3D Printed Guns and the First Amendment

Severalnewsorganizationsare reporting today that the U.S. Government, through the Department ofState, through the Directorate of Defense Trade Controls (DDTC), sent a letterto the organization DefenseDistributed, requesting the immediate removal of several "datafiles" (in their words) off of theirDEFCAD website that they claim violate federal law, includingthe plans for the "Liberator" 3D-printed handgun. The letter wasphrased in the manner of a request, but one can be sure that sanctions would follow should Defense Distributed simply ignore theletter. (TheAtlantic Wire was kind enough to post the letter in question,available for downloadhere.) Defense Distributed has complied and removed the filesfrom their website, but has indicated that they will "appeal." In this case, that appears to mean requesting a formal determination from the DDTC as to the status of the files in question, which could provide the basis for further legal review.

There's a lot to unpack in this story. Let's talk law first.

I. Data Exports,International Arms Trade, and the First Amendment

The obvious concern this action raises is one of free expression. It'shard to argue with the conclusion that the Department of State justthreatened to punish Defense Distributed for disseminating informationabout how to make a 3D-printed gun (at least, without asking the government's permission first). And as tempting as it is to usethis as a launching point for thecode-as-speech debate, this case is not even that nuanced.The target here was not the executable object code of software; what DEFCAD was hostingwere "computeraided design" or CAD files,which are to design blueprints what Word files are to books. Theirregulation by the government is obviously and inherently done for theexpressive content that they convey.

But before doing a full First Amendment analysis one shouldstart with the crime alleged. The letter cites 22U.S.C. § 2778, the law authorizing the President to "controlthe import and export of defense articles and defense services" bycreating a list of such articles and services (the "UnitedStates Munitions List") and creating a licensing regimearound them. Theregulations promulgated by the Department of State have longextended the application beyond the physical items and into theinformational: 22C.F.R. § 120.10 regulates the export of "technicaldata," defined as information "required for the design, development,production, manufacture, assembly, operation, repair, testing,maintenance or modification of defense articles." Important exceptionsexist, however, for information in the "public domain" (definedhere as information available to the public through sales "atnewsstands and bookstores," through publicly-accessible tradepublications, through public libraries, and a few other needlesslytechnical avenues), as well as information "concerning generalscientific, mathematical or engineering principles commonly taught inschools, colleges and universities." As patent doctrine sooften cautions, one should not mistake the first application ofknowledge with the discovery of the relevant knowledge itself. I'm notsure there's much in thecomponents of this gun that a gunsmith doesn'talready understand. It is therefore possible that this information isoutside of the claimed authority altogether, which would make this avery short blog post.

Courts considering the First Amendment application to"technical data" exportation regulations have held that the fact that therestriction is applied to international trade is quite material. The leading authority on point is a 1978 case from theUnited States Court of Appeals for the Ninth Circuit, raised