Remember Defense Distributed? That’s the group that, in 2013, posted files on the Internet that would allow anyone to 3-D–print a plastic single-shot pistol (with a metal nail for a firing pin). The files were downloaded more than 100,000 times in two days. Depending on who you are, you probably thought that was either extremely cool or terrifying.
The U.S. State Department got involved. It ordered Defense Distributed to remove the files from its website and submit them for an agency review of whether posting them without governmental approval violated export control laws. Two years later, the open-source organization is still waiting for an answer.
In May, tired of languishing in legal limbo, Defense Distributed sued the State Department for treading on several of its constitutional rights, including its First Amendment free speech protection. In response, the agency has made its position crystal clear by way of a proposal to make its prepublication authorization requirement explicit in the regulations. And if you make things for fun or profit, that requirement might affect you, regardless of whether you think 3-D–printed guns are a horrible idea.
But before we get to that, a bit more backstory.
The International Traffic in Arms Regulations are heavy-duty export controls—think big fines and possible jail time—on defense-related products, services, and information. Information, which is called “technical data,” includes facts and figures required to make ITAR items or do pretty much anything of practical value with them. And those items aren’t limited to guns. Among many other things, they include drones, spacecraft, night vision goggles, and radar systems, plus associated parts, components, and software. (Full disclosure: As you may have guessed by now, I’m an export controls lawyer.)
Technical data can assume any form that information takes, which makes it way too easy to accidentally export the wrong thing. Emailing a design file to a friend overseas, posting a bill of materials to a website, simply giving instructions to a foreign national in the United States—these are all exports under the ITAR. And exports under the ITAR almost always require State Department licensing that some countries (like China) and their nationals aren’t even eligible for.
There are a few exceptions to what constitutes “technical data.” One of these is information in the “public domain,” which bears little relation or resemblance to the copyright concept you’re probably familiar with. The ITAR version is currently limited to information broadly available in mostly pre-digital formats. The content in a book at your city’s sole surviving Barnes & Nobles, for example, isn’t ITAR technical data, even if it gives very specific information about guns or drones. But obviously modern technology allows us to spread information in plenty of ways that don’t require dead trees and ink.
Which brings us back to the State Department’s new rule. In it, the agency proposes to expand the definition of “public domain” beyond tangible media to encompass unclassified information in any form, provided that it is accessible to the public to share without restriction. The rule also heads off potential abuse (or utility, depending on your perspective) by proposing to codify a requirement that would-be sharers first obtain U.S. government approval before releasing technical data to the public—the exact type of prepublication authorization requirement that Defense Distributed will likely argue is unconstitutional. Additional details on the rule are available here. Here’s a corresponding one for the Commerce Department’s Export Administration Regulations, which have a broader public domain allowance and apply to almost everything the ITAR don’t. Neither is final yet, and both are open for comment until Aug. 3, 2015.
You have to wonder if Daniel Bernstein will be among those offering an opinion. In 1992, Bernstein was a Ph.D. candidate at the University of California, Berkeley, interested in publishing encryption source code he developed.* He asked the State Department if doing so would require an export license, and when the agency told him yes, he sued. Bernstein filed his case in 1995, arguing that the authorization requirement violated his right to free speech under the First Amendment. Taking on the persona of David, he beat his Goliath both in district court and on appeal. Defense Distributed might want to check and see if he was generous enough to post the designs for his slingshot anywhere online.
*Correction, June 11, 2015: This post originally misspelled Berkeley.
