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When Code Is Speech, Tech Like 3D-Printed Guns Sees Greater Protection from Censorship

Gun owners can now enjoy First and Second Amendment safeguards.

Cody WilsonMark McDaniel/ReasonCan 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.

Photo Credit: Mark McDaniel/Reason

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  • Mithrandir||

    The cat is indeed out of the bag. The argument that criminalizing gun ownership would only affect law-abiding citizens and not deter criminals is an even more potent argument now.

  • Santiago||

    Yes because everyone wants to "criminalize gun ownership". Way to toss out your conspiracy propaganda that has not a shred of basis in reality. I look forward to the day Trump is impeached (although the alternative isn't any better, what a bunch of nuts at the top of the pile) and we can have sense of reason when looking at issues and not treating EVERY issue as the ultimate extreme. People like you are living in a world of black and white and can't see any shade in between. it's why our country is in such a mess right now and is flowing down the toilet at break neck speed.

  • Giant Realistic Flying Tiger||

    You mean, apart from the fact that California is trying to de facto eliminate the 2nd amendment? But sure, I bet they're just an outlier, like Chicago and Washington D.C.

  • JesseAz||

    So liberals never mention forced gun buybacks? Guess the DNC leadership aren't liberals.

  • ||

    The problem is that there are much more than shreds of basis in reality here. More than one of the political figures acting as leaders for the anti-gun movement have been recorded in interviews -- on video even -- saying that if they could get a total gun ban passed today they'd do it, but they recognize the need for baby steps. But that is their eventual plan, yes.

    If you believe in only partial gun control but some guns are worth keeping around, then you are merely a fellow traveler to the anti-gun movement, not part of its base. Sooner or later, you'll hit your level of 'enough' gun control and your political leaders will stop leading you, leaving you in their dust. On that day, you'll join our ranks, becoming one of the people saying things like "wait a second, we have human rights here!"

    And they'll dismiss you as just another whining gun-nut.

  • KevinP||

    No one wants to ban or confiscate guns. Ever! It's a crazy and paranoid idea!

    Hawaii, Which Registers Guns and Medical Marijuana Users, Starts Disarming Patients


    Quote:
    Hawaii is one of 29 states that allow medical use of marijuana, but it is the only state that requires registration of all firearms. ...you can probably surmise what this means for patients who use cannabis as a medicine, which Hawaii allows them to do only if they register with the state. This month many of them received a letter from Honolulu Police Chief Susan Ballard, instructing them to turn in their guns.

    "Your medical marijuana use disqualifies you from ownership of firearms and ammunition," Ballard says in the November 13 letter, which Leafly obtained this week after Russ Belville noted it in his Marijuana Agenda podcast. "If you currently own or have any firearms, you have 30 days upon receipt of this letter to voluntarily surrender your firearms, permit, and ammunition to the Honolulu Police Department (HPD)...
  • Fist of Etiquette||

    Turnabout is fair play, amendment-wise.

  • loveconstitution1789||

    Amendment II: A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

    You dont need the 1st Amendment to protect guns. The 2A fully covers all Arms and the People's right to keep and bear them.

    The 1A could protect gun manuals, gun pamphlets, and talking about guns.

  • jcw||

    This comment is so typical LC1789, it makes me laugh.

  • loveconstitution1789||

    And true. The fact that you hate the Constitution does not make me laugh.

  • Giant Realistic Flying Tiger||

    ...or maybe it's the fact that the courts and legislators don't defend the 2nd amendment as much as the first, so getting the 1st to protect guns is a pretty good idea. Which, y'know, was the entire point of the article.

    But then again, you're not that good at comprehension.

  • loveconstitution1789||

    Since freedom of speech and press have zero to do with actually owning Arms, its a stupid idea to put all your hope in the 1st Amendment to protect the right to keep and bear Arms.

    The 1A is under attack by Lefties anyway.

    The problem is judges not doing their job and protecting the Constitutional limitations on government and laws. Impeach those judges.

  • ||

    If I talk to my friend about how to build guns, that's speech. If he talks to his brother about the best way to make a gun barrel, that is also speech. Why should the media we use to communicate change whether our speech is speech?

    All computer code is, is changing the instructions from one language to another, and writing them down.

  • Ron||

    this is all true LC but to many people those documents are scraps for the bird cage, they are meaningless to those who ignore them. it is however up to us to remind them of its meaning now and then

  • Rich||

    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.

    Right. Encryption could *never* allow people to eventually harm someone.

  • Rich||

    It depends on what the meaning of the word "allow" is.

  • Brett Bellmore||

    "No longer could anti-gun activists attempt to snuff out the Second Amendment by effectively regulating large-scale gun manufacturing out of existence."

    They never could, they just imagined it was possible; Manufacturing match grade guns from scratch with home shop equipment isn't just feasible, it's a moderately common hobby. At least hundreds of thousands of people own the tools necessary to manufacture top quality guns. Millions own or have access to the relatively simple tools needed to make workable single shot guns.

    It's like imagining you could effectively ban drugs in a country where every neighborhood had an industrial chemist with a well equipped lab in his back room.

    All Wilson did was make this so clear even the gun controllers couldn't fool themselves.

  • Brett Bellmore||

    Actually, the weak spot in the current firearms industrial ecology isn't the actual firearms manufacturers, it's the companies that manufacture primers. Guns people can manufacture straightforwardly, using common materials and tools. Black powder at least is very straightforward to manufacture, again from commonly available materials, and more advanced propellants aren't beyond the reach of home manufacture. Cases are capable of being recycled many times, bullets cast.

    But, the primers? Very specialized industry, without a lot of players, and touchy materials.

    It's fortunate that gun controllers are so ignorant that they don't realize the weak spots.

  • ||

    Primers are so 20th century. Electrical ignition eliminates the need for them.

  • dchang0||

    Primers are indeed the current choke point, but this is only due to the current safety, economic, and regulatory situation.

    In other words, most people don't make their own primers because: it's dangerous, it's cheaper to buy them in bulk, and the gov't has various regulations making it hard to do so.

    If the gov't end up banning primers or otherwise making the regulations too onerous, the same illegal labs making crystal meth within the US borders would be repurposed to make illegal primers. Ironically, they would be safer making primers than meth.

    In other words, the black market that is all too happy to risk their lives making potentially explosive and certainly toxic crystal meth would be just as happy to make primers.

  • jm15xy||

    What a ridiculously expansive definition of "speech". Free speech is not a catch-all for all real (and imagined) rights.

  • Santiago||

    Amen.

  • Santiago||

    I think it's humorous that anyone would equate this argument to one about "free speech" and "computer code". Anyone with half a brain know's that it's not about that at all, it's about easy/cheap access to guns... guns that ultimately cannot be detected as easily and will, most certainly, increase the risk for citizens.

    I'm all for gun ownership. I own guns and will continue to own guns. I'm not for making it even easier for nutjobs with a chip on their shoulder to get guns to use on innocent people. It's ludicrous to equate this with freedom of speech or gun rights... it's about money (NRA's money), politics and fear.

    As for the risk...just go try to post documents on how to build a nuke or a nerve agent and see how far that get's you.

    Personally I don't think it's a problem to have 3D printed guns... but they should follow the same laws and regulations, and restrictions, that any other gun would.

  • Giant Realistic Flying Tiger||

    How to build a nuclear weapon.
    Another article on how to do it.

    Neither of these go very deep into specifics, but that's because the biggest specific is finding people to buy the material from. They're reasonable how-to guides, and they were on the FIRST PAGE of a search for "how to build a nuclear weapon."

    Pages are still up and have been up for a while.

  • Oli||

    Good luck trying to "ban" code. Can't happen, won't happen. Sure, they can make it illegal to obtain and own files for 3d-printed weapons, but it's impossible to enforce laws like these.

  • 10mm||

    "I'm all for gun ownership."

    Let me finish that for you:

    "...that each state's Nomenklatura allows us"

    ANY move that reduces State power is good. Or are you a good Statist that licks that hand of your masters?

  • Violent Sociopath||

    Fuck off, slaver.

  • ||

    If I talk to my friend and tell him in detail about this great new way I learned to make gun barrels, that is speech.

    If he's not next to me, but were on the phone, that too is speech. If he's not in the next town but is on the far side of the planet, that is also speech.

    If we speak in English it is speech. If we speak in German or Swahili or Japanese, it remains speech.

    If we pass each other notes at work, that is still speech.

    So why is it that translating that speech into a written computer language would make it cease to be speech, when other such instruction sets have already been recognized as speech? As copyrightable acts of creativity?

    Go try to post documents on how to build a nuke or nerve gas? Dude, have you been asleep or something for the past few decades? Wikipedia already does that, and printed encyclopedias have done that for even longer!

  • dchang0||

    I've got news for you: the NRA's money is itself free speech.

    Put aside Citizens United for now and just think about the basic facts.

    Who is the NRA? Where does the NRA get its money? What is the NRA's money meant for?

    The NRA is a big group of ordinary Americans, nothing more, nothing less.
    The NRA gets its money from voluntary donations from ordinary Americans.
    These ordinary Americans voluntarily give this money to the NRA to represent them politically through political speech (this was not always the case, but it is the primary driver for donations now).

    So yes, it's about money, the money of about 5 million gun owners (estimated NRA membership) plus many people who donate to the NRA who are not members.

  • Diane Reynolds (Paul.)||

    The second amendment helps protect the first amendment, and all the others as well.

  • ||

    If publishing something entirely within the United States -- printing press or server owned by US citizens and located inside the United States -- is an export, then the entire publishing industry is in legal trouble. How many books are printed every year entirely for the domestic market, that lack an export stamp? How many newspapers reveal juicy tidbits of information that are then read by foreign intelligence agents?

    If anything that gets published can be sent outside the US by a third party, and that sending makes the original publisher an exporter no matter how much or how little they had to do with that third party, we're all in trouble. This comment will likely be read by people from outside the US, am I an exporter too?

    If giving aid and comfort to the enemy includes actions by a third (or fourth or fifth, etc) party, then teaching our kids English is arguably treason! After all, if enemy nations and their agents couldn't learn to read English, they'd be unable to determine what secrets to steal! Elementary school teachers are conspiring to destroy America!

    It would never end.

  • Longtobefree||

    In the end, it is just a string of ones and zeros.
    Which is illegal, the one, or the zero?

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