Wednesday, August 01, 2018

What's the deal with 3-D plastic guns -- and what's the Freedom of Speech got to do with it? [UPDATED Aug. 2]

Marty Lederman

There's been an explosion of stories in the past few days about how the Trump Administration is allegedly about to permit people to create "3-D plastic guns" that can't be detected by metal detectors; about a suit by several states to stop the Trump initiative; and about a district court's injunction yesterday, which some critics are (wrongly) describing as a vast "prior restraint" on Internet "speech."

There is, to say the least, a lot of confusion and misinformation swirling around out there about this topic--especially about what the law does and does not prohibit and about what, if anything, the First Amendment has to do with the creation of guns.  

Herewith, then, a modest effort to offer some clarification.  It's entirely possible some of what follows is mistaken; therefore I'd appreciate any corrections or qualifications, and I'll edit the post accordingly when I receive more accurate information about the technology or the state of play.

What federal law prohibits

There is no federal law prohibiting persons from manufacturing otherwise lawful firearms at home "solely for personal use"—by use of a 3-D printer or otherwise.  (Federal law doesn't even require registration of such homemade weapons.)  Nor is there any federal law prohibiting the sale, manufacture or distribution to U.S. persons of computer programs that, when used as designed, result in the creation of such a 3-D firearm. 

On the other hand, it's unlawful to make at home any firearms that can't lawfully be possessed, such as machine guns and some rifles.  Most pertinent for present purposes, the federal Undetectable Firearms Act makes it illegal to manufacture or possess a weapon that’s undetectable by walk-through metal detectors, such as a weapon made entirely of plastic that has no metal parts.

An organization called “Defense Distributed” has developed computer aided design (“CAD”) files consisting of computer code that, when downloaded, can direct a 3-D printer or computer numerical control (CNC) mill to automatically create “3-D printed weapons”—a plastic lower receiver of a rifle or a fully functional single-shot plastic pistol—at the virtual push of a button.  [UPDATE:  A former student helpfully informs me that the CAD file for an M-16/AR-15 lower receiver can't be used to produce a fully functioning, non-detectible plastic rifle because the upper receiver with which the 3D-printed lower receiver must be paired includes a metal barrel, which of course can't be printed.  A fully functional plastic pistol, however, is a possibility.]

So, to the extent someone uses the Defense Distributed files to create a firearm detectable by metal detectors—such as one to which a six-ounce piece of metal is inserted—that person is not violating federal law (and probably isn’t violating any state laws, either, although I haven't examined that question).  According to the federal government, however (see footnote 6 of this Declaration), the files can also be used to make an operable firearm without any metal, i.e., a weapon that metal detectors cannot detect.  And, indeed, there's not much of a reason to go to the time and expense of making a 3-D plastic firearm (which is more fragile and less reliable than ordinary weapons) other than to escape metal-detector detection.  So presumably this will describe most of the guns made with the Defense Distributed files.  If an individual creates that kind of 3-D weapon, with Defense Distributed’s files or otherwise, she violates federal law.

As of now, federal law does not generally prohibit Defense Distributed from selling or distributing its CAD files to other persons, notwithstanding that such files have the potential to automatically create unlawful weapons (depending on how the recipient uses them).  (When I say “automatically” here, I simply mean in an automated manner, without the intervention of any human creativity, industry or material effort beyond inserting the files and pressing a button or two.)

However, the federal government does prohibit the export of 3-D weapons to persons overseas, and until the end of last week it also prohibited the export of the computer files that, when used as designed, create such weapons.  Such CAD files, explained the government in a recent court case, “constitute the functional equivalent of defense articles: capable, in the hands of anyone who possesses commercially available 3D printing equipment, of ‘automatically’ generating a lethal firearm that can be easily modified to be virtually undetectable in metal detectors and other security equipment.”

What’s more, the federal government considers the posting of such (downloadable) computer files on the Internet to be such an “export” because, of course, that’s functionally equivalent to handing foreign persons the files, since all they have to do is download them and use them as instructed in a computer in order to create weapons.

In effect, this export regulation prohibited the undifferentiated Internet posting of the Defense Distributed CAD files, because there’s no practical way to limit such postings so that only persons in the United States can download the code files.  (At the same time, as noted above, Defense Distributed has always been free to disseminate the computer files in public or private domestic fora, including via the mail or any other medium that does not provide persons overseas the ability to obtain or download the files.)

The “freedom of speech” red herring

Defense Distributed challenged the State Department's Internet-posting ban as an alleged abridgment of its freedom of speech.  Its theory is based on the idea (as it argues in a brief) that its computer code “is expressive in that it can be read and edited by humans, who can also understand and adjust its output.”

It may be right about that fact:  Some small number of human beings can in some sense “read” and “edit” this code, just as there are some who can “read” most computer programs; the code might even have certain properties associated with a language.  That’s not the primary purpose of posting it to the Internet, however:  Presumably Defense Distributed expects and intends that 99.99 percent of the people who download it will not “read” or “edit” its code but will instead simply do with it what we all do with computer files every day, namely, stick them or download them into a computer so that they can perform the technological functions for which they were designed—in this case, to create operational weapons at the click of a mouse, without conveying any information to anyone.

More importantly for constitutional purposes, even if the sharing of such files can (in rare cases) be "speech" because it is done for the purpose of sharing information with others, the government’s reason for regulating the distribution of the code is not to suppress any potential “informational” value in those rare cases where a recipient might “read” it.  The government's objective is, instead, to prevent persons overseas from obtaining a tool of production the physical properties of which cause the easy creation of non-exportable weapons.  (This is not, in other words, a restriction on speech because it (as Noah Feldman put it) "instructs the public how to commit a crime."  I agree that, in such a case (see, e.g., the case of the Progressive's publication of bomb instructions, or the "Anarchist Cookbook" controversy), there'd be very serious First Amendment constraints, at least absent proof of an intent to help facilitate crimes--see this DOJ Report, the constitutional analysis of which I helped draft.)

As the Department of Justice wrote in one of its briefs in Defense Distributed’s recent constitutional challenge:

Even if plaintiffs are correct that computer code can serve as “an expressive means for the exchange of information and ideas about computer programming,” Junger v. Daley, 209 F.3d 481, 485 (6th Cir. 2000), that potential exchange of ideas is not the basis for the government regulation here. While computer programs can in some cases be read by human beings (such as other computer programmers) and thus convey information, the computer files at issue are subject to regulation because they facilitate automated manufacture of a defense article.  The State Department is concerned here with the use of the data files at issue by machines, not with their ability to express a message to humans.  Although a person must direct a machine to read the files, “this momentary intercession of human action does not diminish the nonspeech component of [computer] code.” [Universal City Studios v.] Corley, 273 F.3d [429,] 450 [2d Cir. 2001].  (Emphasis added.)

At most, therefore, the fact that the State export regulation (including the limit on Internet posting) would affect the comparatively very rare case of a distribution and use of the code for informational purposes, that incidental, rare impact would subject the regulation to, at most, “intermediate” scrutiny under U.S. v. O’Brien (the classic precedent involving the regulation of conduct that some might engage in for expressive purposes), and should easily withstand such scrutiny, in the same way that a law prohibiting the posting of readily downloadable computer “virus" codes would easily pass First Amendment muster.[1]

The State Department’s decision to rescind its restriction on posting of the code, and the current litigation

OK, but even if I’m right that the State Department’s longstanding prohibition on the export—and Internet posting—of gun-creating software does not violate the Free Speech Clause, the Department nevertheless has now chosen to rescind that regulation.  Last Friday, it posted on its website a notice stating that “the Acting Deputy Assistant Secretary for Defense Trade Controls has determined that it is in the interest of the security and foreign policy of the United States to temporarily modify” the U.S. Munitions List (USML) to “exclude” Defense Distributed’s CAD files.  The notice called this a “temporary modification” that was to “remain in effect while [a] final rule” to the same effect “is in development.”

As far as I know, the State Department has the legal authority to remove the CAD files from the List, thereby permitting their export and Internet posting.

On Monday, however, eight states and the District of Columbia filed a suit in the Western District of Washington seeking to enjoin State’s “temporary modification” of the USML.  They allege that if and when State allows Defense Distributed to post its files to the Internet, it’s foreseeable that many more persons will use the code to easily create undetectable plastic weapons, which will in turn lead to harm for the residents of the affected states. 

Yesterday, Judge Robert Lasnik granted a temporary restraining order that enjoins the federal government defendants from implementing or enforcing the “temporary modification” of the USML, and requires them to “preserve the status quo ex ante as if the modification had not occurred.”  He also scheduled a hearing for next Friday [UPDATE:  now rescheduled for August 21] on the question whether to transform the TRO into a preliminary injunction.

Contrary to the feverish alarms of Defense Distributed’s counsel and others, Judge Lasnik did not issue a prior restraint on anyone’s speech; indeed, he didn’t enjoin any private parties at all.  He merely enjoined the federal government from removing particular items from the Munitions List, thereby requiring the government to preserve the regulatory status quo that’s been in place for years.

Despite the absence of a real First Amendment problem, however, it’s not clear whether the injunction against the State Department will last very long, for at least three reasons. 

First, there’s some question whether the states (and DC) have standing to sue to challenge the revocation of an export regulation that limits the conduct of private parties.  Judge Lasnik concluded that they did have such staning, at least “[f]or purposes of this temporary order,” because “[t]he States and the District of Columbia have a clear and reasonable fear that the proliferation of untraceable, undetectable weapons will enable convicted felons, domestic abusers, the mentally ill, and others who should not have access to firearms to acquire and use them.”  Whether that reasonable fear is sufficient to establish Article III “injury in fact” for the states and DC will be a question to watch as the case proceeds.

Second, there’s the question whether the merits of the suit are valid.  The states and DC rely primarily upon a procedural claim:  They argue not that the State Department can’t rescind an item on the USML, but instead that the President must give Congress 30 days’ notice before State does so, pursuant to 22 U.S.C. § 2778(h), which provides that “the President may not remove any item from the Munitions List until 30 days after the date on which the President has provided notice of the proposed removal to the Committee on International Relations of the House of Representatives and to the Committee on Foreign Relations of the Senate in accordance with the procedures applicable to reprogramming notifications.”  The government argues that the things it was removing from the list are not “items” covered by this notification requirement.  I don’t know whether DOJ is right about that, but it’ll obviously be a contested issue going forward.[2]

Third, the Executive can in any event ensure that the court’s injunction is limited to a month.  If the President does give Congress notice, there’s little question that State can remove Defense Distributed’s files from the USML 30 days later, thereby allowing Internet posting of the code—or State could do so, anyway, if that reversal is not arbitrary or capricious.[3]  Ultimately, then, it’ll probably be up to Congress (and the President’s veto pen) whether to do anything further to prevent the widespread distribution of the files.  And as to that question, “freedom of speech” shouldn’t be a factor.  

[UPDATE 1:  Reportedly the State Department made the decision to amend the USML and allow the posting of Defense Distributed’s files without consulting with the President, who's "glad" the district judge" enjoined the initiative so that he (the President) can "study" the issue.  

Also, there is legislation pending in Congress (see, e.g., the Senate version) that would (if my understanding is accurate) amend the Undetectable Firearms Act to prohibit the manufacture and possession of virtually all the products produced by 3-D printers, such that any actual use of Defense Distributed's CAD files would be unlawful.  The NRA successfully lobbied to stymie such legislation five years ago, and it is (so far) languishing in the Congress again.  Perhaps the current controversy will alter the political viability of the legislation.  Or perhaps not.  Moreover, as far as I can tell the legislation is not designed to regulate the distribution of the computer files with which someone could manufacture the weapons in question--only to prohibit their use.

On Tuesday, however, Senator Nelson introduced S.3304, legislation that would make it "unlawful for any person to intentionally publish, over the Internet or by means of the World Wide Web, digital instructions in the form of Computer Aided Design files or other code that can automatically program a 3-dimensional printer or similar device to produce a firearm or complete a firearm from an unfinished frame or receiver."  Nelson requested unanimous consent on the bill, but Senator Lee objected.  It'll be worth watching what becomes of S.3304.]

[UPDATE 2:  Scott Greenfield, mistakenly assumes, as do others, that my argument depends upon denying that "code is speech."  Any careful reader of this post, however, will understand that that's not the case.  I concede that code can be expressive to some "readers," and even that some persons might (conceivably) post code to the Internet for expressive purposes (although that's obviously not Defense Distributed's primary objective), such that the posting might be "speech," just as flag-burning might be speech.  But code-posting is not only (or even primarily) speech [does Adobe post Acrobat online in order to "speak" to me?] and, more to the point, the government's effort to regulate its posting is not based upon its potential to "speak" to any individuals.  It is, instead, based upon its functional capabilities. 

This part of Greenfield's post demonstrates the point nicely:

Some code causes the Constitution to appear on our computer screen. Some code causes Lederman’s law review articles to appear at SSRN. Some code makes a cute kitten pic show up. And some code provides the means to cause a 3D printer to create a gun.  
Let's play "Which of These Things is Not Like the Others?"

Yes, of course code not only can itself be expressive, but can also facilitate other speech (just as ink and paper can do).  And if the government were trying to restrict the posting of the CAD files because it resulted in certain speech popping up on my computer screen (even my own law review articles!), then that would almost certainly be unconstitutional.  But the ordinary and intended use of this code doesn't simply result in "cute gun pics" appearing on users' computer screens:  It "cause[s] a 3D printer to create a gun"!  And that's why the government restricts its indiscriminate distribution.  Hence, O'Brien scrutiny applies (at most), and the regulation does not violate the First Amendment, whether or not the code is, or can be, "speech."]

[1] Although the State Department has (unwisely, in my view) denominated regulated software as a category of “technical data,” see 22 CFR § 120.10(a)(4), it restricts the export of such software not because of its informational value, i.e., its value as data, but because of its physical functionality, i.e., its capacity to cause computers to create firearms.  By contrast, State does restrict the export of some “information . . . required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles,” such as “blueprints, drawings, photographs, plans, instructions or documentation,” id. § 120.10(a)(1).  (Think, for example, of someone who does not provide already manufactured defense articles to Chinese officials, but shares with them closely held instructions on how to manufacture them:  The federal government generally prohibits such information-sharing with foreign officials because of its informational impact.)  Unless practice has changed since I left government, State does not generally prohibit public Internet posting of such “technical data” that are regulated because of their informational value—and it would raise serious First Amendment questions if it did so, as OLC concluded in 1981.  But State regulates the posting of software that can create defense articles through ordinary technological means without regard to any informational function it might have—and that regulation is no more constitutionally problematic than the regulation of the export of the defense articles themselves (e.g., certain firearms), even though some people might be able to extract information, and learn, from the study of such articles and software.  

[2] The states also argue that Section 1(n) of Executive Order 13637 requires the concurrence of the Secretary of Defense before any change in USML designations.  Even if that Executive Order precondition applies here, however, I’d be surprised if the failure to obtain the SecDef’s concurrence is a justiciable matter.  See, e.g., Section 6(c) of that Order (“This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.”).

[3] The plaintiffs argue that the decision to do so is, in fact, arbitrary and capricious:  “Defendants have provided no explanation for the Government’s complete reversal of its position on the files at issue, including its action to grant a ‘temporary modification’ to exclude the files from ITAR jurisdiction and to issue a letter stating that the files are exempt from ITAR’s export licensing requirements. The Government has released no reports, studies, or analyses to explain why downloadable guns should be removed from ITAR regulation. It appears that Defendants have also failed to consider or acknowledge the serious national security concerns or the threat to public safety posed to the States, created by the dissemination of these files.”

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