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!)