I’m a bit late to the discussion about a new proposal from the State Department that appeared in the Federal Register on Wednesday, but IÂ wanted to take time to read through the whole thing, make sure I understand it, and ensure that the proposal was really as bad as the righty media is making it out to be. I can confidently say that none of what is said in this article at the Washington Examiner is exaggerated, or hyperbolic in an attempt to make the Administration look bad. It really is this bad.
This is what the NRA has to say about it, and after reading the proposal, it’s a pretty accurate summary:
In their current form, the ITAR do not (as a rule) regulate technical data that are in what the regulations call the “public domain.” Essentially, this means data “which is published and which is generally accessible or available to the public” through a variety of specified means. These include “at libraries open to the public or from which the public can obtain documents.” Many have read this provision to include material that is posted on publicly available websites, since most public libraries these days make Internet access available to their patrons.
The ITAR, however, were originally promulgated in the days before the Internet. Some State Department officials now insist that anything published online in a generally-accessible location has essentially been “exported,” as it would be accessible to foreign nationals both in the U.S. and overseas.
With the new proposal published on June 3, the State Department claims to be “clarifying” the rules concerning “technical data” posted online or otherwise “released” into the “public domain.” To the contrary, however, the proposal would institute a massive new prior restraint on free speech. This is because all such releases would require the “authorization” of the government before they occurred. The cumbersome and time-consuming process of obtaining such authorizations, moreover, would make online communication about certain technical aspects of firearms and ammunition essentially impossible.
Penalties for violations are severe and for each violation could include up to 20 years in prison and a fine of up to $1 million. Civil penalties can also be assessed. Each unauthorized “export,” including to subsequent countries or foreign nationals, is also treated as a separate violation.
Gunsmiths, manufacturers, reloaders, and do-it-yourselfers could all find themselves muzzled under the rule and unable to distribute or obtain the information they rely on to conduct these activities. Prior restraints of the sort contemplated by this regulation are among the most disfavored regulations of speech under First Amendment case law.
I can offer you this, and 311 other reasons why this proposal should scare the ever loving hell out of you. I mostly post about the politics of the gun issue, which should be safe under this proposal, but even I would have to remove or revise a few hundred posts (not that I intend to, the State Department toadies that came up with this fascist BS can FOAD). I can’t imaging how many counts a more gun oriented site would rack up.
It’s my opinion that this petition for rule making is aimed squarely at Cody Wilson and Defense Distributed. The powerful take their imagined prerogative to control quite seriously, and they don’t particularly appreciate someone trying to throw a wrench into their carefully controlled, petty fiefdoms. This is the backlash I’ve been waiting for, and have been concerned about. That The Empire would Strike Back was a fore-drawn conclusion.
So what kind of position are we in to stop this usurpation of our First and Second Amendment rights? First, we can use the public comment period. The more serious comments we flood them with the better chance it will cripple their ability to implement the regulation, as we did with the M855 ban. This also can indicate to lawmakers there is passion, and we can use that leverage to get a budget rider to prevent implementation of the rule.
What about the courts? This is not the first time Uncle Sam hasÂ tried to do something like this. Back in the 1990s, we had a flight over ITAR regulation ofÂ cryptography, though in that instance, they simply classified it as a munition. This proposal is actually far more broad than that. The encryption issue was resolved when the Clinton Administration backed down and reclassified encryption as a commerce control item rather than a munition whenÂ court challenges didn’t go well for the government. Those two cases, Bernstein v. United StatesÂ and Junger V. Daley, resulted in losses for the government position in the 9th and 6th federal circuits respectivelyÂ . However, the Supreme Court never definitively ruled in either of those cases, and like I said, 311 reasons you should be worried about this.
This is very dire, friends. If this moves forward there is a very good chance I, and many of my other fellow bloggers, forum admins, and YouTubers will end up in federal prison while the Courts sort this out. Don’t ever let anyone ever tell you what these people want are “common sense” regulations. They are fascists. That is no longer arguable. There will be a lot of firearms enthusiasts serving prison time for essentially the same crimeÂ they would be charged with had they traveled to Iraq and sold plans for a thermonuclear weapon to ISIS. Fundamentally transformed!
This news has to spread far and wide if we’re going to stop this terrible thing. I’ve even put it on my personal Facebook that I only rarely use to post political stuff. People have to know about this.
UPDATE: If you want to submit a public comment on this regulation, I have compiled all the information from 1400-AD70, which is the code for this Retition for Rule Making, on how to submit a public comment.