The Problem With Prohibitions on Electronic Contraband Like 3D-Printed Gun Designs


Jay Janner/TNS/NewscomWatching the battle over downloadable gun designs play out is a lot like following the controversy around Napster and shared music files. And both remind me of early-internet efforts by the French government to suppress Le Grand Secret, a tell-too-much (said officials) confessional by President Francois Mitterand’s personal physician. The earlier efforts at restrictions failed spectacularly, and the latest is bound to flounder, too—for the same reasons.

Increasingly, in this digital age, prohibitions and restrictions are running up against the limits of state authority, as officials test their power over things which have no form, shape, or fixed location—things that can often be infinitely reproduced once control slips even a little.

The fight over PGP probably started the ball rolling, back when the internet was just becoming a thing. Most people remember that the U.S. government tried to prevent distribution of the encryption software by classifying it as a munition, in need of an export license. That’s a history-repeats-itself preview of the recent battle over Cody Wilson and Defense Distributed’s gun designs, which also fell afoul of the State Department and its International Traffic in Arms Regulations (ITAR).

Before the encryption-as-munitions fight, PGP faced a copyright battle over ownership of the algorithms in it. Unwilling to let PGP’s potential for privacy protection go unexplored, the software’s author, Phil Zimmermann, distributed it despite legal challenges.

“He gave away the software anyway, by passing it out on floppy disks to other people who, in turn, made it available for download on bulletin board systems around the Net,” Wired reported in 1994. The company that raised intellectual privacy objections “could not keep the program from spreading: it was already on the Net and impossible to contain.”

Later, the U.S. government dropped its munitions-export case against Zimmermann. The author’s folk hero status may have played a role—but so, probably, did the fact that PGP was in the wild and the effort to limit its reach was entirely lost.

Le Grand Secret continued the trend of unstoppable electronic contraband, after the book was banned in France but scanned into electronic form by a cybercafe owner and quickly distributed beyond the reach of censors. “These state secrets are the world’s to share with a few computer keystrokes to Internet World Wide Web sites,” a 1996 New York Times article noted. Presaging Wilson’s intent to make gun design files freely available despite government objections, Dr. Charles Gubler, who wrote Le Grand Secret, “was simply pleased that the information has gotten out—in any form.”

The music file-sharing service Napster drew similar official attention, this time over music industry concerns about copyright and lost sales rather than government panic about state secrets. After a flurry of litigation, Napster was ordered to completely block users from sharing copyright-infringing files—a demand it couldn’t meet. The company closed its doors.

“Ironically, that litigation propelled file trading to further astronomical heights,” Wired reported in 2002. “Open-source developers, long the defenders of free speech in the digital world, set about developing alternatives to Napster in case the record industry successfully shut down the rogue service.”

Faster connections and improved technology have added movies, games, software, and television shows to the types of media that can be infinitely copied and shared. The torrent site, Pirate Bay, has long been the face of such file distribution. That Pirate Bay’s physical facilities in Sweden were first raided in 2006 and fans celebrated the site’s 15th anniversary last month is an indicator of just how suppression efforts are going—not just for the site, but for file-sharing in general.

Last year saw a three percent increase “in visits to piracy sites hosting TV content when compared with data from the previous year,” according to Muso, a company that tracks online piracy. Meanwhile, “global visits to piracy music websites surged,” up 15 percent from 2016.

Which is to say, efforts to restrict the distribution of digital contraband have a pretty lousy track record. Once the stuff is out there, it stays readily available so long as anybody makes an effort to hand it around.

Not that officials seem aware of that sad history—or to know much at all about what they’re doing when it comes to the internet.

“The possibility that a cybernaut with a BitTorrent protocol will be able to find a file in the dark or remote recesses of the internet does not make the posting to Defense Distributed’s site harmless,” U.S. District Judge Robert S. Lasnik wrote last week in a wonderfully incoherent and ill-informed rejection of Defense Distributed’s efforts to overturn a preliminary injunction on it posting 3D-printed gun designs online. Assuming that Judge Lasnik was trying to say that the files are hard to find, they’re not. Some sites at which they’re available are included in court filings. Others, like CodeisFreeSpeech.com, were set up to thwart government restrictions and have been all over the news.

Still, hope lives on.

“It’s unfortunate that some gun-making blueprints already have made their way onto the internet,” insists Mary B. McCord, formerly with the U.S. Department of Justice and now at Georgetown Law, “but that’s no reason not to take steps now to halt the spread of technical data that, in the wrong hands, will be deadly.”

But how?

Maybe the federal government could leverage its increasingly intrusive take on intellectual property law to seize the gun design files’ copyrights under eminent domain, and then go after anybody who distributes them for infringement, suggests Charles Duan of R Street Institute. Duan goes on to warn that, while such a move might be permissible under current law and a logical extension of recent policy, it’s a terrible idea.





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