The Constitution And The 3D Printed Plastic Pistol

Posted: May 16, 2013 in GT, Guns
Tags: , , ,

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.

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