State v. U.S. Dep't of State, Case No. 2:20-cv-00111-RAJ
| Decision Date | 06 March 2020 |
| Docket Number | Case No. 2:20-cv-00111-RAJ |
| Citation | 443 F.Supp.3d 1245 |
| Parties | State of WASHINGTON; et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF STATE; et al., Defendants. |
| Court | U.S. District Court — Western District of Washington |
Brendan C. Selby, Kristin Beneski, Jeffrey George Rupert, State of Washington Attorney General's Office, Seattle, WA, for Plaintiff State of Washington.
John W. Killeen, Pro Hac Vice, California Department of Justice, Sacramento, CA, Kristin Beneski, Attorney General's Office, Seattle, WA, for Plaintiff State of California.
Grant T. Sullivan, Pro Hac Vice, Colorado Department of Law, Denver, CO, Kristin Beneski, Attorney General's Office, Seattle, WA, for Plaintiff State of Colorado.
Maura Murphy Osborne, Pro Hac Vice, Office of the Attorney General, Hartford, CT, Kristin Beneski, Attorney General's Office, Seattle, WA, for Plaintiff State of Connecticut.
Christian Douglas Wright, Pro Hac Vice, Delaware Department of Justice, Wilmington, DE, Kristin Beneski, Attorney General's Office, Seattle, WA, for Plaintiff State of Delaware.
Andrew J. Saindon, Pro Hac Vice, Kathleen Marie Konopka, Pro Hac Vice, Office of the Attorney General for the District of Columbia, Washington, DC, Kristin Beneski, Attorney General's Office, Seattle, WA, for Plaintiff District of Columbia.
Robert T. Nakatsuji, Pro Hac Vice, Department of the Attorney General, Honolulu, HI, Kristin Beneski, Attorney General's Office, Seattle, WA, for Plaintiff State of Hawaii.
Darren Kinkead, Pro Hac Vice, Kathryn Hunt Muse, Pro Hac Vice, Office of the Illinois Attorney General, Chicago, IL, Kristin Beneski, Attorney General's Office, Seattle, WA, for Plaintiff State of Illinois.
Susan P. Herman, Pro Hac Vice, Maine Office of the Attorney General, Augusta, ME, Kristin Beneski, Attorney General's Office, Seattle, WA, for Plaintiff State of Maine.
Jeffrey Paul Dunlap, Pro Hac Vice, Office of the Attorney General of Maryland, Baltimore, MD, Kristin Beneski, Attorney General's Office, Seattle, WA, for Plaintiff State of Maryland.
Phoebe Fischer-Groban, Pro Hac Vice, Office of the Massachusetts Attorney General, Boston, MA, Kristin Beneski, Attorney General's Office, Seattle, WA, for Plaintiff Commonwealth of Massachusetts.
Joseph T. Froehlich, Pro Hac Vice, Michigan Department of Attorney General, Lansing, MI, Kristin Beneski, Attorney General's Office, Seattle, WA, for Plaintiff State of Michigan.
Jacob Campion, Pro Hac Vice, Attorney General of Minnesota, St. Paul, MN, Kristin Beneski, Attorney General's Office, Seattle, WA, for Plaintiff State of Minnesota.
Glenn J. Moramarco, Pro Hac Vice, Office of the Attorney General, Trenton, NJ, Kristin Beneski, Attorney General's Office, Seattle, WA, for Plaintiff State of New Jersey.
Daniela Nogueira, Pro Hac Vice, Matthew Colangelo, Pro Hac Vice, Steven C. Wu, Pro Hac Vice, New York State Office of the Attorney General, New York, NY, Kristin Beneski, Attorney General's Office, Seattle, WA, for Plaintiff State of New York.
Sripriya Narasimhan, Pro Hac Vice, North Carolina Department of Justice, Raleigh, NC, Kristin Beneski, Attorney General's Office, Seattle, WA, for Plaintiff State of North Carolina.
Carla Scott, State of Oregon, Portland, OR, Kristin Beneski, Attorney General's Office, Seattle, WA, for Plaintiff State of Oregon.
Jacob Boyer, Pro Hac Vice, Pennsylvania Office of the Attorney General, Philadelphia, PA, Kristin Beneski, Attorney General's Office, Seattle, WA, for Plaintiff Commonwealth of Pennsylvania.
Justin J. Sullivan, Pro Hac Vice, Rhode Island Department of Attorney General, Providence, RI, Kristin Beneski, Attorney General's Office, Seattle, WA, for Plaintiff State of Rhode Island.
Benjamin D. Battles, Pro Hac Vice, Office of the Vermont Attorney General, Montpelier, VT, Kristin Beneski, Attorney General's Office, Seattle, WA, for Plaintiff State of Vermont.
Samuel T. Towell, Pro Hac Vice, Office of the Attorney General of Virginia, Richmond, VA, Kristin Beneski, Attorney General's Office, Seattle, WA, for Plaintiff Commonwealth of Virginia.
Nicholas Sydow, Pro Hac Vice, Office of the New Mexico Attorney General, Albuquerque, NM, Kristin Beneski, Attorney General's Office, Seattle, WA, for Plaintiff State of New Mexico.
Brian Patrick Keenan, Pro Hac Vice, Wisconsin Department of Justice, Madison, WI, Kristin Beneski, Attorney General's Office, Seattle, WA, for Plaintiff State of Wisconsin.
Eric Soskin, Matthew J. Glover, US Department of Justice (Civil Rights), Washington, DC, for Defendants.
This matter comes before the Court on the Plaintiff States' Motion for Preliminary Injunction ("Motion"). Dkt. # 55. For the reasons below, the Court GRANTS IN PART the Motion.
Plaintiffs are seventeen States challenging companion regulations promulgated by the Department of State and the Department of Commerce. This action is the latest in a series of litigation over export controls on technical data related to 3-D printed firearms. The Court examines the statutory framework and prior litigation before turning to its analysis.
The AECA regulates the export of arms, ammunition, and other military and defense technology. 22 U.S.C. § 2778(a)(1). It delegates to the President the task of creating the United States Munitions List ("Munitions List"), which designates certain items as defense articles and defense services. Id. The term "defense articles" specifically includes "technical data recorded or stored in any physical form, models, mockups or other items that reveal technical data directly relating to items designated in" the Munitions List. 22 C.F.R. § 120.6. Category I of the Munitions List includes "Firearms, Close Assault Weapons and Combat Shotguns." 22 C.F.R. § 121.1. "Nonautomatic and semi-automatic firearms to caliber .50 inclusive," their "components, parts, accessories and attachments," and related "technical data" are currently within Category I. Id. § 121.1(a), (h), (i).
The AECA also tasks the President with promulgating regulations for the import and export of such defense articles and services. 22 U.S.C. § 2778(a)(1). The President has delegated his authority to promulgate implementing regulations to the Secretary of State. Those regulations, the International Traffic in Arms Regulations ("ITAR"), are administered by the DDTC [Directorate of Defense Trade Controls] and its employees. 22 C.F.R. § 120.1(a). Under ITAR, persons who want to export items on the Munitions List must first obtain a license from the Department of State ("State Department").
The Department of Commerce ("Commerce") regulates exports pursuant to the Export Control Reform Act of 2018, 50 U.S.C. §§ 4801 - 52 ("ECRA"), which directs that export controls be used to "further significantly the foreign policy of the United States," to "fulfill [the] declared international obligations" of the United States, or to limit exports that would make a "significant contribution to the military potential of any other country or ... would prove detrimental to ... national security." Id. § 4811(1)(A)-(B).
To carry out these purposes, the ECRA directs that Commerce shall "establish and maintain a list of items that are controlled"—the Commerce Control List ("CCL")—and "prohibit unauthorized exports, reexports, and in-country transfers of controlled items." 50 U.S.C. § 4813(a)(1), (3). The Export Administration Regulations ("EAR"), 15 C.F.R. parts 730-774, implement the ECRA, identifying the items and activities subject to the jurisdiction of the EAR as well as those not subject to the EAR. The EAR's definition of "export" is comprehensive, and extends to, inter alia , "(1) An actual shipment or transmission out of the United States, including the sending or taking of an item out of the United States, in any manner;" or "(2) Releasing or otherwise transferring ‘technology’ or source code (but not object code) to a foreign person in the United States (a ‘deemed export’)." 15 C.F.R. § 734.13(a).
Computer software for the production of a Category I firearm or its components using a 3-D printer ("3-D gun files"), such as computer aided design (CAD) files, is "technical data" subject to the AECA and ITAR. Since about 2013, it had been the government's position that posting 3-D gun files on the internet was an "export" subject to the AECA and ITAR. Defense Distributed, a private company with the stated objective of facilitating global, unrestricted access to firearms and evading gun-safety laws, challenged the government's authority in a lawsuit filed in the United States District Court for the Western District of Texas. Distributed v. U.S. Dep't of State, C15-0372RP (W.D. Tex). The company alleged that the government's prepublication approval requirements under ITAR were unconstitutionally applied to its gun-related speech. Id. Defense Distributed sought an injunction so that it could post its 3-D gun files on the internet without restriction to allow people to easily produce their own weapons and weapon parts using relatively affordable and readily available equipment.
Throughout the litigation, the government argued that the export of certain Defense Distributed 3-D gun files could "cause serious harm to U.S. national security and foreign policy interests" that "warrant subjecting [the files] to ITAR's export licensing regime." Dkt. # 32 at 19-20 (W.D. Tex.). The government specifically expressed that the 3-D gun files could be modified to create lethal firearms that were "virtually undetectable" by conventional security measures such as metal detectors. Additionally, the government contended that permitting unrestricted access to the 3-D gun files on the internet would increase the risk of their use in assassinations, in manufacturing spare component parts by embargoed nations, terrorist groups, or...
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