The End of Gun-Related Speech Online?

President Obama is not shy about his mission when it comes to the Second Amendment. To his credit, he is not deterred by failure. Instead, the President dreams up new ways to roll back the rights of law-abiding citizens. The latest attempt is a proposed Executive Order that would mean we here at GunsAmerica would have to submit everything we want to publish to the State Department for approval.

Obama’s record of failure

“I will do everything in my power as president to advance these [gun control] efforts,” he said following the mass shooting at Sandy Hook Elementary School in Newtown, Connecticut. “Because if there’s even one thing we can do in the country to protect our children, we have a responsibility to try.”

So far, most of what the Obama administration has tried has come up short. Universal background checks, failed to clear the Senate. Bans on black rifles and magazines over 10 rounds also died in the Senate. The United Nation’s Global Arms Trade Treaty, although signed by Secretary of State John Kerry, was neutered by staunch opposition from a large faction of U.S. senators. More recently, the ATF’s proposed ban on “armor-piercing” ammo was also rebuffed after concerned gun owners turned out in great numbers to oppose the measure.

Since he can’t attack the Second, he’ll go after the First

The new proposal by the State Department could chill the First Amendment rights of citizens by regulating speech that relates to firearms. This rather misguided power grab appears to be in retaliation to Defense Distributed, the game-changing open-source organization that brought you the “wiki weapons” known as “The Liberator,” the first 3-D printable gun, and the “Ghost Gunner,” the CNC mill that finishes 80 percent lowers.

In December of 2012, when Defense Distributed first released the files for “The Liberator” online the government panicked. Several months later, in May of 2013, the State Department told DD to remove the files because it was releasing “technical data” without government approval.

Despite the fact that DD’s files were all assembled from information that was in the public domain, they complied with the request from the state department and removed the files from its website. Though, from a political standpoint, DD had made the statement it was aiming to make as the digital blueprints for “The Liberator” were downloaded tens of thousands of times and were appearing on various websites across the Internet. The toothpaste was out of the tube, and the government had no way to put it back in. People everywhere were free to arm themselves if they wished.

After removing the files from its website, DD submitted them to the State Department for review and pre-approval so that one day they could put them back up without fear of government reprisal. Not surprisingly, the State Department dithered and dithered (for two years) until DD finally said enough is enough, rights delayed are rights denied, and with the help of the Second Amendment Foundation filed a lawsuit May 6, 2015, against the State Department, Secretary of State John Kerry and other federal officials.

The lawsuit alleges that the government’s “restraint against the publication of this critical information, under the guise of controlling arms exports, violates the First Amendment right to free speech, the Second Amendment right to bear arms, and the Fifth Amendment right to due process.”

Is it a moot (mute?) point?

Interestingly enough, a month later, on June 3, the Obama administration (via the Federal Register) announced a proposal to overhaul the International Traffic in Arms Regulations (ITAR), which implement the federal Arms Export Control Act (AECA), so that it can more closely regulate firearm-related speech uploaded to the Internet.

Under current law ITAR covers “technical data” as it relates to firearms and ammunition, which includes “detailed design, development, production or manufacturing information. So, for instance, firearm or ammo blueprints, drawings, photographs, plans, instructions or documentation are all examples of “technical data” and therefore are all subject to government oversight — UNLESS the data is in the public domain.

As the NRA-ILA pointed out, the public domain is 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.”

DD’s material for “The Liberator” was in the public domain, as mentioned. But now the Obama administration is trying to change the rules of the game by arguing that ITAR was created before the Internet, and that any gun-related “technical data” uploaded to the Internet has been essentially been “exported” — as countries around the world now have access to it — and now must be evaluated by the State Department.

“Before posting information to the Internet, you should determine whether the information is ‘technical data.’ You should review the [United State Munitions List], and if there is doubt about whether the information is ‘technical data,’ you may request a commodity jurisdiction determination from the Department,” reads the State Department’s filing. “Posting ‘technical data’ to the Internet without a Department or other authorization is a violation of the ITAR even absent specific knowledge that a foreign national will read the ‘technical data.’”

However, lawyers for DD argue that the case is not about regulating technical data but about censorship.

“Just because information can be used for some bad purpose doesn’t make it illegal to publish it,” Matthew Goldstein, an export control lawyer representing Defense Distributed told Wired. “This isn’t just a firearms case, even though it deals with firearms. It’s really a free speech case.”

But a State Department official told Wired that the concern is allowing foreign states to require gun-related technical data.

“For us, it’s not about free speech. This is about securing defense technology,” said the official who spoke on the condition of anonymity. “If two US citizens want to email each other CAD files, that’s not our concern. But they need to follow the International Trade in Arms Regulations. ITAR compliance is ITAR compliance.”

“Let’s be clear: general descriptions, public discussions, and imagery of defense articles, including firearms, have never been subject to these regulations and will remain unaffected under these proposed revisions,” said the official in a follow-up email.

While the State Department claims that an expanded ITAR won’t effect gun bloggers, websites, forums, hobbyists, collectors, etc., there is no way to ensure that it won’t. In a matter of speaking, the goal posts for what the government considers technical data will constantly be shifting if the proposal goes through. Consider this definition of “public domain” culled from the document (H/T: The Federalist):

(b) Technical data or software, whether or not developed with government funding, is not in the public domain if it has been made available to the public without authorization from: (1) The Directorate of Defense Trade Controls; (2) The Department of Defense’s Office of Security Review; (3) The relevant U.S. government contracting entity with authority to allow the technical data or software to be made available to the public; or (4) Another U.S. government official with authority to allow the technical data or software to be made available to the public.

In other words, all technical data is subject to government review before it is considered to be in the public domain, even if it already exits online. If it wasn’t approved by the government, it is subject to regulation and censorship.

A slope can’t get more slippery than that! Seriously. Under the guise of weapons export control, the Obama administration is actively seeking to censor gun-related speech online. There is no other way to see it.

The proposal to expand ITAR is open for public comment until August 3, 2015. If you’re concerned by its potential to inhibit your First and Second Amendment rights, you can submit comments to: online at regulations.gov or via e-mail at DDTCPublicComments@state.gov with the subject line, ‘‘ITAR Amendment—Revisions to Definitions; Data Transmission and Storage.”

GunsAmerica reached out to Alan Gottlieb, the founder of the Second Amendment Foundation, to get the skinny on the DD’s lawsuit. Gottlieb said his lips are sealed until after they have their first court hearing on the suit.  Hopefully, they prevail and the State Department faces sanctions for violating DD’s right to share gun-related content in the public domain.

(H/T to GunsAmerica reader Will Drider for bringing this story to our attention.  Thanks Will!)

{ 22 comments… add one }
  • Sam September 9, 2017, 11:28 pm

    Hey, Blannelberry, still here?

  • Richard LeVasseur June 16, 2015, 5:09 pm

    Why doesn’t your site have a link to Facebook and Twitter? It would be nice to post these articles to your friends on social media. I have to say a lot of people don’t use email anymore. We still need to get the message out the easiest and the most direct way possible. You know the kiss way… KISS. Keep it simple stupid. Lol. Not an argument or a slam, it just came to mind. Have a great and wonderful day.

  • 5WarVeteran June 16, 2015, 9:17 am

    Obama criminal politicians and the wealth Elite are running somewhat scared. Those who may not be, fail to recognize the morality of WE THE PEOPLE.
    Who paid for the Internet? WE DID.
    Who fought in wars that made the Elite wealthy? WE DID
    WHO died in those wars and then were left with nothing and disabilities as well as a faulty poor quality medical system to keep us barely alive? WE DID
    Who now has labeled Veterans and ALL AMERICANS Terrorists, all who have been paying attention to their preparations and criminal activities against the people? THEY DID!!!
    If WE THE PEOPLE had a clue as to every thing the government has labeled a terrorist activity. Like buying enough food for a month, buying weapons and ammo. preparing for economic break down, growing food in private gardens, storing rain water, commenting on these blogs, (Or as Obnastard stated, “If you do not believe me, we are going to have problems.” and of course that “something to hide” comment. When his administration promised to be the “Most Transparent” and instead has been the MOST SECRETIVE, WTF? A “secret trade deal” oh yea that is most definitely going to be good for the country . . . NOT!!! Effing liar!!! People do realize he is a liar don’t they? If not here is a list: 1090 Obama lies –
    https://danfromsquirrelhill.wordpress.com/2013/08/15/obama-252/
    Even more importantly OUR POLITICAL SYSTEM usurped as it is CONDONED these lies. Nothing has been done to hold them to task . . .
    What are they being paid for? Certainly not for doing what they have been doing? TREASON

  • Pat Finnie June 16, 2015, 7:56 am

    Strange times we live in where our government tries to sensor liberty loving Americans on the internet, and lets ISIS run ammuck ????????????

    • Bill June 18, 2015, 7:12 pm

      Some would argue that the two are related and converge on a common goal. But that, of course, is just conspiracy theory nut job guess-work and not the considered opinion of a sane and loyal citizen in his 60’s.

      There was a day when you didn’t need a CYA for every little peep. Now, there’s no way of knowing if your CYA goes far enough to keep the boot off your shoulders as the rope tightens.

  • Bill June 15, 2015, 9:12 pm

    Time for the “they’ll never come after my hunting / target rifle” crowd to sit up and pay attention … reloading information is technical information, scope dope is technical information, bullet drop is technical information, barrel specs are technical information … do you see where this is going?

    Hell, the type of checkering on a stock is technical information to a bureaucrat trying to chart the safe course to retirement. You ability to grip it does, after all, make a difference in how accurately the gun shoots.

    Want to buy a trigger you can adjust to 3.8 pounds?

    Tough … you can only buy “light, medium or heavy” pulls and hope that they are adjustable to the pull weight you are looking for. Who knows … you might even get one with a coveted flat face — but the adv won’t be allowed to say so.

    How about this: “You can own a rifle but you can only shoot factory ammunition because details of the reloading process are not permitted and neither are details of reloading materials such as bullets, powders, primers and such. and the factory is not allowed to publish the performance specs of that ammunition … only its price per round.

    That should really level the competitive playing field, no?

    You can’t buy a scope on-line because they cannot tell you the magnification, reticule features or other design details either on-line or on the box or the accompanying packaging.

    If you learn any of the above details you are only allowed to “publish” them to those in your e-mail contact list, not in any on-line forum or website.

    Unless, of course, you get government approval for every syllable you post.

    This suggests a run on rubber “NO” stamps.

    Hey GA customers and vendors … how are you going to sell a firearm you can’t even describe without prior government permission?

  • hey June 15, 2015, 4:36 pm

    Obama has proved his point by not only abolishing the first amendment (freedom of speech) but also the second amendment, which is why we need the second amendment more than ever because the election process is not working at preserving freedoms or future economic power as a result of wreckless spending, destructive monetary policies and to throw the constitution in the garbage. The main stream media is America’s biggest enemy by brainwashing the idiots with no reasoning to be fearful of petty issues and to ignore the big problems that will destroy more lives, freedoms and financial security in the long term. If you ask me the main stream media is more dangerous and has done more damage than Al qaeda and therefore we the people should have an agenda to reduce such biased media since the State department or Home security has ignored the real threat. The riot causing Ferguson county shooting is just once example of this by failing to acknowledge the witness (friend of the rampaging shot kid) lied about the scene. Well they did mention it but only for 15 seconds and then spoke about the issue as if a cop shot a innocent kid day after day and then the idiots are taken in by what they hear repeatedly just like gun control.

  • Rio Benson June 15, 2015, 12:56 pm

    Well, it looks as though you didn’t want to publish my comment. I suppose I didn’t use enough foul language or make threats I couldn’t or wouldn’t back up, or possibly it was because I have a website where I give away free stuff, like 1911 design specifics.
    What are you a bunch of fork tongued pussies?

  • BRASS June 15, 2015, 12:43 pm

    First, the dip shit who started this nonsense is not pro-gun person. He’s a pro-poke the bear, just because I can person. Like Wikileaks Julian Assange, the traitor he sponsored, the little traitor in jail who changed his sexual identity and the rest of this crowd, they don’t really care about the issues they raise, they have other agendas that they are willing to sacrifice the rest of on the altar of for their own gratification. While I spent thirty years in uniform and will always defend our nation and our national identity, I would not create issues for the sake of creating them. That’s selfish, disloyal and stupid.

    Second, Like other constitutional issues that have been dealt with successfully in the legislature in recent years, this one can too if only the folks who read and comment on these forums would take the time to communicate in writing and in person their concerns to their elected legislators. Bringing the issue and information to us is an important first step but then it’s up to us, the citizens who read and hear of these issues to do something productive with it.
    Even those lawmakers left of center who don’t support our positions will respond by not voting against them if they receive enough input that strongly, politely and concisely asserts a determination to fight for what we believe in. Call, make an appointment to see your congressional rep or his staff, write a letter to their officers in both DC and locally. Bitching here and other on line forums is preaching to the choir and not heard outside the church.

  • Larry June 15, 2015, 12:31 pm

    The evil little pencil neck geek MFer is a real piece of work, isn’t he? And to think there are still some foolish voters out there who would gladly give him a third term if possible.

  • Blasted Cap June 15, 2015, 11:44 am

    When is he going to publish his little red book? I’m sure we will soon be seeing his jug eared mug painted on every government building shortly, like every other dick-taster, er dictator, in history.

    I guess I’ll be getting a visit from the DOJ over that, but oh well. Just another list to be on.

  • DanF. June 15, 2015, 9:51 am

    I was raised with the idea the “I may disagree with the things you say, but I will defend to the death your right to say them.” The current administration of (uncrowned, as of yet) King Barack I is of the belief that he is the sole source of law in this country. If you like your Constitution and Bill of Rights, you can keep them–unless I want something different then it’s subject to an Executive Order.
    Thank God he’s going to be gone in the not too distant. But if he is thinking at all of sticking around after his term of office via, say, a declaration of martial law, another Civil War is inevitable.

  • Dr. Strangelove June 15, 2015, 6:51 am

    We must be on our toes at all times, the anti gun fascists will never give up.

  • Sir George June 15, 2015, 5:44 am

    Somehow, this is starting to look more like China’s censorship or the beginning of it.

  • Bill June 15, 2015, 4:31 am

    Fuck them, and their laws, be a man and refuse to obey these pricks. let them come get us.

    • Just1Spark June 15, 2015, 7:05 pm

      TPTB: “How do we make criminals out of law abiding gun enthusiasts?”

      Make gun and ammo technical data illegal, basically the equivalent of child porn.

      We have fewer rights, and higher taxes than the colonists, at the time of their revolt.

    • Just1Spark June 15, 2015, 7:07 pm

      Sorry, didnt mean to comment to you Bill. Meant to post a new comment at top.

    • rab June 15, 2015, 10:53 pm

      Better yet, get rid of obozo NOW!
      Before he;
      gets us killed….
      strips away all of our rights…..
      sells us out to the chins……
      sells us out to radical pislam…
      We must remove him any way possible…….
      etc…
      etc…

  • Will Drider June 14, 2015, 11:20 pm

    Please bare with me on this.  It is extremely imporntant that you fully understand the potential impact of these Government Proposed Rules.  There are 22 Sections of this Proposed Rule change on the Federal Register, June 3, 2015.  They all originate from “The President’s Export Control Reform (ECR) initiative”(Obama Executive Order).  I will address a small part of this. The restrictions are buried in larger “real weapons” of war issues. 

       This is a assault on the First and Second Ammendments!
    Don’t just read the NRA comments. READ THE PROPOSED RULE CHANGE (link below). 

    The Government has gone after the guns, then the ammo and now their going after firearms and ammo related technical data (to be redefined as Defensive articles).
    This is a blatant gun control measure. Under the guise of the State Dept trying to restrict the export of firearms technology and information.  The 3D printer gun programs are currently being hammered by the Gov for “export” violation and the Gov has seized that intellectual property. They are changing “Software” computer programs (ballistic programs, AR reciever milling programs, et all) from being defined as technical data to be defined as Defensive articles which legal term includes all weapons of war: tanks, bombers, missles and aircraft carriers, et all.  Gov says “This is not a substantive change.”

    This is not limited to intended export. This says that anything technically specific about firearms, ammo and its manufacture may not be released into the public domain: including the internet, published books, magizines and journals, trade shows (gun shows) and more.  If a person was to publicly discuss or publish (specifically includes internet) firearms technical specifications (like reloading data or how to polish a feed ramp to improve reliability) without prior State Dept approval he/she would be subject to prison and fines. The Gov Charge you for publishing (per Rule Exporting) this information, Charge anyone who forwards it (Re Exporting, Gov term). They can charge the reciepient for possession of it too. It even states the material does not need to be read or opened to be in violation. 

    This is a Gag order on the firearms industry and every firearms owner.  If you want to post your new hot loading for 300 Blackout on you favorite forum or blog, you must first get it approved for release from the State Dept.  How long will it take to get a response from them? Gov will also say the Rule change supports the restrictions of the U. N. Small arms treaty (that also threatens the 2A.  We all know where that is aimed at.

    We have laws against spying and providing secrets to the enemey. Also laws that make it illegal to yell fire in a theater.  This Rule proves once again the Government is trying to criminalize lawful activity and using the State Dept as the primary tool this time. Other Agencies also provide parts of the Proposed Rule changes.  Gov will say this is just a comon sense approach to restrict the export of weapons information and is in keeping with past practice.  “Past pratice” did not make free speach about firearms specifications a Felony!  This is not about keeping secrets on military weapons.  Its about smothering your voice, writings and media from all public dissemination of firearms related information. If you email a reloading recipe to a local guy and it turns out he is a illegal alien or forgien national: you can be charged, fined and go to prison! It applies to recipients in and outside the U. S.

    New gun add:  XXXX Firearms is proud to introduce a brand new rifle design that exceeds the preformance of every rifle on the consumer market. We regret we can not release any technical specifications as the Dept of State has not provided approval yet.  As such no photos can be published. You may see it at a FFL near you except NYC, WASH D.C, CA OR, and NJ.

    READ the proposed Rule.  Yes, it is dry reading, until you see the intent and examples in the Gov’s own words.  You must understand how the Gov will apply and abuse it as they do with all their self imposed authority.  

    Now take a break, organize a well thought out response and post it on the Rule feedback.  Send letters to your elected officials referencing the Proposed Rule and your thoughts. Specifically ask them to address your concerns and respond with their actions and results. Put them on notice! ADD: Please do not reply to my letter with the standard boiler plate response.  I send specifices and I request you take action and reply in kind.  Don’stop here. Write your local paper. Ask your TV News station why they are not covering this oppressive story that threatens all free speech!

    Just like the BATFE Proposed Rule Ammo Ban, WE can not wait for someone else to do it for us.  If you stay silent on this issue you may be silenced on firearms by the Government forever.

    Rule overview is here (You need to click a link on that doc to download the actual Proposed Rule):
     http://www.pmddtc.state.gov/regulations_laws/proposed_rules.html

    • Joel June 15, 2015, 8:08 am

      Elect a Republican president in 2016.

      • Chris Baker February 8, 2016, 10:18 am

        Not just republican. Investigate the candidate before you decide. I investigated Ted Cruz and found his word to be good and his intentions towards returning our lost liberties. He’s won cases before the supreme court in defense of the second amendment. Don’t take my word for it, investigate for yourself.

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