Fired Up Over Firearms: How do Export Controls Relate to 3-D Printing of Guns?
August 2, 2018
In 2013 the first 3-D printed gun was shot and its echo continues to resonate today, especially after the recent Trump administration decision authorizing the non-profit, Defense Distributed, to publish its gun designs online. Defense Distributed, joined by a community of Second Amendment advocates, has been seeking this approval for several years. This summer, the Trump administration suddenly reversed the government’s previous policy to withhold government approval. This shift raises a number of issues for the control and regulation of firearms, and potentially other kinds of weapons, not least of which are those related to the enforcement of export controls. The ability for anyone to download a blueprint of a gun, and subsequently fabricate it easily using 3-D printing, raises the inherent possibility that foreign actors (potentially including enemies of the United States) will access this technology which poses implications for national security.
3-D printing technology allows the manufacturing of metal-free guns that are nearly impossible to identify with metal-detection security measures such as those used by the U.S. Transportation Security Administration (TSA). Moreover, traditional security and tracking measures applied to the distribution and exports of U.S. firearms, such as serial numbers and other manufacturing markings, are not clearly required for firearms produced using these designs. This means that state and non-state actors could have easy, untraceable access to these weapons. Understanding how and why export controls have taken on such a central role in the debate over 3-D printing of guns is critical to understanding what the Trump administration’s policy reversal means, and what its implications may be in the years ahead.
Q1: How are firearm exports regulated in the United States?
A1: There are a variety of laws and regulations in the United States that control the production, sale, export, delivery, possession, and transfer of firearms and weapons. For instance, the Federal Firearms Act, the National Firearms Act, the Gun Control Act, the Undetectable Firearms Act, the Brady Handgun Violence Protection Act, and the Arms Export Control Act are all firearms-related laws. Of these, the Arms Export Control Act (AECA) applies to the export of firearms. But AECA and the regulations which implement it—otherwise known as the International Trafficking in Arms Regulation (ITAR)—are concerned with more than simply the physical shipment of firearms overseas. They put restrictions on a range of activities including the storage and sharing of the underlying technical information required to produce and operate firearms, and the services necessary to train on and maintain these arms. Because the technical information related to exported items and the training on how to use them are often located in the United States, ITAR places numerous requirements on activities occurring within the United States, prior to, during, and after an actual export. Adding to this complexity, is the fact that information hosted on the internet may or may not be physically located in the United States and is instantly available to users anywhere in the world. In other words, information may be exported simply by the act of publishing it on the web.
Q2: How does ITAR apply to Defense Distributed’s 3-D printing efforts?
A2: AECA is applicable to anything covered by the U.S. munitions list (USML) and is enforced through the ITAR. If the material or information in question is covered by a category on the USML, then the access to and transfer of said material or information is subject to ITAR requirements and restrictions. Specifically, the AECA states that anyone in the United States who is engaged in the business of manufacturing, exporting, or importing “defense articles” must register themselves with the Directorate of Defense Trade Controls at the State Department and obtain a license to continue manufacturing, exporting, or importing their “defense articles.” Under the law, this is applicable even if the manufacturer is not currently exporting or importing their “defense articles.” Furthermore, ITAR requires firms to obtain an export license to provide software, technical data, or a related defense service for an item that is covered by the USML to foreign nationals in the United States or abroad.
The USML covers a wide range of weapons-related items such as ammunition, guns, missiles, bombs, and aircraft. These weapons-related items are sorted by category and cover physical products, services, and software or other technical data . While ITAR is applicable to all items on the USML, the State Department reviews license applications on a case-by-case basis and has the discretion to evaluate individual categories differently. In other words, a handgun might be treated differently than a fully-automatic assault rifle of a higher caliber in practice, however both weapons are currently covered under ITAR.
How ITAR applies to the Defense Distributed case is multifaceted as the printing of 3-D guns involves multiple weapons-related items on the USML that are controlled under ITAR. Defense Distributed is currently offering three kinds of products: 3-D printed weapon parts, computer-controlled machine tools, and the blueprints required for a 3-D printer or computer-controlled machine tool to create these weapons. First, the weapon parts and machine tools that Defense Distributed sells could require registration and licensing under ITAR as part of manufacturing a defense article but may not require such registration if Defense Distributed is simply reselling them, not directly producing them, and not involved in shipping them overseas. Second, the electronic blueprints holding the data required for the 3-D printer to manufacture a gun or gun parts that Defense Distributed allows anyone to download for free from the internet fall under the software and technical data controlled by ITAR. Third, if Defense Distributed helped a foreign national properly use or understand its published blueprints, that could qualify as an ITAR controlled defense service.
Q3: How did Defense Distributed get an ITAR exemption?
A3: Back in 2013 when Defense Distributed published its initial 3-D printed gun design online, the Obama administration’s State Department intervened to require Defense Distributed to take down this technical data using its authority under ITAR. The State Department also required that Defense Distributed seek prepublication approval from the government prior to publishing (e.g., posting on its website) any future ITAR-controlled information. Defense Distributed subsequently submitted multiple sets of electronic blueprints to the government for publication approval but never received any approvals. Defense Distributed filed suit in 2015 in Federal court asserting that the U.S. government’s requirement that they seek approval prior to publishing their design files violated their rights under the first amendment right of free speech and the second amendment right to bear arms as well as the fifth amendment right to due process. Initial litigation in the case revolved around Defense Distributed’s request for a preliminary injunction against the US government’s prepublication requirement. This request was denied by the Federal District Court in Austin, Texas on August 4, 2015, and the district court’s ruling was upheld by the 5th Circuit Court of Appeals on September 20, 2016. The Supreme Court in early 2018 refused to take up the case leaving the lower court rulings in place.
The initial stages of the litigation, however, did not determine the full merits of Defense Distributed’s claims. Rather it dealt with the question of whether the government’s action to limit Defense Distributed’s right to publish its electronic blueprints was so harmful to Defense Distributed’s constitutional rights and so clearly unsupported by the public interest that the government’s action should be immediately enjoined. Even though Defense Distributed failed to meet the legal standard for a preliminary injunction, their underlying claims remained an active subject of litigation. It should be noted that the district court examined the merits of Defense Distributed’s claims to evaluate whether to grant a preliminary injunction, but the higher court rulings did not.
After the Supreme Court refused to overturn the lower court rulings, the Trump administration initially moved to dismiss Defense Distributed’s case, but then reversed course approximately three weeks later and entered into settlement negotiations with Defense Distributed and its co-plaintiff, the Second Amendment Foundation. The settlement was reached on June 29, 2018. Under the settlement, the specific electronic blueprints that Defense Distributed had previously sought government approval to publish were exempted from ITAR licensing under an exception for information approved for public release by a cognizant U.S. government agency. The U.S. Department of State published a temporary modification to the ITAR on July 27, 2018 excluding this technical data from ITAR licensing and is pursuing a final rule making this change permanent. The U.S. government also agreed to pay legal costs of $39,000 to the plaintiffs.
Q4: What are the implications of the Trump administration’s decision to settle this case?
A4: The immediate implications of the Trump administration’s decision to settle this case are that the electronic blueprints that Defense Distributed has sought to publish will not be controlled under ITAR once the settlement takes effect. The initial date for their publication was August 1, 2018; however, a coalition of state attorneys general successfully sued to temporarily block publication, and an August 10 hearing has been scheduled to review their claims. The electronic blueprints covered by the settlement include a variety of gun designs such as the blueprints needed to produce critical parts for the AR-15 rifle, the initial single shot plastic handgun developed by Defense Distributed in 2013, and several newer designs. Because these files were granted a narrow ITAR exception because they had been approved for release by a U.S. government agency, neither Defense Distributed nor other private actors are currently authorized to release any other design files not specifically included in the settlement. In this respect, the implications of the settlement are immediate but restricted to a small number of electronic blueprints.
Separately, the Trump administration has proposed to move jurisdiction for review of export controls on smaller caliber firearms (.50 caliber or less) from the U.S. Department of State to the U.S. Department of Commerce. By moving these items to the Commerce Control List, instead of the USML, the Trump administration has argued that the export controls for firearms will be clarified by focusing ITAR on systems primarily intended for military uses. Critics of this proposal have argued that moving these smaller-caliber firearms to the Commerce Control List will reduce the level of congressional awareness of these exports, increase the possibility that exports of these firearms could get diverted to unintended users, and allow for a broader range of exempted, unlicensed exports. If this proposed rule is finalized, it is possible that Defense Distributed and other like-minded organizations could utilize an exception for already published technical data that would exempt their electronic blueprints from Commerce’s export controls.
The longer-term implications of the settlement are harder to predict. The fact that the government decided to settle the case with Defense Distributed, and to pay legal fees to the plaintiffs, suggests that the Trump administration was not eager to continue arguing against Defense Distributed’s claims in federal court. Some may perceive this as a signal that future litigation against ITAR controls on firearms would likewise result in a favorable settlement, potentially expanding the scope of the exemption that Defense Distributed has obtained. It is highly likely that Defense Distributed and other like-minded organizations will submit requests for ITAR exemptions for approving additional electronic blueprints. Others may also bring litigation to fully test the legality of ITAR licensing requirements for firearms.
If a court in the future were to rule that the State Department’s restrictions on publishing arms-related technical data violated constitutional rights under the first and second amendments, the implications would be wide-ranging and profound. Violations of ITAR and AECA carry substantial civil and criminal penalties. For this reason, many cases of industrial espionage are prosecuted primarily as ITAR violations. While espionage can be hard to prove, it is relatively easy to prove a failure to get an export license when information is transmitted overseas. A broad precedent establishing that publishing weapons-related technical data on the internet was not an ITAR violation could substantially affect U.S. government efforts to combat industrial espionage by removing AECA as an effective enforcement tool. And make no mistake, industrial espionage is a serious and growing problem. One highlighted, in fact, by the Trump administration itself as it has adopted a more aggressive trade posture toward China. This concern may help explain the Trump administration’s decision to make a narrow settlement with Defense Distributed rather than risk an unexpected outcome in litigation. If this is the case, however, the timing is curious. At the time of the settlement, the government had yet to receive an unfavorable court ruling in the case.
This Critical Questions was modified after initial publication to clarify that the intervention of the state attorneys general lawsuit suspended the implementation of Defense Distributed’s ITAR exemption and to indicate that Defense Distributed may not need Department of Commerce approval for publication if these items are transferred to the Commerce Control List.
Andrew Hunter is director of the Defense-Industrial Initiatives Group and a senior fellow in the International Security Program at the Center for Strategic and International Studies (CSIS) in Washington, D.C. Samantha Cohen is a research associate with the CSIS Defense-Industrial Initiatives Group.
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