Gravest Threat to First and Second Amendments Yet Seen

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 I 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 has tried to do something like this. Back in the 1990s, we had a flight over ITAR regulation of 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 when court challenges didn’t go well for the government. Those two cases, Bernstein v. United States and Junger V. Daley, resulted in losses for the government position in the 9th and 6th federal circuits respectively . 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 crime 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.

34 thoughts on “Gravest Threat to First and Second Amendments Yet Seen”

  1. You would think this would spawn some sort of media outrage, but I haven’t heard a peep from any news source.

    1. Why do you think the mainstream media would care? They don’t distribute technical information about guns, ammo, or arms in general.

      1. And I very seriously doubt the media has any notion of ITAR. Those of whosw work was subject to it know how scary this is.

        1. ITAR is difficult to understand, and the petition is difficult to follow. That’s why I didn’t get this post out until Sunday, despite the NRA alert going out Friday.

          I can promise you the media have no prayer of deciphering it without talking to “experts,” who probably won’t understand it either.

          1. ITAR is very complicated. And very time consuming.

            I sent you an email on that subject.

  2. Why would the Federal Department of Propaganda (true name for the media these days) write anything about this. They support this 100%. There are no journalist working for the Department of Propaganda, only useful idiots.

      1. The ACLU passing on this would surprise me, because of the First Amendment implications. Yesterday encryption, today firearms, tomorrow military policy discussions?

        1. Indeed. Under this “interpretation” of ITAR any serious commentary on Defense spending, progrms, or deployment could also require approval from State.

  3. Just a taste of what our would be lords and masters have in store for us. Just wait until Hillary! takes office.

    Makes me wonder if it is the fate of the U.S. to fall into the ugly politics of Latin America. With Obama blazing the path to our own version of Mexico’s PRI.

  4. I’ll agree that this is a fascist threat that must be dealt with, but while we’re doing that what is the Other Hand doing?

  5. This also means that all those articles about the various 556 upgrades and trials?

    They’d alll be felonious.

    Heck, this ITAR interpretation would make *any* substantive Defense reporting subject to the approval of the Federal goverment.

    Hmmm… so reporting basic details about military hardware would get you thrown in prison? Why does that sound so… familiar.

  6. So many gun nuts have a hard time believing that the liberal Democratic are fascists and lot more dangerous than religious people.

    This is very dangerous. When the first threat of ITAR was was presented to Cody Wilson I knew this was law that has to go

  7. I’d look at the precedents set by Phil Zimmerman and PGP in the 80s and 90s. If I recall correctly the end result was that printed materiel was not subject to ITAR.

    1. Not only printed material: MIT had a web site that required a “click-through” where you had to “certify” you were in the US and a US citizen and then you could get to, and download, an executable for PGP. Seems like a similar approach would “get around” the “export” “problem”.

  8. The thing is? This chains everyone in the firearms community to the troika. There is nobody who can be thrown overboard to appease this wolf. Everything is potentially covered, from home made AR-15’s to handloaded hunting ammo. This is an idiotic expenditure of political capital. Dangerous, unamerican, to be sure, but guaranteed to rile everyone up.

    It’s like one of those Boomersphere chain email panics, except the details are worse than the summary. When an NRA news release sounds like a GOA fundraising appeal, you know someone stepped in it

    1. It’s so outrageous as to not be immediately believable. NRA and some in the right wing media are not above making everything a crisis, because that’s what motivates people to get off their asses, and to donate.

      But the downside to that is people who follow this stuff more closely tend to take a “yeah, yeah, we’ve heard this before,” attitude toward a lot of the rhetoric. But yeah, this is for real. The wolf is really there this time.

  9. My wife worked in export compliance for several years before changing careers. She specifically dealt with ITAR and EAR regulations for both the defense and research industries.

    If there’s one thing I’ve learned via our dinner table chats, it’s that the Department of State and Commerce have laid out the regulations in such a way that they can jam up pretty much anyone they want to, anytime.

  10. As has been said before here and many other places, they struggle coming after our objects, so they’ll go after our culture. This action would do that, in a real big way.

    And, as Sebastian says, this is pretty fascist. No two ways about it.

    However, when you comment, think about this…

    During the M855 argument, the uninformed public could look at their basis, and somehow think it to be credible, when we knew (and could demonstrate) that this was not the case at all. It did get through.

    As for this argument, I fail to see any “public safety” argument for it whatsoever, contrived or otherwise. Perhaps that is in our favor, because it can be used to highlight the push for what it really is…a huge stick in the eye of the community, and nothing else whatsoever.

    So when it comes time to write on the topic, I’ll use this “what problem are you solving, exactly, besides an easy excuse to throw thousands of ordinary folks in prison”. Maybe I lack imagination, but I don’t yet see it.

    1. There are a few problems for us with this issue:

      1. M855 affected a large number of people. How it would affect even casual shooters was apparent. By contrast, this issue is more arcane, and it won’t affect most gun owners.

      2. Banning M855 is easy to understand. ITAR is much more difficult. Most people have never heard of it.

      3. I’m struggling with how to approach the public comment. With M855 that was easy for most people. If people like me, who will be directly impacted, and have some knowledge about what this will do find it difficult, ordinary people will certainly have difficulty formulating a public comment State will have to take seriously.

  11. I think it is really easy. The first amendment to the US Constitution makes it uncompromisingly clear that We the People do not “require” Government “permission” to say or write anything. The asshats at Foggy Bottom can shove this right up their tight little asses.

    1. Powertrips/State sanctioned hard-ons notwithstanding, government can’t just shut down media sources that it sees fit. This is why the ACLU would get involved.

      Also, I fail to see any comparison with ammo or gun bans here. This is a “media”/first amendment fight in the sense that pro-gun media exists EVERYWHERE and would set a serious precedent if DoD could just tell shut the media up on anything weapons related. Hell, who even enforces this? Is there any real way to enforce? What about local media print publications that do not cross state lines or have an Internet presence?

      All this is why I see this more as an attempt to zero in on the Cody Wilsons of the world who dare to publish gun manufacturing plans as open source so that government always retains the upper hand. That is still protected speech, so this is the reason why this should be defeated.

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