International Legal Affairs: V7N5
First Amendment Rights Versus the ITAR
On June 3, 2015, the U.S. State Department published a proposed rule on the publication of firearms related information on the internet. Word of the proposed rules was quick to spread across the internet via on-line firearm discussion forums, firearm industry blogs, and other social media sites online. In light of the proposed restrictions, what’s the big deal? The First Amendment to the U.S. Constitution regulates free speech, with that right applying to the internet. Why the big fuss?
The heart of this issue starts with the creation of the International Trade in Arms Regulations, or the ITAR. Created long before the advent of the internet, the regulations do not contemplate the free exchange of information across international borders at near light speed. Instead, the regulations seek to govern the export of defense articles, defense services, and technical data. Herein, lies the issue – now more than ever, it is possible to transfer sensitive technical data around the world, instantly. When restricted technical data is posted to a public U.S.-based internet forum, there are usually no restrictions on who may visit the forum – Syrians, Iranians, Chinese, and Cubans – countries prohibited from receiving U.S. arms exports under the ITAR suddenly have access to technical data that would otherwise be restricted. To better understand the issue, one must first understand the basics.
What is technical data? Technical data is defined within the ITAR as “information… required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles. This includes information in the form of blueprints, drawings, photographs, plans, instructions or documentation.” (See 22 CFR 120.10) As one can see, this definition is quite broad, and could (if strictly applied) cover almost all online discussion between firearm designers, hobbyists, and enthusiasts. With the definition of technical data clearly defined, why does an online discussion matter to the U.S. State Department?
The ITAR defines an export as the “sending or taking a defense article out of the United States in any manner, except by mere travel outside of the United States by a person whose personal knowledge includes technical data; or… disclosing (including oral or visual disclosure) or transferring technical data to a foreign person, whether in the United States or abroad.” (See 22 CFR 120.17) Publishing technical data on a U.S. based website could result in the disclosure of technical data to a foreign person that happens upon the internet forum. Indeed, there are many known foreign users on AR15.com and subguns.com, two well-known internet venues for the discussion of firearms. Both websites promote the vigorous debate and discussion of firearm design, usage, and modification.
Thankfully, not all discussion about firearms is regulated. Under 22 CFR 120.11, there are exemptions for information in the public domain. The ITAR defines the public domain as “information which is published and which is generally accessible or available to the public… through sales at newsstands and bookstores; through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information; or [information found] at libraries open to the public or from which the public can obtain documents.” Note that 120.11 does not mention the internet – there was no internet when the regulations were first drafted, and section 120.11 has never addressed the internet and information disclosed via the internet. That is, at least not until June 3, 2015, when the U.S. State Department proposed new rules regarding public domain and disclosure of technical data.
The “modern” internet was created in 1990. On-line forums focused on the discussion of firearms date back to at least 1995, when F.J. Vollmer created a website to discuss NFA (National Firearms Act) firearms. AR15.com was formed shortly thereafter in 1996. After nearly 20 years of online discussion, why the recent interest in online firearm discussions? In December 2012, a Texas based educational organization named Defense Distributed published files for the creation and manufacture of a single shot pistol manufactured entirely via a three-dimensional printer. Unlike other written forms of publication, the files were published online. In response, on May 8, 2013, DDTC sent notice to Defense Distributed that read, “DTCC/END is conducting a review of technical data made publicly available by Defense Distributed through its 3D printing website, DEFCAD.org, the majority of which appear to be related to items in Category I of the USML. 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.”
Defense Distributed removed the files from its servers, but not before the files had been downloaded more than 100,000 times. Based upon the original file, additional CAD files have reportedly been developed increasing the strength and reliability of the single shot pistol.
First Amendment Considerations and Pre-Publication Approval of Technical Data
From 1969 to 1984, there was a presumption that ITAR Section 125.11 imposed a prepublication approval requirement for privately generated ITAR-controlled technical data. The regulation at the time noted that “[t]he burden for obtaining appropriate U.S. Government approval for the publication of technical data falling within the definition in § 125.01, including such data as may be developed under other than U.S. Government contract, is on the person or company seeking publication.”
In 1978, the U.S. Department of Justice’s Office of Legal Counsel issued a series of written opinions advising Congress, the White House, and the Department of State that imposing a prior restraint on publications of privately generated unclassified information into the public domain violated the First Amendment of the U.S. Constitution. As a result, in 1980, the Department of State Office of Munitions Control, (the predecessor to DDTC) issued official guidance that section 125.11 did not require pre-publication approval for publication of technical data within the United States. (Emphasis added.) ITAR section 125.11 was later amended to make clear that there is no pre-publication requirement, in accordance with the U.S. Constitution.
Are the Defense Distributed Files Technical Data?
Are the Defense Distributed files technical data? Therein lies the issue. If the files are not technical data, the files can be freely distributed without ITAR restriction. If the files are deemed technical data, there are ITAR restrictions on distribution, notwithstanding the public domain exemption. In response to DDTC’s order to remove the files, Defense Distributed sent a commodity jurisdiction request to DDTC and the Department of Defense Office of Prepublication Review and Security (DOPSR). Together, the two agencies are tasked with determining whether data submitted for review is ITAR controlled. As of publication, and more than two years after the commodity jurisdiction request was submitted, no determination has been made by DDTC or DOPSR. Without a determination that the files are technical data, there can be no analysis or determination of whether the public domain exemption fits the Defense Distributed case.
The Defense Distributed files are very likely to be classified as ITAR controlled technical data. Recall that technical data is “information required for the manufacture or assembly of a defense article.” A single shot pistol is classified as a defense article under the U.S. Munitions List Category I (a).
The Defense Distributed files were exported under the definitions of the ITAR. The export of technical data (under the current regulations) easily occurs via the internet. It is not hard to imagine the transfer of a CAD file or blueprint showing the critical dimensions of a firearm from the United States to a foreign national via e-mail. Notwithstanding the ease in which the transfer may happen, the transfer of technical data to a foreign national is a regulated act under the ITAR. Technical data is ITAR controlled. Transfer of technical data to a foreign national is an “export” under the regulations. The export of technical data requires DDTC approval prior to transfer.
Does the public domain exemption cover Defense Distributed? Possibly. Note that the 1980 guidance removes the requirement for pre-publication approval of technical data within the United States. The guidance predates the modern internet by at least ten years, and could not possibly contemplate the modern capability of transferring information instantly throughout the world. Defense Distributed may have created a better case had they published the files within this magazine, or on an established firearm publication’s website. Nevertheless, most public libraries offer access to the internet, and there are many examples of publications that exist solely online. Can the internet be public domain? Possibly – but if the internet is public domain, anything published online is not outside of the current ITAR regulation on export and transfer of ITAR governed technical data. The proposed changes to internet publication by the U.S. State Department on June 3, 2015 are meant to address this issue.
What about the First Amendment issues? There are generally two ways in which free speech within the United States may be restricted. Regulations may be imposed upon the time, place, and manner of expression, but the restrictions imposed must be content-neutral, the restrictions must be narrowly tailored to serve a significant government interest, and the restrictions must leave open ample alternative avenues of communication. Restrictions on content (as being contemplated by the U.S. State Department proposed change to the ITAR) may be permissible if the restriction passes “strict scrutiny.” Strict scrutiny requires the government to show that the restriction serves “to promote a compelling interest” and is “the least restrictive means to further the articulated interest.” It is unlikely that DDTC can overcome the strict scrutiny threshold under the current proposed regulation language.
Why Does This Matter to the International Community?
In strict terms, the proposed rulemaking only applies to U.S. citizens and U.S.-sourced technical data. A firearms enthusiast in New Zealand, the Netherlands, or the Philippines is free to post technical data from their home countries without restriction as long as the technical data is not U.S.-based or sourced. Sadly, the U.S. State Department takes a skewed view of international jurisdiction. When exporting a defense article, DDTC takes the position that it retains jurisdiction over the re-transfer and/or sale of the item for the life of the item. As an example, a rifle exported to Canada, and resold to the Netherlands requires (under U.S. law) DDTC re-transfer approval. The transaction could be many years old – yet DDTC asserts that it retains jurisdiction over re-transfer. The same policy would also apply to the re-transfer of technical data.
Major allies are typically quick to follow U.S.-based regulations. In countries without First Amendment protections, adoption of similar regulations and policies would have a chilling effect on the discussion of firearms in online forums.
What Happens Next?
What happens next? Defense Distributed filed a lawsuit against DDTC and DOPSR on May 6, 2015, seeking a determination of whether its files are ITAR restricted technical data, and seeking a determination that pre-approval of free speech within the U.S. is not permitted by the U.S. Constitution. Motions for preliminary injunctions from both parties are scheduled throughout the summer. Litigation in this case is likely to take quite some time to be resolved. In the meantime, the proposed regulatory changes to the ITAR are located at 80 FR 31525, and online here: http://www.gpo.gov/fdsys/granule/FR-2015-06-03/2015-12844. Comments (for or against the proposed change) were accepted by the U.S. State Department through August 3, 2015. Updates on this issue will be published here in future issues as the case matures and develops.
Mr. Wong is a Washington licensed attorney. He regularly provides legal counsel to the firearm and defense industry via his law firm, The Firearms Law Group. Mr. Wong also manages Hurricane Butterfly, an import/export company that assists firearm manufacturers, resellers, and collectors from around the world wade through the regulatory quagmire of U.S. import/export regulations. He may be found online at FirearmsLawGroup.com.