State Department Proposal May Make Information-Sharing on Guns Illegal

There has been quite a buzz recently about the State Department’s proposed rulemaking concerning the Arms Export Control Act -- and its impact on information concerning guns.

GOA has looked over the regulations -- and other people’s comments concerning the regs. One initial comment is that a lot of the proposed language which has caused such a stir is carried over from current regulations.

This is not dispositive. If an anti-gun president, like Obama, wanted to use a long standing preexisting statute to implement comprehensive gun control -- and if that preexisting statute had historically been interpreted conservatively -- the first thing the anti - gun president would do is recodify the regulations, with slight modifications.

That said, here are the major problems with the proposed regs, as we see it. This is probably more than you want to know. But, if you’re going to get involved, it’s not more than you need to know.

SUMMARY

The definitions of what gun-related information cannot be “exported” without the approval of the State Department are already very broad.

But what is missing is a broad definition of “export” that would actually allow the Obama administration to move in and take advantage of this regulatory infrastructure.

And what these regulations would do is to define “export” to include potentially any gun-related communication on the Internet or social media.

With this final keystone in place, the Obama Administration would have the regulatory framework to comprehensively regulate gun-related speech in cyberspace, to whatever extent it desires.

Changing Definitions

The definition of what communication is an “Export” that triggers the requirement of the State Department approval is expanded dramatically in these regs.

The term “export” would be expanded to include “making technical data available via a publicly available network (e.g., the Internet).” This is wholly new language.

Note that anyone who did this could face decades in prison and massive fines.

Note, further, what this provision does and does not say: It does not require that the technical data be made available to the public for the illegality to occur. It applies to all private communications, so long as the “network” (e.g., the Internet) is, in general, publicly available.

Thus, any electronic communication concerning gun-related “technical data” would potentially subject the sender to these significant criminal penalties.

That said, it is alarming enough that the obvious ramification of this paragraph is to give the Obama administration authority to comprehensively regulate gun-related speech on the Internet.

So the next question is: Given that the proposed regulations would more clearly grant the Obama administration the power to regulate gun-related speech on the Internet, how broad would its mandate be?

The answer is that, based, in part, on preexisting definitions, that the power would be very broad indeed.

Broadening the Concept of Gun-Related Speech to be Regulated

The definition of “technical data” which would require government permission in order to be posted on the Internet is, in part:

Information required for the development (see section 120.47) (including design, modification, and integration design), production, (see section 120.48) (including operation, installation, and integration), maintenance, repair, overhaul, or refurbishing of a defense article. Technical data may be in any tangible or intangible form....

Note that this language is so broad that it could potentially include virtually any gun-related communication of a functional “how to” nature.

The term “defense article” -- which requires a license (and huge license fee) for export, and upon which the previous definition rests -- is: “any item, software, or technical data designated in section 121.1....”

And what does section 121.1 say that the term “defense article” means? It now includes (1) non-automatic and semi-automatic firearms up to .50 caliber; (2) automatics up to .50 caliber; (3) other firearms of “special military application”; (4) shotguns with a barrel length less than 18 inches; and (5) components, parts, and ammunition for all of these.

In other words, posting information on virtually any firearm or ammunition could be defined by the Obama administration as being the “export” of a “defense article.”

Of course, it is a defense that the information is in the “public domain” because, under section 120.11, it is “available to the public without restriction on their further dissemination.” But anyone who posts on a gun-related “how to” topic has to ask the question of what the term “available to the public” means -- and whether everything in his post has been said before, publicly. At the very least, such a convoluted process would have a “chilling effect” on gun-related speech.

The bottom line? Under the State Department proposed revisions, virtually every “how to” gun-related electronic communication could be classified as a “defense article” which would require, not only government permission, but potentially a government license.

Gun-related Software will be Classified as a “Defense Article” and would Require a License

We have seen that the term “defense article” -- which requires a license (and huge license fee) for export -- is defined to be “any item, software, or technical data designated in section 121.1 ....” And the term software is new.

The State Department contends that, since software is merely being moved from the category of “technical data” to “defense article,” this provision makes “no substantive change.”

We know this is a lie in one respect, because “computer-aided design files” and “electronic media” remain in the 22 CFR 120.10 definition of the “technical data” section under the proposed new rules.

Beyond that, if there’s one unbreakable rule in politics, it’s that, when drafters take the time and effort to add a provision to the underlying text, it is never, never, ever without reason.

And if there’s a second unbreakable rule, it’s that the drafters will inexorably lie and say they’re “only codifying current law.”

What “software” should we be concerned about? Well, to start with, 3-D printer programming almost certainly falls within this category and these regs seems to be an effort to outlaw this technology by executive fiat.

San Antonio gun author Nick Leghorn, who writes for The Truth About Guns, predicts an end to “Encryption programs like TrueCrypt as well as 3D models of firearms....”

Conclusion

GOA has done its own careful analysis of the State Department’s proposed rewrite of arms control regulation.

We have not always agreed with everything our friends are saying about the changes.

But we, too, have concluded that, in the hands of an anti-gun administration such as Barack Obama’s, the regulations have the potential of granting the State Department an expanded ability to regulate and license gun-related speech on the electronic media.

Michael Hammond is the Legislative Counsel for Gun Owners of America, a grassroots lobby representing more than one million gun owners.

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