EFF has filed a brief in Defense Distributed v. Department of State, a case that could push forward recognition for the hard fought principle that publishing computer files that communicate information, even in an esoteric format, is speech protected by the First Amendment. In our brief, we argue that the government has gone too far by restricting online speech generally about certain technologies, and requiring would-be publishers to ask for a license to speak—in a process with no binding standards or meaningful government deadlines and no judicial oversight.
The underlying legal ideas stretch back to one of EFF's earliest major legal victories. Twenty years ago, in Bernstein v. U.S. Department of Justice, a judge articulated that code is speech in rejecting so-called export restrictions on code that implements cryptographic protocols. Daniel Bernstein, a mathematics Ph.D. student, wanted to publish source code for a program to run an algorithm he developed. He objected to the State Department classification of his code as a “munition” and, with EFF's help, sued to establish his First Amendment right to publish the code without arbitrary restrictions outlined in the International Traffic in Arms Regulations (ITAR) and other laws—restrictions that included registering as an arms dealer and submitting the code for governmental review.
Bernstein's victory was a watershed moment for free speech in the digital world. Today, that victory is being tested. Defense Distributed publishes not cryptographic algorithms, but documentation and digital designs that can be used with a 3-D printer. Because those files could be used to print components for guns, the State Department has ruled that their unlicensed publication on the Internet would run afoul of export control law.
Then, as now, the overbroad application of these export controls to digital code and files that describe 3-D models undermines our freedom of speech. It's a concept that we know well when it comes to “traditional” speech, and the application is just as straightforward for technical publications. The government may not impose “prior restraints” on speech without demonstrating that it has met a very high standard—a mark it has failed to hit in this case.
Whatever a legitimate export control regime may look like, it does not involve standardless, unreviewable censorship of all online publications describing entire ranges of technology that have civilian uses, and about which the public needs to be informed in order to evaluate and challenge our government's policy choices. The First Amendment does not prevent proportionate measures to prevent weapons from reaching those who would misuse them, but it does mean that the government cannot choose the quick-and-easy path of broadly criminalizing online speech and figuring out what speech it wants to allow when publishers go to the trouble of asking permission.
We are all safer when we have a better understanding of the possibilities and limitations of new technologies. As we describe in our brief:
The scope of ITAR’s prohibition on speech could apply to members of the press republishing newsworthy technical data, professors educating the public on scientific and medical advances of public concern, enthusiasts sharing otherwise lawful information about firearms, domestic activists trading tips about how to treat tear gas or resist unlawful surveillance, and gun control opponents expressing a point about proliferation of weapons. Innocent online publication on certain topics is prohibited simply because a hostile foreign person could conceivably locate that information, use it to create something harmful, and use a harmful device against US interests. Speech cannot permissibly be repressed for such an attenuated and hypothetical government end.
Attempts to squash the discussion of particular technologies are not just ineffective, they also limit the conversation and documentation that we can have about the world. As we've seen time and again with copyright and other laws that attempt to regulate information, discussions about that information too often end up as collateral damage.
First Amendment protections for speech are immeasurably valuable—too valuable for us to allow publication to be curtailed just because the State Department asserts that it could have some military applications. We think the court will recognize that important ideal.