Politics & Policy

The State Department’s Dangerous New Proposal to Regulate Gun Enthusiasts’ Internet Speech

(Justin Sullivan/Getty)

Over the last couple of decades, Edmund Burke’s plucky “little platoons” have found a thousand homes in the quiet recesses of the Internet. Day in and day out, online forums buzz and crackle with the untrammeled energy of volunteers, hobbyists, collaborators, dilettantes, antiquarians, and enthusiastic abecedarians of all stripes. Perhaps you are struggling with a broken garage door? Perhaps your computer is crashing frequently? Perhaps your homeschooled children are not taking to this year’s curriculum? Whatever your trouble, be still thy shredded nerves. Somewhere out there someone will have an answer. Ask, and ye shall receive.

Alas, if the Obama administration gets its way, this may be about to change for at least one group: firearms enthusiasts. Last week, the U.S. Department of State published an alarming notice in the Federal Register, which, if transmuted into regulatory action, could prove downright disastrous to the nation’s rapidly multiplying gun fora. “In updating regulations governing international arms sales,” Paul Bedard recorded at the Washington Examiner, the State Department is effectively “demanding that anyone who puts technical details about arms and ammo on the web first get the OK from the federal government.” And if they do not? They could “face a fine of up to $1 million and 20 years in jail.”

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At present, the International Traffic in Arms Regulations (ITAR) dictate that any weapons-related “technical data” that is in the “public domain” can be published and discussed with impunity. This arrangement, State submits, was all very well when “public domain” meant “in a library,” but it is simply not good enough in the era of Twitter and WordPress. (Clearly, it would be self-defeating if the rules intended to prevent foreigners from reading the technical data for the F-35 became impotent the moment that that information found its way online.) In principle at least, Foggy Bottom has a point: In a rapidly changing world, regulations do indeed to need to be updated. And yet the manner in which the proposed alterations have been constructed is alarming indeed. Essentially, the State Department now wants to ensure that any new information that is subject to ITAR be approved by the government prior to release online. “If you’ve talked about a given piece of information before,” the agency is saying, “you can talk about it again. But if you haven’t, you’ll need to ask our permission first.”

The State Department is effectively ‘demanding that anyone who puts technical details about arms and ammo on the web first get the OK from the federal government.’

As for what is “subject to the ITAR” . . . well, that would change too. Per Daniel Terrill over at Guns.com, State is hoping to “revise the definition within the context of ITAR of several keywords including public domain, technical data, defense article, defense services, export, and reexport or retransfer.” As the National Rifle Association observes, the potential upshot of this would be that “gunsmiths, manufacturers, reloaders, and do-it-yourselfers could all find themselves muzzled under the rule and unable to distribute or obtain the information they rely on to conduct these activities.” Moreover, depending on how administrators elected to interpret the rules, the amended provisions could be used to outlaw detailed reviews of new firearms, in-depth technical discussions involving recently patented parts, amateur repair- and upgrade-manuals, 3D-printing schematics, and even self-defense programs. Most worrying of all, perhaps, the proposal does not appear to distinguish between the intellectual and the physical — that is, it draws no distinction between exporting a physical firearm and publishing technical details about it to the Internet. “If I sent someone the technical drawings for an AR-15 bolt carrier,” Nick Leghorn contends, “that would be equivalent in the eyes of the government to me having exported an actual bolt carrier.”

If these are indeed to be our standards, it is difficult to imagine how any firearms website would be able to survive the regulators’ caprice. Those lads over at AR15.com discussing innovative rifle-hand guards in detail? Sorry chaps. The gentlemen at the National Gun Forum sharing gunsmithing tips and uploading manuals? Serial violators. 3D-printing enthusiasts building themselves a new trigger for a recently designed shotgun? Criminals who didn’t request the King’s seal of approval.

RELATED: Why Gun-Control Advocates Lie About Guns

In its brief against the measure, the NRA supposes that “because all such releases would require the ‘authorization’ of the government before they occurred . . . the proposal would institute a massive new prior restraint on free speech.” Technically speaking, this is a slight overstatement. Per constitutional precedent, “prior restraint” involves the government’s taking specific measures to prevent specific speech (an injunction, for example), and not the establishment of penalties designed to punish the violation of a general rule (e.g. State’s ITAR proposals). In theory at least, we are not dealing here with a classic case of “prior restraint.”

#related#In practice, though, this distinction is a slim one. In both cases, the imposition of penalties serves to impose a chilling effect on the discourse of free people; in both cases, one “can” violate the rules providing one is prepared to pay the considerable penalty; and in both cases the scope for abuse is appreciable. Evidently, neither should be acceptable in a country that was conceived in Liberty.

It is often the case that cock-up trumps conspiracy, and it is thus eminently possible that the State Department has simply not thought its proposals through. That much is forgivable. To act upon them without revision, though, would not be. In most countries, Burke observed, the people “judge of an ill principle in government only by an actual grievance.” In America, “they anticipate the evil, and judge of the pressure of the grievance by the badness of the principle” and “augur misgovernment at a distance.” In this embryonic stage, we have distance and time at our disposal and the Department of State has a chance hear our anticipations. Those little platoons depend upon its doing so.

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