The Obama administration, in its latest effort to clarify the various laws surrounding U.S. exports, recently proposed changes to the International Traffic in Arms Regulations (ITAR). The revisions, announced June 3 in the Federal Register, seek to redefine some key terms regarding what defense-related technology is permissible to export internationally. Although the government says the changes are merely clarifications to existing rules, some gun-rights groups voices, including the NRA, quickly decried the move as an infringement on First and Second Amendment rights by drastically limiting people’s ability to disseminate weapons-related information online.
The main change to the export regulations includes redefining the term “technological data” to include any “information required for the development, production, operation, installation, maintenance, repair, overhaul, or refurbishing” of a weapon. This means that online materials, including blueprints or encryption programs used to build 3-D guns, will now be subject to the same regulations as a weapon. Anyone seeking to release such “technical data” must obtain explicit permission from the U.S. State Department, just as if they were seeking to internationally transport the weapon itself.
If caught breaking these new rules, such as sending de-encryption data to a friend abroad, an individual could face 10 years in prison or a fine of up to $1 million, or both, for each criminal violation. (The government does allow for some nuance on this: Online gun publications and reviews, for instance, are permissible.)
The government says the changes are simply meant to safeguard national-security interests and are not intended to be a gag order on gun-related speech or materials. “The point of these proposed definition changes is really about being able to secure really sensitive technologies, like putting up detailed schematics of how to manufacture nuclear weapons, things that nobody would sensibly want in the public domain,” says David McKeeby, spokesperson for the State Department’s Bureau of Political-Military Affairs, which oversees the regulations of international weapons exports.
“This is not about free speech at all,” McKeeby adds. “This is about following the ITAR and not making this stuff accessible to foreigners.”
A lawsuit taking the government to task on this issue is already in motion. Cody Wilson and his company Defense Distributed sued the government after being asked by the State Department to remove blueprint files of a 3-D printed gun they uploaded to the internet. The State Department said Wilson was violating the ITAR by making his 3-D gun blueprints available online, thereby effectively “exporting” them internationally. Wilson sued the government for violating his First (as well as Second and Fifth) Amendment rights, arguing that the blueprints were a form of free speech that he was entitled to post on the Internet.
“There are a lot of moving parts to this,” says Wilson. “It’s bigger than any one issue. It is a gun issue, but closely related it’s also a free-speech issue.”
Wilson sees the recent changes to ITAR as directly related to his lawsuit against the government. “It’s no coincidence that [the ITAR revisions] came out when they did,” he says. “It’s to kind of help shore everything up and commit themselves to a position going into this litigation.”
Wilson points out it would be impossible for the agency responsible for the ITAR to prosecute everyone who violates it, simply because of the broadness of the regulations and the practical limits of the government to go after every case. In other words, someone who posts online the software to make a 3-D printed gun is unlikely to be prosecuted to the same extent as someone who is illegally trafficking automatic weapons abroad.
But theoretically the government does have the jurisdiction to do so under these revisions, if it chooses to. “In the case of 3-D printing, there is the added consideration that by putting up the 3-D code to produce a firearm, you are manufacturing technology that is controlled under the ITAR,” McKeeby says.
The government contends that the timing of the proposed changes to the ITAR had nothing to do with Wilson’s case. McKeeby says the changes have been in the works for years, as part of an export-control reform initiative that Obama launched in 2009 to streamline export regulations among the departments of State, Defense, and Commerce.
Whether or not technical data can be considered a weapon is not the only ITAR issue that has sparked concern. Wilson and other First and Second Amendment advocates see the ITAR’s redefinition of “public domain” as especially troubling. Originally, the ITAR did not ban technological data that was in the “public domain” — in other words, information that could be found elsewhere, such as public libraries or conferences. Information published or accessible online, however, was left in a legal gray area, since the ITAR was originally written before the Internet existed. These recent changes seek to redefine “public domain” specifically to include the Internet, which means that any weapons-related information — including 3-D gun blueprints — made accessible online is now considered to be an international “export” of a weapon.
Access to 3-D printing technology is still new, so the revised language in the ITAR concerned with the spread of material related to the production of 3-D weapons affects relatively few people. As the technology to manufacture and distribute such weapons online becomes more widespread, though, it is likely that regulations will expand alongside it.
“Regulations are living documents, and we’re continually having to reassess how we regulate in the face of all kinds of technologies,” says McKeeby. “It’s obviously something that is already clearly on our mind.”