By David Meyer
August 2, 2018

Restraining order? What restraining order? After a Seattle judge told Defense Distributed to stop publishing the schematic files for 3D-printed firearms, gun rights activists simply started distributing the files from another website.

Nobody should be surprised about this. It’s happened before, and it’s impossible to stop.

Rewind to 2013, when Defense Distributed’s Cody Wilson first showed off his 3D-printed weapon. The State Department quickly shut him down, on the basis that he was violating arms export controls—this is the stance the government abandoned in a settlement that allowed Wilson to resume publication of the files on Wednesday, prompting the temporary restraining order.

When the State Department originally clamped down, Wilson stopped publishing the files, but other sites—The Pirate Bay and other file-sharing services—immediately stepped in to keep the distribution flowing. So, over the subsequent five years, the files have never been out of circulation (even if the products they create are incredibly dangerous for the shooter, as well as those around them, due to materials quality issues).

That fact isn’t stopping the furious legal battle we’re seeing today, though, because for both sides this is about making a stand.

“I am thankful and relieved Judge Lasnik put a nationwide stop to the Trump Administration’s dangerous decision to allow downloadable, 3D-printed ghost guns to be distributed online,” Washington State Attorney General Bob Ferguson said Tuesday, when he won the temporary restraining order. “These ghost guns are untraceable, virtually undetectable and, without today’s victory, available to any felon, domestic abuser or terrorist.”

For the other side, the fight is about upholding a First-and-Second-Amendments sandwich.

“Our Constitution’s First Amendment secures the right of all people to engage in truthful speech, including by sharing information contained in books, paintings, and files. Indeed, freedom of speech is a bedrock principle of our United States and a cornerstone of our democratic Republic,” the activists wrote on their new site, which we’re not linking to here, even though you can easily find it.

“Through [site name redacted], we intend to encourage people to consider new and different aspects of our nation’s marketplace of ideas—even if some government officials disagree with our views or dislike our content—because information is code, code is free speech, and free speech is freedom.”

The question of whether code equates to speech is a complex one that’s never been decided by the Supreme Court. The idea has been promoted in the past by big tech companies, with some success—Google has managed to get courts to say that its search rankings enjoy free-speech protections, and Apple defended itself against the FBI’s demand that it create a special, law-enforcement-accessible version of its iPhone firmware by arguing this was a free-speech violation.

It is certainly true that speech transmitted over digital media is necessarily encoded and decoded, making speech code. However, just because a square is a rectangle, that doesn’t mean all rectangles are squares. The problem with saying that all code is speech is that any virtual object, and any computer file for creating a physical thing, is based on code.

In an increasingly digitized world, equating code with speech means it becomes effectively impossible to regulate things, or actions, or decisions in any way. For libertarians, this may be an optimal outcome; for people of a different philosophical and political persuasion, not so much.

It is impossible to entirely stop code from being transmitted, as has been repeatedly proven with Defense Distributed’s gun files. However, there are plenty of digital files and activities that we rightly ban or regulate even though they cannot be 100% eliminated—child sexual abuse material, for example, or malicious hacking.

The Seattle court will hold another hearing on the Defense Distributed case on August 10, to consider whether the temporary restraining order will be converted into a preliminary injunction. It will be interesting to see to what extent the judge takes into account the viability of enforcing such a measure effectively.

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