Cody Wilson is the man behind Defense Distributed. They’re the folks that pioneered one of the first 3D-printable firearms, the “Liberator.” When they first released the gun, the CAD files that allow anyone with a 3D printer to make a copy of the gun were hosted directly on their servers and freely available to the public. The U.S. Government predictably freaked out, and the State Department sent Mr. Wilson a nice letter demanding he remove those files from the internet or face a hefty fine and jail time for violating ITAR regulations (originally designed to keep high-tech military weapons out of the hands of hostile governments) . . .
For two years, Cody has been waiting for a response to his challenge to their letter. During that time, the files have still been widely available — just not on Defense Distributed’s website. Because you can’t stop the signal.
Now it seems Cody has had enough and is suing the State Department government to lift their restrictions, and has Alan Gura of the Second Amendment Foundation as well as the Electronic Frontier Foundation backing him up.
This isn’t the first time that the .gov has used ITAR regulations to try and block technology from leaking online that keeps them awake at night, drenched in sweat. Back in the early days of the internet, the government tried to use those same regs to keep strong encryption methods from being used around the world, preferring everyone to use insecure communications so as to make the NSA’s job easier. In a strikingly similar court case of Bernstein v. U.S. DOJ, the court ruled that the code was considered “speech” and protected under the 1st Amendment.
As a brief recap of the events, we turn to the New York Times:
The case began in May 2013, when Mr. Wilson, who was then in law school at the University of Texas, got a letter from the State Department informing him that by posting his files online he may have violated a complicated set of federal rules, the International Traffic in Arms Regulations, which seek to prevent the export of sensitive military hardware, including weapons technology.
The letter, from the Directorate of Defense Trade Controls, a State Department office, told him to take the files down while officials reviewed whether he needed a license to disseminate what it referred to as “defense articles.”
Mr. Wilson, 27, claims he spent thousands of dollars over the next two years on lawyers who helped him file paperwork in an effort to comply with the regulations, which are known as ITAR. When the State Department did not make a decision in that time on whether he needed a license, he came to believe he was being singled out for scrutiny — in part because his files were published not long after the Sandy Hook school shootings in Connecticut in which 26 people, many of them children, were killed.
Worried that he was being thrust into a kind of legal limbo, Mr. Wilson filed suit, asking for judicial permission to repost his files and seeking damages.
His claim is that the suppression of his files constitutes a prior restraint violation of his 1st Amendment rights, as well as the 2nd Amendment rights of Americans to keep and bear arms.
While this argument will be decided in court, some First Amendment experts said the lawsuit was a trailblazing foray into free speech law and, at the least, raised legitimate concerns.
“I can’t think of anything quite analogous,” said Floyd Abrams, a noted First Amendment lawyer. “But on the face of it, it seems to me like a serious claim.”
With the EFF, the SAF and Alan Gura behind him, he’s got at least a fighting chance.