International Legal Affairs: V8N2

Defense Distributed – continued. A brief synopsis of the events thus far:

January 2013: Defense Distributed, a nonprofit, gun-design digital publisher headquartered in Austin, Texas started offering free online technical information about gun-related items, including a 3-D printed magazine for the AR-15 rifle.

Following publication of the AR-15 magazine code, the Defense Distributed website provides instructions for a 3-D printed pistol called the Liberator. According to Defense Distributed, within days, users downloaded the files “hundreds of thousands of times.”

May 8, 2013: the U.S. State Department Directorate of Defense Trade Controls (DDTC) sent a letter to Defense Distributed, informing the company that the online instructions may have violated regulations for exporting defense articles and services. According to DDTC, ITAR restrictions may require Defense Distributed to obtain prior authorization from the Directorate of Defense Trade Controls before releasing the technical data online.

Following receipt of the Government’s letter, Defense Distributed removed the instructions to manufacture the Liberator pistol from the internet.

June 2013: Defense Distributed submitted the first commodity jurisdiction request to DDTC, seeking review of (10) 3-D printer files. No response is received from DDTC.

September 2014: Defense Distributed sent a request for pre-publication review to the Department of Defense Office of Prepublication Review and Security (DOPSR).

October 2014: DOPSR refused to review the Defense Distributed submission because DOPSR is uncertain whether the submission is subject to ITAR. DOPSR suggests that Defense Distributed submit a commodity jurisdiction request to DDTC.

January 2015: Defense Distributed sent a second commodity jurisdiction request to DDTC.

April 2015: DDTC determines that ITAR restrictions apply to the 3-D printer software, CNC software and firearm design files, but do not apply to the physical CNC machine or 3-D printer.

April 29, 2015: Defense Distributed, in conjunction with the Second Amendment Foundation, files a lawsuit against the U.S. State Department, alleging that pre-approval publication amounts to a violation of free speech rights, a violation of one’s right to keep, bear, and manufacture arms, and a violation of due process.

May 11, 2015: Defense Distributed seeks an injunction against DDTC, seeking to restrict the enforcement of any prepublication approval requirement against unclassified information under the ITAR, including all of the Defense Distributed files submitted for DOPSR review.

June 3, 2015: DDTC publishes proposed regulations to re-define the definitions of “defense services,” “technical data,” “public domain,” and “fundamental research.” DDTC also seeks to define electronic transmission and storage of technical data in terms of the ITAR. Within the proposed definition of “public domain,” DDTC attempts to restrict the publication of any firearm-related technical data online without prior approval.

New developments:

On August 4, 2015, the 5th Circuit Court issued a ruling on Defense Distributed’s request for injunction. When reviewing an injunction, a court will examine four factors in determining whether to issue injunctive relief:
1. Irreparable harm. The court will consider whether the significance of the harm suffered by the requesting party if he injunction is not granted.
2. Balance. The court will determine the effects of not issuing the injunction. That is, will the non-requesting party be harmed if the injunction is issued?
3. Public interests. If the injunction is issued, what effect will the injunction have on the public interest?
4. Likelihood of success. How likely is the party requesting the injunction to succeed at the end of the litigation?

In making its decision, the Court determined that Defense Distributed proved a substantial threat of irreparable injury. Nevertheless, DDTC is tasked by law to regulate the export of defense articles from the country. If the injunction were issued, DDTC would also suffer harm, as it would not be able to perform its lawful duties in preventing foreign nationals from accessing the technical data provided by Defense Distributed via the internet. In the interest of the public, the court found that the harm of an illegal export outweighs the individual harms that Defense Distributed may suffer. Finally, the court found Defense Distributed likely would NOT succeed in its case against the Government. In reviewing Defense Distributed’s case, the court delved into each of the three alleged Constitutional violations.

Violation of the 2nd Amendment:

Defense Distributed alleged that the ITAR regulatory scheme violated their Second Amendment rights. The court disagreed. In very basic terms, the Court ruled that there were no restrictions placed upon the possession of the computer code created by Defense Distributed. Defense Distributed was in possession of the code, and DDTC made no effort to restrict Defense Distributed’s possession of the code. Co-Plaintiff, the Second Amendment Foundation (SAF) argued that by preventing distribution, DDTC violated the possessory rights of its members – that is, the right of SAF members to possess the computer code was restricted by DDTC via the Government’s restriction from publishing the information on the internet. The Court ruled that “SAF members are not prohibited from manufacturing their own firearms, nor are they prohibited from keeping and bearing other firearms. Most strikingly, SAF members in the United States are not prohibited from acquiring the computer files at issue directly from Defense Distributed.” As a result, the 2nd Amendment argument in support of the injunction failed.

Violation of Due Process.

The 5th Amendment to the U.S Constitution provides that no one shall be “deprived of life, liberty or property without due process of law.” In protecting due process rights, U.S. law acts to prevent the mistaken or unjustified deprivation of life, liberty, or property, and enables individuals to contest Government actions that are based upon a vague regulatory scheme. In this case, Defense Distributed argues that the terms “export,” and “defense articles” within the ITAR are vague.

The terms “export” and “defense articles” are defined within the ITAR. Defense Distributed argued that 22 CFR §120.6, the section that defines “defense articles” was too broadly written, to the point that it was unconstitutionally vague. One section to which Defense Distributed quoted included restrictions on information “which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles” which additionally “includes information in the form of blueprints, drawings, photographs, plans, instructions or documentation.” Defense Distributed argued that it cannot determine whether its computer code is regulated under this section of the ITAR.

Similarly, Defense Distributed argued that it cannot determine whether placing its data on the internet would be classified as an export. Exports are defined to include “[d]isclosing (including oral or visual disclosure) or transferring technical data to a foreign person, whether in the United States or abroad.” 22 C.F.R. §120.17(a)(4).

There is no question that reading the ITAR regulations is difficult. The rules of Standard English seemingly do not apply, as sentences run on with multiple commas and semi-colons. Nevertheless, the court determined that placing the computer code on the internet would result in an export, pursuant to the regulatory definition. Similarly, the court found that although the definition for “defense articles” was extensive, the ITAR adequately defined and identified items with significant specificity. As a result, the 5th Amendment due process argument failed.

Violation of the 1st Amendment:

Defense Distributed’s best argument may lie with an alleged violation of the 1st Amendment right to free speech. In addressing First Amendment claims, there are three steps to the analysis:
1. Determine whether the claim involves protected speech,
2. Identify the nature of the forum, and
3. Assess whether the justifications for exclusion from the relevant forum satisfy the requisite standard.

Not all speech is protected. Individuals are not permitted to commit perjury, commit a true threat against others, commit blackmail, engage in defamation, incite actions to harm others, or make obscene materials. Instead, the 1st Amendment allows an individual (or group of individuals) to express their beliefs, thoughts, ideas and emotions about different issues free from government censorship.

The restriction against government censorship is a central issue within this case – if prior DDTC approval is required prior to publication by Defense Distributed, DDTC may have created a censorship scheme in violation of the U.S. Constitution. Prior courts have ruled that “[a]ny prior restraint on expression comes …with a ‘heavy presumption’ against its constitutional validity”; Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150–51 (1969) Similarly, “a system of prior restraint avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system.” Collins v. Ainsworth, 382 F.3d 529, 539 (5th Cir. 2004) (quoting Southeastern Promotions, Ltd. v. Conrad,420 U.S. 546, 559 (1975). The prior approval scheme proposed by DDTC in responding to Defense Distributed and again proposed in June 2015 as an amended regulation cannot stand if it violates the 1st Amendment.

In arguing against Defense Distributed, DDTC argued that computer code is not protected speech, as the code is largely unintelligible to most people. The Court found that although Sanskrit is also largely unintelligible to most people, a book written in Sanskrit would be protected. In addition, Defense Distributed sought to distribute the file as open source, allowing others to read, amend, and change the original code. As a result, the court found that the first element of the review was met – the computer code written by Defense Distributed was protected free speech. All parties agreed that the internet was a public forum. As a result the second element of review was met.

In reviewing the third element of review, there are different standards of review. Depending upon the restriction on speech, two possible levels of review are possible. Restrictions that are based upon a content-neutral basis are afforded “intermediate scrutiny,” and will be permissible as long as the restriction is narrowly tailored to serve a significant governmental interest. A content-neutral regulation must allow ample alternative channels for communicating the affected information. Content-based restrictions are examined under strict scrutiny, meaning that the regulation must be narrowly tailored to meet a compelling government interest. Defense Distributed and DDTC disagree as to whether the regulation is content-neutral or content-based.

In determining whether the ITAR is content-neutral or content-based, the court looked to the U.S. Supreme Court, which found regulations to be content-neutral where the regulations are aimed not at suppressing a message, but at other “secondary effects.” The Court found that there is no doubt that the ITAR “clearly regulates disclosure of “technical data” relating to “defense articles,” [and that] the ITAR… unquestionably regulates speech concerning a specific topic.” Nevertheless, the Court found that the ITAR “does not regulate disclosure of technical data based upon the message it is communicating.” As a result, the ITAR was deemed to be a content-neutral regulation, and subject only to intermediate level scrutiny.

Intermediate level scrutiny requires that a “regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government’s legitimate, content-neutral interests but that it need not be the least restrictive or least intrusive means of doing so.” Ward v. Rock Against Racism, 491 U.S. 781. In this case, the parties agree that there is a substantial governmental interest in regulating the publication and distribution of military related technical data. The only issue at stake is whether the ITAR is tailored sufficiently narrowly to meet the government’s interests in preventing distribution of restricted technical data to persons outside of the United States.

The court determined that the ITAR was sufficiently narrow to meet the government’s interests, and did not infringe upon Defense Distributed’s ability to disseminate the information domestically. In making its ruling, the Court determined that Defense Distributed could use any medium of communication, to include the mail – as long as the chosen medium did not allow for international distribution.

By failing on all three claims within the motion for preliminary injunction, the Court ruled in favor of DDTC.

What’s next?

The most recent court action was only a motion for preliminary injunction. Nevertheless, the hearing was an important view into the Court’s thought process, and how the Court may rule when the full case is heard. Defense Distributed has appealed the motion, and a second hearing on the injunction will be heard at a future date. Surprisingly, a number of groups have come out in support of Defense Distributed, to include the Electronic Frontier Foundation, U.S. Congressman Thomas Massie, the CATO Institute, and the Reporter’s Committee for the
Freedom of the Press.

Restrictions on the export of defense articles have existed since the 1940s. The ITAR was enacted in 1976, and although it is updated from time to time, the regulatory language has never fully addressed the internet. Clearly, the regulation will need to be amended to remain current and applicable in the modern era; the only question will be how to amend the regulation while remaining within the bounds of the U.S. Constitution. Stay tuned, this case is not resolved yet.