the Justice Department started an investigation against him in February 1993 for allegedly exporting a munition. (See The Phil Zimmerman Case, InfoNation, June 1995.)

    While Zimmerman’s investigation was ‘dropped’, I’m not sure that represented a reversal of the ITAR law. I believe that the State Dept has absolutely sought to block information on the internet.

    http://www.skypoint.com/member…..lzim2.html

  6. I still claim that Cody Wilson looks just like Justin Timberlake.

    NTTAWWT!

    1. Would.

  7. Prior restraint keeps blueprints off the Internet.

    I think the judge forgot that there are countries *other than the United States*. And he is allowed to consider the international regime when it has an impact on the effectiveness of making something illegal on the internet.

    1. See my post above. I believe that it is still the position of the United States Government under ITAR that if something they don’t want on the internet gets on the internet, they can make your life very difficult– if you’re discovered to be the author.

  8. I can assure you I was at work all day yesterday, as witnesses can attest, and I was home all evening after 6pm, with a short break to walk my dog. My daughter (and my dog) are witnesses to that.

    Bike sabotage in Westlake? Dozens of cyclists report flats from tacks in new lane

    1. “They’re too short and not constructed well enough to be used as a construction-grade fastener,”

      And, Paul, I’m sure the only carpet-laying you do is of the euphemistic variety too, right?

  9. Oh and Cody, I don’t care how friendly the ‘journalist’ and camera man are to your side of the story – when they ask you to pose with the gun pointed at the camera tell them to ‘fuck off’. Doubly so if they want you to pose with a ‘tough or fierce expression’.

    1. That’s kind of Cody’s thing. I mean, from the interviews I’ve seen of him. I agree with you, don’t get me wrong. But his whole schtick is to be provocative. However, he’s a very bright guy and even when explaining his point, it’s often misunderstood by the journalists interviewing him.

    2. No kidding. Bad, as they say, optics.

  10. Good luck stemming this tide. It’s like ruling that pirated porn should be suppressed.

    This is also one of the arguments I make to anti-2nd crusaders: when you boil it down you’re effectively just talking about banning metal cylinders, a striking mechanism, and a spring-loaded clip holder. In the 21st century. Guns are not complicated.

    If your plan to rid the world of violence depends upon banning cylinders then you’ve got the foresight of a goldfish.

    1. Taking this logic further, it is only a matter of time before stove top nukes become feasible. There is a certain amount of uranium in the soil, and sooner or later someone will figure out how to extract and purify it. Or some other type of massively destructive technology will become available to the average person. We better figure our shit out as a species soon, or this will not end well. Politicians are not helping.

    2. Defense Distributed is also marketing a 3-D printer, as I understand it, that is optimized to 3-D print any part for an AR-15 or an AR-10 except the lower (and presumably the barrel)*.

      http://tinyurl.com/zcey7rk

      This CAD file they’re fighting over is not a gun anyone would really want. It’s just symbolic. I’d bet they’ll try to stop them from shipping 3-D printers, too.

      And just because something can’t be banned effectively, without a lot of cost and an absurd amount of unconstitutional and invasive law enforcement, that doesn’t mean the government won’t try.

      Exhibit A: Prostitution.
      Exhibit B: The Income Tax.
      Exhibit C: Prohibition.
      Exhibit D: The Drug War.

      If Hillary Clinton can win reelection by demonizing gun enthusiasts and spending the bank on going after them, she’ll do that and brag about it.

      1. it’s a CNC mill. mills out your lower. ~$1500 apiece. mixed reviews online. USPS delivers as FedEx and UPS wouldn’t touch it. 100% chance every order is tracked by FBI.

    3. Yeah, the files that have been posted are out there. Nothing you can do about that. Or about new files getting distributed in less open ways.

    4. Good luck stemming this tide. It’s like ruling that pirated porn should be suppressed.

      I would add that this is a bit of an understatement or inadequate portrayal of reality. It’s like being awash in an internet devoted to nudism and full of prostitution and saying pirated porn should be suppressed. Thermite, black powder, smokeless powder, ANFO, chlorine gas, and compression bomb recipes are widely available, some even available on Youtube. Only slightly dimmer corners of the internet, readily discoverable by anyone with even have a college education, contain recipes for more combat-grade ordinances and chemical agents.

    5. To the kinds of social science majors that go into law and politics, a “metal cylinder” and a “lathe” are mysterious, complicated, high-tech objects.

  11. “The panel is just going to defer to the Department of State for now while the underlying arguments are fought over.”

    This point keeps being missed when I read about it elsewhere online. Props to Shackford for getting it right.

    And there is something legitimate to the argument that they shouldn’t be allowed to release it prior to the end of the court case.

    Think of it this way . . .

    From the perspective of the Department of State, what’s the difference between Defense Distributed releasing a CAD file into the wild that can be mass produced before the court case is concluded and Defense Distributed winning the court case?

    If the consequences of letting Defense Distributed host the CAD file before the case is concluded are the same as Defense Distributed winning the case, then the appellate court would effectively be ruling on the merits of the case without a trial.

  12. And there is something legitimate to the argument that they shouldn’t be allowed to release it prior to the end of the court case.

    You can’t even start down the road of prior restraint before final judgment without meeting a high bar. When you have to defer like crazy to an agency to conclude that they met that bar, but the courts go right ahead and do so, we have a broken judicial system.

    1. what’s the difference between Defense Distributed releasing a CAD file into the wild

      They already have, you know. That’s where this breaks down, legally. The supposed harm of not giving the agency prior restraint is already happening and won’t be stopped by the restraint order, and thus shouldn’t be counted as a reason to allow the restraint order.

      1. This is meant to be a precedent setting case.

        Yeah, they’ve already released a CAD file for a gun that’s only interesting because it’s one of the first 3-D printable guns.

        Yeah, that lame gun design is already out there, but see my post with the link to Defense Distributed up yonder.

        The next project is CAD files for AR-15s and AR-10s.

        That’s kind of a game changer.

        As it stands, the Department of State gets to approve arm sales to buyers outside of the country. That why Hillary was leveraging that power of hers as Secretary of State and turning it into donations for the Clinton Foundation:

        “In all, governments and corporations involved in the arms deals approved by Clinton’s State Department have delivered between $54 million and $141 million to the Clinton Foundation as well as hundreds of thousands of dollars in payments to the Clinton family, according to foundation and State Department records.

        The following tables created by the International Business Times show the flow of money and arms deals involving 20 nations, the Clinton Foundation, and the State Department:”

        http://tinyurl.com/o6x639e

      2. If Defense Distributed can upload CAD files of AR-15s and AR-10s, then the State Department will no longer be able to control the “export” of those rifles.

        And if people can upload CAD files for other 3-D printable weapons, the State Department will no longer be able to control the “export” of those either.

        Specifically, the question is whether the government can criminally prosecute people at Defense Distributed for undermining State Department export controls–in the future for CAD files that may not even exist yet.

        Sniper rifles?

        RPG launchers?

        Mortars?

        I don’t know what’s possible.

        1. The hard question that should be asked is ‘what is the compelling government interest justifying export restrictions on those items given that you can find generally comparable stuff available from other nations?’

          So you can’t export the plans for an M-16 – and that doesn’t stop anyone anywhere else from getting their hands on actual AK-74. So even open export of M-16’s would be no danger to national security.

          The export of ‘strong encryption’ likewise provided no danger to national security because its not like the US is the only country advanced enough to develop decent encryption.

          If exporting the physical object has neglible effect on national security then exporting the plans shouldn’t either.

          The export restriction regime rests on a base assumption that American shit can’t be replaced. That you can’t get substitutes that provide sufficient function.

          1. I don’t want Boeing selling drone technology to Iran. Those drones may make a difference against American interests or, God forbid, American operations some day.

            I think there is a legitimate concern there.

            How do you feel about “Fast and Furious” and the death of Brian Terry?

            If some Americans are making even small arms available to foreign entities that end up being used by foreign entities to kill Americans, there’s a political backlash to that–and maybe there should be.

            How do you feel about Obama sending arms shipments to Syrian freedom fighters that ended up in the hands of ISIS?

            Even if they’re just small arms, I think there may be a legitimate concern there.

            Honestly, I’m not sure.

  13. The fact that national security might be permanently harmed while Plaintiffs-Appellants’ constitutional rights might be temporarily harmed strongly supports our conclusion that the district court did not abuse its discretion in weighing the balance in favor of national defense and national security.

    OK, I could see this as being a *starting* position for the court to rule from. A temporary inconvenience losing out to a permanent harm to national security. But then you look at the specifics of the case in front of you to determine if upholding the injunction is proper.

    In the US’ favor – it really is a minor and genuinely temporary harm being suffered by DD being forced to censor this until the case is adjudicated.

    In DD’s favor – its a crappy plastic pistol that can only fire a couple times before you’re at risk of it exploding and any junkie with access to a credit card and a Home Depot can do better already. This pistol, even supplied by the FBI itself to every would-be jihadi in the country, is not a threat to national security at all.

    So the injunction should not stand.

    1. I think I’ma go post this on Popehat to show them fancy lawyers how laymen do it.

      1. Self glossing? C’mon bro. You’re better than that.

        1. Nah, I’m a masochist. I would expect a very firm lashing and a detailed and (humorously) insulting breakdown of all the shit I failed to consider because I don’t know what I’m doing and applying normal person logic to the legal world.

    2. Plus, the file’s already out there so the harm is already done.

      1. C’mon, this is about the precedent.

        1. +1 camel toenose

          1. Ooh, good one, Citizen X.

        2. Sure, the *case* is. But this decision is about the current *injunction*. DD may lose the eventual case but the DOJ really doesn’t have a leg to stand on for keeping *this particular* injunction intact.

          There is a) no plausible harm to national security in this case (does not preclude an injunction for a potential future case) and b) whatever harm releasing the file could do . . . has already been done.

  14. The fact that national security might be permanently harmed while Plaintiffs-Appellants’ constitutional rights might be temporarily harmed strongly supports our conclusion that the district court did not abuse its discretion in weighing the balance in favor of national defense and national security.

    Plastic guns are going to *permanently* harm national security? Fucking really?? Like it’s not already possible to figure out how to get higher quality guns?

    And open ended censorship is supposed to be temporary?

    1. OK, I see this is only until the case is otherwise decided. So maybe it is temporary.

      Still, if this constitutes a permanent, significant threat to national security, then our entire national security apparatus is worse than useless.

    2. Plastic guns are going to *permanently* harm national security? Fucking really?? Like it’s not already possible to figure out how to get higher quality guns?

      Obviously, our “national security” is a lot weaker than Democrats have led us to believe, if it is threatened by fragile plastic guns that might get off a couple of shots… if you’re lucky.

  15. What is to stop someone from disassembling a firearm, mapping all of the parts and creating their own blueprint?

    The courts will have more luck banning rain on weekends.

    1. Every time I disassemble a gun it turns in a couple pieces of steel, a spring or two, a gear (if I’m lucky), and a piece of glass.

    2. Well you’re not supposed to sell it to foreign nationals without a permission slip, and then you get them to sign to not do maintenance themselves, or peak, and you will instead do that yourself, for a fee you can negotiate.

      1. +1 parts and service after the sale!

    3. The problem is everybody using those plans to assemble their own firearms always ends up with an extra screw or two.

      1. Well, if they cant get from blueprint to finished product that is their own problem. It is unaffected by a SD ban on disseminating blueprints.

  16. Oh my Gawd! The Russians, the Chinese, the Tongans! They’ll be able to make…pistols! Call out the National Guard! Declare martial law!

    1. Weapons of mass destruction. Because they destroy things with mass.

  17. RE: In 3D-Printed Gun Case, Federal Court Permits Speech Censorship in the Name of Alleged National Security

    We should all applaud the federal court’s decision in this 3-D gun case. Censorship is a fine Amerikan tradition that goes back many decades. Comrade Lincoln shut down newspapers in copperhead states so only his views would be read as did Comrade Wilson. But at least Comrade Wilson went a step further in protecting the collective by having his (in)justice department deporting those with radical ideas. Comrade FDR and other judicious Premiers of the Union of Soviet Socialist Slave States of Amerika employed the IRS to silence their critics as well. Our enlightened kommissars in our higher re-educations wisely uses Hitler’s and Stalin’s speech codes to silence any doubters and counter-revolutionary thought. So let’s all raise a glass to the new form of censorship. Employing alleged national security concerns is a brilliant idea to keep the unwashed masses from learning and engaging in civil discourse that offends the ruling elitist filth who enslave us all.
    Cheers!

  18. Incidentally, someone 3-D printed an awesome batch of 1911s in 10mm.

    It has the Declaration of Independence printed on the grip, but what really stands out is that it has “Reason” printed along the slide.

    http://tinyurl.com/jf5gpqy

    Time to ‘fess up! Which one of you did this?

    Come on, it had to be one of you!

    1. Nah, one of us would have done it in orange trim and ‘Reason’ would be a shout-out to the magazine. In fact, ‘Reason’ would be printed on the magazine.

      This is just a reference to the hoary old quote ‘every listens to reason’ and the sorts of people who think that’s a bad-ass thing to say.

      1. Bad-ass thing to say?

        I’m still with Ezekiel 25

      1. Oh, yeah, that’s crazy expensive.

        The prices will come down.

        Even 80% 1911s with all the parts added end up costing as much or more than a nice one off the shelf.

        That will change.

        1. IIRC (I’m at a loss for the source atm), this was a one-off.

          IDK that metal powder will ever be as useful as sheets/rods/bar. We’ve been able to shape metal powder into necessary solid shapes for centuries rather cheaply and easily and we’ve still chosen to go with the source materials we’ve got.

          Might be able to compete at the high end but I don’t think you’ll ever truly replace off-the-shelf in this niche anyway. Much more likely the printing will be just a facillitative tech.

          1. I should say, not that this was the point.

            They were demonstrating proof-of-concept regarding accuracy, durability, and precision of construction, which they achieved in spades.

            1. I’m not an expert on this stuff either, and I’m not sure I understand the strength differences between polymer or 3-D plastic, forged barrels and 3-D printed barrels, different kinds of rifling, etc. I know they make carbon fiber barrels, that are so light–some say so light that the recoil spoils accuracy on everything but the first shot. Will we ever be able to 3-D print useful barrels that don’t last as long, aren’t as accurate, etc?

              Like everything else, we’re probably talking about trade offs. Being able to buy things off the shelf made by people with more expertise will probably always offer higher quality at a higher price point. One of the best effects of being able to 3-D print things with fewer or lower capabilities may be that it stops making as much sense for the government to ban the quality stuff off the shelf when we can make less capable versions for ourselves anyway.

      2. I’ve seen some designer 1911s that go for crazy prices, though.

        Remember that guy that used to do the chopper show, was married to Sandra Bullock, etc?

        Las I saw, he’d stopped building choppers. He went and lived on a Kibbutz in Israel and apprenticed under a blacksmith.

        Now he makes designer 1911s from scratch that get prices like that.

        1911 guys are like Harley people, really. They don’t want anything else, and they’re willing to pay through the nose–just like Harley people.

        1. Here you go:

          http://www.jjfu.com/engraved-pistols/

          He says their base model 1911 goes for about $4,500 and goes up from there with customization.

  19. That’s the problem when the law is written and enforced by a bunch of ignorant social science majors who think that a drill and a lathe are mysterious high-tech tools.

  20. At least we can fall back on the fact that prohibition doesn’t work.

  21. If you are one that believes the Supreme Court is the final arbiter of what is lawful and constitutional, then you have believed a lie and a myth that Jefferson warned about. The States still retain their rights to this day to defy the federal judiciary, which has become an oligarcy. We just need strong statesmen as governors and legislatures to make that stand!

    In writing to William Jarvis, Jefferson said, “You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”

    The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.”

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