Defense Distributed v. Dep't of State - Preliminary Injunction Argument Transcript

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
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DEFENSE DISTRIBUTED and OTHERS, ) CASE NO. 1:15-CV-00372 (RP)

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vs.
UNITED STATES DEPARTMENT OF

STATES and OTHERS,
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July 6, 2015
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DEFENDANTS.
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TRANSCRIPT OF PRELIMINARY INJUNCTION HEARING

BEFORE THE HONORABLE ROBERT L. PITMAN
DISTRICT COURT JUDGE
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APPEARANCES:
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For the Plaintiffs:

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ALAN GURA, ESQ.

Gura & Possessky, PLLC
105 Oronoco Street
Suite 305
Alexandria, VA 22314
703-835-9085
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DAVID S. MORRIS, ESQ.

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Fish & Richardson, P.C.

111 Congress Avenue, Ste 810
Austin, TX 78701
512-226-8116
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JOSHUA MICHAEL BLACKMAN, ESQ.

Josh Blackman LLC
1303 San Jacinto St.
Houston, TX 77002
202-294-9003
JOE REYNOSA, CSR, RPR
OFFICIAL COURT REPORTER
MATTHEW A. GOLDSTEIN, ESQ.
Matthew A. Goldstein, PLLC

1012 14th Street NW, Suite 620
Washington, DC 20005
(202) 550-0040
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W. THOMAS JACKS, ESQ.

Fish & Richardson P.C.
111 Congress Avenue
Suite 810
Austin, TX 78701
(512) 472-5070
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WILLIAM B. MATEJA, ESQ.

Fish & Richardson
1717 Main Street, Suite 5000
Dallas, TX 75201
(214) 747-5070
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For the Defendants:

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ERIC J. SOSKIN, AUSA

U.S. Department of Justice,
Civil Division
20 Massachusetts Ave. NW, Room 7116
(202)353-0533
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STUART JUSTIN ROBINSON, AUSA

U.S. Department of Justice,
Civil Division
20 Massachusetts Ave., N.W.
202-514-9239
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ZACHARY CARL RICHTER, AUSA

United States Attorney's Office
Western District of Texas
816 Congress Ave., Suite 1000
Austin, TX 78701
(512)370-1254
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Produced by mechanical stenography; computer-aided
transcription
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P-R-O-C-E-E-D-I-N-G-S
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THE CLERK:
Court calls Case No. 1:15-CV-372,
Defense Distributed and others versus United States
Department of State and others for a Preliminary Injunction
Hearing.
THE COURT:
Could we have announcements, for the record,
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Please be seated.
please.
MR. MATEJA:
Yes, Your Honor.
Bill Mateja on
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behalf of the Plaintiffs, Defense Distributed and Second
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Amendment Foundation.
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Would you like for me to introduce my team now?
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THE COURT:
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MR. MATEJA:
That would be great, please.

Well, I want to start out with my
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partner out of the Austin office, Tommy Jacks.
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modern technology has allowed him to be many miles away but
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yet still with us.
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THE COURT:
Thank you, Mr. Jacks.
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MR. JACKS:
Thank you, Your Honor.
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MR. MATEJA:
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I believe
So in addition to Tommy, Your Honor,
it's my privilege to introduce you to Alan Gura.

Alan is a long time friend of mine.
We have
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collaborated on a number of cases.
He is a civil rights
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attorney out of Alexandria, Virginia that specializes in

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First Amendment and Second Amendment cases.
myself, he perhaps is one of the foremost legal authorities
on the Second Amendment because he not only argued but he won
the Heller decision and, likewise, the McDonald decision in
front of the U.S. Supreme Court.
And, if I say so
In addition to Mr. Gura, let me introduce you also
to Matt Goldstein.
Matt has long time been the lawyer for
Defense Distributed, and so he practices in international
trade law.
He does a lot of work with the ITAR statute, and
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we may call upon him from time to time because there are a
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lot of specifics that relate to the ITAR statute that he is
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intimately familiar with.
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At the very end, Your Honor, is Josh Blackman, who
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is an associate law professor at the South Texas College of
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Law.
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published in the University of Tennessee Law Review entitled
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"The First Amendment, Second Amendment and 3D Printed Guns."
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He recently -- about a year ago -- wrote an article
THE COURT:
It's my understanding that,
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Mr. Blackman, you have an application on file.
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approved, and you are welcome to participate in this hearing.
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And at a break or at the conclusion of this, I would be glad
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to swear you in.
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MR. BLACKMAN:
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MR. MATEJA:
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It's been

Last but not least, Your Honor, David
Morris out of our Austin office, Fish & Richardson, who has
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been helping ably on this case.
And then let me introduce you to my client, which
is Cody Wilson.
Distributed.
Cody is the owner and president of Defense
THE COURT:
Thank you, Mr. Mateja.
MR. MATEJA:
MR. SOSKIN:
Good morning, Your Honor.
Eric Soskin
out of the Department of Justice in Washington, Civil
Division, Federal Programs Branch.
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With me, I have two colleagues.
I believe you know
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Mr. Zach Richter, Assistant U.S. Attorney, and also
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Mr. Robinson.
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Washington.
Stuart Robinson is one of my colleagues in
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THE COURT:
Welcome.
Thank you very much.
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It's my understanding that the purpose of this
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hearing or your intention in this hearing is to make oral
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arguments.
There will not be any evidence; is that correct?
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MR. MATEJA:
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THE COURT:
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MR. SOSKIN:
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THE COURT:
That is correct, Your Honor.

And from the Government?
That's right, Your Honor.
Before you kick off, just let me tell
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you, I have reviewed the filings in the case, and I will
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start off by just making some random observations of a very
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general nature.
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those and anything else that you would like to enlighten me
And for what it's worth, you can address

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on today.
First, obviously, I would like for each of you to
talk with me more about the appropriate level of scrutiny to
be applied in this case.
Based on my understanding of the law and in this
case so far, it's my belief that an intermediate level of
scrutiny is appropriate in this case, but I am happy to hear
if you believe otherwise.
The second thing, I am very interested in the back
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and forth arguments with regards to the import of making
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items like this available on the Internet and the idea of
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whether that is export properly understood under the
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statutory scheme, the regulatory scheme, and related to that,
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from the Government's perspective, whether or not there are
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any reasonable alternatives that would provide an effective
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safe harbor in the event that the Plaintiff -- that would
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satisfy some of Plaintiffs' interests in publishing this way
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without running afoul of the statutory or the regulatory
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regime.
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And then, finally, I would be interested to know
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from each of you whether the development of a full record in
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this case would add anything or potentially affect the
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Court's analysis, so I will know how to proceed after our
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time together here.
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So with that, I would be glad to give the floor,

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Mr. Mateja, to you or anyone on your team.

MR. MATEJA:
I'll let Mr. Gura take it from here,
Your Honor.
THE COURT:
MR. GURA:
focusing our discussion here.
deal to talk about.
know what the Court is interested in hearing about in having
a more effective hearing from both sides.
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Mr. Gura.
Thank you, Your Honor, and thank you for
There is obviously a great
And it's always helpful to counsel to
With respect to the level of scrutiny, we would
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contend that both under the First Amendment and Second
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Amendment, the level of scrutiny must be strict scrutiny.
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However, before going into that discussion, I would
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like to observe that it actually may not matter whether we
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have strict or intermediate scrutiny in this case.
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both levels of scrutiny, both are considered to be
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heightened.
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Under
The Government bears the burden of showing that
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there is an appropriate fit between some important or
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substantial or compelling Governmental interest and the
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regulation that's at stake so that no more conduct is
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prohibited than necessary to achieve whatever Governmental
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purpose is at stake.
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Sometimes people believe these levels of scrutiny

are actually determinative, and so we argue about them.
But
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here I don't believe, actually, that would be the case
because there is really no way that the Government can
justify this extraordinarily broad prohibition on speech and
very significant intrusion into the acquisition of firearms
under any level of scrutiny.
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We start with the regulation because that's what

the Government purports to be controlling here.
The term "export" is read so broadly by the
Government that it actually includes just about any form of
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communication within the United States that a foreign person
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might somehow be privy to it.
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We have a lot of discussion, obviously, in this
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case about the Internet, and we can dispute whether or not
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someone is exporting information every time they type
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something on the Internet.
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at stake here is actually quite broader than that.
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But the export regulation that's
It could potential reach, for example, standing on
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a street corner and discussing what the Government deems to
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be technical data that a foreign person might hear.
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place a billboard in the United States that's visible from
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the across the border, they might consider you to be
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exporting that information.
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If you
There is really no speech that you can express
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within the United States that wouldn't somehow perhaps fall
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into the earshot of a foreign person.

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And the Government, helpfully, has told us in their
new proposed notice and rulemaking -- they claim that this
has always been the case and that this rulemaking actually
doesn't change things, but it doesn't clarify their
interpretation.
They state that posting technical data through the
Internet without a department or other authorization is a
violation of the ITAR, even absent specific knowledge that a
foreign national will read the technical data.
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So can this incredibly broad rule be sustained,
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even under intermediate scrutiny, as an appropriately
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tailored means of advancing the interest --
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THE COURT:
You can see that there is a compelling
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Government interest in at least what they are purporting to
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be doing.
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MR. GURA:
We happily concede that the Government
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has an interest.
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substantial or important, it's perhaps a matter of semantics.
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Whether we call it compelling or
The Government has an interest in controlling the
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export of munitions, and the Government has an interest in
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controlling the export of technical data.
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takes us so far.
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But that only
The Government's interests -- it's authority to act
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comes to us from the Commerce clause.
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Foreign Commerce clause.
In this case the
That is limited by the First

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Amendment and by the Second Amendment.
have an interest.
So it's not enough to
The question is whether or not they are advancing
that interest in the way that it's respectful of Americans'
individual rights.
And the idea that anything that a person might put
on the Internet is thereby exported and subject to export
control regimes is troubling.
And here we have no way of knowing what technical
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data is.
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data.
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fact, enjoy unbridled discretion to determine that just about
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anything is controlled by the ITAR.
The last one is a catch-all provision.
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There are 21 different categories of technical

So they do, in
There are no judicial restraints on this.
There is
no opportunity for review.
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In fact, the Act and the Regulations both tell us
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that they are not subject to the APA or any other form of
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judicial oversight.
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involved.
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There is no timeline at all that's
We have a regime whereby people are waiting -- in
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this case we have waited about two years -- to get a
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determination as to whether or not speech is controlled or
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not controlled.
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So while the Government can regulate the export of

technical data, they need to go back to the drawing board.
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We are not here to tell the Government how exactly
to rewrite the ITAR or how exactly it should be interpreted,
except that there has to be a scienter requirement at an
absolute minimum.
acknowledgment that the speech has to be directly related to
munitions, to aiding, perhaps providing services to a foreign
Government in acquiring controlled items.
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There has to be some limitation, some
It can't simply be that Americans who wish to speak

about arms or other technical data, whatever that might be,
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can't do so because the Government or someone might hear it,
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and somehow this might impact the ITAR.
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THE COURT:
While that may be the case, it's not
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your position to tell the Government how to advance their
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interests, wouldn't it be helpful for me in analyzing this
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situation for you to suggest whether or not it's for you to
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identify a less restrictive means?
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might be that there simply are no less restrictive means, and
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so it might be helpful if you could help me identify it.
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MR. GURA:
Because their position
At a minimum, there should be a scienter
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requirement.
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speaker to export the Defense article to aiding a foreign
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Government in acquiring it.
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public speech that could be found to be useful in a military
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program is thereby prohibitive without a license.
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There has to be the specific intent by the
It can't simply be that innocent
So that would be a significant limitation, and it's

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one that could probably resolve this case.
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Second, we don't agree that posting something on

the Internet is inherently an export.
The Internet is, after all, just another form of
public speech.
acts in much the same way.
It is a very large soap box, perhaps, but it
So if a person, for example, takes a file and
emails it to a foreign power with the specific intent of
making sure that they acquire some kind of military
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information, that could be controlled under ITAR.
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But if an American simply wants to post information
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on the Internet willing to design a firearm, which is
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something that Americans -- it's the type of information we
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have always exchanged.
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dimensions to it.
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That certainly cannot be the subject of a license that takes
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years to obtain, if ever, under guidelines that are at best
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mysterious.
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And, in fact, it has Second Amendment
It goes even beyond just normal speech.
So a scienter requirement, something that relates
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to specific intent to export, aid a foreign Government, and,
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of course, the wide exclusion for people being able to simply
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discuss matters that Americans have always been free to
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discuss.
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THE COURT:
Tell me whether or not making available
CAD files on the Internet is properly understood as

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discussing something.
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MR. GURA:
Sure.
CAD files are expressive.
There
is no question that they are a form of expressive speech.
They are basically a file that shows the design of
an object or a thing.
course, is a matter of expression.
They aid design.
The design, of
We have design patents in the United States, for
example.
They are not necessarily related to functions, but
they are related to design.
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And a CAD file is something that Americans can
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exchange, understand, analyze, modify, break down, learn
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from.
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It is very much a matter of expression.

The fact that we now have machines that can take
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those CAD files and make objects out of those, it doesn't
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change the fact that the files themselves are inherently a
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form of expression and are protected by the First Amendment.
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And because we are talking here about certain
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specific types of CAD files -- remember, ITAR doesn't apply
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to every type of file.
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Government deems have munitions-related content.
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talking about a content-based restriction on speech, which is
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why we would argue that strict scrutiny here should apply
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under the First Amendment.
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It applies to files that the

We are
There is obviously a process that the Government

undertakes when they determine whether something is subject
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to ITAR.
They look to the form.
They look to their function
of the object or the thing, and they try to discern whether
or not, based on its content, it's subject to ITAR.
So this is a content-based restriction, and
content-based restrictions are given strict scrutiny.
that's the strict scrutiny angle to the extent that we should
still discuss that.
So
But even under immediate scrutiny, the breadth of
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this restriction is so vast that it's not really too much to
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ask for that it be narrowed in some sort of meaningful way
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that respects basic freedom.
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In fact, if I may, Your Honor, the Government has
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helpfully written, a long time ago, but nevertheless
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presciently, that it's not even clear Congress intended for
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the State Department to have this authority.
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I wish we could take credit for some of the
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arguments we have on the ultra vires and the overbreadth
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arguments, but those arguments were made a long time ago by
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OLC.
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Department that they may not use ITAR as a prior restraint.
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And the Government has repeatedly advised the State
It is not clear at all whether or not Congress
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authorized this very vast power.
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are significant overbreadth concerns.
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And even if it did, there
And, of course, my favorite part of the memo is the

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one where the Government said that it might be best if the
State Department were to narrow this rather than courts.
obvious reasons, the best legal solution for the overbreadth
problem is through the Department of State, not the courts,
to narrow the regulations.
Well, they haven't done that.
For
They have made the
regulations worse by embarking upon this proposed notice of
rulemaking process where they confirm, "This is our vision of
ITAR.
We think it's always been like this."
And, in fact,
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that it is so vast and expansive that it swallows just about
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every form of technical speech on the Internet.
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So the State Department, having failed to heed the
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DOJ's advice and not undertaken the serious process whereby
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they respond to DOJ's concerns, to the Ninth Circuit's
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concerns, and Edler and Bernstein -- they have not done
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anything to narrow this, and they have taken a very hard and
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vast view.
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It is, regrettably, up to the courts to step in and

narrow this, and that's why we are here.
THE COURT:
So let me ask you this:
It seems to me
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that the real problem here relates to the means of
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distributing or disseminating the information that we are
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talking about.
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communication technology, and that is, that they are
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prohibiting you from using, one, a particular mode of
And it's really an artifact in my mind of

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communicating this information that you wish to communicate.
What if they had come back in response to your
request for determination, if they had come back and said,
"You can't post it in an ordinary fashion on the Internet,
but if you have some reasonable means, as has been suggested
in the pleadings, to determine whether or not the recipient
is within the United States and an American citizen," and
they provided you with the modality for doing that or regime
or protocol for doing that, would that past constitutional
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muster?
MR. GURA:
It depends on what they offered.
But as
a practical matter, our answer would be no.

The fact is, Americans have come to expect to be
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able to enjoy the ability to express themselves on the
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Internet and in other public forums freely, without getting a
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license, without waiting forever and without checking
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everybody's passport.
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It's not really practical to ensure that when you
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are speaking at a conference or in a public square or on the
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Internet -- it's not practical to ensure that you are only
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reaching U.S. persons.
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And, in fact, to the extent that the State
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Department has had an opportunity to think this through and
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perhaps come out with that narrowing -- some kind of
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narrowing construction, even if we wouldn't be satisfied with

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it, here is what the new rules says:
The release of
technical data may occur by disseminating technical data at a
public conference or trade show, publishing technical data in
a book or journal, or posting technical data to the Internet.
So they are trying to grab as many possible ways of
dissemination and shove them under their rules.
not seeing a Government that's trying to narrow the scope of
its regulations.
So we are
We are dealing with a Governmental actor that
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thinks that speech, in any way, shape or form anywhere, is
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going to be problematic under ITAR without a license because,
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after all, foreign persons might be at trade shows or public
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conferences, or they might be read books or journals.
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There simply is no way to limit the dissemination
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of information only to U.S. citizens within the United
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States.
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of information.
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democracy.
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able to enjoy and do.
And we live in a country where we believe in freedom
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This is the foundational aspect of our
This is what Americans have come to expect to be
And so people have the absolute expectation that
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they should be able to speak without a prior restraint,
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especially when they are speaking about items or about
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matters that are protected by another constitutional
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provision.
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Amendment.
And here we are dealing with the Second

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I mean, can you, for example, be a gunsmith?
And
let's suppose that you invent a new safety device for a Glock
handgun; it's a handgun that has a safety inside the trigger.
Maybe you made some modification.
Olympic sharpshooter and you want to share with the public
some ideas you have for a new gun site, or perhaps you have
made some other kind of modifications or some other sort of
innovation to advance safety and efficacy of firearms, you
can't share that either on the Internet or even at a trade
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Or perhaps you are an
show.
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THE COURT:
Let me ask you this:
Has your client
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disseminated the information that we are talking about
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already domestically?
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MR. GURA:
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and then he pulled.
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Yes, he did, until he got the letter,
THE COURT:
Well, then, is via the Internet the
only way that your client has disseminated this information?
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MR. GURA:
I'd have to check with him.
I believe
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that the Internet is the primary mode of distribution for
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Defense Distributed.
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THE COURT:
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this information domestically?
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MR. GURA:
Are there other means for distributing
He has other means.
He can give speeches.
He can attend
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shows.
He has been very active.
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is not limiting his desire to the Internet.

He
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THE COURT:
Right.
And you may see where I am
headed with this.
case would develop that -- then that would suggest that he
has not been dissuaded or his expression has not been chilled
because of the -- via these other ways of speaking, as you
suggest, or writing, that, really, we are talking about
whether or not this singular mode of communication, whether
restricting him from this particular single mode is unduly
burdensome.
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If he has -- and maybe the record in this
One of the things I may need to know from the
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record is whether or not there are reasonable alternatives,
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whether this is an incidental -- has an incidental impact on
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his ability to disseminate this information.
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It may well be the vastly more efficient or

reasonable way to do it.
MR. GURA:
I just don't know that.
Your Honor, to clarify, I am fairly
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certain that my client, in the wake of receiving this letter
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from the State Department, has refrained from disseminating
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technical data or anything that could be subject to the ITAR
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by all means.
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pulled the material from the Internet.
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I know he has been very careful.
Obviously,
But it is not our position -- and I can clarify
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this in a moment, but I am -- as I stand here now -- and in a
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moment I can give you a hundred percent certainty answer -- I
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don't believe that my client is willing to sacrifice -- is

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willing to risk triggering criminal liability in any way,
shape, or form.
He understands the breadth of the State
Department's order.
specifically directed only to the Internet, because, after
all, the definition of "export" is quite board.
aware of that.
generally refraining from speaking about technical data in
all forms.
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He does not read the letter as being
And he is
And so he is refraining -- my clients are
I mean, this is not -- we don't -- we are not
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playing games.
We are not saying, "Oh, well, you have
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written to us about our website.
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website down and go off on something else."
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the case.
Okay, we will keep the

That's not been
I am fairly certain.
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THE COURT:
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MR. GURA:
Okay.
Anything else?
Well, I will be happy to answer any
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further questions.
But, really, the breadth of this is such
18
that there is really no way that the Government can ban all
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technical data speech on the Internet, especially as it
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relates to the Second Amendment.
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And if I may, just with respect to the standard of
22
review on the Second Amendment side, this is regulation that
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goes to the core of the Second Amendment.
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acquisition of firearms.
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It relates to the
There is no way to keep arms unless you can get

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them somewhere or make them; right?
materialized out of thin air.
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But they don't magically
If you have the right to a gun, you have a right to

either acquire one in some fashion or make one.
And I know the Government has taken positions in
other cases where they say, "Well, it says keep and bear.
doesn't say purchase."
that, and we can get into that.
And the courts have largely rejected
But here we are even one step before purchase.
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Here we are in the sense of manufacturing and acquiring.
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Americans have always been free to make their own
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arms.
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weren't gun stores everywhere necessarily that produced
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firearms.
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understood they could manufacture arms and use those for
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traditional lawful purposes.
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It
You know, at the beginning of this country, there
There might have been a local gunsmith, but people
Here we have a regulation that goes to that core
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interest of keeping a gun for self-defense.
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under Fifth Circuit precedent, and other circuits have agreed
20
with this, we are talking about strict scrutiny.
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And, therefore,
But even if we are in the intermediate scrutiny
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land, the fact is that the Government would bear a high
23
burden to show this is an appropriately tailored regulation,
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and it's not.
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THE COURT:
Let's fall back a bit.

Your Second
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Amendment claims, I am struggling with the standing issue,
especially with regard to your secondary client -- well,
especially with regard to your primary client, but even your
secondary client that may have some standing by virtue of
individual members.
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Can you articulate for me clearly what the basis of

their standing is?
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MR. GURA:
Sure.
Well, standing we have in several
ways.
First of all, it has always been the law that
11
people have standing to assert the constitutional rights of
12
those who wish to access their market or function, which is
13
why -- for example, in abortion cases, particularly when you
14
have doctors come in as the Plaintiffs.
15
doctors choose to terminate the pregnancy but because the
16
doctors' patients are.
17
Not because the
In the contraceptive field we have had also, you
18
know, population services, people who distribute the
19
contraceptives.
20
We have had the "near-beer" case from the
21
Supreme Court, the equal protection case, those arguments,
22
the name escapes me, but it's in our briefs, whereby the
23
manufacturer of a product has a right to assert the equal
24
protection interest of its clients.
25
people who wish to assert the interests of their clients and
And so here we have

23
1
customers and visitors.
guns and acquire them.
Those are the one who would make the
And, secondly, of course, we have associational
standing, which should not be controversial here.
Amendment Foundation meets all the requirements of
associational standing and has prevailed many times when its
associational standing has been questioned, both in the Mance
case, in the Northern District, in Ezell, in other places.
The Second
We, obviously, have a rule that is germane towards
10
the organization's interests.
11
impacted by that.
12
the record very clear that SAF members wish to access these
13
files so they can manufacture handguns so they can have them
14
for self-defense.
15
should be required to participate directly in litigation.
16
We have members who are
And we have clarified now -- it's now on
And there is no reason why the members
So we have, under the Hunt case, all the elements
17
of associational standing.
18
even close, but, of course, the Government may have a
19
different view.
20
THE COURT:
21
MR. GURA:
22
THE COURT:
23
MR. SOSKIN:
24
Before I begin, a couple of notes.
25
Okay.
I don't believe that it should be
Thanks.
Mr. Soskin.
First, as we
had prepared for today's presentation, Mr. Robinson and I had

24
1
determined that I would address the First Amendment issues
and Mr. Robinson would address the Second Amendment issues.
So to the extent that some of your questions are
crosscutting, I will attempt to answer the First Amendment
parts.
6
7
8
9
And, also, I would just like to extend my thanks to

Mr. Richter for his assistance so far in this litigation.
As I am sure you know, it's sometimes the
administrative priorities of the Department of Justice that
10
summon in lawyers from out of town when the local assistants
11
would be completely capable of standing up here.
12
THE COURT:
I probably know that better than
13
anybody in this room.
14
MR. SOSKIN:
15
Mr. Gura stands up here and very eloquently
Well, anyway, thank you, Zach.
16
addresses the issues in this litigation at a very high and
17
broad level.
18
beginning make clear, the questions, when narrowed to the
19
facts at issue here, present a quite different question than
20
simply broad First Amendment theories.
21
But as I think your observations at the
The First Amendment, as courts have repeatedly
22
concluded, simply does not preclude the United States from
23
meaningfully regulating the export of computer software or
24
from regulating computer software at all.
25
In this case, it is an indispensable element of the

25
1
United States' system of regulating the exports of munitions
technologies, many of which are themselves software.
whatever form those export regulations may take, CAD files
that can be used to automatically produce munitions parts
simply have to be regulated for those regulations to be
effective at all.
In
Now, addressing the question of the appropriate
level of scrutiny here, we understandably take the opposite
view from our colleagues across the aisle.
10
The question, as we see it, is not one of
11
intermediate scrutiny versus strict scrutiny.
And we do
12
think that the levels of scrutiny matter greatly here.
13
we believe the question is between rational basis and
14
intermediate scrutiny, and that there is ample authority for
15
the Court to conclude that the rational basis analysis is
16
what's appropriate here.
17
recognized, and as the OLC opinions that Mr. Gura talked
18
about recognized, the protections to the First Amendment do
19
not extend to computer programs that are primarily
20
functional, particularly as is the case here where that
21
software carries out a physical task in the real world.
But
This is because, as Courts have
22
To hold otherwise would require the imposition of
23
First Amendment constraints on regulations of every kind of
24
real world activity, whether that is the regulation of
25
unmanned aerial vehicles at the sophisticated end or the

26
1
regulation of the energy saving features of your refrigerator
at the more mundane end.
things that rely on computer software that carries out
functions, and it cannot be the case that every regulation of
that computer software has First Amendment implications.
Before we discuss further the legal reasons, I
All of these in today's world are
think it is important for us to clarify a few of the facts
around the software, the CAD files, at issue here and the
munitions they produce, particularly in light of the filed
10
brief and the supportive declaration that the Plaintiffs
11
filed.
12
The lead Plaintiff here, led by Mr. Wilson, who was
13
introduced to you, is called Defense Distributed.
14
industry in which Defense Distributed operates is something
15
that -- one name for which is called distributed
16
manufacturing.
17
And the
It's an industry that holds the promise of
18
transferring most manufacturing activities from centralized
19
industrial revolution-type facilities to places much closer
20
to the use of manufactured items.
21
the 3D printers at issue here, even to your phone, where you
22
are going to use them.
In fact, as in the case of
23
And there are a number of technologies that fall
24
into this distributed and digital manufacturing realm, but
25
two are actually relevant here.

27
1
One is 3D printing, which the files at issue were
originally submitted in connection with and which
explained -- and which had been the central focus of the
briefs, but relatedly, and it has come up in parts of the
briefs, something called computer numerically controlled, or
CNC, manufacturing or machining, and the Ghost Gunner device
that Defense Distributed separately submitted for a commodity
jurisdiction request.
That's a CNC control milling device.
3D printing constructs items by building it up from
10
layers.
11
material and cuts it down to size.
12
design files.
13
like the ones at issue here.
14
most items, whether they are parts or finished objects, can
15
be either built up or cut down.
16
CNC milling takes a block of material or blocks of

Both methods rely on
They are often 3D CAD files in an STL format,

Both in theory and in practice,
Now, obviously, there are some limitations.
You
17
can't cut down a beach ball.
18
or a hollow item using a milling machine because there is
19
simply no way to get at the inside.
20
do it in two halves and then fuse them together, or you would
21
have to build them up using some sort of printing technology.
22
You can't make a hollow sphere
Either you would have to
But the Government's understanding and experience
23
with the files at issue here is that, most, if not all of
24
them, can be produced either from a 3D printer or a milling
25
machine.
Although it may require using different materials

28
1
for each one.
The CAD files at issue here, when loaded into a 3D
printer, as intended and as described by Mr. Wilson and by
Defense Distributed, they provide the instructions for a
computer, without human interception, to automatically make
the parts to a firearm.
Liberator, a .380 caliber pistol that can be operated as an
undetectable firearm, that can penetrate metal detectors
under standard settings and remain fully functional while
10
This is what they call the
doing so.
11
To comply with the Undetectable Firearms Act, I
12
believe 18 U.S.C. 922(p), the designs that Defense
13
Distributed provides properly instruct that a six ounce block
14
of steel be inserted and secured by a plastic or an epoxy
15
clip into the weapon.
16
standard setting metal detector.
17
That will make it detectable by a
But it is the understanding and experience of the
18
Government that that chunk of metal with be up secured and
19
removed.
The firearm will remain fully functional in that
20
setting.
And, in fact, someone who is willing to break the
21
law in the United States or who is perhaps not subject to
22
similar laws in foreign countries could simply make the
23
firearm and not insert that six inch block.
24
25
The remaining metal -- although Plaintiffs' replied

brief suggests that the firearm would be rendered nothing
29
1
more than a paperweight if all the metal were taken out,
that's true.
think, used as a firing pin, is simply insufficient to set
off most metal detectors.
But the remaining metal, the roofing nail, I
And as to the ammunition itself, the Liberator is a
single shot .380 caliber pistol, and most metal detectors
also will permit a single round that could be fired from that
firearm to pass through them.
That is why the United States is concerned here
10
about the distribution of undetectable firearms with respect
11
to these particular plans.
12
Mr. Wilson's declaration also disputes the extent
13
to which this is automatic, to which having printed or having
14
otherwise machined the parts for a Liberator, it requires
15
substantial expertise to piece them together into an
16
operating firearm.
17
But elsewhere --
18
THE COURT:
19
20
Just out of curiosity, has anyone
developed a nonmetal .380 round?

If you could get -- you might be able to get the
21
gun through, but you would still have to get the metal bullet
22
through, wouldn't you?
23
MR. SOSKIN:
We believe that a single bullet
24
probably would not set off metal detectors under standard
25
settings, particularly outside of the United States and

30
1
outside, places like U.S. Courthouses that have particularly
contemplated this problem.
But our understanding is also that there is no
theoretical obstacle to creating, out of a sufficiently hard
plastic or composite material that can be printed from
existing 3D printers -- to printing a round.
to load it yourself, obviously, with a propellant gunpowder,
but that one could be produced that way.
You would need
Contrary to their attempt to contest whether this
10
process is automatically functional, Mr. Wilson in all of his
11
statements has routinely portrayed this as an automatic
12
process, and one that can be done by anyone.
13
In an interview with "WIRED" magazine, he describes
14
his actions as allowing "anyone to create a working lethal
15
firearm with a click."
16
referring to is the click of a mouse to execute these plans
17
on a 3D printer.
18
And I believe the click he is
Elsewhere he has said that, typically, this has
19
been the realm of gunsmiths, not the casual user.
20
is where digital manufacturing, the maker movement changes
21
things.
22
And this
And were interview with Glenn Beck he said, "This
23
is an alternate way of doing things, and it really takes out
24
all forms of expert required knowledge."
25
You will notice that his supplemental declaration

31
1
in describing the process is agnostic as to two key details.
One is the type of 3D printer being used, and the other is
the material or medium being used in the printer.
factors, it turns out, make a big difference.
And those
It is true, as far as the Government's
understanding and experience, that if you use the cheapest
available material in the least expensive available 3D
printers -- if you were to simply print out those parts,
assemble them into a Liberator, you would not create a
10
reusable .380 caliber Liberator from which you could fire
11
shots again and again.
12
But in the Government's experience, with a
13
relatively inexpensive material called VisiJet, you would get
14
a non-reusable firearm capable of firing a single shot once
15
with sufficient force to kill someone.
16
THE COURT:
17
MR. SOSKIN:
Maybe the person holding it.

Possibly the person now holding it as
18
well.
19
trajectory in which it is aimed with sufficient force to --
20
likely to kill a human being.
21
But the projectile itself would be expelled on the
However, there are commonly available, more durable
22
materials available.
One medium which the Government
23
understands to be available is called ABS, acrylonitrile
24
butadiene styrene, I hope.
25
allows one to take out all of the strengthening and
And the use of this material

32
1
reinforcing steps, such as the acetone treatment described in
Mr. Wilson's supplemental declaration.
And using that material without much additional --
without any additional steps beyond trimming the parts and
assembling them, according to the Liberator plans, you would
get a reusable Liberator that can be used over and over again
effectively as an undetectable firearm.
8
9
Those facts I think are important here to frame our

consideration of what it is that, even at a narrow level,
10
Defense Distributed and Plaintiffs are being asked to do
11
because it is clear from their pleadings, it is clear from
12
Mr. Gura's answers, it is clear from Mr. Wilson's public
13
statements that what they would like to do is to export these
14
CAD files so that people in other countries can use them.
15
Your Honor, you asked some questions about his --
16
about whether this could be distributed in some lesser
17
fashion domestically.
18
that it does not have the authority under ITAR to regulate
19
purely domestic distribution of anything.
20
to exports.
21
And the State Department's view is
ITAR extends only
And if Mr. Wilson -- if Defense Distributed wishes
22
to provide these plans to U.S. persons who are members of the
23
Second Amendment Foundation or other U.S. persons, there is
24
simply nothing in ITAR that would prevent that.
25
THE COURT:
You use the world "purely."

Is any
33
1
distribution protocol purely domestic?
They raise fears of distributing this in the street
corner.
And how do you know that the persons to whom you are
giving it is a U.S. citizen?
reach here?
MR. SOSKIN:
How far is the Government's
Well, Your Honor, this is an area that
isn't very developed in the record.
understanding that under the parallel import and export
controls administered by the Department of Commerce, the
10
Government has worked with companies to identify ways to
11
sufficiently limit distribution to be within the United
12
States, even through things on the Internet.
13
But it is our
And the Government -- you know, during the
14
licensing process for exports, the State Department regularly
15
works with exporters to consider how to do these things.
16
far --
17
THE COURT:
So
If that were the case, doesn't that
18
sort of render the State Department's prohibition a bit
19
meaningless?
20
okay.
21
if it's so widely disseminated domestically, it's inevitable
22
that someone is going to be exporting it, if not the
23
Plaintiff.
24
25
Because if -- that's gotten more holes than --
You have limited one means of, quote, exporting.
MR. SOSKIN:
But
Well, Your Honor, we don't believe
that it is inevitable that it will be exported, even if it is

34
1
shared with other people within the United States.
The system of export controls under ITAR is a
system largely of voluntary compliance.
of the United States that most people are willing to comply
with the export control on munitions because most Americans
are not interested in sending dangerous weapons to persons
abroad who would use them in ways that are harmful to the
United States.
It's the experience
It is true, we cannot regulate every transfer of
10
information across the border, but we can reasonably expect
11
that when we have laws that apply to those exports, that
12
people will comply with them and that we can pursue those who
13
do not comply.
14
THE COURT:
Is it proper for me to even wonder or
15
consider whether or not the protocols under which they had
16
been prohibited from posting these things on the Internet are
17
rational?
18
In other words, you are depriving them of the
19
opportunity to take advantage of the most efficient means to
20
legitimately distribute that information domestically because
21
of the incidental possibility that someone may improperly and
22
illegally acquire it from outside of the United States.
23
But if you are doing is in such a fashion or that
24
there are so many exceptions to it that it's go to be, again,
25
so widely disseminated that it's inevitable -- I can't

35
1
imagine that it wouldn't be inevitable if -- or widely
available domestically that somebody somewhere is not going
to find a way, pretty easily, to get it into the hands of the
people the Government fears will have it.
I guess I am struggling with whether or not I
should even be concerned about whether this makes sense or
not.
Maybe it's none of my business, but it doesn't seem
to make sense, except to the extent that, again, you are
10
depriving them of the most efficient way of legitimately
11
disseminating this information on the off chance that you
12
will get some effective control of the export of it, for
13
which I am kind of dubious at this point.
14
MR. SOSKIN:
Well, Your Honor, two points.
First,
15
this is not a case where what's at issue is incidentally
16
distributing it internationally where, in their words, a
17
foreigner somehow comes into contact with a file on the
18
Internet.
19
It in its mission statement, Defense Distributed's
20
purpose is described as facilitating global access to
21
firearms.
22
23
24
25
Their goal here is deliberate and with intent to

distribute these firearms internationally.
In a documentary called "Click, Print, Gun,"
Mr. Wilson said, "There are people all over the world
36
1
downloading our files.
should have access to this.'"
3
4
And we say, 'Good.'
We say, 'You
And he has elsewhere stated that his explicit goal

is to share his research with the rest of the world.
So we don't need to be concerned about whether this
is some incidental limitation on Plaintiffs' ability to share
this information domestically.
8
9
Second, you know, Defense Distributed being a high

profile -- a high profile developer of this technology, of
10
these files, they are in a privileged position as far as --
11
when it comes to sharing information with the rest of the
12
world and when it comes to exporting.
13
They have a website that if these files were posted
14
on their website, we would expect them to be readily and
15
immediately exported to numerous international entities and
16
persons that would seek to have access to it.
17
By controlling large and prominent exporters of
18
munitions files like these, we believe we can have a very
19
effective -- not a very effective, but a export control
20
regime that is effective in a way that certainly the absence
21
of any export controls would not be.
22
THE COURT:
Do you know whether the Government
23
explored any less restrictive means in determining whether or
24
not a blanket Internet prohibition is appropriate?
25
MR. SOSKIN:
Your Honor, with respect to Defense

37
1
Distributed's Liberator design?
THE COURT:
MR. SOSKIN:
Any of what we are talking about.

I think it's important here just to
call out, because Mr. Gura talked a lot about the notice of
proposed rulemaking that the State Department issued, and
that -- and to the extent that that is coloring the
perspective on the State Department's actions, it is true
that that states that the State Department's existing
position is that unrestricted postings to the Internet do
10
11
constitute an export.
But the specifics of that proposed rulemaking are
12
not a final rule.
13
as law, and there is a comment period going on right now in
14
which Plaintiffs, and everyone else, will be free to comment
15
and to suggest, among other things, less restrictive meanings
16
and which the State Department will take into account their
17
comments as it does in a rulemaking fashion.
18
They are not -- they have not been adopted
With respect to Defense Distributed's specific
19
Liberator plans, under that the State Department has just
20
completed the commodity jurisdiction process.
21
the first similar commodity jurisdiction request it had
22
received for something like the CAD files for an
23
undetectable -- a potentially undetectable firearm.
24
25
And this was
With that process complete now and the State

Department having said, "Yes, this is something that falls
38
1
within our commodities jurisdiction," now is the circumstance
in which the State Department typically engages with parties,
because now it knows that this is something within our
jurisdiction.
And so this is the stage at which the Government
can engage and say, well, here are acceptable, and this is
the licensing process.
to export this technology to.
Here is someone who it is acceptable
It may not be that anyone in the world should be
10
prohibited from having this.
11
approve some exports.
12
other types of limitations.
We might be able to even
And in that process, we can discuss
13
I would add that this process is a little
14
complicated in the present instance, not only by this lawsuit
15
but by the individual capacity claims raised in the lawsuit,
16
which for some of the persons who would typically be involved
17
in the process going forward of discussing how to reach a
18
particular resolution with someone in Plaintiffs' position,
19
those individuals' ability to participate may be limited by
20
the presence of these individual capacity claims in this
21
lawsuit.
22
23
24
25
And Mr. Richter, of course, represents the

individual capacity Defendants.
Mr. Robinson and myself only represent the
Defendants in their official capacity and the agencies here.
39
1
To turn back, however, to the question of what the
appropriate level of scrutiny is here, I open by discussing
the importance of the fact that this is a regulation of
computer software.
conduct constitutes expressive and communicative speech that
qualifies for First Amendment protection at all.
And it is the case that not every type of
The export of the designs for weapons, including
the CAD files for 3D printing and additive manufacturing is
the type of conduct that should not be subject to First
10
11
Amendment scrutiny.
This principle runs throughout the cases cited by
12
all the parties here, but perhaps it is clearest in the
13
Second Circuit's decision in Vartuli.
14
In the Vartuli case, that Court reviewed a stock
15
trading program.
16
instructions to people, to individual users to go out and buy
17
and sell stocks.
18
providing these instructions to a person, nonetheless,
19
induced the action in an entirely mechanical way and that
20
because of that it was not speech of the sort protected by
21
the First Amendment.
22
The stock trading program provided
And the Second Circuit found that,
This was true even though you had the involvement
23
of individual users in the process as intermediaries between
24
the software instructions and the actual trading.
25
mind this was in the 1990s when the same kinds of automatic
Keep in
40
1
trading programs perhaps did not exist for ordinary users as
today.
But here the CAD files at issue give instructions
to a 3D printer that makes real firearms parts without human
intervention.
has a function in -- a real world function that should not be
subject to First Amendment scrutiny at all.
8
9
10
That makes it a clearer case for software that
In that circumstance, as Courts have found, the

appropriate level of review is rational basis, not a
heightened scrutiny, even the intermediate level of scrutiny.
11
Now, to be sure, the Second Circuit followed that
12
up with a case called Corely that the parties have cited.
13
And in that case, the Second Circuit followed and confirmed
14
Vartuli, and it recognized that communications to the
15
computer to carry out tasks are never protected by the First
16
Amendment.
17
But then the Second Circuit did something that we
18
don't agree with here, focusing on different types of files
19
and code -- object code versus source code.
20
that those distinctions are relevant to the data files that
21
are at issue here.
22
We don't think
As the descent in the Ninth Circuit Bernstein, I
23
should know that the entire Bernstein was vacated and then in
24
the various confused procedural posters that you get when the
25
Government acts and transfers stuff, you know was never

41
1
2
reheard.
But the Bernstein descent is more convincing on
this point because it talks about the basic function of
source code that code that Corely disagreed should have
Vartuli application.
method of controlling computers.
The basic function of code to act as
And in the ITAR specific context, that opinion
found that export of source code is not conduct commonly
associated with expression, rather the opinion concluded it
10
is conduct that is normally associated with providing
11
foreigners with the means to make something.
12
That's what's going on here.
And the it's not just
13
foreigners in general.
14
printers, and CNC milling machines with the instructions to
15
automatically make something.
16
It is actually providing machines, 3D
The same concept is recognized in the D.C. District
17
Court's Karn opinion, which explained in the inscription
18
context that where something is merely a means of commanding
19
a computer to perform a function, it may not have First
20
Amendment protection.
21
deciding that the code in question was protected by the First
22
Amendment, but it notably declined to conclude that it
23
definitely would.
There the Court assumed without
24
And the Junger case, much relied on by Plaintiffs
25
here, also noted that the issue of whether or not the First
42
1
Amendment protects -- in that case encryption -- source code
is a difficult one because source code had both an expressive
feature and a functional feature.
We think there is ample authority in all of these
cases for the Court to conclude that because these 3D CAD
files are intended to produce munition, and particularly
whereas here Plaintiffs intend to export them overseas, that
a First Amendment analysis need not be conducted at all.
9
10
11
That's our view on the question of the appropriate

level of scrutiny.
However, we also believe that the Government's
12
regulation here clearly satisfies even a heightened scrutiny
13
and intermediate level or, if necessary, at the strict
14
scrutiny level, as Plaintiffs concede the Government's
15
interest in regulating munitions exports is a national
16
security interest.
17
Mr. Gura declined to take a position on the
18
appropriate label to give that, but it is clear from the case
19
law that that is a compelling Government interest.
20
an interest unrelated to the suppression of free expression.
21
And it is
The Ninth Circuit cases recognized that what the
22
Government is regulating here is munitions exports and that
23
the inclusion of software in that broad import and export
24
regulating scheme is motivated by preventing access to arms
25
by those in other countries.
The Ninth Circuit's Klimack

43
1
(phonetic) and Edward opinions look at that.
Is this a greater restriction than is necessary?
As I noted, the State Department's view is that it
only has authority to regulate exports.
it to exports only.
And it has applied
Application to unrestricted posting on the Internet
is simply necessary to fulfill that interest because an
unrestricted posting to the Internet can be obtained and
downloaded by anyone without any opportunity for Plaintiffs
10
or anyone else to verify whether or not those who are
11
downloading it are foreign persons or people in a foreign
12
country.
13
Again, their specific intent here is to export it.

Mr. Gura talked about a need to limit these
14
regulations to incorporate, at a minimum, some sort of
15
scienter requirement, but the truth is that, not only the
16
Ninth Circuit but the Fifth Circuit that read that in, in
17
interpreting the willfully provision of the statute in the --
18
I am not sure this case is actually cited in our brief,
19
United States versus Hernandez, the Fifth Circuit found that
20
that willfully provision required a specific intent and that,
21
in fact, for something to be an export in violation of ITAR,
22
it had to be voluntarily and willfully communicated to a
23
foreign person.
24
289, and I apologize for it not being in our brief.
25
I think the cite for that case is 662 F.2d
The Edler Industries case, which we did cite, from

44
1
the Ninth Circuit also has that scienter requirement, and the
Office of Legal Counsel, that Plaintiffs are so fond of
citing, notes that the State Department has been treating the
Edler Industries' opinion as controlling on its understanding
of how broad the export restrictions in ITAR are.
With regard to whether there are alternatives for
distributing this that would not cause Defense Distributed to
be in violation of ITAR, we think it's plain that there are
many alternatives.
10
Were Defense Distributed to verify that a person
11
was a U.S. person, there could be no conceivable application
12
of ITAR if he were to hand a copy of these files to that
13
person on a CD or to place them in the mail on a CD and
14
distribute them in that fashion.
15
16
17
The NPRN, which is not yet law, provides for some

safe harbors for email of communication.
Obviously, that's not the case yet, but that is at
18
least one safe harbor that the State Department is
19
contemplating adopting.
20
And, again, because the Courts have read a specific
21
intent requirement into this, if someone were to show you a
22
fake passport or if you were to ask everyone in the courtroom
23
to raise their hand if they were a U.S. person before showing
24
them the code for these files, certainly that would be --
25
that would seem to be -- that would seem to provide that kind

45
1
of safe harbor under the judicial interpretation here.
The Court also asked about the development of the
full record.
plain that the harms for a preliminary -- for the entry of a
preliminary injunction are primarily harms that the
Government would experience and harms that would hurt the
public interest.
8
9
And we think on the record that is here, it is
And we don't think the record needs to be delved

more fully for purposes of denying Plaintiffs' motion for a
10
preliminary injunction.
11
of this firearm and the appropriateness of various means by
12
which these plans could be distributed, it may well be that a
13
more developed record is necessary.
14
But for understanding the capacity
There certainly seems to be competing views between
15
Defense Distributed and Plaintiffs and the Government, our
16
clients, in terms of the effectiveness of other means of
17
distribution, the ease by which these firearms can be
18
assembled.
19
Government's view is that further development of the record
20
may, in fact, be necessary.
21
And to the extent that concerns the Court, the
However, in deference to Mr. Richter's client's
22
interests as the individual capacity Plaintiffs, discovery
23
and development of the record can only be very limited until
24
they have had an opportunity to present a defense of
25
qualified immunity in this case.
And we think that they have

46
1
a strong qualified immunity defense.
But one reason why the parties have not engaged in
discovery in advance of this preliminary injunction hearing
is certainly that any such discovery would prejudice the
individual capacity Defendants at this point.
The Court can look to cases like Pearson and Back
(phonetic) and Iqbal.
I think Back is a Fifth Circuit case,
and the others are Supreme Court cases, laying out the need
for qualified immunity to be resolved before there is
10
discovery.
11
individual capacity Defendants themselves but all discovery
12
in the case because all of that is discovery that they would
13
be burdened by having to monitor and pay close attention to
14
make sure it doesn't harm their interests.
15
That includes not only discovery of the
Turning now to a couple of points that Mr. Gura
16
raised.
17
does not really matter because it is the Government's burden
18
to prove that its regulations are appropriate.
19
stage in the proceedings, that's not accurate.
20
He stood up here and said that the level of scrutiny
But at this
In order to obtain the extraordinary relief of a
21
preliminary injunction, Plaintiffs not only need to carry the
22
burden of persuasion on all four elements of the preliminary
23
injunction standard, which, as we argued in our brief, they
24
have not done.
25
here because the relief they seek is a radical change from
But they need to meet an even higher standard

47
1
the status quo.
Mr.Gura made his presentation, demonstrates that this is the
case.
And I think the theoretical level, of which
Their motion for a preliminary injunction seeks to
stop the application of ITAR to all technical data that
pertains to Second Amendment -- at least to Second Amendment
protected weapons.
quo.
And that's a broad change from the status
It would affect far more than the Plaintiffs here.
And as the Government's declarations explain, even
10
a narrower injunction that would apply only to the release of
11
the Liberator plans in uncontrolled fashion from Defense
12
Distributed onto the Internet would be a dramatic change from
13
the status quo, and one that would have potentially grave
14
national security harms for the United States.
15
In those circumstances, and at this stage of the
16
proceedings, it is the Plaintiffs' burden to overwhelming
17
satisfy the Court that entry of this injunction meets the
18
four standards set forth for a preliminary injunction.
19
If the Court has further questions on the First
20
Amendment, I would be happy to answer them.
If not, I will
21
turn things over to Mr. Robinson to discuss the Second
22
Amendment.
23
THE COURT:
Thank you.
24
MR. ROBINSON:
25
The Plaintiffs have failed to carry their burden
Good morning, again, Your Honor.

48
1
for a preliminary injunction in respect to their Second
Amendment claims for two reasons.
establish they have standing to pursue these claims, and
second, even if they did have standing, they have not shown
that the facts and laws clearly favor their position.
6
7
8
9
One, they have failed to
If I may, I would like to begin with the standing

analysis.
Plaintiffs characterize their injury as an injury
to their ability to manufacture or acquire arms.
And
10
Mr. Gura's presentation, as well their reply brief, makes
11
clear that their theories of standing rest on the
12
associational standing of the Second Amendment Foundation and
13
on the third party standing doctrine under the Carey case.
14
Both these theories aren't persuasive.
15
SAF does not have associational standing because
16
it's members would not have standing to bring these claims
17
individually.
18
First, these members have not been injured in fact.
19
Again, Defendants' activities have regulated only
20
the unrestricted posting of CAD files to the Internet by
21
Defense Distributed, not by SAF's members.
22
Additionally, these members are still able to
23
manufacture or acquire guns, assuming other legal
24
requirements are met.
25
They are also able to acquire CAD files from either

49
1
other sources, as Plaintiffs' reply brief makes clear, or,
more critically, from Defense Distributed itself, for the
reasons that my colleague Mr. Soskin's mentions.
Mr. Gura mentioned the Mance and Ezell cases as
dictating that standing, that associational standing obtains
here, but those cases are fundamentally different.
cases involve outright bans that affected the associational
standing members.
Both
For instance, Mance was an outright ban on the
10
purchase of firearms directly from out of state FFLs.
11
was a total ban on firing ranges within the city limits.
12
13
14
Ezell
Here there is no analogous outright ban on Defense

Distributed from providing these CAD files to SAF members.
And although Plaintiffs have not relied on the NRA
15
case, the same reasoning applies.
16
found standing for 18 to 20 years old to challenge a law that
17
was an outright ban on the purchase of firearms from FFLs.
18
Here, again, there is no analogous outright ban.
19
There the Fifth Circuit
And to further explain, NRA relied on the Virginia
20
Board Supreme Court case, which was a total ban on
21
advertisements.
22
Here, again, no total ban.
Additionally, the declarations don't establish that
23
SAF members have incurred an injury in fact despite their
24
alleged keen interest in obtaining the CAD files.
25
As the Lujan case makes clear, a keen interest or a

50
1
special interest, apart from a direct injury, is
insufficient.
3
4
And to the extent that SAT members fear future

prosecution, again, that is entirely speculative.
In addition to lacking an injury in fact, SAF
members cannot establish the traceability elements of
standing.
8
9
Any impediment on these members' ability to

manufacture or acquire guns cannot be fairly traced to
10
Defendants' activities, which have been limited to Defense
11
Distributed's website only.
12
Even Mr. Wilson's supplemental declaration make
13
clear that these files are neither necessary nor sufficient
14
to making or acquiring weapons.
15
these members can get these files through other means.
16
17
18
And, again, as I mentioned,
Lastly, there are serious questions about whether

these SAF members would be able to establish redressability.
Plaintiffs asked this Court to speculate that the
19
relief that they seek, namely, allowing the unrestricted
20
posting of CAD files on the Internet, would redress their
21
harm, namely, the ability to manufacture or acquire guns.
22
Specifically, it is speculative to say that these
23
members would have the equipment and ability, as Mr. Wilson
24
explains, and necessary to properly utilize these files.
25
And, in any event, any ability to manufacture these weapons

51
1
would be subject to other Government agencies' approvals,
specifically, a license or formal submission to ATF.
3
4
5
Plaintiffs' third party standing argument under the

Carey case is equally unpersuasive.
To step back from the Carey case, I think it's
helpful to note the general third party standing requirements
under the Powers v. Ohio, a Supreme Court case, which is
mentioned in the Bond case that we cite in our opposition.
Both those cases make clear that there are three requirements
10
11
12
13
14
15
16
for a third party standing to obtain.

First, the litigants themselves must have incurred
an injury in fact.
Second, there must be a close relationship between
the litigants and the outside parties.
And, third, there must be some hinderance to this
outside party's ability to protect their own interest.
17
Here, none of the requirements are met.
18
Neither Plaintiff has suffered the injury in fact
19
20
21
22
to their Second Amendment rights that they allege.

Defense Distributed, as alleged in paragraph 37 of
its complaint, has possession of the files.
As to Second Amendment Foundation, their
23
declaration makes clear that they are not seeking to
24
manufacture or acquire guns.
25
CAD files on its website.
They only seek to host these

52
1
Second, there is nothing in the record that no
facts set forth by Plaintiffs to establish some kind of close
relationship between Plaintiffs and their website visitors.
And, most importantly, there are no facts set forth
to establish that there is any hinderance to the outside
party's ability to protect their own interest.
especially true here where the declarations by the SAF
members only establish that they are of adult age, mentally
sound, sophisticated enough to want to design and modify and
10
11
12
13
And this is
share technical data to manufacture guns.

To say that these individuals would not be able to
assert their own interests is unpersuasive.
The Carey case that Plaintiffs are relying on so
14
heavily does not -- they can't avail themselves of that
15
Supreme Court precedent.
16
17
18
Again, that case involved a total ban on

advertising.
There is no analogous to a total ban here.
More critically though, as the Fifth Circuit
19
explained in the Corrosion Crew Fitness case, which we cited
20
in our brief, the Carey case gives third party standing only
21
if the party directly affected is incapable of asserting its
22
own interest.
23
24
25
Here, again, there is no hinderance to the outside

member's ability to protect their own interest.
The Reliable Consulting case and other equal
53
1
protection cases relied on by Plaintiffs also does not help.
The Reliable Consulting case expressly was limited
to the substantive due process claim and expressly stated
that it was relying on Supreme Court precedent in the
substantive due process context, which is not the case here.
Your Honor, if there are no questions on standing,
may I turn to the merits of the claim?
THE COURT:
Yes.
MR. ROBINSON:
Thanks.
The Fifth Circuit's NRA case lays
10
out the two step framework for analyzing Defense
11
Distributed's Second Amendment claim.
12
13
First, the Court asked whether the law at issue

regulates conduct within the scope of the Second Amendment.
14
15
If so, the second step is to determine and apply

the appropriate level of scrutiny.
16
Here the inquiry can end at step one.
17
And mr. Gura, he mentions that there has been a
18
long-standing right of citizens to manufacture their own
19
guns.
But that is not the proper framing for this issue.
20
As Ezell, NRA, Mance, every other Second Amendment
21
case makes clear, the Court must look to the content of the
22
law at issue here.
23
manufacturing or acquisition of guns but the export of
24
technical data and other defense articles and defense
25
services.
And what's regulated by ITAR is not the

54
1
There is a strong historical tradition associated
with these restrictions.
before the founding of our Republic and cited even in
Blackstone's commentaries as Blackstone explains, "The King
had the power of prohibiting the exportation of arms or
ammunition out of this Kingdom under severe penalties."
This restriction dates back to
The founding era also incorporated such
restrictions, including, as we mentioned in our brief, a
1794, one-year prohibition on the export of munitions.
10
Plaintiffs make much of Thomas Jefferson's quote
11
that our citizens have always been free to make, ban and
12
export arms.
13
But just to give some context to that quote,
14
Jefferson was writing a letter to, I believe, a French
15
official to explain what is required of the United States to
16
maintain its neutrality at the time of war and did not
17
purport to be an interpretation of the Second Amendment
18
scope.
19
In fact, the historical record shows that, in his
20
various capacities as Secretary of State, Vice President and
21
President, Thomas Jefferson was involved in efforts to
22
regulate the exportation of arms.
23
Although this case does not involve a statute
24
applying to states, and so the McDonald analysis and
25
consideration of laws and effect around the time of 14th

55
1
amendment is not inexplicable, we do know that in 1862,
President Lincoln instituted a strict ban on arm exports.
And this tradition has carried throughout the 20th Century
both to further national security and foreign policy of the
United States.
Accordingly, because ITAR reflects a long-standing
presumptively lawful measure, this Court's inquiry into the
Second Amendment claim can end at step one.
Nevertheless, even if the Court, in an abundance of
10
caution, proceeds to step two of the analysis, we believe
11
that intermediate scrutiny is at most the strictest level of
12
scrutiny that should apply.
13
Both Heller and NRA make clear that strict scrutiny
14
is not appropriate where the law at issue does not severely
15
burden the core right of the Second Amendment, which Heller
16
characterized as a prohibition on responsible, law-abiding
17
citizens to defend their home with a firearm.
18
Using the factors that NRA sets forth, we can apply
19
intermediate scrutiny and determine that the application of
20
ITAR readily withstands such scrutiny.
21
First, is ITAR focused on a particular problem?
22
And the answer is, yes, it is focused on the
23
unauthorized exports that pose a danger to national security
24
and foreign policy.
25
Second, does ITAR implicate in foreign Government

56
1
interjectives?
2
3
And all parties here agreed, yes, national security

and foreign policy are compelling.
4
5
And, finally, is there a reasonable fit between the

means and the objective?
And, again, the answer must be yes.
The State Department maintains, updates the United
States' munition list with items that it determines, and
with, in competition, I believe, the Department of Defense,
10
pose a danger to those interests.
11
term "export" in a reasonable and pragmatic way.
12
They have interpreted the
But, most importantly, as stated, and as factored
13
into the NRA analysis, ITAR reflects a compromised approach.
14
There is no outright ban on anything that could be an export.
15
To the contrary, there is a consideration of the
16
public domain items.
17
determined that an item or information is ITAR controlled, it
18
would be -- the exporter is able to obtain a license if the
19
126.7 standards are satisfied.
20
greater detail in wire declaration at paragraph 31.
21
22
And, second, even if it is the
And that is explained in the
Does Your Honor have any questions on the Second

Amendment?
23
THE COURT:
No.
Thank you.
24
MR. ROBINSON:
25
We would respectfully ask then that the Court deny
Thank you.

57
1
Plaintiffs' motion for preliminary injunction.
THE COURT:
MR. GURA:
Mr. Goldstein will address some of the issues under
ITAR soon, but I would like to make at least some response to
what we have heard over the last few minutes.
Mr. Gura.
Thank you so much, Your Honor.
First of all, with respect to standing, the
Government's standing argument here is the exact same, almost
word-for-word, argument that was made unsuccessfully in the
10
District Court in NRA, unsuccessfully in the Fifth Circuit in
11
NRA, and unsuccessfully in the District Court in Mance.
12
I suppose we are going to get their brief on the
13
Mance appeal soon.
14
don't think that they are going to meet with any additional
15
success.
16
And if they repeat those arguments, I
First of all, the Government confuses standing with
17
merits.
For the purpose of whether or not somebody has been
18
injured or not, the injury is complete when the Government
19
threatens somebody with criminal sanctions if they engage in
20
their intended conduct, which is arguably affected with the
21
constitutional right.
22
Now, the Government might claim, and perhaps they
23
would even prevail, even though we don't think they should.
24
But they might even prevail with some argument that there are
25
sufficient alternative means of expression or perhaps there

58
1
is some way of justify the prohibition.
of standing injury, the injury happens when the regulation is
enforced.
quite clearly.
refraining from engaging in conduct so that they don't go to
jail.
And here it's been enforced.
But for the purposes
It's been enforced
And, of course, people are reasonably
That leads to the traceability argument.
It is the
Government which is going to send people to jail if they
violate the law.
10
That's very clear.
Now, this other side argument is made that, "Well,
11
perhaps this isn't an outright ban".
12
the NRA case.
13
That was also made in
The Government said, "Well, we are only prohibiting
14
you from acquiring guns from licensed FFLs if you are under
15
21, and you have alternative means of acquiring handguns.
16
And, therefore, you are not injured because you can still get
17
a handgun."
18
Circuit said, in so many words, it's kind of a frivolous
19
argument because the claim is not to get guns in an
20
unregulated market.
21
injury was that people could not get gun in the regulated
22
market.
23
And both the District Court and the Fifth
The claim was -- the intended conduct
We saw the same argument recycled in the Mance
24
case.
In Mance, the Government came in and said, "Oh, it's
25
not an outright ban.
You can still get guns from other FFLs.

59
1
You can still get guns -- if you comply with all of our
restrictions, you can get a handgun."
And the Court said, in so many words, that's
ridiculous.
with these regulations.
are impacting us, and therefore, that's the injury that
people are complaining from.
8
9
The injury here is that we don't want to comply

The regulations are the things that
And, of course, there was other argument that also

I heard counsel relate, with the idea that the other cases,
10
Reliable Devices and Carey, can be distinguished because
11
those involved substantive due process rights.
12
The law of standing does not differ from one
13
constitutional right to the other.
14
There is no hierarchy of constitutional rights.
15
though abortion cases are more important than First Amendment
16
cases or more important than Second Amendment cases.
17
18
19
Standing is standing.
It's not as
They made this argument in Mance at some length

that, "Well, that's abortion law."
Well, no, it's actually Article III law.
The
20
question is whether or not there is an injury that's
21
traceable to the Government and whether the Court can address
22
it with an injunction.
23
And that's here plainly satisfied.
It is true that ITAR might direct itself to
24
exports, and they say, "Well, we are only regulating the
25
export of arms.
We are not regulating domestic acquisition."

60
1
But that may be what they say, but the fact of the
matter is that the burden here is the burden on the people
acquiring arms, even if in the Government's --
THE COURT:
MR. GURA:
Who?
Which people?
Defense Distributed' website visitors
and clients, Second Amendment Foundation members are impacted
in their ability to acquire guns in the United States because
they cannot access this information.
injured.
10
And so they are being
Even if the Government has some export-driven
11
rationale for the rule, the fact is that people's rights are
12
be being impacted domestically.
13
THE COURT:
Isn't it a little odd -- if I am
14
understanding your argument, it's that these association
15
members are being harmed because they cannot domestically
16
acquired the information they need or the software they need,
17
whatever you would call it, to manufacture their own
18
firearms.
19
MR. GURA:
That is an injury, yes.
20
THE COURT:
Then the irony of that argument is that
21
they can get it from you.
You know who they are, presumably.
22
You have joined together into a lawsuit, and so it's a little
23
disingenuous to say that they are being prohibited from
24
getting it when they can get if from one of the parties of
25
this lawsuit.
61
1
MR. GURA:
Well, the Second Amendment Foundation's
membership is not limited only to American citizens.
Foundation has American citizens who are married to foreign
nationals.
overseas.
their head or laptop.
wish to communicate.
8
9
The
They have members who live or who travel

They might take information with them, either in
But we have Americans with whom we
And the First Amendment and Second Amendment, the

Constitution entirely is inherently practical.
We don't live
10
in the dial-up world where, to distribute information, we
11
need to inspect people's passports and hand them a CD.
12
computers these days don't even come with a CD-ROM device
13
attached to them.
14
such technology.
15
Most
The average laptop is entirely bereft of
The idea that we should be communicating by
16
essentially the carrier pigeon technology because there might
17
be some foreign person who might otherwise acquire it if it's
18
on the Internet is simply tough to digest.
19
And, in fact, the Government tells us that they are
20
targeting Defense Distributed because it's a high profile
21
distributor.
22
successful.
In a sense, they are targeting speech, which is
23
"If your speech is likely to draw a crowd, we are
24
going to go after you because somewhere in that crowd might
25
be a foreign national.
62
1
"But if no one is attending your speech, no one
goes to your trade show, if nobody looks at your website,
then perhaps we can -- we are not going to be as interested."
It's interesting where they raise the prospect that
a website that gets very few visitors at all is one that
raises their concerns about alleged exports, that this would
eventually fall into the hands of a foreign Government.
8
9
And I believe that Your Honor was correct in

zeroing in on the question of material advancement, because
10
if, indeed, this is all futile and foreigners are going to be
11
able to access this information, then the regulation does not
12
materially advance the Government's interest, and it fails.
13
It fails intermediate scrutiny as well as strict scrutiny.
14
I sure hope that nobody will prosecute Mr. Soskin
15
for standing before the Court and discussing the ITAR
16
controlled information that is contained within the sealed
17
declaration.
18
We did receive this, over the holiday weekend, note
19
from the Government that they have now reviewed the
20
declaration and they have determined that it's actually not
21
subject to its ITAR control, I guess.
22
sealed.
23
It shouldn't be
Unfortunately, under ITAR 120.4, the only way to
24
determine whether or not something is controlled by ITAR or
25
not is to comply with the commodity jurisdiction process.

63
1
We have not heard from the Government at all
whether the State Department or the Justice Department made
that determination, who made that determination, on what
basis that determine will be made.
Is there an exemption for the Court?
Is this
somehow in the public domain?
between the information in Mr. Wilson's declaration and that
that was contained in the files, that after almost two years
the Government determined was, in fact, subject to ITAR?
10
Is there some difference
We are happy to have it unsealed because, of
11
course, our client's interest in disseminating that
12
information, and we believe everyone should learn how to make
13
the Liberator pistol and see what's involved with that.
14
But the Court might be interested in knowing and I
15
think it should be -- it's entitled to know why, how and on
16
what basis the Government suddenly takes such a loose
17
approach to this information where the whole case here is
18
based upon the fact that they've spent years telling us that
19
it's actually controlled.
20
21
22
23
24
25
So that's something that perhaps we can get more of

an explanation from the Government.
Before I turn over to Mr. Goldstein, just a few
more points.
First of all, with respect to Vartuli, the Second
Circuit explained its Vartuli decision immensely in the
64
1
2
Corely case, Universal City case.

It stated that Vartuli was limited to an "as
marketed" analysis.
constitutional scrutiny to the code 'as marketed,' i.e., as
an automatic trading system, it did not have occasion to
consider a third manner," another manner, "in which a
programmer might communicate through code to another
programmer."
Well, here we don't have an "as marketed" approach
10
to information.
11
in open source.
12
"Since Vartuli limited its
Defense Distributed and SAF are interested
The distribution of this information is intended to
13
spark debate and discussion and analysis, modification.
14
is supposed to be a means of exchanging ideas between
15
individuals so that, as a community, people can innovate, and
16
they can create.
17
That's the whole purpose of this.
It's not just so that people might push a button,
18
and out comes a firearm.
19
explains, that's not the way this actually functions.
20
This
Although, of course, as Mr. Wilson
But here we are not marketing some kind of
21
automated "get rich quick" scheme or, you know, "push a
22
button to get a gun quick" scheme.
23
exchanging information in CAD files, or if nothing else,
24
information, a source code that is nothing else, if not,
25
information that human beings can and do understand and
This is all about

65
1
manipulate and share and innovate.
2
3
And there is no answer at all from the Government

to the questions of:
4
5
How does a person innovate with respect to

firearms?
How does that Olympic sharpshooter explain to the
public that she has designed a new site that's going to help
her in competition?
9
10
Is she is supposed to look for passports and

handout CDs?
11
12
13
This is not a practical way of addressing the

situation.
Finally, before I turn it over to Mr. Goldstein, we
14
had a lot of discussion about the Undetectable Firearms Act
15
and the fact that allegedly the Liberator is going to be
16
undetectable if someone were to modify or not build it as
17
suggested by Defense Distributed and without the sufficient
18
amount of metal content in it.
19
Well, that's true, I suppose, with all firearms in
20
that they can be modified or not built correctly or changed
21
in some fashion to become unlawful.
22
prevents a person from getting a legal unregulated shotgun,
23
going to a hardware store and getting a hacksaw and sawing it
24
off and creating a NFA rifle.
25
There is nothing that
There is nothing practical that prevents people -JOE REYNOSA, CSR, RPR
66
1
and we have cases like this that are reported -- from taking
a semi-automatic rifle and then with very basic technology,
nothing as high tech and interesting and novel as 3D
printing, but with very basic tools, and machining a new auto
seer, converting that into something that's also NFA
controlled.
These things happen.
If somebody wants to take a Liberator and do
something unlawful with it, convert it into something that is
unlawful, then we don't condone that, and we don't propose
10
that people do that.
11
The Second Amendment protection here is asserted
12
only to the extent that people can exchange information about
13
arms and arms components, which are themselves Second
14
Amendment protected.
15
The Liberator is Second Amendment protected.
It is
16
not illegal under Federal law to own and possess a Liberator.
17
It is not illegal under the laws of most, if not all, states.
18
This is an arm which is protected by the Second
19
Amendment.
20
protected by the Second Amendment, that people have the right
21
to access.
22
And there are other technologies, which are
The Government's extended discussion of the
23
detectability concerns raise the question of what in the
24
world is the Government's interest here at all?
25
Well, I thought the Government's interest was in

67
1
export control.
dangerous weapons without the American Government having some
control over say so as that how that happens.
We don't want foreign Governments to get
But now we are starting to raise all kinds of
generalized gun control concerns that you normally hear about
with respect to domestic policy, which the State Department
is really not supposed to be involved with and which they
would claim five minutes later in another portion of their
argument that they are not involved with at all.
10
11
12
13
I think
that argument is largely beside the point.

And, finally, before I hand it over to my
cocounsel, we have to ask:
Where does it end?
In this case we are dealing with information
14
related to firearms.
15
information which might be exported by being placed on the
16
Internet or otherwise that could cause some foreign policy
17
concerns to our Government.
18
But there are a lot of other types of
What if, for example, President Putin grows tired
19
of hearing criticism on the Internet that's being uploaded
20
against him and his Government by American citizens?
21
other regimes that perhaps don't want their citizens to
22
access certain information that they might consider to be
23
obscene or loosely objectionable or what not and they bring
24
pressure to bear upon the State Department?
25
They say, "Look, do something about this.

What if
Your
68
1
citizens are exporting to our citizens by means of the
Internet things that are destabilizing to our society,
offensive to our religious order," or who knows what the
excuse is.
Does the Government thereby gain control of the
Internet under a foreign relations interest to censor
American speech in some way that can impact foreign
relations?
The answer there should be the same as the answer
10
here.
11
the dissemination of information and speech because it has
12
some foreign policy concerns, that's fine.
13
Amendment applies, and the Second Amendment applies, and
14
those amendments impose real and actual burdens upon the
15
Government that limit its ability to regulate in the interest
16
of foreign policy.
17
To the extent that the Government wishes to control
But the First
And if there are no further questions for me, I
18
know Mr. Goldstein has some things to say about the ITAR and
19
how it actually functions.
20
THE COURT:
Thank you.
21
MR. GURA:
22
MR. GOLDSTEIN:
Thanks.
Forgive me, Your Honor.
I am not
23
normally in a courtroom these days.
I am an international
24
trade attorney, but my job is advising clients -- large
25
companies, small companies, individuals -- on how to comply

69
1
with the ITAR and how to comply with the export
administration regulations.
So, you know, I am chomping at the bit over here
because I am hearing folks talk about the regulations.
That's my daily bread and butter.
things that I have heard talked about which are just -- they
are just not the reality of the world of export controls, and
they kind of, really, are in stark contrast to the history of
what's been going on with this prepublication approval
10
And there is a lot of
requirement.
11
Particularly, what I would like to address first is
12
the status quo, and then, second, I just want to talk about
13
some alternatives, what the Government has actually done as
14
far as exploring alternatives, because there is a lot that it
15
has done.
16
it looked at instead of having this prepublication approval
17
requirement.
18
There is a long history of the alternatives that
So the key years we are looking at, 1980, 1984,
19
1996, 1997 -- actually, before I get to those, I am sorry,
20
let me go over --
21
22
23
24
25
THE COURT:
Can I get you to slow down a little
bit.
MR. GOLDSTEIN:
be a problem.
Yeah.
I will talk slow.
And I warned him this would

I will try to talk slow.
The history -- and we have this in our briefs.

The
70
1
history of the ITAR prepublication approval requirement is
one that is pretty well established.
originally -- the current ITAR provisions primarily stem
from -- the ITAR was implemented in 1954 in the Mutual
Security Act.
exemption, not as -- I mean, public domain lists it as an
exemption, not an exclusion.
It's one where
And in there the ITAR was listed as an
Now, this is a big important difference because an
exemption under ITAR parlance means that the export for the
10
technology, the activity, is subject to the ITAR, i.e., all
11
the embargoes.
12
them to any of the other 20 countries that are listed there.
13
14
15
You can't send them to China.
You can't send
Certification requirements, recordkeeping

requirements, all those requirements apply.
But what the exemption means is that, "If you meet
16
certain requirements in the ITAR, you don't need to get a
17
license from us," versus an exclusion, which is what the
18
public domain is today.
19
it meets these requirements, the ITAR just doesn't apply.
20
It's an exclusion, which means, when
You know, if something's in the public domain, it
21
doesn't make a difference whether someone in China can
22
download it.
23
email it to someone.
24
25
It doesn't make a difference if you were to

It's just not controlled.
And so when the -- back in the day when the ITAR

was first being mulled over, regulations were new, they had
71
1
the public domain as an exemption and not an exclusion.
And
it was at 125.11 of the ITAR back then.
footnote there, footnote number three, which said that the
burden on -- footnote number three is the definition of
public domain.
Government approval for putting stuff into the public domain
is on the person putting it there.
consternation in the industry, academia.
And there is a
And it said that the burden of getting
And that caused a lot of
And they were really concerned about its impact on
10
research, if there was a prepublication approval requirement
11
on the ITAR.
12
time that you keep hearing discussed today, which is the
13
Edler Industries case.
14
And there was a lawsuit that was filed at that
That was 1978.
Now, Edler Industries did not involve public speech
15
like we are talking about today.
16
transaction.
17
tape wrappings, a process which used carbon fiber prepeg to
18
mix certain items.
19
and missiles.
20
It was a private
Someone wanted to send some technology, like
You can use carbon fiber to make nozzles
And so what happened, Edler was challenging the
21
ITAR on First Amendment grounds and appealed.
So the DOJ
22
started taking a look at this, and they go, "Hmm.
23
a constitutional challenge here.
24
this footnote.
25
requirement under the ITAR?
We've got
People are worried about
Is there a prepublication approval

And if so, is it

72
1
constitutional?"
And then we had the first -- what we call an export
control rule, the Harmon memo, the letter from Harmon to the
White House Office of Science and Technology saying, "We have
serious concerns.
that this is unconstitutional."
reasons why.
8
9
We have got this case, Edler, and we think

And they list out the
One of the primary reasons why it said that it was

unconstitutional is because there is no procedure.
You say a
10
license is required, but you don't give any of these
11
requirements on how to get a license, as far as timing,
12
appeals processes, going to court, things like.
13
whatever.
14
But
There were some decisions that were made.
There
15
was a hearing.
16
talking about this.
17
the Department of State, back then the Office of Munitions
18
Control, that it should amendment the ITAR to address the
19
concerns that the Department of Justice had in the 1978 memo.
20
That never happened.
21
Congress had a hearing in 1980, and they were

And they made a suggestion that, part of
But in 1980, the predecessor to DDTC issued a
22
newsletter -- it's included in our reading materials -- where
23
they said that that footnote, the footnote to former 125.11,
24
did not establish a prepublication approval requirement.
25
They said that.

73
1
And, actually, unlike a lot of their notices today,
that actually had enough that we contributed to the agency.
And that was actually in the Congressional Record.
Shortly thereafter, there were some more DOJ memos,
because what happened was is, the Office of Munitions Control
was trying to amend the ITAR to possibly address the concerns
that DOJ had.
8
9
And they made several amendments.
And you will see -- and also included in the

materials, in the brief materials, there are several other
10
DOJ memos where they voiced concerns over the amendments, the
11
proposed amendments.
12
problem if this is applied to public speech."
13
They said, "No.
We still have a
So what happened is, in 1984, the Department of
14
State issued a proposed -- I mean, a final rule, and the
15
final rule removed the footnote that was thought to possibly
16
establish a prepublication approval requirement.
17
removed it.
18
They
And this actually -- when they removed it, they
19
cite that the changes were made because of First Amendment
20
concerns.
21
So, in my world, as an export control attorney and
22
the few attorneys that are out there that do my type of work
23
to help these people who are aware of the ITAR to comply with
24
it, we looked at this document -- at least until the letter
25
to Defense Distributed, we looked at this document as, "Hey,

74
1
the Department of State might have had a prepublication
approval requirement, but it was removed in 1984 because of
First Amendment concerns.
materials where they cite this stuff.
I mean, I even have training
Now, I myself knew a little different.
I knew
overtime that at the informal agency conferences, the
enforcement folks would take the position that, "Hey, we
still require prepublication approval."
them, "Where is that?"
10
It's nowhere in the regulations.
11
there right now.
12
130.
13
prepublication approval.
14
everything but.
The ITAR is up
You can take a look 22 CFR, parts 120 to
There is nothing in there that says you need
15
16
And people would ask
If anything, it indicates
It says, public domain, and it lists all -- there

are lists of things that are in the public domain.
17
And, actually, separate among everything else, it
18
says, information released following agency approval, which
19
assumes -- that's just one way that stuff becomes public
20
domain.
21
It doesn't say anywhere that you need prior U.S.
22
Government approval to publicly speak about this information
23
or otherwise publish it.
24
25
And there is a good reason for that too because of

the history that was involved with it.
But what happened is

75
1
that, some of the folks in the enforcement division were
probably given three separate sections of the ITAR to try to
come up with prepublication approval requirement.
Why?
Who knows.
But that's a creation of the current folks that are
in there.
has never been an enforcement action against any company for
publishing stuff, merely publishing information on the
Internet that's ITAR controlled.
10
And so -- and what's proof of that is that there
So, basically, their lack of enforcing this up
11
until this speech they disagreed with kind of undercuts not
12
only their argument that they are asking for a change in the
13
status quo but the national security concern too.
14
And the reason why:
If you went right now to
15
Google and you Google AR-15 CAD file -- Lord only knows how
16
many hits you are going to get, but you will find CAD files
17
there.
18
enforced the requirement.
19
of them never really thought that they -- there is a big
20
conflict among the professionals because we have this 1984
21
Federal Register Notice removing the requirement and nothing
22
in the ITAR to replace it.
23
The stuff is out there because they have never

And the folks in my position, most
So the status quo really has been there that is no
24
prepublication approval requirement, unless you're one of
25
those folks that get paid a lot of money to hire a D.C. K

76
1
Street attorney to tell you, "Well, it's kind of the way to
go," something about their -- because informally some of
these folks say that they still have it.
No one knows about this stuff.
know about it.
don't know about it.
7
8
9
The public doesn't
A lot of exporters who are sophisticated

Again, because it's not in reg.
So the status quo -- what they are asking for you

to do is prevent -- maintenance of the status quo.
The preliminary injunction would maintain the
10
status quo, which is there is no such requirement now.
11
have a proposed rule to go ahead and put a requirement in
12
there, expressly.
13
They
They say "explicitly."
The very need for them to actually go ahead and do
14
that proposed rule -- they are in this litigation.
15
pretty self-evident that there is nothing in the ITAR right
16
now to put people on notice that there is a prepublication
17
approval requirement for transmitting privately-generated,
18
unclassified technical data into the public domain.
19
It's
So export control attorneys looking at this case,
20
they go, "Is this case going to come out with a decision that
21
now, as of today, before the proposed rule, we have to start
22
telling our clients they can't publish anything?"
23
The status quo is what we are asking to maintain in
24
our preliminary injunction, that there is no such
25
requirement.
That's the first thing.

77
1
On the alternatives, this whole history of the
Edler decision, the Department of Justice memorandum, the
Congressional hearings, it didn't just affect the Department
of State.
The U.S. maintains a very, very complex export
control system.
The Nuclear Regulatory Commission has export
control.
Department of Agriculture does.
majority of exports in the United States are either
The Department of Energy has export control.
The
But, principally, the
10
controlled by the Department of Commerce and the Export
11
Administration Regulations, the EAR, or the Department of
12
State's International Traffic in Arms Regulations, the ITAR.
13
And the modern day ITAR coming from the 1954 Mutual
14
Security Act, it actually -- its principal authority these
15
days is the 1976 Arms Export Control Act.
16
fashion, at the same time that the 1976 Arms Export Control
17
Act was passed, the Congress passed the Export Administration
18
Act in 1979, which was the authorization, off and on, because
19
it lapses.
20
In similar
And what happened is, early on, when they passed
21
the Export Administration Act, the Department of Commerce
22
asked, "Should we be controlling the publication of technical
23
data into the public domain?"
24
25
They call it technology.
And what happened was, as Congress required that

there actually be a study done by the agency on the
78
1
feasibility of controlling publications of private-generated
technical data in the public domain.
Internet.
Now, this is before the
This is back in 1980.

And they came out with a report.
Now, we didn't
include it in the briefing materials because we weren't
talking about it till today, until Mr. Soskin raised the
point that, hey, we looked at the EAR on how to -- practices
on ways to distribute this information.
9
10
And I think you meant to refer to the IP, or

something like that, as far as the IP addresses.
11
When you say, the Department of State looks at
12
alternatives.
13
doing.
14
Sometimes it looks at what the Commerce is
Well, the Commerce doesn't control publications
15
into the Internet.
16
regarding technical data.
17
They don't control any public speech
The only time that they control it is when there is
18
an intent that that information be used, say for the
19
development in chemical, biological, or nuclear weapons, or
20
their means of delivery, missile technology, because that
21
1980 report came back with the conclusion that, number one,
22
we think this is unconstitutional, it might be
23
unconstitutional because the DOJ has been raising these
24
issues in the context of the Edler case.
25
But they said, also, the type of information that's

79
1
generally out in the public domain is not the type of stuff
that you want to control.
security classification.
It's not subject to national
I mean, keep in mind that there is a whole host of
other laws out there that if someone wants to steal
technology and throw it out there, there are other criminal
laws out there doing it.
8
9
And so the Department of Commerce came up with the

conclusion that, you know what, we have a problem.
Export
10
controls is not the way to control public speech, and that's
11
why there is no prepublication approval requirement in the
12
EAR.
13
So when you have a statement that -- when you are
14
asking about alternatives, was there any alternatives
15
considered, and to say, well, we looked at Commerce and what
16
they have been doing, it's apples and oranges.
17
doesn't restrict us because they know they can't and they
18
shouldn't.
19
Commerce
And in following with that, one thing that also was
20
an alternative that was raised and to emphasize the point
21
about how Commerce doesn't control unless there is an intent
22
to commit a crime is in the briefing materials that's in the
23
1997 Department of Justice report to Congress regarding some
24
proposed amendments to the Antiterrorism and Effective Death
25
Penalty Act.
So what happened back then was, you had the

80
1
Oklahoma City bombing.
because shortly after that, I guess somebody posted
information on the Internet.
Almost two decades passed.
on bomb-making.
You have all these people up in arms
The Internet was just starting.

The Internet had some information
So the Department of Justice -- what happened was,
they wanted to include a provision in the Antiterrorism and
Effective Death Penalty Act to make it unlawful to post
information on how to make a bomb on the Internet.
10
seems a lot more dangerous than a one-shot pistol.
11
That
Someone on the Hill looks like they said, "Hold
12
off.
13
report back to us on whether or not we can have a provision
14
that just makes it illegal to post up on the Internet
15
regarding bomb-making" -- which, by the way, technical data
16
on bomb-making was back then, and still is now, subject to
17
the ITAR.
18
of the materials in the briefing that we provided.
19
Let's go ahead and have DOJ take a look at this and
And they came out with this report, which is part
And in that report, they provided an alternative.
20
They said, "You can't do this for a variety of reasons,"
21
which were largely consistent with the prior DOJ OLC guidance
22
given back in 1978, 1981, I think it was, and in 1984, which,
23
again, are materials that are in -- the briefing materials
24
that we provided.
25
But what the alternative was, they said, "We

81
1
understand there is a concern here.
it, you have got to have some sort of intent.
make it illegal to put this stuff up there."
If you want to control

You can't just
Albeit, it was controlled by the ITAR if it was a
private speech.
not directed at a person, and just for general public
consumption.
of reasons from having restriction that doesn't have any
intent requirement.
10
But we are talking about a public speech,
The First Amendment prevents you for a variety
But the actual recommendation was, and it's noted
11
on the exhibit to our motion, a memorandum of points of
12
authority for preliminary injunction, in the appendix
13
beginning on page 182, which is the 1997 Department of
14
Justice memo.
15
The Department of Justice says, the alternative
16
formulation specifies that the person who disseminates the
17
information must either have the specific purpose of
18
facilitating criminal conduct or must have knowledge that a
19
particular recipient intends to make improper use of the
20
material.
21
I mean, if you look at that, that guy is -- pretty
22
much most of our criminal law today, when you deal with
23
supporting a foreign terrorist organization, the EAR
24
prohibitions on any activity by a U.S. person -- any export
25
that is made with the intent to support chemical biological

82
1
weapons, missile proliferation.
So going back to the alternatives, the Department
of Commerce has the alternatives.
You can't control it, and
they recognize it, but the alternative you have an intent
required.
do it, you know.
Make it actually enforceable so the Government can
THE COURT:
We will take ten minutes.
9
10
(PROCEEDINGS SUSPENDED AT 11:20 A.M.)
11
(PROCEEDINGS RESUMED AT 11:30 A.M.)
12
13
14
15
16
17
18
19
20
THE COURT:
I am sure you would like to respond to some -MR. SOSKIN:
We would be happy to answer any
further questions that you have.

THE COURT:
I don't have any particular questions,
but if there is anything you would like to add to the record.

MR. SOSKIN:
I think we will rest on our
presentation and on our briefs, Your Honor.
21
THE COURT:
22
MR. GURA:
23
THE COURT:
24
MR. GURA:
25
Anybody else on this side wants time?
Okay.
One moment, Your Honor.
Sure.
We have a very short statement to make,
Your Honor, if I may.

83
1
THE COURT:
MR. GURA:
Sure.
We simply wish to clarify that we are
not here to challenge the Government's authority to regulate
the export of technical data relating to munitions.
simply think that this is a case that deals with people's
ability to speak within the United States, including on the
Internet, and so the Government cannot restrict speech.
can restrict the export of technical data, but this is really
more of a speech case.
10
THE COURT:
We
They
That is the crux of it, but it just
11
happens that you have chosen a platform to disseminate that
12
information that is particularly and almost uniquely
13
susceptible to export.
And so you can't have it both ways.
14
If you concede that they have compelling interest
15
in those sorts of export controls and you choose a platform
16
that is particularly susceptible to that, then it's a little
17
difficult then to criticize them for the limitations that
18
they place.
19
You have put them in a box, and I have tried to
20
give you an opportunity to tell me how you would do it.
21
understand it's not your responsibility to do this.
22
theirs.
23
It's
But you see what I am saying.

MR. GURA:
Yes, Your Honor.
The American people
24
have chosen to express themselves on the Internet.
25
regulations are, of course, not limited to the Internet.

The
We
84
1
are talking about a broad claim of authority over speech in
the United States.
What we would say is, yes, obviously, they have a
challenge.
They have not met that challenge.
minimum, the scienter requirement would go a long way towards
narrowing the application of this type of prior restraint
they have created.
And that is --
THE COURT:
And, at a
That would render it unenforceable.
10
MR. GURA:
11
The First Amendment is also a feature of our
12
That may well be.
Constitution.
13
THE COURT:
14
MR. GURA:
Absolutely.
And where we have a clash, the
15
Government has the burden of showing -- and we simply don't
16
believe they have done that here.
17
THE COURT:
18
MR. GURA:
19
THE COURT:
20
MR. SOSKIN:
21
That's an interesting issue.

Anything else?
No.
Thanks for hearing us,
Your Honor.
22
THE COURT:
Thank you.
This has been very helpful.
23
I am going to take this under advisement.
24
thinking I was going to make a 45-minute ruling from the
25
bench.
I know you were
85
1
I am going to take this under advisement.
going to take a long, hard look at it.
compelling issues.
important stake on this.
right result.
Very interesting and
I understand each of you has a very

We will do our best to find the
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We are
(PROCEEDINGS ADJOURNED AT 11:35 A.M.)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
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I certify that the foregoing is a correct
transcript from the record of proceedings in the
above-entitled matter.
fees and format comply with those prescribed by the Court and
the Judicial Conference of the United States.
I further certify that the transcript
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Date signed:
July 24, 2015.
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/s/ Joe Reynosa

JOE REYNOSA, RPR
United States Court Reporter
655 East Cesar E. Chavez Blvd.,
Room 319A
San Antonio, Texas 78206
(210) 244-5038
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Defense Distributed v. Dep&#39;t of State - Preliminary Injunction Argument Transcript

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Defense Distributed v. Dep&#39;t of State - Preliminary Injunction Argument Transcript

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

DEFENSE DISTRIBUTED and OTHERS, ) CASE NO. 1:15-CV-00372 (RP)

UNITED STATES DEPARTMENT OF

TRANSCRIPT OF PRELIMINARY INJUNCTION HEARING

For the Plaintiffs:

ALAN GURA, ESQ.

DAVID S. MORRIS, ESQ.

Fish & Richardson, P.C.

JOSHUA MICHAEL BLACKMAN, ESQ.

MATTHEW A. GOLDSTEIN, ESQ.

Matthew A. Goldstein, PLLC

W. THOMAS JACKS, ESQ.

WILLIAM B. MATEJA, ESQ.

For the Defendants:

ERIC J. SOSKIN, AUSA

STUART JUSTIN ROBINSON, AUSA

ZACHARY CARL RICHTER, AUSA

Produced by mechanical stenography; computer-aided

Court calls Case No. 1:15-CV-372,

Defense Distributed and others versus United States

Department of State and others for a Preliminary Injunction

Could we have announcements, for the record,

Yes, Your Honor.

behalf of the Plaintiffs, Defense Distributed and Second

Would you like for me to introduce my team now?

That would be great, please.

partner out of the Austin office, Tommy Jacks.

modern technology has allowed him to be many miles away but

yet still with us.

Thank you, Mr. Jacks.

Thank you, Your Honor.

So in addition to Tommy, Your Honor,

it's my privilege to introduce you to Alan Gura.

collaborated on a number of cases.

attorney out of Alexandria, Virginia that specializes in

First Amendment and Second Amendment cases.

myself, he perhaps is one of the foremost legal authorities

on the Second Amendment because he not only argued but he won

the Heller decision and, likewise, the McDonald decision in

front of the U.S. Supreme Court.

In addition to Mr. Gura, let me introduce you also

Matt has long time been the lawyer for

Defense Distributed, and so he practices in international

He does a lot of work with the ITAR statute, and

lot of specifics that relate to the ITAR statute that he is

intimately familiar with.

At the very end, Your Honor, is Josh Blackman, who

is an associate law professor at the South Texas College of

published in the University of Tennessee Law Review entitled

"The First Amendment, Second Amendment and 3D Printed Guns."

He recently -- about a year ago -- wrote an article

It's my understanding that,

Mr. Blackman, you have an application on file.

approved, and you are welcome to participate in this hearing.

And at a break or at the conclusion of this, I would be glad

to swear you in.

Thank you, Your Honor.

been helping ably on this case.

And then let me introduce you to my client, which

Cody is the owner and president of Defense

Thank you, Mr. Mateja.

Thank you, Your Honor.

Defense Distributed v. Dep't of State - Preliminary Injunction Argument Transcript

Defense Distributed v. Dep't of State - Preliminary Injunction Argument Transcript