Texas Law Shield would like to advise our members that Texas-based Defense Distributed, the Austin-based company that has published a 3-D printable gun code online, filed a complaint in federal court last month against Secretary of State John Kerry, the Department of State and other federal officials, seeking to stop the government’s censorship of information related to the three-dimensional printing of arms.
The lawsuit, Defense Distributed et al v. U.S. Dep’t. of State, asserts the defendants are unlawfully applying International Traffic in Arms Regulations (ITAR) to prevent the plaintiffs from exercising in free speech on the Internet and other forums. ITAR “requires advance government authorization to export technical data,” the complaint asserts. There are criminal and civil penalties for violations, ranging up to 20 years in prison and fines of up to $1 million per violation.
The Government’s restraint against the publication of this critical information, under the guise of controlling arms exports, violates the First Amendment right to free speech, the Second Amendment right to bear arms, and the Fifth Amendment right to due process, the lawsuit alleges.
Defense Distributed began to make its data, compiled from publicly available information, available for free on the Internet in December 2012. The data was code needed to operate a milling machine called the “Ghost Gunner.” Then, in May 2013, Defense Distributed received a letter from the State Department alleging that the group was illegally exporting technical data. The State Department warning said Defense Distributed “may have released ITAR-controlled technical data without the required prior authorization from the Directorate of Defense Trade Controls (DDTC), a violation of the ITAR.”
Owner Cody Wilson pulled down the files to comply with the State Department letter. Then in June 2013, Defense Distributed submitted the published files to DDTC for review. DDTC said the machine does not fall under ITAR, but that software and files are subject to State Department jurisdiction. So owner Cody Wilson sued in May 2015.
It appears that the State Department’s takedown threat may qualify as a prior restraint, and the courts are hostile to such censorship. A similar case that seems to be on point here is Bernstein v. U. S. Department of State a 1997 matter in which the government sought to stop encryption code from being published in an academic journal.