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The Constitution And The 3D Printed Plastic Pistol

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By now, you have probably heard about the Liberator, a 3D printed plastic gun designed, assembled, and test-fired by Cody Wilson of Defense Distributed. Is it legal?

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.

Angle 1: Arms Control

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.

Angle 2: Gun Control Laws

Because the Liberator is made mostly of plastic, Defense Distributed also has to contend with the Undetectable Firearms Act. This law, first passed in 1988 and renewed in 2003, makes it illegal to “manufacture, import, sell, ship, deliver, possess, transfer, or receive” any firearm that can’t be detected by x-ray machines. Gunsmiths with a federal firearms license (Wilson has one) can build guns to test them for compliance, but other than that, undetectable guns are completely contraband. Wilson packaged the CAD files with detailed instructions, including an admonition to DIYers to include a block of metal in a hole specifically included in the design for that purpose. It’s up to the person doing the printing to comply, though. If you don’t put the metal block in, you could be in big trouble. It is probably just a matter of days until the ATF or FBI start knocking on the doors of people who’ve already started posting pictures of their 3D printed guns online.

Notably, the Undetectable Firearms Act bans the atoms, but not the bits: you can possess CAD files for an undetectable firearm without violating it. That’s an easy legislative patch, but it will run into free speech problems.

Angle 3: First Amendment Meets Second Amendment

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.

President Clinton’s Executive Order No. 13026 relaxing the crypto ban (more on that below) recognized the speech–functionality distinction:

Because the export of encryption software, like the export of other encryption products described in this section, must be controlled because of such software’s functional capacity, rather than because of any possible informational value of such software…

In addition to the CAD files themselves, there is also Wilson’s act of publishing them. Is the act of publishing a functional gun blueprint speech? Two Supreme Court free speech cases give a partial roadmap.

The first is United States v. O’Brien, in which the Supreme Court upheld a criminal conviction for burning a draft card. The Court found the defendant’s conduct was expressive, but still upheld his conviction because the law under which he was prosecuted — a prohibition on destroying draft cards — had justifiable military purposes that outweighed his free speech right. One could see courts today taking a similar path by finding that the government’s interest in controlling the flow of firearms and military information outweighs Defense Distributed’s right to publish gun design files.

The other is the Pentagon Papers case, New York Times v. United States. There, the New York Times sought to publish damning internal Pentagon documents about the Vietnam War. Even though the material was directly related to national security, the Court allowed the New York Times to go forward, finding the newspaper’s speech interest was greater than the government’s interest in preserving the confidentiality of classified information. The case helps Defense Distributed to the extent it struck down a prior restraint on speech, but publishing proof-of-concept plastic pistol blueprints is not in the same league as exposing government misconduct.

The Crypto Cases

This isn’t the first time courts have had to sort out the mess when innovation hurtled into arms control law and the First Amendment. The US Munitions List used to cover a wide range of cryptography software, a restriction only relaxed in 1996 by an Executive Order by President Clinton — who, even then, perhaps, realized the futility of censoring the spread of code. Before that, though, PGP creator Phil Zimmerman was criminally investigated, but never charged, for violating ITAR. The issue made its way to the courts in 1997 in Bernstein v. US Department of State, where Daniel Bernstein, a UC Berkeley computer science researcher, sued to be allowed to publish his cryptography research, which included working code. Judge Marilyn Hall Patel of the U.S. District Court for the Northern District of California found that it was unconstitutional for the government to prevent Bernstein from publishing his crypto software. Judge Patel held that blocking Bernstein’s publication amounted to a prior restraint on his speech that violated the First Amendment.

Defense Distributed will likely follow Bernstein’s path. The State Department’s takedown demand probably qualifies as a prior restraint, to which courts are incredibly hostile. But the ability to download a file, press “Print,” and have gun parts come out could also tip some judges toward calling gun CAD files functional things and allowing the government to regulate them.

Just Because You Can Doesn’t Mean You Should

There’s more to this than law, however. There is also ethics and common sense. Even if you can publish 3D-printable gun blueprints, should you? What are the consequences of doing it?

Nobody in the 3D printing industry is going to thank Wilson for bringing heat from the State Department and Congress. Wilson’s stunt could well lead to new restrictions and regulations on the nascent digital manufacturing industry, even before it has had a chance to figure things out for itself. (Scaremongers like these clowns won’t help either.) And for what? The Liberator isn’t about to liberate anybody — it will probably melt or explode after one or two shots. Given the Bernstein case, even if he wins, Wilson may not even be breaking any new legal ground.