3D-Printed Guns: An Overview of Recent Legal Developments Page: 3 of 4
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the subject of the suit such that the company's files could be uploaded to the Internet without issue. The
stated reason for the change in position was an underlying export control reform effort that sought to
transition certain firearms and ammunition on the USML from the Department of State's to the
Department of Commerce's jurisdiction. The DDTC agreed in its settlement with Defense Distributed to
announce a "temporary modification" to the USML that would allow the company's files to be uploaded
immediately (i.e., prior to publication of the final rule revising the USML). The settlement prompted a
flurry of lawsuits and countersuits in state and federal court, including suits in New Jersey and
Pennsylvania that led Defense Distributed to agree to temporarily prevent access to its files in those
states. The burst of filings culminated in a lawsuit by a number of states and the District of Columbia in
the United States District Court for the Western District of Washington against the State Department, the
DDTC, various government officials, and Defense Distributed and the Second Amendment Foundation.
The suit alleges (among other things) that the DDTC's regulatory reversal violates the Administrative
Procedure Act (APA), which requires a court to set aside agency action that is "arbitrary and capricious"
or in excess of statutory authority. The states claim that the government's temporary modification
decision exceeded its authority because the DDTC failed to follow certain regulatory requirements for
changing the USML, including providing Congress with 30 days' notice of the proposed change. The
states also claim that the decision was "arbitrary and capricious" because the government failed to
articulate a satisfactory and reasoned explanation for its reversal and failed to consider the national
security and public safety implications of the action.
On August 27, 2018, the Washington court granted a preliminary injunction barring the government from
implementing or enforcing the temporary modification to the USML for the duration of the lawsuit. In its
order, the court found merit in the states' APA claims and discounted Defense Distributed's argument that
the underlying regulations amount to an unconstitutional restriction of the company's protected speech.
The court viewed this argument as irrelevant to the merits of the suit, noting that whether the First
Amendment precludes the federal government from regulating the data at issue under the AECA with
respect to Defense Distributed has no bearing on the states' claims that the temporary modification of the
USML runs afoul of the APA. The court did, however, assume that Defense Distributed has a First
Amendment right to distribute its files for purposes of balancing the hardships an injunction would
impose (a separate factor in the preliminary injunction analysis) and acknowledged that the grant of a
preliminary injunction would "abridge[]" that right. Nevertheless, the court regarded such a First
Amendment burden as being far outweighed by the harms the states would suffer from the restrictions'
withdrawal and the public interest in maintaining the status quo. And in any event, the court recognized
that regulation under the AECA means only that "the files cannot be uploaded to the [I]nternet." Thus,
according to the court, Defense Distributed's First Amendment rights are not fully "abrogated" because it
can email, securely transmit, or otherwise publish the files within the United States.
Implications and Congressional Developments: The August 27 order in the Washington litigation
prevents Defense Distributed from making its disputed files indiscriminately available on the Internet for
the duration of the litigation. However, because the underlying regulatory decision centers only on the
"export" of technical information pursuant to the AECA and ITAR, it appears that Defense Distributed
remains free in light of the order to provide its files to U.S. persons within the country (which it
reportedly has begun to do). Furthermore, because the substance of the Washington lawsuit primarily
concerns the legitimacy of the government's ITAR reversal under the APA, it seems unlikely that the
constitutional issues raised in Defense Distributed's Texas lawsuit-including the extent of First
Amendment protection for distribution of the files at issue-will be definitively resolved in the forum. As
the Washington court made clear in its preliminary injunction order, it does not view the First Amendment
as relevant to the substance of the states' APA claims, and the narrow nature of the disputed AECA
"export" decision renders limited any theoretical speech abridgement. That said, Defense Distributed's
constitutional arguments may still be addressed in other fora where litigation is ongoing.Congressional Research Service
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Foster, Michael A. 3D-Printed Guns: An Overview of Recent Legal Developments, report, September 11, 2018; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc1311962/m1/3/: accessed April 25, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.