Export Control Laws Limit 3-D Printing of Guns

March 28, 2016

3d PrinterAdvances in 3-D printing technology make it easy for parties to access computer-assisted design files (CAD files) for guns online and to print tangible usable weapons based on those designs.  United States export control laws have been applied to such 3-D printing of guns, and current litigation initiated by the organization, Defense Distributed, tests the scope of export control reach into 3-D printing.

Defense Distributed is an organization that promotes public access to guns through use of 3-D printing technology.  It advocates widespread use of 3-D printing as one of the most efficient and effective methods to ensure that members of the public retain access to guns without interference.

Defense Distributed previously offered CAD files containing gun designs for 3-D printing online.  The organization made those files accessible to virtually anyone with online access.  This online accessibility made it possible for parties outside of the United States to access the CAD files.

Matsuura Blakeley BannerThe U. S. Department of State took the position that online distribution of gun designs which could be printed into usable guns constituted a form of international distribution of weapons.  According to the State Department, that form of distribution is within the scope of federal export control laws, thus the distribution of the gun CAD files required State Department approval under the U.S. International Traffic in Arms Regulations (ITAR).

In response to the State Department’s action, Defense Distributed took down the gun CAD files, and it applied for a license from the State Department to permit the online distribution, For more than two years, the State Department took no action on the Defense Distributed application.  Defense Distributed then sued the State Department in federal court in New Orleans.

In its suit, Defense Distributed argues that the State Department’s failure to act on the application constitutes unlawful prior restraint of communications.  Defense Distributed claims that CAD files for 3-D printing of guns are now widely accessible online available from a variety of sources other than Defense Distributed.  It contends that the ITAR requirements do not apply to materials that are in the “public domain” and are thus already accessible to the public.

The State Department claims that the ITAR provisions remain applicable when the original distribution of the materials in question was illegal.  According to the Department of State, materials that became publicly accessible through violations of ITAR remain subject to ITAR controls.  In this case, the State Department contends that the gun CAD files were illegally posted online and they thus remain subject to ITAR restrictions.

The State Department also contends that the ITAR oversight framework was originally established before the development of widespread public Internet access and 3-D printing technology.  It argues that the intentions behind the ITAR framework of controls should not be circumvented through use of technologies that enable access to controlled materials through information sharing instead of direct distribution of tangible goods.

In some ways, this dispute parallels ongoing debates associated with public access to secret and proprietary information which is, in effect, simply another form of controlled digital material.  The core issue is the extent to which, in the Internet age, laws intended to limit access to information should continue to be enforced even after that information has become publicly accessible online.

It is clearly time for us to re-think our overall legal approach to information access controls.  There is likely no ideal solution to the challenge of legal remedies appropriate in instances when digital materials subject to access controls are made publicly accessible online.  Yet even without an ideal solution, we must now re-examine the extent to which current legal controls on public access to information should be revised to make them more appropriate for the digital environment.