News broke today that there was a decision in the case that Defense Distributed is bringing against the State Department related to putting files for 3D printing and CNC milling guns online. While this is a decision on a preliminary question that largely punts on the super-interesting parts of this case, it still has a few noteworthy elements.
As a quick bit of background, Defense Distributed released some files for 3D printed guns online. The State Department sent them a letter telling Defense Distributed that under the State Department’s interpretation of export laws known as ITAR, Defense Distributed had to pre-clear the posting of such files with State. The theory is that posting the files on the internet is the same as exporting them to foreign nationals.
While complying with State’s request, Defense Distributed sued the State Department over their interpretation of ITAR, claiming that the interpretation was unconstitutional. Before getting to the real heart of the case, Defense Distributed asked the court to suspend the State Department’s pre-clearance requirement until the matter was resolved. It is that request – which took the form of a preliminary injunction request – that resulted in the decision this week. That means that the decision today is not about the larger questions surrounding files as free speech, what qualifies as “exporting” a digital thing, and when information becomes a thing.
The arguments around the preliminary injunction can be summarized quickly. Defense Distributed said that imposing a prior restraint on its ability to speak (in the form of releasing files) infringed on its First Amendment rights (among other things). The State Department said that releasing files online harmed national security.
The majority opinion essentially took the claims of both sides at face value. Defense Distributed had Constitutional rights that could only be infringed upon in important circumstances. The State Department was showing a circumstance which, if it prevailed at trial, could very well be important enough to justify infringing on those rights.
The majority was swayed because of what it saw as the long term impact of those harms. If Defense Distributed turned out to be right, the harm caused by preventing it from posting the files online could be remedied at the end of the trial (and its appeals….) by allowing them to post the files online (note: it is probably safe to say that this is not a universally accepted theory of how to remedy the harms related to prior restraint).
However, if the State Department turned out to be right, the harm caused by temporarily allowing Defense Distributed to post the files online could not be reversed. This is because once a file is online it is online forever, even if Defense Distributed took them off the Defense Distributed site. On this narrow point, this is a refreshingly clear-eyed understanding of how the internet works from a court.
As a result of this balancing, the majority sided with the State Department and declined to allow Defense Distributed to post the files pending the resolution of the case.
The dissenting opinion took a very different view. I suspect that, while Defense Distributed would have preferred to win this round, they are at least happy with the fairly long and detailed dissent opinion.
Instead of taking the State Department’s claim that posting the files online negatively impacts national security at face value, Judge Jones’ dissenting opinion interrogates the claim and finds it sorely lacking. It questions the constitutionality of the ITAR framework generally, and rejects the way that the State Department interprets it in this case specifically. After undermining the State Department’s argument over the course of a number of pages, it is unsurprising that the opinion sides with Defense Distributed’s constitutional claims and argues in favor of its ability to post the files online.
This opinion may very well be appealed. If it is, the full 5th Circuit will have to decide which analytic approach to take, and then how that approach applies. Even when that process is over, the parties will have to go back and actually argue the heart of the case (which, regardless of your opinions about gun control, 3D printing, free speech, and export control law, raises some interesting questions). In other words, this decision is one among many before all of the questions are answered.
That being said, the opinion is an interesting window into how courts will approach the many potentially complicated legal questions connected to this case. Since Defense Distributed has partnered with the Second Amendment Foundation to pursue this case, there is actually a reasonably good chance that that the case will last long enough to get some of them answered.