Several news organizations are reporting today that the U.S. Government, through the Department of State, through the Directorate of Defense Trade Controls (DDTC), sent a letter to the organization Defense Distributed, requesting the immediate removal of several "data files" (in their words) off of their DEFCAD website that they claim violate federal law, including the plans for the "Liberator" 3D-printed handgun. The letter was phrased in the manner of a request, but one can be sure that sanctions would follow should Defense Distributed simply ignore the letter. (The Atlantic Wire was kind enough to post the letter in question, available for download here.) Defense Distributed has complied and removed the files from 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's hard to argue with the conclusion that the Department of State just threatened to punish Defense Distributed for disseminating information about how to make a 3D-printed gun (at least, without asking the government's permission first). And as tempting as it is to use this as a launching point for the code-as-speech debate, this case is not even that nuanced. The target here was not the executable object code of software; what DEFCAD was hosting were "computer aided design" or CAD files, which are to design blueprints what Word files are to books. Their regulation by the government is obviously and inherently done for the expressive content that they convey.
But before doing a full First Amendment analysis one should start with the crime alleged. The letter cites 22 U.S.C. § 2778, the law authorizing the President to "control the import and export of defense articles and defense services" by creating a list of such articles and services (the "United States Munitions List") and creating a licensing regime around them. The regulations promulgated by the Department of State have long extended the application beyond the physical items and into the informational: 22 C.F.R. § 120.10 regulates the export of "technical data," defined as information "required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles." Important exceptions exist, however, for information in the "public domain" (defined here as information available to the public through sales "at newsstands and bookstores," through publicly-accessible trade publications, through public libraries, and a few other needlessly technical avenues), as well as information "concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities." As patent doctrine so often cautions, one should not mistake the first application of knowledge with the discovery of the relevant knowledge itself. I'm not sure there's much in the components of this gun that a gunsmith doesn't already understand. It is therefore possible that this information is outside of the claimed authority altogether, which would make this a very short blog post.
Courts considering the First Amendment application to "technical data" exportation regulations have held that the fact that the restriction is applied to international trade is quite material. The leading authority on point is a 1978 case from the United States Court of Appeals for the Ninth Circuit, raised in the context of exporting blueprints for missile cases. The court upheld punishment notwithstanding a First Amendment challenge, but only after adopting a narrow framing of this statute and holding that the prohibition on the distribution of this information was a permissible "incidental limitation" on speech, suffered as a consequence of the governments legitimate authority to regulate "international arms traffic." Even then, the court seemed inclined to apply the law to raw information only if the defendant knows it is to be used for military purposes. In his The First Amendment and the Export Laws (58 Geo. Wash. L. Rev. 368, 381 (1990)) Allen Shinn notes that, following this case, the Department of Justice limited application of the law to circumstances where the government could show a specific arrangement with a foreign party. (I don't know if the past twenty years has eroded that prudent limitation.) A 1989 Ninth Circuit case and a 2012 Ninth Circuit case reapplied the doctrine to later dissemination of technical data to foreign powers; these cases analyzed the application of the law under United States v. O'Brien's speech/conduct distinction, which I think is a completely inappropriate place to begin, but even if you accept that, the limitation still only appears valid when giving technical data to foreign powers directly.
If the law only survives First Amendment scrutiny under such obviously international applications, and only applies to technical data beyond the scope public knowledge, it clearly should not apply to the work of Defense Distributed. In fact, there's something profoundly dangerous in the Department of State's attempt to draw this within the scope of its authority. The letter to Defense Distributed, and the law under which the letter claims authority, clearly contemplate the international trade of arms, and asserts the power Congress has given to the Executive Branch to regulate importation and exportation of arms. I don't see the justification for that position beyond the fact that Defense Distributed is publishing on the Internet. If our government takes the position that all material published online is treated with the scrutiny we used to reserve for international defense contractors, we have just placed severe limitations on persons Congress never sought to control when it passed these international trade statutes. We simply cannot justify limitations on freedom as necessary for foreign affairs, only to turn around and apply such restriction to obviously domestic conduct.
II. Plans for Undetectable Firearms and the First Amendment
There is another layer of potential criminality here as well, although it has not yet been asserted against Defense Distributed. Namely, the plans appear to be for the creation of a device which itself might be proscribed under the law. 18 U.S.C. § 922(p)(1)(A) declares it unlawful for "any person to manufacture, import, sell, ship, deliver, possess, transfer, or receive any firearm" that is not detectable through walk-through metal detectors to the same level as a "Security Exemplar" created at the direction of the Attorney General for testing of detection equipment. The "Liberator" handgun was designed to include a six-ounce steel cube inside it in order to avoid this issue, but the plans themselves do not require its inclusion, and thus could easily be used to create an unlawful undetectable gun. What, then, should be the culpability of the person that tells you how to create the prohibited object? What if instead of the State Department issuing such a letter it was the FBI arresting Defense Distributed members for aiding a § 922(p)(1)(A) violation?
This is a question of considerable precedent, though less straightforward than one may initially expect. In the realm of advocacy for criminal activity, we have the very high bar put forth by the Supreme Court's Brandenburg v. Ohio case, which prohibits the punishment of advocacy of unlawful conduct except when there is both an intent on the part of the speaker for the listener to engage in said unlawful conduct and it is likely that the advocacy will result in imminent unlawful action. While this is the most direct case on point for crime-inducing speech, some courts have endeavored, either explicitly or implicitly, to identify a separate category for speech that facilitates a crime instead. Some courts have found that such "crime-facilitating speech" (to borrow a phrase from Eugene Volokh's excellent article on the topic) might be punished under a lesser standard than Brandenburg. Other courts hold true to Brandenburg, and the Supreme Court has yet to weigh in and indicate which is correct.
A classic example of the lesser standard is Rice v. Paladin Enterprises, a case concerning a book called Hit Man: A Technical Manual for Independent Contractors. While delivered in the form of narrative fiction, the book provides detailed instructions on how to kill undetected, and an individual named James Perry followed such instructions to the letter when killing three individuals as a paid hitman. In the subsequent wrongful death lawsuit, the United States Court of Appeals for the Fourth Circuit rejected application of Brandenburg, finding it limited solely to "advocacy" of crime, and instead found that this could be punished as the aiding and abetting of a crime, at least where (as the parties had stipulated there) the author knew and intended that the information be used for the commission of murder. (The strategy behind such a damning concession is lost to history.) The limited nature of the holding has been used by other courts to avoid its application, and several other circuits have rejected this narrowing of Brandenburg.
Another past example is the The Anarchist Cookbook, which quite famously contains instructions on how to create all sorts of devices of destruction and chaos, many of which are prohibited by law. Despite the book's 40-year history, however, there are no major cases addressing the constitutionality of The Anarchist Cookbook. A FOIA request for FBI information related to the Cookbook reveals a memo from the Assistant Attorney General Robert Mardian to FBI Director J. Edgar Hoover (page 123 of the PDF), wherein the Attorney General's office could not find a federal law that the mere publication of the Anarchist Cookbook violated, though they did not opine on whether a law that did criminalize the publication of such books might pass First Amendment scrutiny. The application of the First Amendment to such generalized information is coming back into public debate; reports seem to agree that the Tsarnaev brothers used Internet instructions for the pressure cooker bombs used in the Boston attacks last month, and one can only assume a corresponding demand will be made for the restriction of such speech online.
But assuming the Brandenburg provides the proper standard for this case, any punishment of Defense Distributed's members would have to show both that they intended that this technology be used to make unlawfully undetectable guns and that such unlawful manufacture was imminent. There are reasons to doubt the government's ability to do either. It is worth mentioning again that the gun includes within its conception a steel cube which would avoid the undetectability issue. This does not mean, of course, that Defense Distributed does not intend to have users make guns that do not include that cube, but it's at least circumstantial evidence to suggest the opposite. Beyond the question of intent, the question of "imminence" in the context of online speech is one that plagues scholars, and given the considerable length of this post it's a discussion best left for another day. It is safe to say that the deployment of a CAD drawing to a 3D printer is about as imminent as one can get online, though it is not the mere minutes or hours that one could assume is the standard from Brandenburg.
III. First Amendment Policy and the "Liberator" Handgun
There are also considerations that go deeper than the dry application of the law as it stands today – which I do think favors Defense Distributed both in the scope of the statute and the First Amendment rights at stake. I'd like to explore the policy of the doctrine as well.
It may seem counterintuitive, but there are good reasons for our reluctance to prohibit the dissemination of information on how to commit crimes. Volokh's aforementioned article notes several. To begin with, the description of crimes may instruct law-abiding citizens on how not to run afoul of the law. This is laughable when considering instructions for murder, but it is quite important when considering discussions of tax evasion, or producing handguns that may or may not trigger liability under the Undetectable Firearms Act. It can also train citizens on how to be aware of the commission of crimes – for example, knowledge about frauds and scams can help a person detect when someone is trying to scam them, and knowing the material components and construction of a (possibly) illegal firearm can better inform the public about what to look out for in the world. Turning to more Miklejohnian justifications, instructions on how to commit crimes can greatly inform the public as they debate the proper nature and scope of punishment under the law. If our tortured history of the Computer Fraud and Abuse Act teaches us anything, it's that Congress can do great harm to our justice system if they do not understand what they are criminalizing. Beyond the serious, one must also consider the more inarticulable desire to understand the world around us. The truth is many people (including me, and I'm willing to bet a lot of you) have read The Anarchist Cookbook out of mere curiosity. We like "true crime" as a genre and complain when movies are unrealistic in portraying a heist or hit. Something less obvious, less weighty and serious, but no less significant is lost when we starve the public's curiosity because we worry about what people may do with the information learned.
I'll freely admit that it's hard to keep these good things in mind when considering a new and uncertain evil. Owen Fiss makes an important observation at the beginning of his The Irony of Free Speech that a lot of the legendary 1960s First Amendment cases – while dressed in the trappings of an existential crisis – were actually rather tame occurrences. The speech in Brandenburg was not the out-and-out call for armed rebellion it is made out to be; it was a gathering of a dozen racists on an Ohio farm where Clarence Brandenburg said, "we're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken." The greatest violence he did that day was to the dictionary. The triviality of the harm was dispositive in Watts v. United States: an 18-year old at a public rally saying, "I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is LBJ." The Pentagon Papers, as power an image as they are, were at heart a history of unethical and perhaps unconstitutional behavior of since-gone presidential administrations, circulated after a new President took office. Again, the urgency of the case is made larger in hindsight. Paladin Enterprises is, of course, the counterfactual and the counter-result: a triple homicide was directly linked to book at issue, and the court found a way to punish that activity. It is this fear of the existential crisis that leads me to worry that a court considering the "Liberator" gun would strain to punish this activity notwithstanding First Amendment doctrine and policy.
So as we assess the danger here we should be mindful of what happened to Hit Man after it was adjudicated to be unlawful in Paladin Enterprises: it found its way to the Internet, and is now freely available on the Pirate Bay, right alongside The Anarchist Cookbook and the blueprints for the "Liberator." And we can take some comfort in knowing that the Anarchist Cookbook's instructions for making a zip gun and the Hit Man's instructions on how to use it have not combined to form a pandemic of murder. We should keep that in mind when we think about the "Liberator."
And if I could truly have my way (and with no small sense of irony after this lengthy post), I would urge the courts, the legislatures, and the public to ignore Defense Distributed's handgun altogether. It distracts from the actual issues surrounding America's profound problem with gun violence. In our dreams of a 3D-printed arsenal we soon forget that the "Liberator" cannot be made using something as simple as a MakerBot in someone's basement. This requires a 3D printer costing thousands of dollars and over a hundred dollars in raw material in order to build a gun that will probably only fire once before melting. Meanwhile, This American Life reported a few weeks back that the black market rate for a real handgun in Chicago can be as low as $25. To put it bluntly, we will see far more handgun deaths due to black market firearms this week than we will see from 3D printed guns in our entire lifetime.
Andy Sellars is a staff attorney at the Digital Media Law Project, and the Corydon B. Dunham First Amendment Fellow at the Berkman Center for Internet & Society. Thanks to Jeff Hermes, Phil Malone, and Kit Walsh for their thoughtful input.