The Court of Appeals for the Fifth Circuit has refused to grant a preliminary injunction against the State Department to prevent it from enforcing ITAR rules against Defense Distributed.
Ordinarily, of course, the protection of constitutional rights would be the highest public interest at issue in a case. That is not necessarily true here, however, because the State Department has asserted a very strong public interest in national defense and national security. Indeed, the State Departmentâ€™s stated interest in preventing foreign nationalsâ€”including all manner of enemies of this countryâ€”from obtaining technical data on how to produce weapons and weapon parts is not merely tangentially related to national defense and national security; it lies squarely within that interest.
Jesus, you’d think they were talking about a plans for a Pershing Missile here, not sharing publicly available data on how to manufacture small arms. It’s not like these are national defense secrets. We’re talking about information that is in the public domain! The government even asserts that it’s only Internet publication that’s problematic, and that it’s still within rights to publish this kind of thing through older media.
Judge Edith Jones, a Reagan appointee, was the dissenter in the case. In the majority were Judge Eugene Davis, a Reagan appointee, and Judge James Graves, an Obama appointee. From Judge Jones dissent:
This case poses starkly the question of the national governmentâ€™s power to impose a prior restraint on the publication of lawful, unclassified, not- otherwise-restricted technical data to the Internet under the guise of regulating the â€œexportâ€ of â€œdefense articles.â€ I dissent from this courtâ€™s failure to treat the issues raised before us with the seriousness that direct abridgements of free speech demand.
Reading her dissent, she really gets it. Judge Davis is 80 years old. Does he really understand the implications of what the State Department is doing here? From Judge Jones dissent:
Defense Distributed and its amici challenge the regulationsâ€™ interpretation of â€œexportâ€ and the â€œpublic domainâ€ exception to the definition of â€œtechnical data.â€ Although the majority opinion adopts the State Departmentâ€™s litigating position that â€œexportâ€ refers only to publication on the Internet, where the information will inevitably be accessible to foreign actors, the warning letter to Defense Distributed cited the exact, far broader regulatory definition: â€œexportâ€ means â€œdisclosing (including oral or visual disclosure) or transferring technical data to a foreign person, whether in the United States of abroad.â€ There is embedded ambiguity, and disturbing breadth, in the State Departmentâ€™s discretion to prevent the dissemination (without an â€œexportâ€ license) of lawful, non-classified technical data to foreign persons within the U.S. The regulation on its face, as applied to Defense
Distributed, goes far beyond the proper statutory definition of â€œexport.â€Â Even if â€œexportâ€ in AECA could bear a more capacious interpretation, applying the State Departmentâ€™s regulatory interpretation to the non- transactional publication of Defense Distributedâ€™s files on the Internet is unreasonable. In terms of the regulations themselves, how this expansive definition of â€œexportâ€ interacts with the â€œpublic domainâ€ exception is unclear at best. If any dissemination of information bearing on USML technical data to foreign persons within the U.S. is potentially an â€œexport,â€ then facilitating domestic publication of such information free of charge can never satisfy the â€œpublic domainâ€ exception because newspapers, libraries, magazines, conferences, etc. may all be accessed by foreign persons. The State Departmentâ€™s ipse dixit that â€œexportâ€ is consistent with its own â€œpublic domainâ€ regulation is incoherent and unreasonable. Even if these regulations are consistent, however, attempting to exclude the Internet from the â€œpublic domain,â€ whose definition does not currently refer to the Internet, is irrational and absurd. The Internet has become the quintessential â€œpublic domain.â€ The State Department cannot have it both ways, broadly defining â€œexportâ€ to cover non-transactional publication within the U.S. while solely and arbitrarily excluding from the â€œpublic domainâ€ exception the Internet publication of Defense Distributedâ€™s technical data.
If the majority’s reasoning holds, it’s bad bad news for tinkerers everywhere. A lot of topics are considered defense articles. This goes way beyond guns. It will be a great offense to the First Amendment if this ruling holds.