AUSTIN, Texas (CN) - A Texas company that distributes information on three-dimensional printing of firearms claims in a lawsuit that the federal government is unlawfully using arms regulations to censor its public speech on the internet.
In a complaint filed in the Austin, Texas Federal Court on May 6, plaintiffs Defense Distributed and the Second Amendment Foundation, Inc. say the government is using the International Traffic in Arms Regulations in a prior restraint scheme to "prohibit and frustrate Plaintiffs' public speech, on the Internet and other open forums, regarding arms in common use for lawful purposes."
The regulations implement the provisions of the Arms Export Control Act, and govern the import and export of items included on the United States Munitions List. These items include everything from firearms to ballistic missiles to spacecraft and nuclear arms.
The regulations also cover technical data, which it defines as information "required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles."
This includes blueprints, drawings, photographs, plans, instructions and software that directly relates to defense articles.
The regulations impose penalties on anyone who exports technical data without having advance government authorization, also called a prepublication approval requirement. The criminal penalties include prison terms of up to 20 years and fines of up to $1 million per violation.
According to its court filing, Defense Distributed was founded in 2012, "for the purpose of defending the civil liberty of popular access to arms guaranteed by the United States Constitution through facilitating global access to, and the collaborative production of, information and knowledge related to the three-dimensional ("3D") printing of arms; and to publish and distribute, at no cost to the public, such information and knowledge on the Internet in promotion of the public interest."
Its controversial Wiki Weapon Project involved the creation of the world's first printable handgun and culminated in the release of files for the Liberator pistol. The Liberator was "met by a flurry of US governmental censures and investigations," according to the organization's website.
Defense Distributed co-founder Cody Wilson told Courthouse News that in addition to publishing technical specs, the company also sells a machine that allows gunsmiths to finish certain gun parts.
In its complaint, Defense Distributed says it began publishing its technical data on firearms on the Internet in December 2012, and that at a time it was unaware the government defendants ever enforced a prepublication approval requirement under the regulations.
But in a May 8, 2013, the Directorate of Defense Trade Controls sent a letter to Defense Distributed, warning that it "may have released ITAR-controlled technical data without the required prior authorization."
Because it feared criminal and civil penalties, Defense Distributed immediately removed all of the files in question from its servers and began submitting its files for review to comply with the DDTC's commodity jurisdiction procedure.
The Department of Defense Office of Prepublication Review and Security conducts the reviews.
Defense Distributed filed 10 commodity jurisdiction requests for its published files in June 2013, but two years later, the defendants still have not responded to those requests.
The organization also complains that DOPSR will not review information that it deems is not subject to the International Trade in Arms Regulations.
Defense Distributed says that when it sent a 2014 request for prepublication approval of its "Ghost Gunner" machine files, DOPSR replied with "a letter stating that it refused to review Defense Distributed's request for approval because DOPSR was unsure whether the Ghost Gunner was subject to the ITAR," the complaint says.
Defense Distributed says the agency similarly refused to review computer-aided design files for which it sought permission to publish and then directed it to DDTC Compliance regarding the files.
Co-plaintiff Second Amendment Foundation says its members are being harmed by the prepublication approval requirement because they have a "keen interest in accessing, studying, sharing, modifying, and learning from Defense Distributed's various files, as well as similar 3D printing files related to firearms that they or others have created."
The complaint says that defendants' prepublication requirement for the "non-classified privately-generated speech, including on (but not limited to) the Subject Files, goes beyond any authority conferred upon them by Congress under the AECA, as confirmed by the 1985 ITAR amendment."
The plaintiffs claim the requirement violates their free speech, right to keep and bear arms, and due process rights because it is "overly broad, vague, arbitrary, and lacks adequate procedural safeguards."
Defense Distributed also says that it has suffered monetary loss by not being able to publish its technical data on firearms.
"The ITAR prevents me from sharing privately generated research and development meant to be shared with the public," Cody Wilson said.
A spokesperson from the U.S. Department of State told Courthouse News that the "United States strictly regulates the export of defense items, including related manufacturing technologies, as an integral part of safeguarding U.S. national security and furthering U.S. foreign policy objectives."
The U.S. Department of Justice was still reviewing the complaint at press time.
The plaintiffs seek declaratory relief and an injunction stopping defendants from enforcing the prepublication approval requirement for their files.
They also seek compensatory and punitive damages, plus costs.
They are represented by William Mateja of Fish and Richardson in Austin, Texas.
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