One Comment

In re the publishing a firearms design being an export.

Yes, yes it is an export per the definition in the Arms Control and Export Act & International Traffic in Arms Regulations which controls in the import and export of defense articles, of which firearms clearly are.

In fact, you wouldn’t even need to publish it on line to have conducted an “export”. Merely giving the design to a non-US person in the US is an export. Or to a US person who is an agent or representative of a foreign entity is an export by definition.

The Act defines defense articles as not only the actual weapons, but technical data, how to, and includes defense services such as training, maintenance, etc.

In the particular context of this case, to be blunt, there is zero difference between 3D printer files and old school blueprints or printed technical manuals. The design of a weapon is the design of the weapon, regardless of how that design is communicated or recorded.

“ITAR’s regulation of communicating technical data is clearly a content-based prior restraint of speech—it restrains speech before it is published based on the content of the communication”
By definition, the mere act of communicating HOW, in particular, to make a weapon, is all that needs to be done to enable someone else to obtain the weapon. Knowledge is the very article being exported. And not just any knowledge, but particular knowledge (e.g. how to make, maintain, use, etc defense articles). This is no different than a company protecting its intellectual property on the “secret sauce” of how to make a product. The secret sauce in this case is the particular design of a weapon or a key process or other technical know how on improvements to weapons.

The reason, for example, why China and Russian can’t compete with the US in aerospace (to include warplanes) is that they don’t know the particulars of how to make jet engines as efficient as the US does (they’ve yet to reverse engineer it, or the process is such that it can’t be reverse engineered, so the possession of the engine on a commercial airplane doesn’t reveal the “how it was made” details). Exporting to non-US persons the know how to manufacture high temperature, efficient jet engines is, for all practical purposes, exporting them said engines, to make better warplanes.

Is this right? I’d say, yes. Speaking (certain things to non-US persons or even US persons in some cases) is exporting. How do you prevent exporting prohibited things (defense articles)? Prohibiting speaking certain things (particular knowledge of defense articles) to non-US persons. Its narrow and tailored.

I’d leave it to the smart lawyers to come up with a case where a person / company weaseled out of charges and a conviction on 1st Amendment grounds. It would appear, based on the update, that the Supreme’s have denied the appeal on the noted case.

Now, does this mean I think ITAR isn’t silly in many respects? Nope…it’s stupid beyond belief. Example: A bent sheet metal bracket used to hold say a military grade radio installed on an otherwise civil airplane is restricted under ITAR. There is zero technology in the bracket that needs to be controlled – its a bent piece of aluminum sheet metal.