Here is the short version of the 3D-printed gun story you’ve probably heard about. A guy named Cody Wilson invents a plastic gun that can be made from parts created on a 3D printer, and in 2013 he posts the plans necessary to print them on the internet. The State Department sends a letter telling him to take the plans down or go to jail. Cody takes them down and decides to drop out of law school to devote his life to making plastic guns available for everyone who can afford a high-quality 3D printer. In May 2015, his company, Defense Distributed, sues the State Department and seeks a preliminary injunction that would allow the plans back online. In January 2018, he loses the request for a preliminary injunction when the U.S. Supreme Court rejects his appeal of the decisions of the two lower courts that previously ruled against him. So the lawyers head back to the lower court and begin preparing for trial. But on June 29, the State Department agrees to settle the case by allowing the plans back online and pays Defense Distributed $39,581. On Tuesday, hours before the plans are scheduled to be available again, a federal judge grants a request from eight states and the District of Columbia for a temporary restraining order to prevent the settlement agreement from taking effect.
Confused? You should be. You must be wondering what the State Department had to do with some guy in Texas posting things on the internet. And you are probably wondering, like many others, why the State Department suddenly gave up. And then, you may ask, why would another federal court tell the State Department the settlement could not go into effect?
Let’s start with why the State Department was involved. That is because State, through an obscure agency called the Directorate of Defense Trade Controls, is charged with regulating the export of firearms. And not just exports of the firearms themselves, but nonpublic information about firearms. In the State Department’s view, because the internet is global, putting information online is the same thing as putting it in an envelope and mailing it to China, Russia, Iceland, Tierra del Fuego, Lichtenstein, or anywhere else in the world. So, because the plans weren’t public until they were placed on the internet, Defense Distributed was violating the law prohibiting export of nonpublic information about firearms without a license from the State Department.
The next question is why the State Department backed down from this in June, particularly after it had prevailed on the preliminary injunction in three courts. The State Department’s abrupt reversal was because of a thing called “export control reform,” a process that began during the Obama administration to transfer authority over the export of certain items from the State Department’s Directorate of Defense Trade Controls to the Commerce Department’s Bureau of Industry and Security. The idea was to keep the really sensitive items under State’s control and everything else under the control of Commerce. (If you’re asking why we need two export control agencies, well, that’s a question I can’t answer. Talk to your member of Congress.)
The Department of Commerce has a very different idea about the consequences of putting things on the internet. If you release your own information to the public by putting it on the internet, then it is no longer export-controlled at all. Compare this to State’s idea that the information must be public (or State-approved for public release) before it’s placed on the internet to avoid export controls—and by “public,” State means available in books and libraries.
That brings us to May, when State and Commerce announced their intentions to move small arms from the State Department’s jurisdiction to Commerce’s. The Defense Distributed case was still in State’s hands, but if the transition takes place, 3D-printed guns will be under Commerce’s purview. And Commerce has made it pretty clear that it wouldn’t object to publication of the plans. It pretty much said so in its Federal Register notice announcing the proposed rules on May 24:
[I]f a gun manufacturer posts a firearm’s operation and maintenance manual on the Internet, making it publicly available to anyone interested in accessing it and without restrictions on further dissemination (i.e., unlimited distribution), the operation and maintenance information included in that published operation and maintenance manual would no longer be “subject to the EAR [Export Administration Regulations].”
No longer “subject to the EAR” is Commerce-speak for “no longer subject to export controls.” The bottom line is that post-transition, Defense Distributed could post all the 3D-printed gun plans on the internet that it wants.
Of course, the transition is unlikely to occur until later this year at the earliest. So why has State thrown in the towel now? No one has a good answer to that question any more than anyone can figure out why State gave Defense Distributed $39,581 to settle the lawsuit.
Needless to say, State’s decision to back down was not terribly popular. Concerns about the ability of these weapons to elude TSA checkpoints as well as be used to commit crimes without having the potential traceability of other firearms led attorneys general in eight states and the District of Columbia to file suit against the State Department and Defense Distributed challenging this settlement. They asked for a temporary restraining order against online publication of the plans. A federal district court granted that request on Tuesday, just hours before the plans were to go back online.
The federal court bought the plaintiffs’ argument that State had effectively removed gun printing plans from the list of export-controlled items without giving 30-day advance notice of this removal to Congress, as required by law. The problem with this holding by the court is that State did no such thing: Rather than remove these plans from the control list, it approved the public release of the Defense Distributed plans at issue, thereby exempting them from any license requirement. Nothing was removed from the list, and no congressional notification was required. The court will next have to decide whether to leave this temporary order in place through a trial, and it seems likely that it will.
There are genuine issues raised by plastic guns, but they need to be addressed directly, not through export laws designed to keep U.S. guns out of foreigners’ hands without State Department approval. There are much better ways for the government to keep 3D-printed gun plans offline. The Undetectable Firearms Act of 1988 prevents the manufacture of weapons that cannot be detected by TSA checkpoints or at other screening locations. Making plastic gun plans widely available arguably aids and abets violation of that law. That law would also, it seems to me, serve as a predicate to a law directly banning publication of plastic gun plans consistent with the First and Second Amendments.
The real problem here, of course, is that technology inevitably outpaces regulation. The State Department rules at issue here were written long before the internet was a twinkle in Vint Cerf’s eye, and when 3D printers were thought to be about as feasible as time machines and interstellar travel. Whatever the ultimate response to 3D-printed plastic guns turns out to be, it will only be a matter of time before other advances in technology render that response meaningless.