Was it ok for State Dept. to alter export laws, allowing release of gun CAD files?
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Cody Wilson, owner of Defense Distributed company, holds a 3D printed gun, called the "Liberator", in his factory in Austin, Texas on August 1, 2018.

Attorneys from 19 states and the District of Columbia will ask a judge to continue an order forbidding the release of 3D-printed gun files on Tuesday morning at 9:00am Pacific Time, in federal court in Seattle.

Strangely, the lawsuit, State of Washington et al. v. United States Department of State et al, seems to ignore the fact that the files are already available on numerous sites, including Github, The Pirate Bay, and more. These files have circulated online since their original publication back in 2013.

Lawyers representing both the Department of State and Defense Distributed argue that their already-approved legal settlement should go forward, and that DEFCAD should be allowed to re-publish its 10 firearms CAD files.

Defense Distributed is the Texas-based company that has been involved in a years-long lawsuit with the Department of State over publication of those files and making them available to foreigners. The company runs DEFCAD, perhaps the best-known online repository of gun files.

After a surprising June 2018 settlement with the Department of Justice seemingly ended a five-year legal battle with the Department of State, DEFCAD reposted files that officially had been removed on July 27, days earlier than it had initially said that it would restore them.

The feds essentially agreed to change the relevant export laws. Defense Distributed would be allowed to publish, the DOJ would pay $40,000 of DD's legal fees, and the case would be over. The Second Amendment Foundation announced the settlement on July 10.

By July 30, Washington Attorney General Bob Ferguson lead a group of states in an effort to seek their legal removal.

A day later, US District Judge Robert Lasnik granted a "temporary restraining order" (TRO) preventing Defense Distributed from publishing its 10 firearms files. DEFCAD complied with the order.

Theoretical harm

In court papers filed earlier this month, the group of states, lead by Ferguson, asked Judge Lasnik to convert his emergency TRO to a "preliminary injunction"—which would essentially mandate that the files stay offline until the case is fully adjudicated.

As the states argue:

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Plus, the 19 states and DC say, these CAD files may not even be protected under the First Amendment anyway.

"Furthermore, Defense Distributed’s intent in disseminating the files is not to communicate an idea or message, but specifically to evade lawful gun-safety regulation," they argue.

For its part, the government says that the states’ concerns is ultimately misguided.

First, so-called "undetectable" weapons are already banned under federal law. Second, it’s not the Department of State’s job to worry about the possibility of potential future criminal acts that might be committed with such weapons. Third, this case was never concerned with domestic publication of the files in question.

Still, Washington and the other states also say that this lawsuit isn’t just about existing 3D-printed firearms, but future ones as well.

"A preliminary injunction would prevent the spread of existing 3D-printed gun files from the dark corners of the web to mainstream internet sites, and would prevent future—and technologically more advanced—designs from ever entering the public domain," they assert.

Meanwhile, the Electronic Frontier Foundation is appearing in the case as an amicus, or friend-of-the-court. The activist group filed its own argument on the side of Defense Distributed, advocating that even digital files that can be used to manufacture firearms are constitutionally protected.

"If the Design Files and others like them have been freely available for years, it is unlikely that the harms warned of by the states will materialize when Defense Distributed republishes the designs," writes Venkat Balasubramani, an attorney representing the EFF.

"There is no logical reason why imminent, inevitable harm would result from publication by Defense Distributed, or anyone else, when it has not occurred in the past seven years. The First Amendment does not permit speech to be suppressed in these circumstances."