Plastic Fantastic Recycled Revisited

by Gene Howington, Gust Blogger

As previously discussed in the column “Fantastic Plastic?“, the advent of cheap 3-D printing (or additive manufacturing) is changing the nature of how we can manufacture anything including guns. At the time the original column was written, a pioneer in additive manufacturing of guns – Defense Distributed of Austin, Texas – was making headlines for using this technology to make lower receivers for AR-15 style assault rifles. Although in the proof of concept stage, Defense Distributed had rapidly shown that they could make such a component capable of firing over 600 rounds before stress failure. I speculated that such a weapon was not as threatening due to size and some materials constraints and that even more dangerous was the possibility of all (or nearly all) plastic handguns and other easily concealable weapons that escape normal detection techniques.

In this instance, we have a case of science rapidly catching up with speculation.  Last week Defense Distributed released the following video of their plastic handgun design.  The only metal component of the weapon is the firing pin. It is called (rather dramatically) the Liberator.

In a move that is not entirely unexpected as self-described crypto-anarchist Cody R. Wilson and his company Defense Distributed continue to push both the boundaries of the technology as well as gun laws, the government took action. It is no secret that escalation often begets escalation. Is this the first salvo by the government in their dealings with Cody Wilson and Defense Distributed?

Through the Department of Defense Trade Controls Office, the government demanded that the design for the Liberator – the CAD file – be removed from Defense Distributed’s website. This is based on the likely correct presumption that providing such a design violates U.S. export control policies.  However, this removal came only after almost 100,000 copies of the file had already been downloaded.

That saying about horses and barn door closings comes to mind.

However, the removal does comport with the stated aims of our export control system. The state goals of our export control system are:

  • Provide for national security by limiting access to the most sensitive U.S. technology and weapons
  • Promote regional stability
  • Take into account human rights considerations
  • Prevent proliferation of weapons and technologies, including of weapons of mass destruction, to problem end-users and supporters of international terrorism
  • Comply with international commitments, i.e. nonproliferation regimes and UN Security Council sanctions and UNSC resolution 1540

Clearly the Department of Defense Trade Controls Office is relying upon the “[p]revent proliferation of weapons and technologies, including of weapons of mass destruction, to problem end-users and supporters of international terrorism” rationale. It’s a rationale that I think no sane individual would argue against as a policy matter. The penalties for violating export restrictions alone is pretty robust:

The U.S. government has built in various enforcement mechanisms to ensure compliance with our export control laws. U.S. Customs officials (now part of the Department of Homeland Security) have the authority to check any export or import against its license at the borders. For dual-use items, Department of Commerce officials also investigate violations. Licensing authorities often require pre-license checks and post-shipment verifications.

Criminal and civil penalties for export control violations can be severe. For munitions export control violations, the statute authorizes a maximum criminal penalty of $1 million per violation and, for an individual person, up to 10 years imprisonment. In addition, munitions violations can result in the imposition of a maximum civil fine of $500,000 per violation of the ITAR, as well as debarment from exporting defense articles or services. For dual-use export control violations, criminal penalties can reach a maximum of $500,000 per violation and, for an individual person, up to 10 years imprisonment. Dual-use violations can also be subject to civil fines up to $12,000 per violation, as well as denial of export privileges. It should be noted that in many enforcement cases, both criminal and civil penalties are imposed.

However, running afoul of trade restrictions is not the only potential legal pitfall for Defense Distributed. Consider that what they published was a digital document containing design specification for a gun that is for all practical purposed undetectable by traditional means. The only design benefit of such a weapon over traditional handguns is as either an assassination weapon or for use against a protected facility (a covert attack). But is an export control really ever going to be effective against such digital information? As previously noted, many hundreds of thousands of copies of the file were downloaded before the ban was put in place. Because it is a digital media, it is easily copyable and redistributed by networked or other means. Does this put Defense Distributed at risk for prosecution under export trade laws?  The barn door was closed after the horses left after all. I think the answer is “possibly”, but I don’t think that is the most interesting legal question though.

The more interesting questions are found in considering Defense Distributed’s actions, the nature of digital media, existing law (namely the Patriot Act) and future acts deemed “terrorism”.  Under 18 U.S.C. § 2339B (part of the Patriot Act), it is illegal to “knowingly [provide] material support or resources to a foreign terrorist organization, or attempts or conspires to do so”. What is interesting is how “material support” has been defined by case law since the enactment of the Patriot Act. Consider the case of Holder v. Humanitarian Law Project. In that case, the Supreme Court considered the challenge of the definition of “material support” by the Humanitarian Law Project, a groups seeking to teach peaceful dispute resolution to groups like Kurdistan Workers’ Party in Turkey and the Liberation Tigers of Tamil Eelam, groups which have been on U.S. lists of terrorist organizations maintained by the State Department for years. To understand the risks facing Defense Distributed, it is necessary to understand the reasoning behind Holder v. Humanitarian Law Project, the low and/or incorrect threshold it represents as well as other criticisms of the holding and actions taken post-decision.

The Humanitarian Law Project brought suit claiming that the language of 18 U.S.C. § 2339B was vague, violated the 5th Amendment, and that it infringes upon the 1st Amendment guarantees of freedom of speech and free association. The relevant part of 18 U.S.C. § 2339B reads:

(1) Unlawful conduct. – Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization (as defined in subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).” 18 U.S.C. § 2339B(a)(1).

As noted in the 6-3 decision as penned by Chief Justice Roberts, in 2001 Congress amended the definition of material support or resources” to add the term “expert advice or assistance.” Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Patriot Act), §805(a)(2)(B), 115 Stat. 377.

In most part relying upon these definitions of what constitutes unlawful conduct, the Court found that the type of aid intended did fit into the law’s definition of material aid and in part that it hinged upon the “knowingly” requirement as the organizations the Humanitarian Law Project sought to aid were already identified terrorist organizations.  The finding was based on the principle that any assistance could help to “legitimize” the terrorist organizations and free up their resources for terrorist activities. The Court did note, however, that the actions of the Humanitarian Law Project were hypothetical and did not preclude post-enforcement challenges in the future.

The case of Holder v. Humanitarian Law Project marks the only time in the jurisprudence surrounding the 1st Amendment that a restriction of political free speech has passed the test set forth in Brandenburg v. Ohio, 395 U.S. 444 (1969). To those not familiar with the Brandenburg decision, it created a two-fold test for examining whether political free speech is protected or not:  Speech advocating the use of force or crime could only be proscribed if (1) the advocacy is “directed to inciting or producing imminent lawless action” and (2) the advocacy is also “likely to incite or produce such action.”

The decision was met with much criticism. Former President Jimmy Carter as head of the Carter Center criticized the decision.  He argued that “”We are disappointed that the Supreme Court has upheld a law that inhibits the work of human rights and conflict resolution groups. The ‘material support law’ – which is aimed at putting an end to terrorism – actually threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence. The vague language of the law leaves us wondering if we will be prosecuted for our work to promote peace and freedom.” In the same press release, Melissa Goodman, staff attorney with the ACLU National Security Project said, “Today’s decision is disappointing and inconsistent with our First Amendment position. The government should not be in the business of criminalizing speech meant to promote peace and human rights.”

Perhaps most damning and to the logical point are the words of Elisabeth Decrey-Warner, president of the Swiss NGO Geneva Call, in stating the obvious flaw with this decision in that “Civilians caught in the middle of conflicts and hoping for peace will suffer from this decision. How can you start peace talks or negotiations if you don’t have the right to speak to both parties?”

Along these same lines, linguist Noam Chomsky criticized the decision in an interview with Democracy Now!’s Amy Goodman, saying “A very important case was six or eight months ago, I guess, Holder v. Humanitarian Law Project. It was initiated by the Obama administration. It was argued by Elena Kagan, Obama’s new court appointment. And they won, with the support of the far-right justices. The case is extremely significant. It’s the worst attack on freedom of speech since the Smith Act 70 years ago. The case determined that any material support to organizations that the government lists on the terrorist list is criminalized, but they interpreted ‘material support’—in fact, the issue at stake was speech. Humanitarian Law Project was giving advice—speech—to a group on that’s on the terrorist list, Turkish PKK. And they were also advising them on legal advice and also advising them to move towards nonviolence. That means if you and I, let’s say, talk to Hamas leaders and say, ‘Look, you ought to move towards nonviolent resistance,’ we’re giving material support to a group on the terrorist list.”

This shows the strained logic of the Court clearly in the Holder v. Humanitarian Law Project case. However, like the much and rightfully lamented Citizens United decision, it remains controlling precedent until overruled or legislatively amended.

In January 2011, David Cole, a professor of law at Georgetown University Law Center, who argued the case for the Humanitarian Law Project, wrote a particularly damning Op-Ed piece for the New York Times commenting on developments since the decision and stated that “Under current law, it seems, the right to make profits is more sacrosanct than the right to petition for peace, and the need to placate American businesses more compelling than the need to provide food and shelter to earthquake victims and war refugees.” I strongly suggest reading Cole’s Op-Ed piece in its entirety.

Now reconsider the actions of Defense Distributed.

Contrast the actions of Defense Distributed in sharing information to the actions of the Humanitarian Law Project. Too be clear, we are not discussing the physical material support here, but rather the provision of expert advice or assistance. It becomes apparent that distribution of weapons designs is even more in line with the definition of “material support” if you consider that what is arguably free speech in advocating peaceful dispute resolution is sufficient to meet the definition of “material support”.

When (and it is probably a matter of when, not if) a plastic handgun made on these designs is used in an assassination or other crime deemed to be “terrorism”, will the government choose to go after Defense Distributed under the Patriot Act for their “material support” of “terrorism”? It seems like a real possibility.

Will Defense Distributed be able to hinge their defense on not knowingly providing information to problem end-users and supporters of international terrorism when their actions were not directed per se but simply the equivalent of releasing the information “into the wild”?

If giving away design data for a weapon whose fairly described design advantage is covert action and assassination the equivalent of advocacy that is “directed to inciting or producing imminent lawless action” and “likely to incite or produce such action”?

It seems to me that Defense Distributed could be walking into a fight much more substantive and more more dangerous than simply championing the 2nd Amendment.

What do you think?

Source(s): Huffington Post (1, 2), YouTube, www.state.gov, Defense Distributed, 18 U.S.C. § 2339B, Holder v. Humanitarian Law Project, 561 U.S. ___ (2010), 130 S.Ct. 2705 (.pdf), Brandenburg v. Ohio, 395 U.S. 444 (1969), Wikipedia, New York Times (1, 2), ACLU (Supreme Court Rules “Material Support” Law Can Stand), www.swisster.ch (Ed. Note: you may have issues getting this URL to resolve.)

~submitted by Gene Howington, Guest Blogger

54 thoughts on “Plastic Fantastic <strike>Recycled</strike> Revisited”

  1. Just what the JSOC SS Assassination Team ordered. Next will come a weapon that shoots bullets that melt at body temperature. They will be kept solid with Freon propellant and silent (no need for a flash suppressor or silencer). They will be used to summarily execute anyone on the presidential/CIA Kill List, and can be used in triangular fire at night or daytime. There will be no tell tale evidence left behind such as casings or projectiles identifying rifling, caliber, or weapon. The projectiles will have a poison additive to ensure the death of the target. Once melted inside the body, the ID of the shooter will be problematic. WELCOME TO THE NEW AMERICAN CENTURY, WHERE EVERYTHING WILL BE PRIVATIZED INCLUDING THE MILITARY, OUR PRISONS, SCHOOLS, AND GOVERNMENT!

  2. A couple more replies from the same forum:

    hobbesmaster: On the other hand I guess if you somehow damaged the pitot static system with your gun there might be some issues?

    DNova: How would you do that? “On the other hand, I guess if you manage to rip the wings off, there might be some trouble!”

    News flash: pilot incompetence more likely to kill you than Bad Guys.

    MrYenko: [on depressurization] No, no it couldn’t. You could go rock-and-roll-mag-dump on the skin of an airliner, and not cause more than a slight burp in cabin pressure, as long as you don’t concentrate your fire in a small, structurally critical area and cause a larger rupture (Again, not going to happen.) With a single, or multiple simple penetrations of the pressure vessel, the outflow valve would snap closed, or probably just closer to closed, and pressure would stay exactly where it was. It takes a rather significant hole to lose pressurization.

    [on damaging the pitots] There are multiple pitot systems, and multiple static systems. There is generally a primary and a backup air data computer.

    You. Are. Not. Going. To. Cause. A. Crash. With. A. Non-Crew-Served. Weapon. Your only hope with this kind of strategy is to incapacitate or otherwise compromise the guys up front with the big windows.

    azflyboy (pilot rated for single engine, sea, multi engine, teaching others how to be private/commercial pilots, and teaching instrument students):
    There’s also the fact that airplanes are required to withstand an impact with far more energy than a bullet could provide. For FAA certification, large aircraft have to withstand a 4lb bird strike anywhere on the structure at 85% of their maximum airspeed, and be capable of continued flight and a safe landing.

    A .38 caliber bullet (like the 3d printed gun fires) only puts out about 200ft-lb of force, whereas a 4lb bird impacting at 290kts (which would be relatively slow for most airliners) puts out just over 14,500ft-lb of force.

    Unless the 3d gun was used to shoot the pilot (it’s single shot, so they’d have to find a non-existent airliner with only one pilot), there’s about as much chance of that gun taking down a commercial aircraft as the airplane running into a unicorn in flight.

  3. Pave, reckon Moore’s Law will apply to this technology as well? I am betting it does.

    Just as the microdrone camera technology will stay well ahead of lawmakers.

  4. OS/Jason,

    No one said it would be easy. 😀 The single shot issue was part of the phone discussion as well.

    I think was is being missed here is ultimately obscured by the single shot issue.

    That’s an engineering problem that will be solved probably sooner rather than later. A multi-shot plastic gun is inevitable. What’s important is the proof of concept: that a working plastic handgun can be made and, yes, it can bypass traditional security.

    *************

    pete,

    Love the reference, but in this instance I was thinking more of using the crutch as a way to get ammo past security. Specifically, take a crutch, line the tube with lead or some other x-ray opaque substance, and fill it with bullets.

    The original is a far superior movie to that dreadful remake with Bruce Willis and Richard “I got my accent from the Lucky Charms leprechaun” Gere.

  5. Gene,
    Re bringing down a plane with a single shot, or even a half dozen.

    Jason is correct. The chances of hitting something critical enough to bring it down is virtually zero unless the weapon is an RPG or heavy machine gun. Cockpits are now reinforced and aircrews are trained to deal with threats outside the cockpit doors since 9-11. Most control systems have built in redundancy as well. Look at how much damage a combat airplane can absorb and keep flying.

  6. Gene H:
    I was specifically referencing the article from the U.K.

    “Actually, I was having that conversation on the phone earlier with another regular commentator here (Slartibartfast/Kevin K.) but we were talking about planes. The biggest threat would be to the plane/train itself. They are lined with electronic and hydraulic control systems. If you knew where to shoot, you could do quite a bit of damage with a gun from the inside.”

    I was skeptical of this but I’m also nothing close to an expert on the subject. So I posted the question to an aviation forum full of pilots, ATCs, and enthusiasts of all stripes.

    DNova, a private pilot:
    “If you want to bring down a plane there are easier ways than studying their mechanics and shooting a plastic 3D printed gun in a specific place. I believe that you’d have to be incredibly lucky to do enough damage to the plane to cause an emergency. Therefore, I think the worst thing you can do with a single shot gun on a plane is kill 1 person. 2 if you’re really lucky again. You also need to get the bullet past security. Not impossible, but not trivial.”

    MrYenko, an air traffic controller and aviation enthusiast:
    “You’re not going to crash a modern airliner with a single shot from a pistol. Full stop, end of sentence. You’re not going to get a depressurization, either, before anyone jumps to that. You’re not going to bring down an airliner with anything less than several ~20mm cannon rounds, and even then, I’d only give you even odds of success; Airliners have incredibly redundant systems.”

    …and DNova replies regarding depressurization:
    “I think this could be done, but to what end? People would scream, the masks would fall from the ceiling, and the pilots would dive to below 10,000 or whatever level they’re trained to dive to in that scenario. Oh, and everyone aboard would get free round trip tickets for the trouble.”

  7. Three words: hollow metal crutch.

    day of the jackal

    the first reload would be the easiest, from then on everyone knows it’s a single shot.

  8. Jason,

    Actually, I was having that conversation on the phone earlier with another regular commentator here (Slartibartfast/Kevin K.) but we were talking about planes. The biggest threat would be to the plane/train itself. They are lined with electronic and hydraulic control systems. If you knew where to shoot, you could do quite a bit of damage with a gun from the inside.

    The big question in my mind is reload time and can it be done single handed. If so, a two gun scenario where a hostage could be held while control systems were jacked up seems a plausible serious threat.

  9. I’m trying to figure out the potential horror of sneaking one of these on to a train. So the guy has a single shot pistol with which he will….? Shoot one person? Destroy the Chunnel?

  10. Three words: hollow metal crutch.

    Some things are impossible. Everything else is an engineering problem.

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