San Francisco - The government cannot require Americans to go through an export licensing scheme prior to posting and sharing 3-D printer design files online, because publishing technical information is a form of speech protected by the First Amendment, the Electronic Frontier Foundation (EFF) told a federal appeals court Thursday.

The case is Defense Distributed v. United States Department of State, in which the Texas company sued the State Department after officials warned that criminal sanctions could be brought for publishing a 3-D printable file for a one-shot plastic gun, as well as other design and documentation files without a license. The State Department claimed that publishing the files on the Internet could violate the International Traffic in Arms Regulations (ITAR), which controls the international export of defense-related technology. After suggesting Defense Distributed put in an administrative request to determine whether the files were, in fact, controlled, the State Department sat on the request for nearly two years—only acting after Defense Distributed sued. It then concluded that a license was required to publish most of the files at issue.

The export controls regime provides no opportunity for a would-be publisher to challenge in court the State Department’s determination that a license is required, or the denial of a license. In an amicus brief filed in the United States Court of Appeals for the Fifth Circuit, EFF said that the State Department’s licensing regime for speech about defense-related technologies—many of which have civilian applications—violates the First Amendment.

“The First Amendment requires that speech be allowed except in the narrowest circumstances. Here, the export controls regime does not provide for judicial oversight or require the government to prove the appropriate conditions for a prior restraint of speech. Rather, the law criminalizes as a general matter the online publication of unclassified designs and documentation about a wide range of technologies,” said EFF Staff Attorney Kit Walsh. “The Supreme Court has been very clear that any speech licensing regime has to be governed by definite standards of review, judicial oversight, and prompt deadlines. This process doesn’t contain any of those safeguards to prevent capricious censorship.”

The questions at issue in this lawsuit are a direct parallel to one of EFF’s first cases, the landmark Bernstein v. U.S. Department of State. In Bernstein, the court found that the source code for the first freely available encryption software was constitutionally protected free speech and that the government’s attempt to suppress it via export control licensing violated the First Amendment.

“The government is trying to use the same tactic it used in the 1990s to block researchers from sharing computer code online,” said Walsh. “A court first ruled more than 15 years ago that source code was speech protected by the First Amendment, in a case that held the government’s export regulations preventing its publication were unconstitutional. The Fifth Circuit should do the same for design files.”

For the full amicus brief:

https://www.eff.org/document/amicus-brief-34