If you’re a little confused about 3D-printed guns and what exactly is happening now, it’s understandable. Five years ago, the organization Defense Distributed sought to publish a collection of materials online that would enable others to make guns using 3D printers. The State Department intervened, setting off a years-long fight in and out of court over what to do about the risk of 3D-printed guns. This flared up again last month when the State Department abruptly announced a settlement in the case, leading the way for Defense Distributed to publish the materials online. The plan had been for Defense Distributed to make the plans available Wednesday, but state attorneys general sued the State Department in an attempt to get it to reverse the position. Tuesday, a court blocked Defense Distributed from letting people download the plans.
A close read of the legal arguments around the recent debate over 3D-printed guns reveals a fundamental disagreement over how much work it takes to turn the design files that Defense Distributed seeks to post online into a working gun. Those seeking to ban the publication suggest that the technology is plug-and-play. The opening line of the attorneys general complaint filed Monday claims that “anyone with access to the CAD files and a commercially available 3-D printer could readily manufacture, possess, or sell such a weapon.” Senate Minority Leader Chuck Schumer claims that “all you need is a little money and you can download a blueprint from the Internet to make a gun at home.” Those who defend it compare the information in question to something more akin to a schematic or blueprint. Defense Distributed has characterized this dispute as touching on the “the unquestionable right to share … information.”
Not knowing exactly what Defense Distributed plans to publish, it is hard to know who to believe. But when it comes to the Liberator handgun—the most famous of the designs and the one whose plans have been kicking around the seedier corners of the internet for a half-decade—the CAD files are much more like an unauthorized sequel to The Anarchist Cookbook than a self-executing firearm producer. Philip Bump failed in an attempt to print the gun in 2013, when he found that it would in fact take considerable time and money to produce a version of the Liberator that could safely be fired. Andy Greenberg at Wired tried again in 2015 with similar results, although he did better when working with a “CNC mill,” which uses a computer to carve out designs in aluminum.
This distinction between regulating information about guns and regulating a tool that would automatically allow someone to manufacture a gun matters. There are good reasons why we would want to protect the publication of dangerous technical information, even if we also decide that we want to punish those who use that information to create a weapon, and those who provide ready access to a means to do so.
We protect speech so strongly under the First Amendment in part because we want to ensure unfettered discussion of policy matters. We want a well-informed citizenry that can engage in the hard task of self-governance. With the new rush of legislation concerning 3D-printed guns, the public and Congress should have access to the controversial files at issue, so they can understand what they are and are not. The plans will help us estimate the actual cost of manufacture, and will likely show that a gun that conservatively costs more than $1,000 in capital investment to 3D print (given that the output has to be of a relatively high quality to actually work) could instead be obtained for a couple hundred dollars lawfully, or even unlawfully at a still-cheaper markup. As First Amendment scholars like Eugene Volokh and Andrea Matwyshyn have argued, there is social value in allowing the dissemination of speech that could also be used to commit a crime, as it can teach us how to properly respond to that threat—legally, technically, and otherwise—when it actually happens.
The line between protecting technical information and prohibiting acting upon that information is one that courts have drawn when considering the “code as speech” debate around areas like encryption technology and the circumvention of digital rights management tools under copyright law. Under these cases, computer programs are considered protected speech, but the government is still given a wider latitude to regulate the code for its functional impact (what it actually does) than they are for the actual information conveyed in the code itself (what one reading the code can learn about the technology in question).
And what’s concerning in this most recent legal challenge is that states are trying to go after the information, rather than the action. Though printing a handgun could arguably violate a variety of state and federal laws, Defense Distributed is not alleged to have been an accessory to anyone actually doing it. The legal doctrine around this is somewhat uncertain, but were a prosecutor to show that Defense Distributed gave plans to a person who intended to use them to unlawfully make a firearm, and knew they planned to do so, the First Amendment would likely not prevent a conviction. What the state attorneys general are instead asking the State Department to do (and what until recently it was doing) is to re-assert that publication of these files is an unlawful export of technical information. Why is it an export? Because it was published online, and foreign nationals also have access to the internet. They are going after the information itself, not how the information can be used.
If this is a valid exercise of government power, then an alarming amount of online technical information can also be regulated through export control laws. The two chief export control laws in the United States—the International Traffic in Arms Regulations (which is at issue here) and the Export Administration Regulations—restrict the export of technical information on a variety of topics, including weapons, cybersecurity, encryption, and sensory technologies.
Both regulations are supposed to make exceptions for works generally available to the public, but the State Department has been extraordinarily hesitant to include online publication as one of the ways that information can be deemed “public”—even though dissemination through newsstands, bookstores, libraries, and conferences are already covered. In an earlier First Amendment challenge in this case in 2015, a brief by the Reporters Committee for Freedom of the Press observed that popular press reports—like this CNET report about government use Predator drones—could also be deemed an unlawful export under this expansive reading.
And that stands to hurt technology policymaking across the board. It removes the source of facts and lets our fears fill in the gaps. It’s not hard to see why 3D-printed handguns have so captivated the public this week. The imagination runs wild if you think of 3D printers like the Replicators on Star Trek, freely printing any object a user wishes. But that’s not what this is. From what we’ve already learned by examining the Liberator handgun, we can see that the gun is little more than a political manifesto in a CAD file. It is a gun that costs thousands of dollars to make in a way that will work, and even then will likely break shortly after its first use. It takes knowing the technical details of what’s at stake to make that more rational policy judgment, and a legal action that would remove the technical information from the public debate harms the competent regulation of 3D-printed guns more than it helps.