AP Photo/Eric Gay

When Free Speech and National Security Are at Odds

A federal judge heard arguments Tuesday in a case about whether keeping 3-D-printed guns from getting into the wrong hands limits First Amendment freedoms.

In 1971, a slim volume filled with instructions detailing how to create explosives and other weapons proliferated across bookshelves. The Anarchist Cookbookwas one ideological young American’s attempt to make a political statement; in this case, the author was registering his opposition to the Vietnam War and the draft letter he had received. The book set off an urgent and fearful debate. In a letter to a top official at the Justice Department, FBI Director J. Edgar Hoover wrote “of the inherent threat that distribution of the book poses to this country’s internal security.” But, he lamented, “the FBI has no control over material published through the mass media.”

Five years ago, another ideological young American published another kind of how-to manual. In the 21st-century iteration of the story, the medium is the internet, not a book; and instead of half-baked plans to build ineffective bombs, there are blueprints that can be downloaded as code and used to create functional plastic guns from a 3-D printer. At the time the material was published, the State Department claimed that 3-D-printed guns posed a direct threat to America’s national security. The State Department argued that the publication violated its arms-export controls, and sued to force the removal of the plans from the internet. The blueprints’ creator—Cody Wilson, an anarchist firearms enthusiast who enjoys trolling gun-control advocates and is based in Austin, Texas—begrudgingly took the plans off his website.

This spring, Donald Trump’s State Department changed course by settling Wilson’s case out of court and granting him permission to publish his plans. The settlement would have allowed the blueprints to be published online this month. But a federal judge in Washington put Wilson’s plan on hold after Democratic attorneys general in eight states (including New York and New Jersey) and Washington, D.C., brought a lawsuit claiming the State Department had acted inappropriately. On Tuesday, lawyers representing these eight states, the State Department, and Wilson met in court in Seattle, where the judge announced that he will decide by Monday whether the plans must remain offline. Beyond the specifics of the case, the courts are again grappling with a recurrent question: When does U.S. national security trump the free-speech rights of U.S. citizens? Most agree that the First and Second Amendments give Americans the right to download plans for 3-D-printed guns off the internet. What the judge must decide is whether those freedoms should be abridged by the ability of foreign terrorists to download those same plans — and then use the guns to attack the United States.   

When Wilson’s blueprints first appeared online five years ago, they were downloaded more than 100,000 times in two days. But it was the Spanish, not the Americans, responsible for the most downloads in those opening days. Other countries with citizens eager to explore the new technology included Brazil, Germany, and the United Kingdom—countries with much tighter gun laws than America. “Such guns can fire a bullet and they can probably kill,” a European Union law-enforcement official said that year. “It is a very unwelcome development.” The State Department soon got involved, ordering the files taken down for violating American arms-export rules.

Typical guns are made of metal, and they’re difficult to assemble and tough to hide, especially since federal law requires that they can be traced through serial numbers and detected at metal detectors. Wilson wants to make getting a gun much easier. With a 3-D printer and high-quality plastic (and several thousand dollars, and some tech know-how), anyone could create a gun at home if they downloaded Wilson’s plans. The actual object doesn’t look like much—a hybrid of a plastic water gun, the kind kids play with, and a real pistol.

The Liberator, as Wilson named the gun, is fragile; since it’s made of plastic, it could fall apart after a shot is fired if users don’t put it together correctly. But it also has the potential to evade metal detectors, and the fact that it could be manufactured at home means people who are otherwise forbidden from buying guns could have access to it. So when the plans were first posted, gun-safety advocates were alarmed. The guns “evade our detection systems and are a direct threat to our national security,” said Democratic Senator Bill Nelson of Florida.

But there was little to stop the plans being published, given both First Amendment free-speech protections and Second Amendment gun-ownership rights. In 2013, when Barack Obama’s State Department got involved, it became clear that this matter concerned national security, not domestic gun politics. “None of this has anything to do with any domestic control over anything,” said Kevin Wolf, a former Commerce Department official under Obama who worked on arms-export issues.

The foreign-policy interest here, a State Department spokesperson told me, was keeping the plans away from people in other countries who might pose a danger to America. “It seems like a no-brainer to me that, yes, they can get into the wrong person’s hands, and, yes, they can be harmful,” said William Banks, a Syracuse University law professor and national-security expert, in an interview.

Until June, the State Department—through the end of Obama’s term and the start of Trump’s—held a similar position. In 2015, a judge summarized the agency’s position: “The State Department is particularly concerned,” the judge wrote, that Wilson’s technology could be used “in an assassination,” to manufacture weapons by “terrorist groups, or guerrilla groups,” or “to compromise aviation security overseas … directed at U.S. persons.” Yet this year, the federal government changed course, with the State Department acceding that Wilson’s blueprints were legal under newly designed federal regulations.

This spring, the Trump administration announced a simpler set of arms-export rules to make exporting firearms abroad easier. Before, gun manufacturers would need a license from the State Department to sell arms in other countries, but now they could get that license from the Commerce Department—more quickly and with less oversight, since the new rules no longer consider most guns to be military weapons. And under the new rules, plastic-gun blueprints were okay, so long as Wilson registered with the government.

Many interpreted the move as an effort to appease gun manufacturers. But Wolf, who helped draft an early version of the policy under Obama, said, “The Trump administration’s rule and [Obama’s] rule were both identical” in requiring anyone exporting a gun to get a license. That likely includes Wilson.

With these changes set to go into place, Wilson approached the State Department about his case, said Josh Blackman, Wilson’s lawyer, in an interview. “This wasn’t about Trump want[ing] to put 3-D guns on the internet,” Blackman told me. “It’s such a silly headline.” The State Department decided to settle at the urging of the Justice Department, according to Heather Nauert, the State Department spokesperson. “We were informed that we would’ve … likely lost this case in court based on First Amendment grounds,” Nauert explained at a recent press briefing.

For Blackman—and Wilson and his nonprofit, Defense Distributed—it’s a First Amendment case. “Once we strip apart all the parts about plastic guns and traceable and all this other stuff, the government is telling U.S. citizens, ‘You can’t put a file on the internet,’” Blackman argued. “That strikes me as a core, core free-speech First Amendment issue, very straightforward.” But, he added, “the most simple constitutional arguments become complicated once guns are involved.”

Yet the issue extends beyond Americans and their First Amendment rights because the plans could be downloaded anywhere in the world. “Whether people like it or not, it is legal for American citizens to download this information,” Nauert said at a briefing last month. The threat changes when people elsewhere in the world download the blueprints. Senator Ed Markey of Massachusetts expressed concern at a Senate hearing in July that the guns could be downloaded and assembled by militant groups like Hamas. Several countries, including Japan and Australia, have arrested people for making 3-D-printed guns from Wilson’s plans.

The reality—unfortunate for Wilson’s opponents, and largely irrelevant for Wilson—is that his blueprints remain quite easy to access on the dark web, even though his official website is now blank. But Wilson’s case is mostly symbolic. “Once it’s out, it’s out,” said Wolf, the Obama administration official, about information published online. “Even if you didn’t have the constitutional issue,” he explained, “there’s no real way to control it.”

“These are plastic guns that aren’t very helpful or very useful,” Blackman told me. “They’re very brittle, they’re not very good, there’s a lot of things wrong with them.” A 3-D-printed gun would only make it through a metal detector unnoticed if it lacked the metal firing pin that is necessary for the gun to function, to say nothing of bullets. And, Blackman explained, “if you don’t make it right, it’s going to blow up in your hands.”

For now, Wilson’s plans have been stymied yet again, this time by a federal judge in Washington who ruled on July 31 that the changes to arms-export regulations must be put on hold. But the case still gets to the heart of a long-standing debate in America’s legal system. “This same debate, about the publishing of sensitive information, is inherent in the system,” Wolf said. “It came up with nuclear-weapons technology in the ’80s. It came up with encryption technology in the ’90s.”

Terrorists and other foreign actors intent on harming the U.S. have long figured out how to do so without The Anarchist Cookbook or a blueprint for a 3-D-printed gun. And in this case, the item that raises national-security concerns might not pose much of a real threat. But new technology that does threaten the U.S. and its allies will continue to emerge. And the battle that ties censorship to safety and freedom to fear will continue to rage.

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.