By Andrea O’Sullivan and Adam Thierer (First published at The Bridge on August 1, 2018.)
Technology is changing the ways that entrepreneurs interact with, and increasingly get away from, existing government regulations. The ongoing legal battles surrounding 3D-printed weapons provide yet another timely example.
For years, a consortium of techies called Defense Distributed has sought to secure more protections for gun owners by making the code allowing someone to print their own guns available online. Rather than taking their fight to Capitol Hill and spending billions of dollars lobbying in potentially fruitless pursuits of marginal legislative victories, Defense Distributed ties their fortunes to the mast of technological determinism and blurs the lines between regulated physical reality and the open world of cyberspace.
The federal government moved fast, with gun control advocates like Senator Chuck Schumer (D-NY) and former Representative Steve Israel (D-NY) proposing legislation to criminalize Defense Distributed’s activities. They failed.
Plan B in the efforts to quash these acts of 3D-printing disobedience was to classify the Computer-aided design (CAD) files that Defense Distributed posted online as a kind of internationally-controlled munition. The US State Department engaged in a years-long legal brawl over whether or not Defense Distributed violated established International Traffic in Arms Regulations (ITAR). The group pulled down the files while the issue was examined in court, but the code had long since been uploaded to sharing sites like The Pirate Bay. The files have also been available on the Internet Archive for many years. The CAD, if you will excuse the pun, is out of the bag.
In a surprising move, the Department of Justice suddenly moved to drop the suit and settle with Defense Distributed last month. It agreed to cover the group’s legal fees and cease its attempt to regulate code already easily accessible online. While no legal precedent was set, since this was merely a settlement, it is likely that the government realized that its case would be unwinnable.
Gun control advocates did not react well to this legal retreat. This week, a group of eight state attorneys general (AGs) filed a lawsuit against the Trump administration and Defense Distributed to undo the group’s freedom to distribute their code online. Part of their argument is that the administration violated the Administrative Procedure Act as well as the Tenth Amendment by “infringing on states’ rights to regulate firearms.” But the move looks more like a last ditch effort by the AGs to exert control. Yesterday, a federal judge issued an injunction against Defense Distributed to prevent the files from being uploaded online. But as we mentioned, the files are and have been available across the internet for years now.
The case faces long odds. After all, they are essentially trying to regulate speech, which raises some clear First Amendment flags. This is precisely why the Department of Justice backed away from the case against Defense Distributed, and it echoes the federal government’s previous attempts to crackdown on strong encryption practicesmore than two decades ago. Then, like now, a group of security-minded technologists wanted to bring defense technologies that were still controlled by ITAR regulations to the masses. And then, like now, activists correctly argued that any attempt to stop their online exchanges amounted to an illegal barrier to free speech in the United States. Besides, there wasn’t much that the government could do to turn back the tide of information that had already dispersed across the wide expanse of the web.
As Cody Wilson, the founder of Defense Distributed put it: “This has been a continuous process of different levels of authority figures trying to stop it from happening and thus allowing it to happen…Of course we are going to succeed—because you all are trying to stop me. That seemed natural and ended up being true.”
Cody Wilson and Defense Distributed are not the only ones using additive manufacturing to change the world and challenge public policy in the process. The “maker” revolution is a phenomenon that is widespread and growing. A 2016 Mercatus journal article on “Guns, Limbs, and Toys: What Future for 3D Printing?” discussed several examples of how additive manufacturing is making the governance of various emerging technologies quite challenging.
For example, “e-NABLE,” which is short for “Enabling the Future,” is volunteer effort that brings together individuals from across the globe who design 3D–printed prosthetics for individuals (especially children) with limb deficiencies. Volunteers share open source blueprints and other information on various websites with others across the world. Then, they use their own printers to fabricate the limbs. Other entrepreneurs are creating custom 3D-printed orthoses to help children with cerebral palsy walk comfortably and without the aid of crutches. Off-the-shelf solutions were often ineffective and uncomfortable for many kids, which led some parents to craft custom-made orthoses for their own children to help them walk.
These “amateur” prosthetics are already being widely distributed today and helping to save many individuals and families significant amount of money, assuming they could have afforded “professional” prosthetics at all. While prosthetics are medical devices in a traditional regulatory sense, no one making their own is going to the FDA to ask permission for or a right to try new 3D–printed limbs. Instead, they are just going ahead and making new prosthetics for people in need. How should we regulate all this bottom-up innovation by average citizens (especially considering how much of it is non-commercial in character)?
Another interesting example from 2016 involved Amos Dudley, a 23-year-old college student with no prior dentistry experience who used a 3D printer and laser scanner at his university to make his own orthodontics for just $60. Dudley’s DIY plastic braces were a dangerous experiment that could have put him, or others, at risk if they followed his lead. But what should the law say about people like Dudley or the eNable innovators who are creating their own specialized medical devices in an open source, non-commercial fashion?
For a more radical example, we can look to the Four Thieves Vinegar Collective, a self-styled techno-anarchist collective dedicated to open sourcing and manufacturing alternatives to costly pharmaceutical medicines. Four Thieves harnesses the combined research output of distributed volunteer chemists, physicists, and programmers to compile and publish step-by-step instructions on how to reverse engineer treatments for maladies like AIDS and anaphylaxis. The group’s offers downloadable instructions on how to create what it calls the Apothecary MicroLab, a kind of hacked-together at-home compounding kit. The FDA is aware of, and unamused by, Four Thieves’ activities; yet it finds its hands tied by the fact that they haven’t actually done anything illegal in merely exercising their free speech rights.
These are examples of what MIT economist Eric von Hippel calls “free innovation,” or “innovations developed and given away by consumers as a ‘free good.’” Another term for this is “social entrepreneurialism.” As the name implies, an underlying social goal or mission drives social entrepreneurship.
For example, our Mercatus Center colleagues have written about how social entrepreneurs help others in need in their community following disasters. Social entrepreneurial activities are not typically in pursuit of compensation or profit, but that need not always be the case, and the distinction social and economic entrepreneurialism is sometimes quite blurry.
A great deal of additive manufacturing innovation today springs from a multitude of such “grassroots” or “household” efforts. As this sort of “evasive entrepreneurialism” spreads, it will challenge regulatory regimes that are not equipped to cope with the astonishing pace of change occurring in many technology markets today.
This does not necessarily mean that governments will be completely powerless to stop highly decentralized, bottom-up innovation of this sort. For example, with firearms regulation, a gun is still a gun, regardless of how it is manufactured. Laws governing how and where firearms are carried and used will still be in effect. But “point-of-sale” type regulatory prohibitions will not work as well, obviously.
Likewise, efforts to limit the free flow of information about 3D-printed designs will be almost impossible to enforce once blueprints are available on the internet through peer-to-peer distribution mechanisms and platforms. Finally, it would not make sense for policymakers to affix liability on the makers or distributors of 3D printers because this is a general purpose technology with many other non-controversial uses.
This means that regulation should remain focused on the user and uses of firearms or other 3D-printed devices, regardless of how they are manufactured. There may also be some other steps that governments can take to educate the public about the potential risks associated with these and other examples of free innovation and social entrepreneurship.
But policymakers should also understand that many of these bottom-up innovations are being created or used by the average citizens because they fill a public need that many felt was going unmet. Entrepreneurial efforts tend to be hard to bottle up when enough demand exists for action, and the tools are becoming increasingly decentralized, low-cost, and easy to use. Instead of trying to put those technological genies back in their bottles, we are going to need to figure out how to coexist with them.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.