Can a gun be protected by our rights to free speech? According to a recent settlement by the Department of Justice, when the gun is a schematic written in computer code, it can.
Reason readers will be familiar with the saga of Cody Wilson and his gun rights collective, Defense Distributed. Disturbed by the rising tide of anti-gun sentiment in the cultural discourse, Wilson and his comrades set out to secure Americans' rights to defend ourselves against government abuse. But they took a different tack than Second Amendment advocates before them. Rather than spending billions on lobbying and public persuasion campaigns, Defense Distributed bound their fate to the mast of technological determinism. They put guns on the internet.
It has been about five years since the first 3-D printed gun was fired. Engineers at Wilson's Austin-based firearms defense syndicate had been hard at work building the first prototypes. While the design looked a bit like a toy gun that a young boy might play with, the plastic-cast first DIY handgun, dubbed "the Liberator," was truly fearsome to regulators and gun control hardliners. On its launch day, Defense Distrbuted's "Wiki Weapon" schematic file had been downloaded 50,000 times from their DEFCAD.org website.
No longer could anti-gun activists attempt to snuff out the Second Amendment by effectively regulating large-scale gun manufacturing out of existence. By putting the blueprints to build a gun online, anyone could make an undetectable gun—so long as they had an internet connection and the means to print the weapon. And as the cost of 3D-printing devices continued to drop, the range of potential homegrown armories would accordingly expand. Just for good measure, Defense Distributed decided to manufacture and sell its own line of metal lower receiver mills called the "Ghost Gunner" in 2014.
The government panicked. Sen. Chuck Schumer (D-N.Y.) and then-Rep. Steve Israel (D-N.Y.), both stalwart anti-gun agitators, quickly leapt into action, pushing legislation to criminalize Defense Distributed's pursuits. They were unsuccessful.
What proved more potent was the State Department's maneuvering to shut it down by charging Defense Distributed with possible arms export violations. Only a few days after that first fateful shot was fired, the State Department's Office of Defense Trade Control Compliance sent a letter to Wilson alleging that his venture was in violation of federal International Traffic in Arms Regulations (ITAR) and must pull down the DEFCAD data immediately. Defense Distributed temporarily complied and geared up to fight this government censorship in court. Although, at that point, the proverbial cat was well out of the bag: Torrent sites like The Pirate Bay quickly re-listed the censored code.
The State Department's oversight of ITAR deputizes it to prevent the spread of things like chemical and nuclear weapons. But the agency has a history of expanding the definition of "arms" to crack down on clearly non-illegal-weapon technologies that it does not like.
This is precisely the strategy that the government took in the first round of the Crypto Wars, where security technologies like public-key encryption that had previously only been available to government and academic institutions finally became accessible to the public at large. Now, mathematical techniques to secure data clearly are not a kind of weapon. But law enforcement and intelligence agencies did not want to see the spread of secure encryption techniques because it would make it harder for them to hoover up data for their respective investigations.
One convenient way to crack down on the spread of encryption would be to classify it as a kind of high-grade munition. This would subject it to ITAR oversight, which would empower the State Department and other agencies to muzzle security researchers and professionals in a roundabout way. They couldn't outright ban encryption in the US. But they could bar technologists from exchanging encryption code with others in foreign countries. Due to the inter-connected nature of the internet, this would effectively put the kibosh on the future of accessible security.
But techies are a clever bunch. Privacy and security advocates undertook a number of effective strategies to highlight the questionable logic and constitutional grounds underpinning the State Department's ITAR gambit. Some puckish activists started wearing t-shirts with ITAR-controlled encryption code emblazoned on the front and back, and dared the authorities to punish them for sending them overseas or even allowing foreign eyes to gaze upon them. An engineer named Phil Karn probed the rules' boundaries by attempting to send a copy of Bruce Schneier's authoritative tome, Applied Cryptography, overseas: The State Department confusingly ruled that sending the book itself was kosher, but once the text was transferred to a floppy disk it became a munition. These incidents, and others launched by security researcher Daniel Bernstein and PGP creator Phil Zimmerman, extended the rhetorical and legal argument that code is speech, and speech is protected under the First Amendment.
Defense Distributed took up the mantle of the early cypherpunks, extending the logical of their arguments to protect Americans' inalienable right to hold arms. Their team of attorneys pursued the issue relentlessly in court, arguing that the State Department's antagonism towards their project amounted to a violation of their First and Second Amendments. Just as the government had no right to crack down on encryption code, Defense Distributed argued that "gun code" enjoyed the same protections.
Amazingly, the federal government eventually turned tail on its aggressive pursuit of ITAR restrictions on DEFCAD.org's library of gun schematics. The Department of Justice recently reached a settlement with Wilson and his team whereby they agreed to drop its legal harassment of the venture and allow Americans to "access, discuss, use, reproduce or otherwise benefit from the technical data." As far as Wilson is concerned, this achievement is effectively a death knell for gun control in America.
Some caveats are in order. While a major achievement, the legal contours of this victory are limited. First, we cannot expect gun control extremists to simply take this lying down—they will no doubt find new creative ways to harass Wilson and his crew, just as law enforcement has recently revved up the Crypto Wars again with novel legal arguments. And this outcome was a settlement, not a court ruling. As Brian Doherty reported, one of Defense Distributed's attorneys was fairly muted about the breadth of the victory, as many elements in the Trump Administration are still quite hostile to gun rights. Still, he notes that other courts may keep this outcome in mind the next time a similar case comes to their docket.
Critics may point out that encryption and 3-D printed gun plans are two different beasts even though they both technically are "code," since the latter could allow people to eventually harm someone. But law enforcement routinely makes this argument against encryption, since it could allow terrorists to conceal their plans to harm innocents. And even some gun control advocates admit that the fear-mongering against the Liberator is completely overblown, as the plastic weapons can be flimsy and unreliable. Anyway, guns are protected under the Second Amendment in America.
Still, it is true that many in the technology community that offer full-throated defenses of the Crypto Wars are tepid or even hostile to Defense Distributed's related campaign. Indeed, Crypto War veteran Phil Zimmerman refuses to align the two causes, telling WIRED that "Encryption is a defense technology with humanitarian uses. Guns are only used for killing." The 3D printer that Defense Distributed originally used to print their next-gen gun tech was eventually confiscated by the company from which they leased it once they became wise to their schemes. There is a small but thriving community of DIY gun makers, but it is safe to say that the tech scene as a whole turns its nose up at the Defense Distributed project.
In the final analysis, it really doesn't matter that Zimmerman or any other technologist or civil libertarian isn't persuaded that guns and encryption are "the same because they're both made of bits." It was a persuasive enough argument for the mighty US government to back off its attack on Defense Distributed's performative pro-gun praxis. How far can this argument extend? To drones, to transportation, to biohacking? As code becomes more entwined with our lives and as more of our devices and selves become connected to the internet, the rhetorical and legal contours of our First Amendment protections over computer code will become more defined—ideally in the direction of more liberty. Buckle up.