Two years ago today, Cody Wilson received a letter from the State Department asking him to take something off the internet.
In short, the letter asked Wilson to take some design files offline and suggested he may be aiding and abetting enemies of the United States. He complied, agreeing to take down the computer-aided design (CAD) files. Still, being the ex-law student he is, he held out hope for his day in court.
But like most things on the internet, the files in question — Wilson's designs for the world's first 3D-printed readymade pistol — weren't easily deleted. And two years later, Wilson's expanded his enterprise, known as Defense Distributed, creating a gun-manufacturing machine known as the Ghost Gunner — so called because the machine aids in the production of untraceable firearms that don't bear serial numbers. This week, his hope for a day in court got one step closer to reality: He filed a lawsuit against the State Department.
In the 2013 letter, the State Department initially stated that the "technical data" provided by Wilson and Defense Distributed on the group's website may have violated regulations known as the International Traffic in Arms Regulations (ITAR), because the plans for the gun, known as the "Liberator," would allow virtually anyone with internet access, even embargoed countries or enemies of the state, the ability to manufacture controlled firearms. That, State Department officials argued, was tantamount to distributing the weapons themselves, and was subject to ITAR.
Loaded for Bear
The lawsuit, filed Wednesday in a U.S. district court in Austin, comes out with guns blazing, arguing the State Department violated a litany of rights, including free speech, due process and (obviously) the right to bear arms.
Wilson, who dropped out of the UT-Austin School of Law, believes his legal team’s First Amendment arguments are strong. The plans, instructions, files and software, which people can use to assist in the production of DIY guns, he argues are likely not within ITAR or State Department jurisdiction. The plans constitute information, and what the government is doing, he believes, is censoring the spread of information through prior restraint. Information-containing code, he argues, is speech, and should be protected.
“So we have firm footing to make the case that you can’t prior restrain certain software just because you dislike the ultimate result of having that software. I mean this department basically claims any digital information that could assist you in manufacturing firearms is under their control.”
Defense Distributed contends they followed all the processes the State Department requested in the 2013 letter, and Wilson says he waited two years without receiving any response to his requests. The company's suit calls out the department for not placing time constraints on the case, which, the suit says, is a violation of their Fifth Amendment right to due process.
The suit also addresses Second Amendment violations. After conferring with his legal team, Wilson says he had to make some “concessions,” like addressing the right-to-bear-and-acquire-arms protections in his suit to "pose questions that are so terrifying to some judges that it will probably speed their First Amendment decision so they can avoid growing the second amendment more than they already have."
Wilson says he observes Second Amendment interpretation through a historical and genealogical perspective from a "radical republican" standpoint and, strategically, he understands that Second Amendment activists might be important to his cause.
"For me it’s not really about a fidelity to any of these particular amendments to the Constitution, it’s about using whatever constitutional framework we have to preserve or open up a particular path to freedom, so people can actually use these blueprints, and they can actually use digital techniques to manufacture firearms," he says.
As Wilson, and likely everyone involved with the lawsuit knows, the information in question is still widely available online. The State Department's 2013 demands, which were sent out shortly after Defense Distributed debuted the Liberator online, drew a lot of press and attention to the group at the time.
This caused what's known as a Streisand effect, when the government's attempts to tamp down on the spread of information draws more attention to it and increases demand. Because of this, most of the Liberator schematics still exist and continue to be updated on bittorrent and filesharing sites.
So, if Wilson knows that his training and building manuals are still readily available for anyone committed to finding them, why sue the State Department?
Wilson says it's about his personal commitment to protected freedoms, particularly the rights to free speech, information and expression — all of which he argues have been violated. While the suit is asking that the State Department remove the requirement for prepublication approval of his gunmaking instructional materials, it's also asking the department to compensate Defense Distributed for damages incurred during the two years the department barred publication.
It's a bold move to sue the federal government, sure, but it's one that's in line with Wilson's system of belief.
"Some people seem surprised that they can sue the government, and...this is a power that’s afforded to us as citizens of the United States. I hope it goes well, and I hope we reinforce the public’s understanding of protected speech as software." And he adds: "Also, that we even extend some protections for the Second Amendment."