The Constitution And The 3D Printed Plastic Pistol

Last week, the State Department’s arms export office demanded that Defense Distributed remove CAD files for the Liberator from its website. Defense Distributed complied with the takedown letter right away, despite strong language on its website promising it would be “a home for fugitive information” and “No object file will be censored unless it is malicious software.” Predictably, it didn’t take long for the CAD files to make their way to BitTorrent, where they’ll be available forever.

It’s worth reading the letter from the State Department, which is only two and a half pages long. In a nutshell, the letter demands the takedown while it decides whether publishing firearms-related CAD files online violates ITAR. ITAR, which stands for the International Traffic in Arms Regulations, are rules that the State Department promulgated under the Arms Export Control Act. One part of ITAR is the United States Munitions List, which is a master list of products and technologies that can’t be exported without prior government approval under a licensing system. Because Defense Distributed didn’t seek an export license, there’s a problem.

Are CAD files munitions? The State Department believes the Liberator files fall under the Category I of the US Munitions List, which covers firearms and related “technical data.” Section 120.10 of ITAR says “technical data” includes “blueprints, drawings, photographs, plans, instructions or documentation” about “the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles” — so that appears to cover CAD files for Indoor Positioning System.

Unsurprisingly, Defense Distributed is already saying (melodramatically) that it will fight the takedown demand: “It seems we may have to have our rights declared in court to simply keep developing gun files to put into the public domain. DD’s right to exist is being challenged.”

What will probably happen next is that Defense Distributed will apply for an export license, which the State Department will deny, and Defense Distributed will sue to get a judge to issue an order that the State Department can’t block it — and that is where things will get interesting.

It’s worth reading the letter from the State Department, which is only two and a half pages long. In a nutshell, the letter demands the takedown while it decides whether publishing firearms-related CAD files online violates ITAR. ITAR, which stands for the International Traffic in Arms Regulations, are rules that the State Department promulgated under the Arms Export Control Act. One part of ITAR is the United States Munitions List, which is a master list of products and technologies that can’t be exported without prior government approval under a licensing system. Because Defense Distributed didn’t seek an export license, there’s a problem.

Are CAD files munitions? The State Department believes the Liberator files fall under the Category I of the US Munitions List, which covers firearms and related “technical data.” Section 120.10 of ITAR says “technical data” includes “blueprints, drawings, photographs, plans, instructions or documentation” about “the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles” — so that appears to cover CAD files for guns.

Unsurprisingly, Defense Distributed is already saying (melodramatically) that it will fight the takedown demand: “It seems we may have to have our rights declared in court to simply keep developing gun files to put into the public domain. DD’s right to exist is being challenged.”

What will probably happen next is that Defense Distributed will apply for an export license, which the State Department will deny, and Defense Distributed will sue to get a judge to issue an order that the State Department can’t block it — and that is where things will get interesting.

I predict the Constitutional wrangling will focus on the First Amendment, not the Second. (For foreign readers, the First Amendment to the US Constitution provides extremely strong protections for citizens’ freedom of speech, and the Second Amendment provides a right “to keep and bear arms” — although the language is a mess and reasonable people disagree on how to interpret it.) This is going to spawn some strange bedfellows: I would not be surprised to see the NRA and ACLU on the same side in this fight.

Why is this a First Amendment case? One of the issues is whether the government can prevent citizens from publishing gun blueprints. A big gateway question, though, is how to characterize Defense Distributed’s CAD files in the first place. Is a CAD file expressive speech that should be protected, or a functional thing that should be regulated? This distinction is important because the government has tremendous power to regulate things, but far less power to regulate speech. When courts first started to come to grips with software, they came out on the side of protecting it as speech despite its functional aspects, but they might view 3D printing files differently because when you “run” them, you get things.