AUSTIN, Texas — As legislation struggles to keep pace with technology, the Internet is the modern Wild West. For the past two years, Defense Distributed has been embroiled in a legal showdown at the intersection of the growth of the 3-D printed weapons industry and Internet free speech.
“Let’s be honest, there are so many CAD [computer-aided design] websites online, people have been sharing their gun culture online for a long time,” Cody Wilson, director and co-founder of Defense Distributed, told MintPress News.
“Even if there was an ATF [Bureau of Alcohol, Tobacco, Firearms and Explosives] for the Internet, a regulatory agency tasked with only policing the gun culture on the Internet, you could still see how that agency could not keep up with the spread and the speed of human thought.”
The former University of Texas School of Law student has gained notoriety in the tech world for his involvement in a series of controversial digital projects, including Dark Wallet, an application to make bitcoin transactions anonymous and untraceable, and his efforts to spread firearms blueprints to the public via downloadable files. In January, Wired named Wilson one of the “most dangerous people on the Internet right now,” putting him in league with Edward Snowden, the National Security Agency and North Korean leader Kim Jong-un.
To say he’s a gun rights advocate may be an understatement. But that, mixed with an affinity for anarchist philosophy and technology, informs his “goal,” as described by Wired, “to let anyone create a lethal plastic weapon with a click anywhere in the world, and in doing so demonstrate how new technologies can render the entire notion of regulation obsolete.”
Wilson has his hands in open-source firearms plans which would allow anyone from India to Indianapolis to “print” a gun as long as he or she has access to the Internet and a 3-D printer. He’s designing programs to make cryptocurrency transactions untraceable, ungovernable and untaxable. And, through all of this, he’s found himself at the eye of a legal storm that’s perhaps less about the Second Amendment and untraceable weapons, and more about the First Amendment, digital rights and the public domain.
Downloading controversy from the Liberator to Ghost Gunner
In 2012, Wilson founded Defense Distributed, a donor-funded, pending 501(c)(3) nonprofit corporation that designs downloadable weapons schematics that can be printed with a 3-D printer. It defines its purpose on its website:
“To defend the human and civil right to keep and bear arms as guaranteed by the United States Constitution and affirmed by the United States Supreme Court; to collaboratively produce, publish, and distribute to the public without charge information and knowledge related to the digital manufacture of arms.”
That year, the Texas-based corporation launched a crowdfunding campaign with a goal of $20,000 to develop computer-aided designs (CAD) for a .22 caliber handgun made from plastic parts printed on an open-source 3-D printer.
They raised about $2,000 before the Wiki Weapon Project was pulled because of an Indiegogo policy against hosting fundraisers for the sale of firearms. Following the setback, Defense Distributed raised the needed funds directly through its website by accepting donations via PayPal and Bitcoin.
With the money, the team rented a Stratasys 3-D printer to carry out their designs for the Wiki Weapon Project, but less than a week after Wilson received the printer, Stratasys sent a team to Wilson’s apartment to collect it. The 3-D printing and production company’s legal counsel told Wilson:
“It is the policy of Stratasys not to knowingly allow its printers to be used for illegal purposes. Therefore, please be advised that your lease of the Stratasys uPrint SE is cancelled at this time and Stratasys is making arrangements to pick up the printer.”
Undeterred, Wilson and Defense Distributed pushed forth with plans to bring printable weapons blueprints to the Internet. In May 2013, Defense Distributed released a video of Wilson firing the world’s first fully 3-D printable firearm, the 16-piece Liberator .380 single shot pistol. They also released the 3-D printable files to the Internet. Within days the State Department demanded that the files be removed from public access, citing a violation of the International Traffic in Arms Regulations. Defense Distributed complied, though Wilson admitted to Forbes that removing all relevant data from public access “might be an impossible standard.”
“They [the government] don’t want the gun to have a legacy online,” Wilson said. “They literally have the arrogance to think that they can stop it and that they can go after one of its first big promoters in the 21st century — us — and keep us from publishing this online.”
With sales of the Liberator effectively bulldozed, Defense Distributed changed models and in October 2014 began selling a miniature computer numerical control (CNC) mill for completing receivers for the AR-15 semi-automatic rifle. The receiver is the part of the firearm that houses the operating components. Under federal law a receiver that is less than 80 percent complete is not considered a firearm and can be bought and sold freely.
With Defense Distributed’s mill, known as the Ghost Gunner, anyone with $1,200 and some basic milling knowledge can create the lower receiver of an AR-15 rifle. The term “ghost guns” was first popularized by gun control advocates because the weapons do not have a serial number and are thus untraceable. Wilson and Defense Distributed have since re-claimed the term in a sort of send-up to the U.S. government, which the company is still fighting over the alleged violations of the International Traffic in Arms Regulations.
“This whole business [Ghost Gunner] is just so we can shift all of our resources into this fight, which is a greater fight about digital production and digital distribution, the public right and the public domain,” Wilson told MintPress.
After two years of delays, Wilson and the Second Amendment Foundation brought suit against the State Department in the western district of Texas in May 2015. Defense Distributed requested an injunction that would keep the Obama administration from blocking the posting of the blueprints for the Liberator. In August, Judge Robert Pittman denied the injunction, ruling that posting the blueprints online “would fall within the definition of export.” Within weeks Defense Distributed filed a first amended claim with the court and appealed the decision with the 5th Circuit Court of Appeals.
At the circuit court, Wilson explained:
“Our tactics were to try get a preliminary injunction against the government because the government takes the position that the posting of any kind of technical data, the sharing of technical data, or the communication of any data, pictures, images, anything related to guns on the Internet is de facto an export.”
He continued, “We are just trying to get a judge, any judge, a panel of judges to say, ‘Hey, this is ridiculous, we’re going to enjoin this position and then have Defense Distributed and crew tell us why this is so terrible.’”
He believes a decision could be handed down as early as March.
Watch the Ghost Gunner promotional video:
Defense Distributed: Pushing arms or just computer code?
On Dec. 17, Kentucky Rep. Thomas Massie and 14 other Republican lawmakers filed an amicus brief on behalf of Defense Distributed. The brief warned that “the State Department’s improper and unconstitutional interpretation of federal law is likely to chill scientific and technological advancement in the United States.” The brief also notes that Massie is an MIT-trained engineer and inventor, as well as a Member of the Committee on Science, Space & Technology
“We expect the Court to recognize that the State Department exceeded the authority granted to it by Congress and violated the First, Second, and Fifth Amendments to the Constitution,” Massie said in a statement to Fox News. “If the State Department’s violations are allowed to stand, it could have dramatic implications for free speech on the Internet.”
One day after Massie’s brief was filed, the Electronic Frontier Foundation, a nonprofit dedicated to protecting civil liberties in the digital world, also filed a brief in support of Defense Distributed.
The EFF’s brief notes that “the scope of [International Traffic in Arms Regulations]’s prohibition on speech could apply to members of the press republishing newsworthy technical data, professors educating the public on scientific and medical advances of public concern, enthusiasts sharing otherwise lawful information about firearms, domestic activists trading tips about how to treat tear gas or resist unlawful surveillance, and gun control opponents expressing a point about proliferation of weapons.”
Amicus briefs in support of Defense Distributed have also been filed by the Reporters Committee for Freedom of the Press and the Thomas Jefferson Center for the Protection of Free Expression, the Cato Institute, the Texas Public Policy Foundation and the Madison Society Foundation.
In a blog post on the amicus brief, Ilya Shapiro and Randal John Meyer of the Cato Institute, a libertarian think tank, wrote:
“Defense Distributed is not in the business of distributing arms. What it distributes, as properly recognized by the district court, is computer code in the form of CAD and other files. Code and digital files are speech for purposes of the First Amendment, as several federal appellate courts have recognized. Most importantly, simply because speech may be used for unlawful purposes by third parties doesn’t mean it loses constitutional protection.”
Indeed, there is precedent for these types of First Amendment issues. In Bernstein v. the U.S. Justice Department, the EFF defended Daniel Bernstein, who, as a graduate student at the University of California at Berkeley, designed encryption software with the intention of releasing it to the public. The U.S. government intervened, aiming to require Bernstein to submit his ideas to them for review. Using International Traffic in Arms Regulations and the Arms Export Control Act, the government attempted to force Bernstein to register as an arms dealer (for writing code) and obtain a license or face criminal penalties. The case was first brought in 1995, and after four years and one regulatory change, the 9th Circuit Court of Appeals ruled that Bernstein’s software source code was considered speech and should be protected by the First Amendment.
Like Bernstein’s case, the legal issues swirling around Wilson and Defense Distributed are complex. He’s facing a perfect storm of hot-button issues, constitutional protections, popular will and political realities. It’s also an example of laws evolving in real-time to meet realities, and raises questions of whether that’s even possible.
Or maybe it’s not even all that complex. Wilson says:
“I don’t think there’s actually a deeply thought-out sense of urgency from any position of power that, ‘We have to stop the gun culture this way, this is how we do it.’ There’s just the reflexive use of power.”