In a case that was already moot in the colloquial sense of the term if not the legal one, the 9th Circuit Court of Appeals decided yesterday that an attempt by various states to stop the federal government from not restricting certain computer files can go no further. So for now, CAD files that can help instruct certain devices to make weapons at home can be legally spread into the public domain.
The history of the issues behind the case, State of Washington et al. v. State Department, is long and convoluted and embedded in arcane arguments about proper administrative procedure. What triggered the states to want to interfere in federal decisions was the result of a resolution in 2018 of a lawsuit from Defense Distributed, a company dedicated to the spread of gun-making software, founded by 3D weapon entrepreneur and provocateur Cody Wilson. In settling a case challenging their restrictions on such files, the government agreed to remove them from the control of International Traffic in Arms Regulations (ITAR).
The states pretended they were fighting for public safety against the threat of computer-assisted homemade gun making. But their efforts were, at their core, an attempt to make the government continue constitutionally questionable policies restricting the free spread of information in the form of certain computer files, even though that information is obviously free to be spread through other means. For example, gun-making instructions in a book would obviously be legally protected expression.
But a district court had earlier issued an "order granting the motion of 22 states and the District of Columbia to enjoin [the State Department's] final rule removing 3D-printed guns and their associated files from the U.S. Munitions List."
As yesterday's decision explained, "The government used that broad discretion back in 2018 to shift control of the computer files in question from ITAR to CCL [Commerce Control List] under Commerce authority, and final rules regarding them were promulgated in January 2020."
The 9th Circuit panel decision this week, written by Judge Ryan D. Nelson, is not based on any of the important First Amendment questions implicated in earlier cases about the same overall issue—government power to prevent the spread of information under the guise of munitions control—but on the simple legal fact that the laws regarding these particular munition controls just don't allow for judicial rethinking of the agencies' decisions.
As the 9th Circuit wrote, "Congress precluded judicial review of both the designation and undesignation of items as defense articles…..The texts of both the Control Act and Reform Act demonstrate Congress's intent to preclude judicial review of both the DOS and Commerce Final Rules." Thus, "because both the DOS and Commerce Final Rules were unreviewable, the plaintiffs had not demonstrated the requisite likelihood of success on the merits, and therefore, a preliminary injunction was not merited. The panel remanded with instructions to dismiss."
The states were trying to argue that only adding items to the prohibited list is judicially unreviewable, while taking items off it, at issue here, should be reviewable. The 9th Circuit panel disagreed. In other words, the lower court erred in allowing the states to successfully challenge the new rules that allow, rightly, for the free spread of these files. It's worth remembering it was never about U.S. citizens having access to them, but the alleged threat of exporting the files to overseas persons, as that was, by prior ITAR theory, the equivalent of overseas arms proliferation. But the use of the Internet for such file spread makes restricting them to U.S. citizens more complicated.
This being the internet, attempts to suppress the spread of the files is impossible and trying to do so can only mean giving the government the power to harass specific parties from doing something everyone else can do and has been doing. While the company was not a party in this specific case, the legal history of attempts to punish people for spreading these files has been focused on one party, Defense Distributed.
Defense Distributed announced on their DEFCAD site that in light of this decision, U.S. law must be interpreted to "permit the limited and unlimited publication of our growing library of CAD, CAM, and other files. All CAD files are currently free to download. CAM data remains unconstitutionally controlled by the EAR [Commerce's Export Administration Regulations], and is restricted to US persons with DEFCAD accounts."
There is no way to actually stop the spread of such files, though that is not an argument the Court was relying on here. Such restrictions being on the books does give the government an extra tool with which to bash those it disapproves of.
The power to classify items as regulatable munitions is at "President's discretion," so the Biden administration could try to put certain computer files back on the list that puts them under ITAR authority or the Department of Commerce equivalent, but one wrinkle is that information or items already clearly in the public domain are supposed to be immune from that. Wilson at Defense Distributed is excited that with this week's decision, a space is created to get more and more such files out that barn door while it's open, which should limit the Biden administration's powers to cram them back in later should it want to try.
As DEFCAD's statement hinted, even under Commerce's new rule, it's not a complete free-for-all for gun-making files. Commerce still insists it can restrict software that "is ready for insertion into a computer numerically controlled machine tool, additive manufacturing equipment, or any other equipment that makes use of the 'software' or 'technology' to produce the firearm frame or receiver or complete firearm."
But Defense Distributed believes simple CAD files, not to mention such things as blueprints or instructional videos which were arguably restrictable under the old ITAR rules, are now officially liberated thanks to the 9th Circuit's decision yesterday.