When it comes to guns, nearly everyone has strong views. When it comes to Internet publication of 3D printed guns, those strong views can push courts and regulators into making hasty, dangerous legal precedents that will hurt the public's ability to discuss legal, important, and even urgent topics ranging from mass surveillance to treatment of tear gas attacks. Careless responses to 3D-printed guns, even those that will do little to limit their availability, will have long-lasting effects on a host of activities entirely unrelated to guns.
In its responses to 3D printed guns, the U.S. Department of State and state Attorneys General have sought to brush aside the legal protections that ensure your right to dissent and to publish technological information and software for privacy and other purposes. That’s why we’re working to make sure that 3D printing cases don’t set precedents that chip away at your freedoms to speak and learn online.
Here's how we got to this moment. In 2012, the first order to de-publish the well-known, non-classified 3D design files for guns came about when the federal government decided that it could use existing export regulations to censor technical information whenever it deemed that censorship was “advisable.” The regulations, which are not normally aimed at speech, had no objective legal standards, no judicial oversight, and no binding deadlines. This decision was applied to a company called Defense Distributed and its founder, Cody Wilson.
Last month, after years of litigation, the federal government decided that, contrary to its view in 2012, the export restrictions should not apply to the publication of 3D printer files for guns on the Internet. In response, state governments have persuaded a federal court to order the takedown of that information from the Internet without any First Amendment analysis. They have also asked the federal government to reinstate the system that gave it total discretion over Internet publication of technical information about 3D printed guns, which it enforced against Defense Distributed but not against other publishers.
Experts have different views on whether the government could meet the appropriate First Amendment standard with carefully-tailored measures designed to address the 3D printing of guns. But whether or not you think the government could satisfy the necessary legal test in a hypothetical case, it’s critical that the government not be able to skip that step and jump straight to the de-publication of speech.
Our government has a history of characterizing information (like encryption technology) and ideas (like socialism or Islam) as dangerous and likely to lead to violence. A free society cannot give the government unbridled discretion to make those choices, because of the systematic oppression that such a government can engage in.
A Brief Explainer on Making Guns, via 3D Printer and Otherwise
Most of us are not familiar with the process of manufacturing a gun, but there are many tutorials available both offline and online for doing so, as well as multiple sources for designs that could be used in a 3D printer. Federal law and many states permit a person to engage in gunsmithing, creating an unlicensed, unregistered firearm for their own use. The materials are generally not difficult to buy either. While making guns is allowed many places, whether the firearm is made through 3D printing or by simply buying and assembling the materials, it is generally unlawful to sell or distribute the unmarked firearms you make without a license.
Most of the files at issue in the Defense Distributed case are “Computer Aided Design” (CAD) files, a type of file that engineers use describe three-dimensional objects. Programs like “Slic3r” can interpret these shapes and figure out the path that a 3D printer would have to move its nozzle, or a milling machine would have to move its cutter, to form that object. Slic3r creates a 3D print file that can then be understood by the machine itself and used by its operator to create an object.
Once you’ve got your 3D printer or milling machine, your raw materials, the software to run it, and the design files, you can tell the machine to make whatever shapes you want, including shapes that can be assembled into a gun. You can’t print bullets, of course – you need to buy them or acquire gunpowder to make your own.
So, following all these steps, it is possible to 3D print or CNC mill a gun, go acquire bullets, and fire it.
Your 3D-printed gun will likely be made of plastic. This is not an ideal material for a gun, because it is weak and it melts, but plastic guns are capable of firing. The plastic part will not be detectable by metal detectors, but would be detectable by the scanners at airport security. And it's illegal under the Undetectable Firearms Act to manufacture an entirely plastic gun unless you insert a bar of metal that can be detected by a metal detector.
A CNC-milled gun can be made of metal, and this is the more relevant technology because metal is more suitable for guns. Most of the parts of guns are unregulated, so realistically, a person would buy the unregulated parts, print the regulated ones, and then assemble the weapon. A CNC mill that can generate the regulated lower receiver of an AR-15, for instance, costs about $1700. The raw metal for the lower receiver costs under $30.
Neither CNC nor 3D printing is needed to make guns, however. As a simpler alternative to milling the entire shape yourself, you can purchase an unregulated lower receiver that is not quite finished for about $75 and drill some simple holes and a trough into it with an inexpensive drill press, without the need for an automatic milling machine.
If someone wants to use the more complex, more expensive 3D printing or CNC process to make a gun, however, the files that describe the gun shapes you would need to print are available in several places on the Internet, both inside and outside the U.S. The most simple designs have been around for over seven years.
The process surrounding the publication and de-publication of these designs is a precedent that is simply dangerous to speech. It allows the government to use export regulations to censor speech on the Internet. Granting a censorship power that broad will lead to speech being taken down for political reasons, and a mechanism must be in place to prevent that. Following that power with requests to remove the information globally extends the potential for harm to speech.
Export Regulations Gave the Government Unchecked Power to Censor Technical Speech Online
In 2012, the government told Cody Wilson's Defense Distributed that it could not publish designs for firearms online. Despite the fact that many others had already published similar information, the government told Defense Distributed that it had to apply for an export license in order to publish the computer files because some of the files can be interpreted by a 3D printer to create a gun.
The government's reasoning stemmed from an interpretation of the International Traffic in Arms Regulations (ITAR), which gave the government authority to restrict the export of technologies with potential military applications. Under the government’s definition, “export” encompasses not only sending physical items overseas, but also publishing information on the Internet about certain technologies.
If you wanted to publish online about gun designs, or how to diagnose a biological weapon attack, or treat chemical weapon injuries, then under the government's reasoning, you were supposed to ask permission first. The Internet, argued the government, is not the “public domain” because it is accessible to foreigners, and therefore constitutes an export. The Department of State would then decide – with no binding legal standards, no deadline for a decision, and no judicial oversight – whether to permit you to publish or not.
The massive list of covered technologies encompasses certain medical information and devices, certain types of GPS technologies, and jet engines, just to name a few. The materials on the list have obvious, legitimate applications for researchers, manufacturers, journalists, hobbyists, and many others. There are no rules ensuring that the government doesn’t unfairly bar certain speakers for political reasons, and there’s no opportunity to appeal the government’s decision to a court.
Defense Distributed applied for a license (EFF helped advise the company at this juncture and helped it to get experienced export counsel). After a lengthy delay, the government denied the license, and the appeal dragged on without any binding deadline. After waiting for an answer for many months, Defense Distributed finally sued and lost preliminary arguments in both in the District Court and in the Court of Appeal (EFF did not represent them, and instead filed an amicus brief addressing the First Amendment issues posed by the speech-licensing regime). Last month, the government reversed course and not only granted Defense Distributed a license, but changed the regulations to allow publication of Defense Distributed’s materials.
Broad Censorship Powers Lead to Politically Motivated Takedowns
It’s dangerous for the Executive Branch to have so much control over the public’s right to share information online. Without meaningful restrictions on how and when the State Department can exercise its power, the risk of politically motivated censorship is extremely high.
Indeed, it is quite possible that both the previous administration's decision to deny Defense Distributed a license and the current government's change in policy were motivated in part by Wilson's political opinions and often inflammatory comments. It's telling that other groups were publishing similar information online at the same time that Defense Distributed was barred from it.
It’s dangerous for the Executive Branch to have so much control over the public’s right to share information online.
In absence of laws dictating when the government can and can’t use this power, politically motivated censorship is unavoidable. As EFF argued in our amicus brief, echoing concerns raised by the Supreme Court, “Human nature creates an unacceptably high risk that excessive discretion will be used unconstitutionally, and such violations would be very difficult to prove on a case-by-case basis.” Under the same law, the government could try to bar activists from sharing instructions for treating the effects of tear gas and other chemical weapons, or researchers from spreading information about the government’s use of mass surveillance tools.
Or it could bar technologists from publishing the encryption technologies that we all use to protect ourselves from criminals online. In the 1990s, EFF successfully argued that it was unconstitutional for the government to use these export regulations to ban the online distribution of computer code used for effective encryption. Two decades later, the government has again used this unconstitutional export control regime in a way that gives it broad control over who can share information about a wide range of technologies online, with no safeguards ensuring that it doesn’t ban certain speakers for political reasons.
New Lawsuits Seek Global Takedown Orders That Would Erode Protections for All Instructive Speech
The new lawsuits brought by state Attorneys General are concerning for a different reason: they ask the courts to remove the published files because other people might use the information they contain to make guns illegally or make legal guns and use them illegally.
The cases are not based on gun control laws, because states can’t impose their own law on the rest of the country and Federal gun control law permits personal gunsmithing. Instead, the state claims include common law nuisance and negligence, while the claims in Federal court argue that the Department of State did not follow the Administrative Procedures Act and justify why it changed its mind.
Normally, you cannot be prevented from saying something merely because someone else might use that information to commit a crime, or even because they might be persuaded to commit a crime. Unless your speech rises to the level of a conspiracy to commit a crime or speech that incites people to immediate violence, then the legal responsibility falls on the people who decide to break the law.
Even when heady interests such as national security or physical harm are potentially at stake, the government has a heavy burden to prove the urgency of the harm and the appropriateness of a speech restriction as the proper remedy. It’s generally not appropriate to order one person not to publish material that is readily available elsewhere.
The government has a history of characterizing ideas as dangerous in an attempt to suppress speech about those technologies and ideas. First Amendment standards ensure that speech cannot be suppressed as an easy measure of first resort, or where those speech constraints aren’t necessary to address a proven harm or effective at addressing that harm.
If the states in this case are successful, they will bypass legal doctrines that we rely on to protect your right to encrypt and your right to advocate for social change. The arguments from the states are clear on this point – the states are arguing that the government should be required to prevent publication because foreigners abroad might do things that the U.S. opposes and they are arguing that the courts themselves should order the designs to be kept offline because people might make the guns and use them in domestic crimes.
These arguments are dangerous because they threaten to empower current (and future) U.S. government officials to play pre-publication gatekeeper of what information you can publish online based on the barest, unproven claim of national interest or the possibility that others might use your information to further crimes. It could bar us from publishing and discussing artificial intelligence technologies, something that has increasing importance to our online lives and even how the government makes decisions about bail and sentencing. It could censor information about how to survive a chemical weapons attack. It could force us to compromise our secure communications technologies, making our personal information vulnerable to unlawful surveillance and identity theft.
EFF will continue to protect your freedom to teach one another new skills and share code with each other, so that others can learn and benefit from your ingenuity. We will continue to protect your freedom to advocate for ideas the government labels as dangerous. Not because we agree with every idea that’s out there, but because of the clear danger posed by a government that grants itself unbridled power to decide whose ideas are dangerous and what knowledge should be deleted from the Internet.