An Aug. 3 deadline has been set for public comment on a controversial State Department proposal that could allegedly clamp down on “unregulated” internet discussions to include videos that deal with firearms and ammunition; everything from reloading data to working on firearms, according to critics of the proposal.
Chief among those critics is the National Rifle Association, which asserted in a report that “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.”
The proposal was published in the June 3 Federal Register. Since then, the Internet has erupted with criticisms of the plan, all based on the initial NRA objections. The NRA website warned that, “This latest regulatory assault, published in the…Federal Register, is as much an affront to the First Amendment as it is to the Second.”
The proposal concerns an update of the International Traffic in Arms Regulations (ITAR), and the federal Arms Export Control Act (AECA), according to NRA. It takes up 14 pages in the Federal Register. According to NRA, however, it comes down to the regulation of technical data in the public domain.
Coincidentally, prior restraint on publication of firearms information is at the core of a federal lawsuit filed in early May by the Second Amendment Foundation (SAF) and Defense Distributed of Austin, TX. This lawsuit deals with the publication of information about three-dimensional printing of firearm components. The government has prohibited on-line posting of this information, contending that it violates current law about export.
However, SAF and Defense Distributed contend that this is prior restraint against publication of the material under the guise of controlling arms exports. The lawsuit contends that this violates the First Amendment right to free speech, the Second Amendment right to bear arms, and the Fifth Amendment right to due process.
“Americans have always been free to exchange information about firearms and manufacture their own arms,” said SAF founder and Executive Vice President Alan M. Gottlieb at the time the lawsuit was filed. “We also have an expectation that any speech regulations be spelled out clearly, and that individuals be provided basic procedural protections if their government claims a power to silence them.”
NRA contends that the State Department’s claim that this new proposal merely clarifies rules about “technical data” posted online is really “a massive new prior restraint on free speech.”
“This is because,” NRA asserted in a blog post about the proposal, “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.”
The NRA has so far not legally challenged the proposed rules.
Defense Distributed generated technical information on various gun-related items, which it published on the Internet. But it removed all the files from its servers upon being warned that it “may have released ITAR-controlled technical data without the required prior authorization from the Directorate of Defense Trade Controls (DDTC), a violation of the ITAR.” In June 2013, Defense Distributed submitted various published files to DDTC for review of a machine called the “Ghost Gunner.” In April, DDTC said the machine does not fall under ITAR, but that software and files are subject to State Department jurisdiction.
The SAF lawsuit asserts the defendants are unlawfully applying International Traffic in Arms Regulations (ITAR) to prevent the plaintiffs from exercising free speech on the Internet and other forums. ITAR “requires advance government authorization to export technical data,” the complaint asserts. There are criminal and civil penalties for violations, ranging up to 20 years in prison and fines of up to $1 million per violation.
