Free Speech and Computer Code—3-D Printer Gunmaking Files and Beyond

Three ways of thinking about the problem: 1. Software is like hardware. 2. Software is like instruction manuals. 3. Alexa, read this book and make me a gun.

Say that Congress passes a statute banning the public distribution of files that, when submitted to a 3D printer, will produce a set of parts that could easily be assembled into a gun. (Assume that this is defined precisely enough.) Would this violate the First Amendment? (This is obviously related to the cases involving Defense Distributed and Cody Wilson, but it avoids some of the procedural complexities of that case.)

I think this is an interesting, unsettled, and conceptually difficult question, which of course can apply to regulations of many kinds of computer instructions, and not just 3-D-printer gunmaking instructions. And one way to see the complexity is by considering two analogies and one near-future hypothetical:

[1.] Software is like hardware: Imagine that I build a hardware device that, when attached to a 3D printer (or to some other such device), will cause the parts to a gun to be produced. It's a physical object, not a set of computer files, but it has the same effect: It causes the same parts to be produced. It's pretty clear that, whatever the policy or moral merits of banning distribution of this hardware device might be, there's not a First Amendment problem with that.

Now the 3D gun design files can be viewed and understood by technically savvy observers; they aren't just machine code, but contain visual images and (more or less) source code of a sort. Such fellow engineers can learn from the designs, can spot flaws in them, can figure out how to improve on them, and can better understand how even very different objects can be 3D-printed.

But the same is true about my hypothetical hardware device. Engineers can learn from physical objects just as they can from computer code and from blueprints. They can look at the object, take it apart, fiddle with it, figure out its flaws, understand how to improve it, and better understand engineering more generally.)

The government can still restrict the device despite its possible communicative qualities, when the restriction is imposed because of what the device does, not because of what it communicates to human observers. If the government wanted to ban physical objects with electronics and moving parts when they contained (or displayed) pictures of Mohammed, or of a burning flag, or of white people in blackface, that would violate the First Amendment because the restriction is applied because of what the physical objects communicate to people. But if the government bans physical objects because of the potentially dangerous things they can be used to do (fire surface-to-air missiles, create guns when attached to 3-D printers, and so on), that's generally not a First Amendment violation, even though it does incidentally affect engineers' ability to communicate with each other by passing around such objects. (I oversimplify here, but that's a good first cut.)

This roughly tracks, by the way, the distinction between content-based laws, which are generally laws that restrict speech or expressive conduct because of what it communicates to humans, and content-neutral laws, which restrict speech because of effects that exist entirely apart from such communication. Indeed, some court cases have held that restrictions on publishing computer source code are speech restrictions, but suggested that they might be content-neutral ones rather than content-based ones.

And, if that's true for the hardware, why should First Amendment law distinguish hardware from software? If there is no First Amendment problem with banning distribution of physical devices that, when attached to a 3D printer, produce gun parts (or anything else that the law might specify), why would there be a First Amendment problem with banning distribution of computer files that, when uploaded to a 3D printer, produce gun parts?

[2.] Software is like an instruction manual: On the other hand, consider (I'm just picking one book of an Amazon search), Gunsmithing at Home: Lock, Stock & Barrel—A Complete Step-by-Step Fully Illustrated Guide to the Art of Gunsmithing. Say the government tries to ban it, because of a worry that people will use it to make guns.

This ban would clearly violate the First Amendment to the extent that home gunsmithing is itself legal. But even if home gunsmithing were banned, banning the book would raise very serious First Amendment problems, and would likely be unconstitutional. Such a ban would certainly be treated as a content-based speech restriction, and subject to very demanding First Amendment scrutiny. And this is so even if the government argues that it's banning the book simply because of what people can physically do with the information they learn.

Now I think First Amendment law can meaningfully distinguish actions that cause harms as a result of communication to humans from actions that cause the same harms through noncommunicative means. If I cause customers to avoid your business because I physically block the entrance (or, say, set off a stink-bomb right next to it), you can sue me for your lost profits (and more). If I cause customers to avoid your business because I express critical opinions about your business—or because I publicly criticize any customers who visit your business (see NAACP v. Claiborne Hardware Co. (1982))—your suit would be blocked by the First Amendment.

Likewise, the government can restrict the distribution of precursor chemicals that can help people engage in drug making or bomb making, but the First Amendment seriously constrains the government's ability to restrict the distribution of chemistry textbooks that can also help people engage in drug making or bomb making. (See my Crime-Facilitating Speech article for much more on that.) Thus, while helping create guns by communicating knowledge to humans is protected by the First Amendment, helping create guns by creating mechanisms (hardware or software) that can be used to create guns might not be as protected.

At the same time, I've got to admit that this distinction is pretty conceptual, and many might see it as gossamer. Certainly some judges seem to view the gun-3D-printing files as similar to books, though other judges uphold restrictions on such files that they likely wouldn't on books.

[3.] Alexa, read this book and make me a gun: Finally, let's imagine a technology that we don't yet have, but might have in a few decades—a 3D printer that can follow technical instructions written in English. You give it a link to a simple version of Gunsmithing at Home, give it the right command ("follow the instructions on pages 31 to 37"), and it makes a gun, just as it can make anything else.

If the government can ban 3D-printer files that could be used to create gun parts today (perhaps because courts accept analogy 1), does it mean that it will be able to ban Gunsmithing at Home then? Conversely, if we think the First Amendment would still prevent the government from banning Gunsmithing at Home in my 3D-printer-that-understands-English hypo, does it mean that the First Amendment today prevents the government from banning the specialized gun-3D-printing files?

One possible answer might be:

[A.] A ban on specialized gun-3D-printing files today would leave open ample alternative channels for humans to explain how guns are made through ordinary English text (even if that text would not convey precisely the data that a modern 3D printer would use to make gun parts), and is therefore constitutional.

[B.] A ban on Gunsmithing at Home would not leave open such channels, since any book about how guns are made would (by hypothesis) be potentially usable by the super-smart 3D printer; it is therefore unconstitutional.

(Under First Amendment law, a content-neutral restriction—and recall that analogy 1 argues that a ban on gun-3D-printing files is content-neutral because it focuses on what the files do, not what they communicate to humans—is often constitutional, but only if it leaves ample alternative channels for conveying the underlying information or ideas.)

But perhaps this also is too gossamer and conceptual a distinction, especially when protection of the right to publish books about human knowledge and technology is at stake.

* * *

There is of course a lot more to the Defense Distributed / Cody Wilson debate. There are federal administrative procedure questions raised by the recent temporary restraining order entered against the Trump Administration. There are federalism questions raised by states' attempts to use state law to restrict what Defense Distributed can post on the Internet in other states. There are possible Second Amendment questions. There are practical questions about whether the government can do anything (short of imposing massive nationwide Internet filtering requirements) about the distribution of these files, given how easily they can be posted on other sites, including off-shore sites. There are moral questions about the proper scope of government power. But, as I hope I've shown, the First Amendment questions are thorny enough that they are worth thinking about on their own.

(Many thanks to Kit Walsh of EFF for a very helpful discussion that helped me think more about these issues, especially the English-understanding-3D-printer hypo.)

Comments

[Longtobefree]

“There are possible Second Amendment questions”
Not really. This is a second amendment issue pure and simple. We have the inherent right to keep and bear arms, and the US Constitution guarantees that right cannot be infringed.
How we acquire our firearms is irrelevant to that right. We can buy them, we can make them by hand, we can make them using power tools, we can make them from metals using computers, we can make them from plastic using computers, we can make them from recycled beer cans.
So all we have to do now is discuss why the right is in fact being infringed, yet no one is in jail for that infringement.

[aluchko]

The 2nd amendment gives you the right to bear arms, it doesn’t give you the right to have any style of arm, nor to acquire the arm in any fashion you seek.

Now I’m not so blithe as to suggest you have the right to bear arms but not to acquire them at all. But I think the government does have the right to restrict the type of arms you can acquire and put in some reasonable restriction as to how you acquire them. And I think the courts agree since restrictions such as waiting periods, background checks, and restrictions of automatic weapons are allowed.

And given that these restrictions are allowed, and 3d printed weapons would largely circumvent them, I do think that restricting 3d printed guns is allowed under the 2nd ammendment.

[perlchpr]

OK. Fine.

Ban 3D printed guns.

Make it absolutely illegal to produce firearms or firearm components on 3D printers.

Does that make it illegal to distribute the program to produce those parts?

Is it reasonable to make illegal the instructions to produce illegal drugs?

[Alpheus W Drinkwater]

This question was specifically addressed in the OP. You should give it a read.

[Brett Bellmore]

And this is how power extends: “Government has the power to forbid X.” (Wrongfully shooting somebody.)

Therefore government has the power to forbid the tools to do X. (Guns that are mostly not wrongfully used.) Even though they’re also the tools to do Y and Z, which the government does NOT have the power to forbid doing.

Therefore government has the power to forbid the tools to MAKE the tools to do X, Y, and Z.

What’s that phrase? “Rinse and repeat”? No, I refuse to take that next step. The power to forbid wrongfully shooting somebody would not entitle government to forbid possession of the tools to wrongfully AND rightfully shoot somebody, even if there weren’t a 2nd amendment.

The next step isn’t necessary, and it sure as heck isn’t proper.

[jbsay]

What you think is not ultimately relevant, What the courts think is not relevant.

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, ? That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it,”

All power of government comes from the people.

If you make and the courts allow and the police attempt to support laws – any laws, that even a small portion of people strongly refuse to obey the social contract collapses.
Our founders sought to justify an armed insurrection,
but their argument even more strongly support civil disobedience.

[jbsay]

Prohibition did not work.
The war on Drugs has been a disaster.
There are approximately 350M guns in the US. If only 1% of people refuse to abide by whatever laws you concoct – that law will fail. If only 0.01% of people are prepared to resist your efforts to enforce your laws with force – we are talking about 10’s of thousands of very violent confrontations.

But this does not end with guns. Maybe I do not want the freedom to own a gun. But I want Marijuana for my glaucoma, or just for recreation, or I want anti-biotics for a UTI without a perscription, or I want to try some HIV or cancer medication that government has not approved, or I have a disease that drug companies do not care about and I want to explore treatment on my own, or .I want ….

All these have common cause in elevating freedom over your efforts at control.

[ActualRightWingPatriot]

I don’t really care what the courts agree on. The courts are part of the government the 2nd Amendment was intended to protect against. Most of the restrictions on automatic weapons, waiting periods, and private sale background checks are promulgated in bad faith. No reasonable review of them could find them constitutional.

[Rossami]

You have the right to free speech. Does the government nevertheless have the right to restrict the type of speech you conduct or to put in some “reasonable” restriction as to what means you use to speak?

You have the right to vote. Does the government nevertheless have the right to restrict which votes you can make or to put in some “reasonable” restriction as to how you can get the right to vote?

Why do you consider restrictions on your Second Amendment rights acceptable when you would never tolerate those same restrictions on any other enumerated right?

[Devin Newman]

Correct me if I’m wrong, but doesn’t the federal government already restrict the type of speech, including “reasonable” restrictions as to the means you may use?

Copyright and patent law, also enshrined in the constitution, are restrictions upon speech, and even in some cases, a restriction upon the means of communicating such speech. Likewise, laws against fraud, computer hacking, etc, etc.

Perhaps you are mistaken in your belief that such restrictions do not apply to the first amendment? Perhaps you forgot about them?

[Rossami]

Copyright and patent law are not prior restraint upon your speech but consequences applied if your speech subsequently infringes on someone else’s rights. The analogy to copyright is not a gun control law but a law against murder. Ditto for your examples of fraud, hacking, etc. All are about consequences after the fact, never about prior restraint before the fact.

[Krayt]

It is exactly this type of weapon the Founding Fathers would have loved to protect against government encroachment. It allows The People to make one without being a trained metalsmith and gunsmith and expensive forge.

So…no. To say the 2nd doesn’t cover it is bass-ackwards.

Furthermore, the government is worried about it getting into other countries…countries with dictatorships…murderous dictatorships that outlaw guns and make family members disappear in the night.

Banning this is not in the spirit of either of the first two amendments.

But aside from that, work around it, those who love enabling potential, i.e. inevitable, dictatorship.

Why in god’s name is that a concern? Just whose side are we on?

[jbsay]

“the right of the people to keep and bear Arms, shall not be infringed.”

Please point out the Except for this particular style clause ?
Please point out where it specifies the manner in which you must acquire arms ?

The entire concept of a right is something that government may not restrain.

If your rights are constrained by what others think is reasonable – they are not rights.

A right is something you have – even when the majority disapprove.
If you are only free to do what others approve of or what others think is acceptable – you are not free at all.

[jbsay]

Outside the philosophical and and legal, Defense Distributed, Cody Wilson and the Ghost Gunner are the tip of the iceberg. In the foreseable we will have most of the functional cababilities of Star Trek Replicators. This is not a fight about gun control. This is a fight about government control.

This obliterates the idiotic argument that there is some distinction between the economic sphere and the individual private sphere. Much of government restriction on our lives has been rooted in the stupid premise that government can regulate free exchange, commerce, without infringing on our individual rights. Economic infingement is ALWAYS infringement on our personal and private lives.

When we can produce whatever we desire ourselves in the privacy of our own homes – whether cancer drugs, LSD, anti-biotics or AR-15’s that fictitious economic argument is obliterated – it never had merit.

Volokh’s multiple ways of looking at 3D gun printing merely points out that all government restrictions are ultimately restrictions on our rights. Almost everything can be framed as a free speech right.
That is not some legal trick. In the end nothing is unique. All freedom all rights are inherently one.

[TxJack 112]

This is not about 3D printed guns, it is about the files needed to make a 3D printed gun. There is no violation of law until a person actually makes one if the gun in made only of plastic since that is already illegal. How is this any different than purchasing a copy of the Anarchist’s cookbook which contains instructions for making plastic explosives? Would such an item not be just as undetectable and dangerous as a plastic gun? The argument is really moot since a true plastic gun will melt when fired. Gunpowder ignites at 800 degrees F which is 4 times higher than the melting point of ABS commonly used in 3D printers.

[Carter Mitchell]

Actually, the Constitution clearly stated that the federal government is given ONLY the powers clearly delineated; nothing in that list gives it the authority to ban ANY type of weapon, whether it’s a .22 pistol or a surface-to-air missile.

Almost every law in the Federal Register violates the letter and spirit of the Constitution.

[Brett Bellmore]

I do tend to agree that this is primarily a 2nd amendment issue, the 1st amendment infringement is only incidental to the aim of violating the 2nd amendment.

By analogy it’s as though the government were breaking into people’s homes in order to confiscate particular books: You’d have what might facially look like a 4th amendment violation, but really in service of violating the 1st amendment.

” But if the government bans physical objects because of the potentially dangerous things they can be used to do (fire surface-to-air missiles, create guns when attached to 3-D printers, and so on), that’s generally not a First Amendment violation, even though it does incidentally affect engineers’ ability to communicate with each other by passing around such objects. ”

The government, hypothetically, is banning the physical object because it can be used to effectuate the right guaranteed by the 2nd amendment. The goal here is a 2nd amendment violation, any 1st amendment violation is incidental.

[jbsay]

The bill of rights was added to the constitution.
The authors of the constitution properly did not think it was necescary – government that was constrained to the enumerated powers granted it by the constitution has very limited ability to infringe on rights.

By defining specific rights in the Bill or Rights the outcome was exactly as predicted – we would come to a point where the ONLY rights we had were those in the Bill of Rights. The 9th amendment explicitly says otherwise, but it is not work the parchment it is written on.

This is not a first or 2nd amendment issue – it is an issue of the power of government and the liberty of individuals.

The purpose of government is to secure the rights of the individual. Any law that infringes on liberty rather than enhancing it is wrong. To the extent that the law may infringe on liberty at all – which is only those instances were restricting one liberty such as the right to initiate violence, increases our other liberties, that infringement must be the least infringing as possible.

[ReaderY]

I think that to be classifiable as speech, something has to constitute a symbolic language intelligible by human beings.

The best analogy here seems to me to be DNA. DNA could be regarded as a set of instructions sent to a biological process for constructions, like the instructions sent to the printing process here. But DNA, to the extent regardable as intellectual property, is patented, not copyrighted, despite its being regardable as a “set of instructions.”

I understand that soft wear is considered copyrightable, not patentable. It seems to me this is partially mistaken. While software addressing high-level algorithms might be copyrightable, low-level machine instructions are not intended to be intelligible to human beings and hence, in my view, should be treated more like hardware. They also should not be subject to the First Amendment.

[bernard11]

low-level machine instructions are not intended to be intelligible to human beings and hence, in my view, should be treated more like hardware. They also should not be subject to the First Amendment.

I think this applies to all software. Fundamentally, software simply controls what a machine does. The stuff we use regularly transmits our commands – our input – to some electronics.

You hit the “Print” command to get the printer to print a document. You step on the accelerator to make the car go faster. There is no logical difference between the two.

[Robert Crim]

Maybe no logical difference, but certainly a legal one. Stepping on an accelerator makes a car go (which may require a driver’s license). Hitting the “print” button operates a “press,” and while that’s not “speech,” it is protected by the First Amendment.

[Brett Bellmore]

These files are somewhat between 1 and 2; While they’re generally intended to be read by a machine in order to direct its operations, they are human readable by a skilled professional, (Though laboriously, so it’s not an actual application!) and can be used with appropriate software to document dimensional aspects of the part, just like reading a blue print.

They’re not low level Gcode, but instead stereolithography files, I assume, which have to be processed with a “slicer” to provide the Gcode for whichever printer you happen to have.

[FlameCCT]

IMHO the files are a translation from one language to another language.

[Absaroka]

“I think that to be classifiable as speech, something has to constitute a symbolic language intelligible by human beings. …. low-level machine instructions are not intended to be intelligible to human beings”

Some background. There are levels of abstraction involved. The top level is a model of the physical shape of an object. As with programming languages, there are a zillion dialects. Here is an example of a door stopper in one called ‘OpenSCAD’. That’s a lot like a high level programming language – Java or Fortran or whatever.

(cont…)

[Absaroka]

That gets ‘compiled’ into a lower level machine specific language, usually ‘gcode’. Here’s an example from a 3D print:
M107
M190 S60 ; set bed temperature
M104 S205 ; set temperature
G28 ; home all axes
G1 Z5 F5000 ; lift nozzle

M109 S205 ; wait for temperature to be reached
G21 ; set units to millimeters
G90 ; use absolute coordinates
M82 ; use absolute distances for extrusion
G92 E0
G1 Z0.400 F7800.000
G1 E-2.00000 F2400.00000
G92 E0
G1 X80.820 Y94.745 F7800.000
G1 E2.00000 F2400.00000
…

That’s analogous to assembler code. That may look like Greek to you, but machinists certainly code gcode directly (just like programmers sometimes program in assembler – or even machine code), and they also routinely tweak gcode directly. An experienced machinist reads that like a book.

As a computer nerd who routinely works with assembly or machine code, I kinda disagree with the ‘not intended…’ part. That’s like saying ‘1984’ is protected when printed on paper or in html, but not if you just look at the ASCII as a hex dump, or in one of the printer specific image formats (which I’ve written assembler programs to produce :-)).

[gormadoc]

Many, many, many DSP applications require at least some use of assembly or machine code. DSP engineers have to be familiar with them.

[gormadoc]

I’m taking about real time Digital Signal Processing, for those of you who don’t know what DSP is.

[Stephen Lathrop]

Absaroka, strip out the comments, multiply the amount of code by 100, and throw in some numerical errors, here and there. Really? No problems. Read it like a book, and fix the mistakes as you go? Just based on the quantity of reading, that would be a really short book. But I suggest few if any people could accomplish what you claim. Do you disagree?

[Brett Bellmore]

Eh, CNC machinists will do exactly that, when trying to optimize a production program, or sort out a mistake introduced by a software bug: They’ll literally read through the gcode, interpreting it as they go along, to figure out what went wrong. And then hand edit it.

I know, I used to program a Haas mill part time.

[Absaroka]

I sure do. I’ve sat around tables covered with foot high stacks of raw hex dumps on fanfold paper, and crowds of programmers reading them like books. It’s a language. I can’t read hieroglyphics, and an Egyptologist probably can’t read System360 hex dumps, but they are both languages.

Does the First Amendment cover the Odyssey written in ancient Greek? I’d bet good money the number of people who are fluent in System360 hex dumps (or Intel XX86 for the young’uns) is orders of magnitude greater than the number of people who can read ancient Greek.

“Read it like a book, and fix the mistakes as you go?”

Sure. If rebooting your mainframe costs $200k per hour of downtime (or worse!) and rebooting takes an hour, you’re going to be fixing things by reading and flipping bits in memory as you go.

Moreover, what if the problem at hand is that something corrupted the running memory? You can’t fix or analyze that by looking at the source code. You have to read the raw bits. This is just an ordinary part of the job for computer nerds.

Heck, I’ve programmed machines for which no assembler existed. How do you think you write the first assembler?

[Absaroka]

…and of course, since we’re talking about gcode, I’ve stood next to machinists on the shop floor while they tweak gcode on the fly. That’s why CNC controls make it easy to do. It’s a commonplace, routine thing. If you don’t think so I’d suggest spending more time in machine shops.

I’m a point-n-click type photographer, but I don’t argue that good photographers aren’t setting f-stops or shutter speeds or all those other incomprehensible controls on the fly just because it seems complicated to me.

[perlchpr]

Yeah… sorry, dude. I have done exactly this precise thing, with machine tools, in the real world. And it was not considered “wild behaviour”.

And as with Absaroka, apparently, I have also done it on large servers.

[FlameCCT]

IOW the files are nothing more than a translation between languages.

[aluchko]

You can read OpenSCAD, C, Gcode, Assembler, etc, but with few exceptions humans are not the target audience, and I think that’s the critical factor.

It’s like the old DeCSS T-shirts, now I think the shirts themselves were legal since the legitimate code was political speech, but it’s nonsense to say that a random string of characters on its own is an exercise in free speech.

Restricting the distribution of the OpenSCAD or Gcode isn’t a restriction of speech, it’s a restriction of the action of printing a gun.

[jbsay]

“low-level machine instructions are not intended to be intelligible to human beings”
False.
There is no language of any kind that is understandable to all humans,
There is no language of any kind that is not understandable by some humans.

[gormadoc]

Machine code is not intended to be”intelligible,” but assembly on up are, which is where people are working on this stuff.

Interpretive languages are intelligible and aren’t compiled into machine code until run time, after which the machine code is discarded. How does that work with your understanding?

[jbsay]

Machine code is intelligible and for centuries humans programmed machines in “machine code”.

[Rossami]

Bad analogy. DNA is patented, not copyrighted, because DNA sequences are discovered, not created.

[Robert Crim]

You may regard DNA that way if you want to, and it is true that DNA conveys information to ribosomes for the manufacture of proteins; however, what is patentable is not the information but the assembly of the lattice, viz., the linking of the five nucleic acids in correct sequence via assemblage of the d-ribose sugar bridges. And, that’s a process, not “speech.” It is the difference between me writing a book and you printing it. One could argue, I suppose, that it does not violate my First Amendment rights if the government stops your presses (my “speech” is not infringed) — except that then there is the little problem of freedom of the press.

[jbsay]

I am an experience computer programmer, I can with difficulty read machine code.
All languages are a symbolic language intelligible by human beings.

[ThomasD]

“…low-level machine instructions are not intended to be intelligible to human beings…”

Huh? They are instructions telling a human built machine what to do.

Presumably the humans who built the machine also constructed the instruction set.

Meaning that machine instructions are intelligible to humans.

There is no ‘arcane or esoteric’ exception to the First Amendment.

[bvandyke]

I agree, the issue with these files and such is really a smoke screen for control around the 2nd.

The 3D files are no different of the countless other plans, instructions, models, etc. out in the wild to build just about anything with anything.

The original issue was related to ITAR. Trying to day that “others” outside of the U.S. should not have access to these files because it is a national security issue. That completely falls down when we look at the books, etc. available everywhere that tell you how to engineer / make firearms.

Again – all the fear mongering is just smoke screen for the real reason.

[Robert Crim]

Whatever the “real” reason, there is no requirement that I use these instructions to operate a 3-D printer — no more than there is a requirement that I use my copy of the Anarchist Cookbook to build pipe bombs with clothespin triggers for blowing up cops in their cars.

That makes the principal constitutional problem the First Amendment, not the Second.

[FlameCCT]

I’ve had a copy of the Anarchist Cookbook for decades.

[DrCoke]

Humans can read those exact codes, just like the 3D printing machine can.
Maybe we can ban the “Gunsmithing At Home” book, but only the Russian translation?

Anyway, there’s no difference between Robby the Robot reading a book, and a 3D printer.

At the end of the day, of course, this is all just nonsense.
You can’t stop the signal.

[rsteinmetz]

This seems analogous to the fights over cryptography where the government tried to ban the distribution of encryption technologies as “weapons” even though the government had nothing to do with creating the algorithm to begin with. Eventually the restrictions were relaxed as the need for commercial encryption was recognized and the difficulty of controlling distribution became evident..

At some point 3D printing may become so common and the availability of gun patterns so widespread that restrictions will be meaningless. It is already possible for Kyber Pass gunsmiths working with relatively simple tools to create copies of modern military firearms including AKs.

However I think the danger is at present very overstated and producing a workable gun using 3D printing would probably cost more that buying one.

[Absaroka]

“Eventually the restrictions were relaxed as the need for commercial encryption was recognized and the difficulty of controlling distribution became evident..”

I don’t think they relaxed the ITAR restrictions on cryptographic code. What happened is that US companies contract to have all crypto development (that’s intended for general distribution) done overseas. If a piece of code is written in Finland you can distribute it worldwide without ITAR restrictions. If it is done in the US, you can’t. Whether arranging things so most crypto development expertise resides overseas is a strategic advantage for the US is left as an exercise for the reader). My source for this is people who do crypto development and are very, very careful that no part of the process ever touches the US (i.e., they won’t use US based cloud services).

[Absaroka]

“However I think the danger is at present very overstated and producing a workable gun using 3D printing would probably cost more that buying one.”

Indeed so. I’m a hobby machinist who has made some guns using conventional machining, and also dabbled in 3D printing. If you want to make a gun as simply as possible (and don’t care about legal niceties) you make a full auto fixed firing pin open bolt submachine gun from steel sheet and tube. If you care about legalities you complicate things a fair amount by making it semi-auto instead of full auto. But if the desired end state is ‘have a gun as easily as is possible’ you aren’t messing with 3D printing.

(at the present time, anyway. 3D printers that print metal have to come down in cost by a couple orders of magnitude at least to compete with a cheap milling machine … as do the ultrafine metal powders they use. It’s not clear at all that will happen. There are whiz bang machining techniques – EDM comes to mind – that are really useful but are still very spendy after decades of development. There is a reason why steel stampings are still ubiquitous in manufactured goods.)

[ragebot]

One of the huge advantages of the AK47 was that it could be produced by a lot of steel stampings which resulted in the huge number produced in what are/were basically third world countries. Of course there are also AK47s produced using billets which are much higher quality and higher cost.

What seems silly to me is that there are already so many cheap guns around that it will be a very long time, if ever, before stuff like 3d printing becomes a viable source of weapons. Why go to the trouble of getting a 3d printer and files to print a gun when you can go to the local Mickey Ds parking lot in a bad section of town and buy a Saturday Night special for less than $US100.

[Brett Bellmore]

It’s just a way of rubbing clueless gun controllers’ noses in what should have been obvious to them: Man’s status as a tool making species renders gun control futile.

Also, the foot was in the door to ban firearms info from the internet, it had to be chopped off before the whole leg entered.

[jbsay]

It seems analogous – because it is. Defense Distributed was barred from making the code for 3D printed guns available online by ITAR – the same laws that create problems for cryptography.

The issues are identical – you can publish crytography in a book, you can put it into a program – but you can not make it available in a way that it can be accessed outside the US.

This is also an issue regarding the TRO. DD can be barred from putting the files up where they can be downloaded from outside the US. But it can not be barred from making them available inside the US.
Despite Prof. Volokh’s analysis, the First amendement aspects of this are for the most part resolved.

The question is not can the government prohibit the publication and distribution of code files for 3D printed guns. It is does the first amendment trump the regulations on the EXPORT of that information.

[Anon Y. Mous]

EV, perhaps you will recognize the following commentary.

Machines, whether computers, typewriters, or movie projectors lack constitutional rights. But people have constitutional rights, including the rights to communicate using machines.

That’s true if the machine intermediation involves simple transmission, as when a machine delivers this post for you to read. But it’s also true if it involves more sophisticated algorithms that people (such as Google’s engineers) have produced. The government generally lacks the power to control the information published by such human-designed computerized algorithms, just as it lacks the power to control publishing more broadly.

http://tinyurl.com/y8atodt2

Of course, that’s you, some years ago, when you believed quite definitively that computer algorithms (aka code) were speech. The machine was but the facilitator, but the human was the one communicating.

Have you changed your view since then, or am I failing to see a nuance that distinguishes then from now?

I should also add that I was disappointed during the Apple thing, where the government was trying to force Apple’s employees to change their code, that you didn’t have anything to add to that discussion. Prof. Kerr was all over the issue of the government compelling action but it seemed to me there was a free speech angle to it that hardly anyone discussed. Of course, you are not obligated to enter the fray on any issue, but I thought it was right in your wheelhouse.

[Eugene Volokh]

People certainly have constitutional rights, including the rights to communicate — I was referring to communicate with other people — using machines. Likewise, the government can’t restrict machine outputs because it doesn’t like their content.

The question here is quite different: It has to do with files that, when submitted to a 3D-printer, produce particular things entirely without regard to what is communicated to people. My post tries to explain why it’s a difficult question; but in any event, the question “when are restrictions on computer code content-based speech restrictions?” is a very different question from “when are restrictions on what a computer may output content-based speech restrictions?”

[Anon Y. Mous]

It has to do with files that, when submitted to a 3D-printer, produce particular things entirely without regard to what is communicated to people.

The files are speech! What the files contain are instructions from people. To people who can use them to instruct their machine to produce things. Different things, depending on the instructions.

Whether those instructions are textual or binary, they are still instructions, coming from a person. If the law decides to ban the gun making machine from producing something is a different question from banning the instructions.

If I’m not mistaken, you have a background in computer science, so you know that all the major programming languages are textual. They are literally speech. In the Apple case, it was about encryption. Taking speech and scrambling it to something that is speech garbled in a specific manner.

[ThomasD]

“The files are speech! What the files contain are instructions from people. To people who can use them to instruct their machine to produce things. Different things, depending on the instructions.”

Pretty much this. Otherwise the software that governs the GIF or JPG formats could be likewise restricted due to their ability to generate kiddie porn.

[Robert Crim]

Where is there any requirement that I submit the file to a 3-D printer?

This is the fundamental problem (see my analysis, infra). I own a copy of the Anarchist Cookbook. Where is the requirement that I use the book to build pipe bombs with clothespin triggers useful for blowing up cops in their cars? Can this be done? Of course it can — and already has been done. But, the Government has not been able to ban the Anarchist Cookbook, even though I’m sure it would like to.

[Stephen Lathrop]

Of course, that’s you, some years ago, when you believed quite definitively that computer algorithms (aka code) were speech.

Mous, I made that mistake once. I had code, and said I had algorithms. The experts said, “Great, let’s see your algorithms.”

I got laughed at by experts. Algorithms aren’t code. They are formalized speech, used by software engineers to communicate not with machines, nor to make machines communicate, but to communicate with each other.

By contrast, code is what makes a machine work. It is part of a machine. It is not anymore “speech” than is a spring, a lever, or a transistor.

I suggest that distinction?and the long practice and reliance upon it among those most expert in the computer industry?has a lot to tell us about how to distinguish what is speech and what is action as we discuss the question at hand.

[Absaroka]

“By contrast, code is what makes a machine work. It is part of a machine. It is not anymore “speech” than is a spring, a lever, or a transistor.”

So, the MIX code in Knuth’s books is more like a spring than language? As a computer nerd that seems way off base to me.

If I write an essay on ‘How to do a heapsort’ in English or Sanskrit or Esperanto, are you arguing that’s a spring rather than speech? What’s different if I choose MIX instead of Esperanto? The content of the essay is exactly the same whether I choose to write my essay in Urdu, MIX, Klingon, Gaelic or Fortran.

[Stephen Lathrop]

Absaroka, presumably your Esperanto essay can be processed by no compilers, and runs on no computers. Can MIX programs run on all computers, no matter how equipped? If not, what are the equipment requirements to enable compilation of a MIX program? Can a MIX program compiled on a computer which is not equipped to run the resulting code, nevertheless be run on some other computer which is so equipped?

[Robert Crim]

Irrelevant!

Why do computers not use good old-fashioned English? Because the language is imprecise. “Time flies like an arrow” — you actually could “teach” a computer to understand that, but as soon as you got to, “Fruit flies like an apple,” the computer will go nuts.

You selling (or giving) me a MIX program does not obligate me to run it on a computer. Absaroka’s point is that SOME humans can read the code just like some humans can read ancient Greek (which is all Greek to me). Machine language does not become language SOLELY for machines just because we call it “machine language.” My library contains at least one book on assembly languages. That does not make me an expert at reading them, but there are people who can. If that weren’t true, how would they have created the files in the first place (or written the book)?

[Jerry B.]

“Alexa, find me a nearby Cantonese restaurant”

[Absaroka]

I’m not sure you’re asking an intelligible question, but I’ll have a go.

“Can MIX programs run on all computers, no matter how equipped?”

Ummmm, no. Not all people speak Finnish, and not all computers run Cobol. I’m not sure why you think this matters?

” If not, what are the equipment requirements to enable compilation of a MIX program?”

Ummm, a compiler/assembler/interpreter?

“Can a MIX program compiled on a computer which is not equipped to run the resulting code, nevertheless be run on some other computer which is so equipped?”

Maybe you’re asking if cross compilers exist?

[ThomasD]

” code is what makes a machine work. It is part of a machine. ”

Code is no more part of a machine than Chinese is part of the room in Searle’s Chinese Room.

[JimT-Utah]

How to build a gun: Go to Speedy Metals. Buy a length of steel pipe with a 0.25″ bore and .125″ wall thickness. Buy or borrow a hammer.

To use: Put a .25 cal rim-fire round in the near end of the pipe. Point the far end of the pipe at the target. Hit the round with the hammer.

It’s a pretty poor-quality weapon, awkward to operate, but it’s functional. If you want match-quality accuracy, or military dependability, or a weapon you can use to feed your family for generations, you will have to do more, but the difference is in degree, not in kind.

Now, what were we talking about?

[Robert Crim]

“A gun is a machine for throwing balls.” — Oliver Winchester

[bernard11]

“There are moral questions about the proper scope of government power.”

Indeed there are.

There are also moral questions about making it easy for absolutely anyone – the mentally ill, sullen teenagers, violent felons, spouse abusers – to manufacture a gun – a real one, not a piece of pipe – that is completely untraceable, can evade metal detectors, and can, presumably, be easily destroyed by melting.

Are those of any concern?

[Absaroka]

“There are also moral questions about making it easy for absolutely anyone – the mentally ill, sullen teenagers, violent felons, spouse abusers – to manufacture a gun – a real one, not a piece of pipe – that is completely untraceable, can evade metal detectors, and can, presumably, be easily destroyed by melting.

Are those of any concern?”

How do you feel about the moral question of publishing instructions about cryptography that allow anyone – terrorists, racists, mass murderers, child pornographers – to do unbreakable cryptography, without any government backdoors or tracking whatsoever?

And to answer your question, I don’t think trying to suppress information about making guns is going to work, anymore than suppressing information about knifemaking is going to lower the availability of shanks.

Making guns just isn’t as hard as people seem to think. AFAIK, there aren’t online tutorials in making meth or cooking crack or burglary 101 or washing checks or making credit card skimmers, but doggone if people don’t figure it out.

[bernard11]

And to answer your question, I don’t think trying to suppress information about making guns is going to work, anymore than suppressing information about knifemaking is going to lower the availability of shanks.

That hardly answers my question. Are there, or are there not, moral questions here?

I understand that to gun fanatics – sorry, but it’s accurate – availability of guns is absolutely all that matters, but there are those who have other concerns as well. You ever get on an airplane?

[Robert Crim]

Well, I’ll answer you directly: No, there are not. Why? Because the moral question only commences when someone uses the plans to make a gun for the purpose of getting on an airplane and hijacking it to Cuba. And, there is no requirement up front that I even use the plans to make a gun.

Justice Douglas would have answered you in the following way: It is true that this knowledge can be abused, and that there are some people who will abuse it; but, the First Amendment requires that government use a scalpel, not a machete, when it seeks to limit speech. The Government’s efforts must be “finely tailored” to protect its “pressing” concerns, so that the innocent are not condemned with the guilty.

Anything less is an abrogation of fundamental liberty, and you don’t have to be a “gun nut” to understand that. I don’t believe, for example, that anyone has a right to possess thermonuclear weapons (but I do have plans for making thermonuclear weapons in my library).

The blueprints are neutral; moral questions do not arise until someone touches them.

[Absaroka]

I’m trying to understand your position. Let me ask a couple of questions:

1)There are books, videos, and what have you that describe how to use a cutting torch to cut metal. Heck, my local vo-tech teaches classes. This is information that can be used for innocuous purposes, or cutting into safes (to steal guns!). Does disseminating this information present moral problems?

2)There are books, videos, and what have you that describe how to pick locks (Feynman was a big fan). Again, this can be used for good or ill. Is it moral for the government to try and suppress lockpicking instructions?

I mean, I wouldn’t help some hinky person build a gun. I wouldn’t, say, teach someone to fly if, like the 9/11 pilot/students they said they didn’t need to know how to land. If someone came to me and said ‘I’m trying to write a crypto program so the police can’t find my kiddie porn’ I wouldn’t help them. But you seem to be arguing it’s immoral to publish lockpicking instructions or crypto programs in general. If so, I disagree.

[Social Justice is neither]

So abandon all civil liberties if it’s possible for anyone at all to abuse them? That seems to be your point.

After all, terrorists could discuss their plans (bye bye 1a) or hide the implements of their destructive plots (so bye by 4a). Now say you catch one should he be allowed to not cooperate (bye bye 5a).

It’s the precautionary principle applied to civil liberties, but only selectively applied.

[perlchpr]

AFAIK, there aren’t online tutorials in making meth or cooking crack or burglary 101 or washing checks or making credit card skimmers, but doggone if people don’t figure it out.

No. I agree with the rest of your points, but there totally are.

[perlchpr]

can evade metal detectors

OK, look. I get it. You’re concerned about people getting guns into places they shouldn’t have guns, for whatever reason.

But what the fuck do you people think the bullet is made out of?

[FlameCCT]

Moral questions only arise once a human decides how to use information, weapons, etc.

So please explain how morals attach to inanimate objects?

[Stephen Lathrop]

And one way to see the complexity is by considering two analogies and one near-future hypothetical:

Please. I promise I’ll read further if you promise at some point to forget about two analogies and one near-future hypothetical, and concentrate instead on the problem at hand.

Okay, now I’ll read the rest. Just had to get that off my chest.

[BillyG]

From a 1st amendment perspective, I see this as no different than distributing the files to create an effigy. Or the plans for creating anything else. Take out the gun, lets say it was a 3D model of Mohammed. Would there be any question distributing these files would be covered under the free speech clause? No.

[Max inux]

Bernstein v us circa 1998 about cryptography already did determine that code was speech… don’t forget the crypto wars!

[Brett Bellmore]

Let’s consider an analogy which I think gets at the core of this issue: Suppose Discussion Distributed creates and posts online files which will cause a 3d printer to print out a printing press..

Is banning the posting of the files a 1st amendment violation, or is it ok under the government’s power to ban postings facilitating dangerous acts? After all, a printing press can certainly be used to publish libel or incitement, and thus can be dangerous, even though it usually isn’t. And the computer instructions arguably aren’t themselves speech or publishing.

Oh, but wait, don’t people have a right to printing presses?

You can talk about the government banning the means of producing dangerous things, but guns are a dangerous thing people have a constitutional right to. So, I don’t see how that argument actually gets you anywhere, unless you’re already inclined to ignore the 2nd amendment.

[bernard11]

Let’s consider an analogy which I think gets at the core of this issue:

Think harder.

[Brett Bellmore]

My last sentence was largely addressed to you, Bernard.

[TwelveInchPianist]

I’m not sure why the first amendment should be read to be restricted to communications “between” humans, and not to situations where humans are located elsewhere in the chain of events. If I want to do X if Y, the government can’t keep me ignorant of Y, and if I create a system that does X if Y, there’s no reason for the government to keep my system ignorant of Y.

So if the government can’t prevent me, as a human, from acquiring the information necessary to move my extruder to a bunch of points that will cause a gun to be printed, I don’t see why it should be able to prevent me from providing such information to my machine.

[garysixpack]

What if they did a dramatic reading of the 3D printer file? Or printed it in a book or on a t-shirt? How about using the characters in the file to draw computer art? Pure 1st Amendment then? There are plenty of ideas from the CSS Descrambler folks. http://www.cs.cmu.edu/~dst/DeCSS/Gallery/

[ragebot]

How about if they printed it on a tie. Anyone here been around long enough to remember spending a double saw buck on a DCMA tie.

[BillyG]

I think you mean DMCA. And I’m old enough to have gotten a takedown C&D over DeCSS.

[TwelveInchPianist]

“why would there be a First Amendment problem with banning distribution of computer files that, when uploaded to a 3D printer, produce gun parts?”

Suppose the government bans distribution of computer files that, when uploaded to a 3D printer, produce gun parts. Then a 3D printer maker produces a printer that prints out a gun if some uploads a digital copy of the Koran.

And of course, you can easily modify such files so that they won’t produce a gun when uploaded to a 3D printer. The government would have to ban the informational content of such files, which would also prevent a human from recreating the file.

[Peter Dordal]

Software is not hardware. Software is expressive, and (relatively) easy to create and modify. I get the software-is-functional arguments in Bernstein v US and Universal Studios v Reimerdes, but (and here’s the Alexa argument) **the spoken word is now functional too**. (Actually it was functional before Reimerdes, when someone could visit a Mac-user coworker and speak “computer” … “reboot” … “yes”).

In Bernstein, the expressiveness argument pretty much won. It was Reimerdes, if I recall, that introduced the idea of a “content-neutral” restriction on software, in this case the deCSS package.

But this “content-neutral” idea was hopeless wishful thinking. DeCSS was banned for what it *does*, which is to say what it expresses. The ban on it was no more content-neutral than would, for example, be a ban on any speech which had the effect of undermining confidence in the President. Such a ban would also focus on the “functional” aspect of speech — its consequences — but the First Amendment disallows it. There is simply no feasible categorization of DRM-breaking software that is not based on the software’s expressiveness and content.

Peter Dordal, Loyola University Chicago CS Dept

PS: while I believe Wilson’s files deserve First Amendment protection, there is *no way* I am ever going to fire a handgun made of plastic.

[Peter Dordal]

PPS: Finally, yes, Cody Wilson’s 3D-printing files are not human-readable (I’ve tried). They’re like compiled software rather than source. But this is easy to fix: find a suitable high-level 3D-modeling language, and distribute the files in that form. Users will then “compile” them for their printers or mills.

[TwelveInchPianist]

I haven’t done much CAD or 3D printing, but presumably the files can be loaded in an editor and viewed and modified as well. So they are designed, in part, for human-to-human communication.

[Rossami]

re: “3D-printing files are not human-readable”

Sure, they are. You just have to be fluent in the language. Consider – can you read Mao’s Little Red Book or the Bible in their original formats? Not unless you are fluent in Mandarin and Aramaic respectively. They are still speech and still protected even though you don’t know the language. Consider alternatively – can you read any Word document at all without the aid of a computer and specialized software? Again, not unless you are fluent in the underlying language.

Trying to say that such-and-such is not “human-readable” merely because you don’t know how to translate it is flatly wrong. Note also that it doesn’t matter if only two people on the planet know how to write in ancient Sanskrit – their communications are still speech.

[FlameCCT]

While the big stink is about Wilson’s 3D files; the real target is his other files. Those files work with CNC machines like his Ghost Gunner. These files allow specific parts, like the 80% complete AR lowers, to be completed with precision using a CNC instead of hand tools. Not to mention the other firearms, especially handguns, that can be produced in the same manner using small CNC machined parts as well as purchasing other legal parts.

[turco]

” while I believe Wilson’s files deserve First Amendment protection, there is *no way* I am ever going to fire a handgun made of plastic”

And I would venture that most people who downloaded the code ( I did ) , do not intend to actually print a gun. Downloading the code is akin to saying “Screw you ” to the government, so in that way, I consider it a form of symbolic speech .

[perlchpr]

Absolutely. Even producing one is just a party trick. Actually firing one would be basically the ultimate Libertarian Macho Flash.

The entire point of the device is an intellectual exercise.

Now, in a world with better 3D printers, 3D printed AR-15 lower receivers might be a real thing. But an ABS lower AR-15 is hardly a “plastic gun”.

[TxJack 112]

Exactly. It would be as much of a plastic gun as a polymer pistol. You can already buy lowers for AR builds that are polymer. The majority of the gun is still metal because it has to be or it will explode.

[PublicName5]

Barring criminal intent, then it doesn’t seem too much worse than the hazards you wrote about in your paper, which are even less controllable. In general, if there’s no immediate foreseeable harm from the speech act itself (seizure induction, deceitful injury, etc), it would then seem information wants to be free and resistance is futile.

[PublicName5]

And how could I forget, the most important, alienation of affection.

[David Lawson]

So this is further complicated by that fact that the “code” to digitally print plastic gun parts is no different than the code in a CNC to mill gun parts out of aluminum.

[David Welker]

Here is a fully executable Java program:

public class ThisClassIsNotSpeech {
public static void main(String[] theseArgumentsAreNotSpeech) {
int thisVariableIsNotSpeech = 5;
System.out.println(“This output is not speech and the number that follows is not five.”);
System.out.println(thisVariableIsNotSpeech);
}
}

—-
This isn’t speech, right? Because this sequence of characters can also be read by a compiler, they are not speech.

So, based on this theory, if I built a compiler that took ordinary English sentences as input, then those ordinary English sentences would not be speech. Right? The ability of the sentence to control a computer would render the sentence unprotected.

So, what if I purposely designed a compiler that took the speech of someone I did not like and it generated machine code that was executable. Then that speech is not speech anymore and not protected by the First Amendment???

[Jerry B.]

Anyone reasonably conversant with 3D printing and the code needed to create designs could print a 3D gun based on the freely available pictures found on sites such as the Washington Post. Should there be injunctions against the Post?

[maximpbar]

Surprised no one continued the dialogue:

-Alexa, read this book and make me a gun.

-I’m sorry, Eugene. I’m afraid I can’t do that.

[FlameCCT]

-I found the following puns in the book…

[Robert Crim]

This may be thornier than you think: My Constitution says: “Congress shall pass no law…” Unless there’s some part of “no” I don’t understand, that includes JURISDICTIONAL laws; and, in federal court, jurisdiction can’t be manufactured from whole cloth. Agreement of the parties cannot create jurisdiction where none exists; a federal court has an absolute obligation to inquire into jurisdiction whenever it be raised.

And, that’s the bottom line here: Lasnik has no jurisdiction in the case; his order was a nullity from when he issued it.

Let’s put it another way: I’ve some books in my library which, by your own analysis, DEFINITELY would be on the no-no list, e.g., the Anarchist Cookbook. But, whatever value such might have for an actual terrorist, I’m no terrorist, and I have the book specifically to study those who are.

Which exposes the fundamental problem: The content of the instruction manual itself is neutral, and precisely because banning distribution of such materials inevitably harms innocent and guilty alike, such a ban violates the First Amendment. There’s no rule saying that, because I have 3-D printer instructions, I must use them to operate a 3-D printer — no more than there’s a rule requiring owners of the Anarchist Cookbook to make clothespin-trigger bombs for blowing up cops in their cars. That some people not only will but already have used the book to try to kill cops doesn’t neutralize the First Amendment problem.

[Chem_Geek]

Gun-grabbers want to burn books. Period.

This so-called “ruling” flies in the face of both the First and Second Amendments.

[perlchpr]

As a firearms enthusiast who is also a mechanical engineer, computer programmer, machinist, and “general guy who can speak English”, it’s your “option 3” that’s most concerning to me.

I could probably write machining instructions, in prose, in sufficient detail. that a well defined markov chainsaw attached to a CNC mill / lathe combo could turn into a functional, firing, firearm. (other than the heat treating, of course, which, obviously, I could also describe in sufficiently specific pure prose, but which the CNC mill / lathe could not perform the necessary operations.)

So… if I print those instructions in a book, can that book be burned banned in a world with good OCR and this sort of semi-AI?

[MaverickNH]

A hardware/software device capable of making something, the unproscribed use of which is illegal, or of doing something, itself illegal. Such devices are more than 3D printers. They are CAD/CAM-controlled lathes and mills, that can make a fully functional metal gun. They are self-driving cars that can be instructed to drive in a manner that runs over people (even safety features cannot overcome laws of nature and stop on a dime). They are DNA synthesizers that can make the genetic stuff that can turn common household germs into deadly bioweapons.

Is it the fantasized ease with which we could say “Alexa, make me a machine gun” before bedtime and your $299 3D Printer will will have a shiny new one waiting for your planned mass murder next morning?

Cyberhackers and cybersecurity experts must be giggling at the whole issue, knowing the right bits of code can disable our electric grid and send us back to the Stone Age within a week.

[jbsay]

Our constitution to a significant extent reflects a fundimental proposition.
That government is denied all power that is not explicitly permitted to it, and that individuals have by right all freedoms that are not explicitly denied to them.

Far far too much of our modern constitutional analysis starts as Volokh does with the presumption that absent a clearly and narrowly defined individual right government may restrict us as it pleases.

Prof. Volokh’s analysis is telling – because most everything can be looked at multiple ways and as we progress the distinctions will become even smaller.

The lines between hardware and software are increasingly blurred. Nearly all computer hardware today – including the CPU’s themselves are created by software. I can write the code that creates a CPU or a video card. Further I consider my particular “design” of a CPU or some other devise to be an expression of my artistic skills as well as my engineering skills.

[jbsay]

Cody Wilson did not seek a battle with the government over the right to make your own guns.
Wilson’s objective was to establish our right to make anything we want.

Star Trek like replicators are within the foreseeable future.
Today we can ask a computer to make us an AR-15, tomorrow Lysergic acid diethylamide.
Nor is this just about making “dangerous” things that some – right or left do not like.
If you can make your own LSD you can also make cancer drugs or anti-biotics.

We will have the ability in the not too distant future to make in our homes all the things govenrment has restricted our access to.

We can decide now whether we will accept that and grasp that it will be impossible to prohibit,
or we can fight. But we can not hold back the tide.

Debating legal inannities regarding the first amendment is tangential futility.

[jbsay]

Defense Distributed has made it self evident that anyone who can afford to – and that cost will continue to decline can build untraceable weapons. But Colt 1911’s are the tip of the iceberg.
Most of what we will be able to make in the near future will be uncontroversial.
But freedom always includes the freedom to do things others do not approve of.

Prof. Volokh’s analysis is interesting, but it is ultimately going to be irrelevant.
Even if these changes come more slowly than I foresee – they are inevitable.
We may or may not fully except them, but we can not stop them.

We can continue to make the mistakes of alcohol and drug prohibition and gun control,
but like all preceding efforts at prohibition and control many of us will not be controlled or prohibited regardless.

[TxJack 112]

Please explain to me how downloading this code is any different than purchasing a copy of the Anarchist’s Cookbook which has instructions for making plastic explosives and other weapons? The only difference I see is anti-gun zealots see a chance to whip up hysteria about an non-issue by claiming it is something it is not. Besides, look at the physics involved. 3D printers make items out of ABS plastic which as a melting temp of 221 degrees. The ignition temp of gun powder is 800 degrees. HELLO, MAJOR PROBLEM!!! Second, the internal pressure created by even a low power 9mm round in over 23,000 PSI. Just because something is possible, that does not mean it is practical or even wise.

[RockerOne]

Abbie Hoffman’s STEAL THIS BOOK would be a sterling point of comparison with this aspect in future pieces. Keep up the excellent reporting.

[Bill B]

This issue has been raised before. Universal City Studios, Inc. v. Reimerdes.
The issue was the distribution of source code (DeCSS) that could be compiled and used to circumvent scrambling of DVD content. One of the participants in the case wore a T shirt with the source code written on it. The judge, as I recall, was clearly of the opinion that the text on the shirt was protected by the First Amendment. Nevertheless posting the same text on the internet was subject only to intermediate scrutiny, and the injunction was upheld.
Bill B

[TSMG]

That’s a different issue: an IC claim was being made, while no such claim is made here. The same argument would apply if someone published somebody else’s protected book.

[Mike d]

What if I add “//” before each line of code, or going the lazy route just “/**” …. “**/” and publish that modified version.

I might even add “fyhhu6yrtbhgh” just for the hell of it, and then the code won’t compile. It’s not MY fault people would make the code work on their own machined.

[Ghost on the Highway]

I bet you can’t find bomb making instructions on the internet

[TSMG]

Thanks for this, I hadn’t considered it in this way. I don’t think that anyone is making the case that governments can bar or restrict creative activity that could be seriously dangerous. The real issue is that it doesnt. It is lawful to manufacture unregistered arms for personal use. A CNC machine for said purpose and an instruction manual on how to so so are permitted.

Lowest common denominator speech rights like “Chinese citizens aren’t allowed to read the speech, therefore Americans lose access to it” are perverse and even more dangerous precedent.

[TSMG]

Can’t bar*

[Mike d]

Let me know if I have this straight. If I write a book that prints out the source code / instructions on paper, which would then force the end user to manually type in the code into their 3d printer, that s covered by the 1st Amendment (but the owner of the book breaks the law by typing in the code).

What if I sell / give away the book as a .txt, .Doc, or .Docx file? That’s still covered?

Renaming the extension so that the 3d printer can read it is where the line is?

[bc15]

The public meaning of software is “programs and other operating *information* used by a computer”. The public meaning of “program” is “a list of *instructions* that tell a computer what to do”. So, software comprises instructions and information. That would seem to imply that (2) comes closest to being correct. In fact, software is not *like* an instruction manual; software *is* a set of instructions. Indeed, a computer program is “written in a programming *language*”. Under the public meaning of language, something written in a language would seem to constitute speech.

Humans created programming languages so there exist (or existed in the past) at least some humans that understand how to communicate through such languages, even if such humans may require the assistance of computers or other devices (e.g., a compiler) to produce or translate speech in such languages. Is a .pdf file of an article about Tiananmen Square protected speech even if humans require the assistance of a computer to translate the file into English or Chinese? I would hope so.

[bc15]

Regarding (1), it’s not so much that software is like hardware as (some) hardware could be like software if it contains communicative qualities. Art is an example of a physical object that could still be considered speech.
So, some hardware could be considered speech, for example, instructions burned permanently into an FPGA or ASIC. So, non-speech hardware is like speech hardware in that both are hardware, and speech hardware is like speech software in that both are speech. It does not follow, however, that speech software must therefore be like non-speech hardware, i.e., transitivity does *not* apply. Thus, showing that some hardware has the same speech-like qualities as software does not imply that software is not speech simply because other hardware is not speech. Regarding the specific example in (1), if the “hardware device” is a cartridge similar to the old video game cartridges (e.g., Atari 2600), it doesn’t seem clear at all that such a cartridge would not be protected speech, especially if a cartridge’s contents could be decompiled into human-readable source code. Old vinyl records would be an example of an attachable “hardware device” that would seem to constitute protected speech, even though (most) humans would not be able to understand the contents without the assistance of a machine.

[taker]

After reading this, I recognize once again the tragedy of the law: It cannot be fixed, it is terminally broken.

Cody Wilson being a smart cookie likely realized this early in his abbreviated law school undertakings and went directly to the one thing that always works: bullets.

Lawyers, guns and money. Choose two…

[Nirmal12]

good information

[robertjohn5803]

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