Government & Politics

Muzzling Both Guns and Speech

A proposed rule governing the export of certain "defense articles" is raising concerns.

Allyne Caan · Jun. 11, 2015

Given Barack Obama’s contempt for the Second Amendment — after all, an armed citizenry is the last line of defense against a tyrannical government — it’s little wonder that a proposed rule relating to the International Traffic in Arms Regulations (ITAR) governing the export of certain “defense articles” is raising concerns.

The rule, published in the June 3 issue of the Federal Register, proposes to regulate speech — including online speech — relating to firearms and to require government approval before individuals can share certain information publicly. Penalties for violations climb as high as $1 million or 20 years in jail.

Specifically, the proposed rule rewrites key definitions in ITAR, including “technical data,” “public domain” and “export.” Currently under ITAR, any weapons-related information that is in the “public domain” can be shared without penalty. However, now that the age of technology has thrown a wrinkle into the meaning of “public domain,” the government feels the need to “clarify.” At first glance, the clarification sounds well and good, as the rule states, “Except as set forth in paragraph (b) of this section, unclassified information and software are in the public domain, and are thus not technical data or software subject to the ITAR, when they have been made available to the public without restrictions upon their further dissemination.”

But it’s what comes in paragraph (b) that has folks concerned. It turns out that, this “clarification” notwithstanding, “public domain” really means only what the government says it means. The rule continues, “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.”

According to the National Rifle Association, the outcome of such a rule is troublesome: “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.” One minute you’re posting a description of a new firearm design, and the next you’re accused of exporting technical data to a foreign government.

Particularly noteworthy, too, is the timing of the proposed rule, as it comes on the heels of Defense Distributed’s lawsuit against the federal government. Defense Distributed is a pro-Second Amendment organization targeted by the State Department in 2013 for allegedly exporting technical data illegally. Two years ago, it published online plans to 3D print a pistol after it developed a single-shot .22 pistol named The Liberator.

As The Federalist’s Sean Davis reports, Defense Distributed’s supposed crime was little more than “mak[ing] its data, compiled entirely from publicly available information, available for free on the internet.” In response, the government demanded the group submit its speech to Uncle Sam for approval before dissemination. When Defense Distributed attempted to comply, the government delayed by doing nothing. So Defense Distributed filed suit in May, and, voila, on June 3 we have the newly proposed rule.

While it’s certainly important that the government protect against the public sharing of confidential weapons information, the wording of the proposed rule — particularly given the nature of this administration — is hardly comforting. Indeed, as National Review’s Charles C. W. Cooke notes, “[I]t is difficult to imagine how any firearms website would be able to survive the regulators’ caprice.” And while it’s possible such an outcome was not the administration’s intent, it’s also possible it was.

The good news is that the administration is accepting public comment until August 3 on the proposed rule, and it certainly wouldn’t be a bad idea to push for clarification. After all, trusting the good intentions of any government has never proven an effective defense of Liberty.

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