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                          IN THE UNITED STATES DISTRICT COURT
                           FOR THE WESTERN DISTRICT OF TEXAS
                                     AUSTIN DIVISION


DEFENSE DISTRIBUTED, SECOND AMENDMENT                        § Case No. 15-CV-372-RP
FOUNDATION, INC., and CONN WILLIAMSON,                       §
                                                             § SECOND AMENDED
                     Plaintiffs,                             § COMPLAINT
                                                             §
                     v.                                      §
                                                             §
U.S. DEPARTMENT OF STATE; REX TILLERSON,                     §
in his official capacity as Secretary of State;              §
DIRECTORATE OF DEFENSE TRADE CONTROLS,                       §
Department of State Bureau of Political Military Affairs;    §
MIKE MILLER, in his official capacity as Acting              §
Deputy Assistant Secretary, Defense Trade Controls,          §
Bureau of Political Military Affairs, Department of          §
State; and SARAH J. HEIDEMA, in her official                 §
capacity as Acting Director, Office of Defense Trade         §
Controls Policy, Bureau of Political Military Affairs,       §
Department of State;                                         §
                                                             §
                     Defendants.                             §
                                                             §


                                   SECOND A MENDED C OMPLAINT

        Plaintiffs Defense Distributed, Second Amendment Foundation, Inc., and Conn

Williamson, by and through undersigned counsel, complain of Defendants as follows:

                                           INTRODUCTION

        “Any system of prior restraints of expression comes to this Court bearing a heavy

presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70

(1963). The prior restraint system challenged here cannot overcome its presumption of

invalidity.




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        Contrary to the Justice Department’s warning that such actions are unconstitutional,

Defendants unlawfully apply the International Traffic in Arms Regulations, 22 C.F.R. Part 120

et seq. (“ITAR”) to prohibit and frustrate Plaintiffs’ public speech, on the Internet and other open

forums, regarding arms in common use for lawful purposes. Defendants’ censorship of

Plaintiffs’ speech, and the ad hoc, informal and arbitrary manner in which that scheme is

applied, violate the First, Second, and Fifth Amendments to the United States Constitution.

Plaintiffs are entitled to declaratory and injunctive relief barring any further application of this

prior restraint scheme, and to recover money damages to compensate for the harm such

application has already caused.

                                               The Parties

        1.      Plaintiff Defense Distributed is a Texas corporation organized under the laws of

the State of Texas, whose headquarters are located in Austin, Texas, and whose principal place

of business is located in Austin, Texas. Defense Distributed was organized and is operated for

the purpose of defending the civil liberty of popular access to arms guaranteed by the United

States Constitution through facilitating global access to, and the collaborative production of,

information and knowledge related to the three-dimensional (“3D”) printing of arms; and to

publish and distribute, at no cost to the public, such information and knowledge on the Internet

in promotion of the public interest.

        2.      Plaintiff Second Amendment Foundation, Inc. (“SAF”) is a non-profit

membership organization incorporated under the laws of Washington with its principal place of

business in Bellevue, Washington. SAF has over 650,000 members and supporters nationwide,

including in Texas. The purposes of SAF include promoting, securing, and expanding access to

the exercise of the right to keep and bear arms; and education, research, publishing and legal




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action focusing on the constitutional right to privately own and possess firearms, and the

consequences of gun control. SAF brings this action on behalf of its members.

       3.      Conn Williamson is a natural person and a citizen of the United States and the

State of Washington.

       4.      Defendant the United States Department of State is an executive agency of the

United States government responsible for administering and enforcing the ITAR under the

authority of the Arms Export Control Act of 1976, 22 U.S.C. § 2778, et seq. (“AECA”).

       5.      Defendant Rex W. Tillerson is sued in his official capacity as the Secretary of

State. In this capacity, he is responsible for the operation and management of the United States

Department of State, and this includes the operation and management of the Directorate of

Defense Trade Controls (“DDTC”) and administration and enforcement of the ITAR.

       6.      Defendant DDTC is a subordinate unit within the Department of State Bureau of

Political and Military Affairs responsible for administering and enforcing the ITAR.

       7.      Defendant Mike Miller is sued in his official capacity as the Acting Deputy

Assistant Secretary of State for Defense Trade Controls in the Bureau of Political-Military

Affairs. In his official capacity, Miller is responsible for the operation and management of

DDTC, and this includes administration and enforcement of the ITAR.

       8.      Defendant Sarah Heidema is sued in her official capacity as the Acting Director

of the Office of Defense Trade Controls Policy Division. In her official capacity, she is

responsible for administration of the ITAR, including ITAR’s commodity jurisdiction

procedures; implementation of regulatory changes as a result of defense trade reforms; and

providing guidance to industry on ITAR requirements.




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                                        J URISDICTION AND VENUE

        9.      This Court has subject-matter jurisdiction over this action pursuant to 28 U.S.C.

§§ 1331, 1343, 2201, and 2202.

        10.     Venue lies in this Court pursuant to 28 U.S.C. § 1391(e)(1)(B) and (C), as a

substantial part of the events and omissions giving rise to the claim occurred, and Plaintiff

Defense Distributed resides, within the Western District of Texas.

                                          S TATEMENT OF F ACTS

                                  Broad and Vague Scope of the ITAR

        11.     The AECA affords the President limited control over the export of “defense

articles.” 22 U.S.C. § 2778(a)(1).

        12.     Although the AECA does not expressly authorize control over “technical data,”

the ITAR, which implements the Act, includes “technical data” within its definition of “defense

articles.” 22 C.F.R. § 120.6.

        13.     The ITAR broadly defines “technical data” as information “required for the

design, development, production, manufacture, assembly, operation, repair, testing, maintenance

or modification of defense articles.” 22 C.F.R. § 120.10. This includes “information in the form

of blueprints, drawings, photographs, plans, instructions or documentation” and “software”

“directly related to defense articles.” Id.

        14.     The ITAR requires advance government authorization to export technical data.

Criminal penalties for unauthorized exports of technical data and other violations of the ITAR

include, inter alia, prison terms of up to twenty (20) years and fines of up to $1,000,000 per

violation. 22 U.S.C. § 2778(c). Civil penalties include fines of over $1,000,000 per violation. 22

U.S.C. § 2778(e); 83 Fed. Reg. 234, 235 (Jan. 3, 2018).




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        15.     The scope of technical data subject to ITAR control, as described on the U.S.

Munitions List (“USML”), 22 C.F.R. § 121.1, is vague, ambiguous, and complex. Defendants

constantly change, often without notice, their views of what this scope entails.

        16.     Americans have submitted thousands of written requests, known as “commodity

jurisdiction requests,” to DDTC for official determinations as to the ITAR’s scope.

                          History of Defendants’ Prior Restraint Scheme

        17.     From 1969 to 1984, Footnote 3 to former ITAR Section 125.11 implied that the

ITAR imposed a prepublication approval requirement on publications of privately generated

ITAR-controlled technical data, stating that “[t]he burden for obtaining appropriate U.S.

Government approval for the publication of technical data falling within the definition in §

125.01, including such data as may be developed under other than U.S. Government contract, is

on the person or company seeking publication.”

        18.     Beginning in 1978, the U.S. Department of Justice’s Office of Legal Counsel

issued a series of written opinions advising Congress, the White House, and the Department of

State that the use of the ITAR to impose a prior restraint on publications of privately generated

unclassified information into the public domain violated the First Amendment of the United

States Constitution (the “Department of Justice memoranda”).

        19.     In 1980, the Department of State Office of Munitions Control, the predecessor to

Defendant DDTC, issued official guidance providing that “[a]pproval is not required for

publication of data within the United States as described in Section 125.11(a)(1). Footnote 3 to

Section 125.11 does not establish a prepublication review requirement.”

        20.     Thereafter, the Department of State removed Footnote 3 from the ITAR,

expressly stating its intent to address First Amendment concerns. See 49 Fed. Reg. 47,682 (Dec.




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6, 1984). As such, to the extent the ITAR imposed any prepublication approval requirement on

private, non-classified speech, the requirement was ostensibly removed in 1984.

          21.   In 1995, Defendant the United States Department of State conceded in federal

court that reading the ITAR as imposing a prior restraint “is by far the most un-reasonable

interpretation of the provision, one that people of ordinary intelligence are least likely to assume

is the case.” Bernstein v. United States Department of State, et. al., No. C-95-0582, 1997 U.S.

Dist. Lexis 13146 (N.D. Cal. August 25, 1997).

          22.   Prior to May 2013, Defendant the United States Department of State had not only

disavowed the prior restraint in public notices and in federal court, it had never publicly enforced

a prior restraint under the ITAR.

                                            The Published Files

          23.   Posting technical data on the Internet is perhaps the most common and effective

means of creating and disseminating information. A cursory search on Google and other Internet

search engines evidences that ITAR-controlled technical data is freely published in books,

scientific journals, and on the Internet.

          24.   Plaintiff Defense Distributed publishes files on the Internet as a means of

fulfilling its primary missions to promote the right to keep and bear arms and to educate the

public.

          25.   Defense Distributed privately generated technical information regarding a number

of gun-related items, including a trigger guard, grips, two receivers, a magazine for AR-15 rifles,

and a handgun (the “Published Files”).




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        26.     In December 2012, Defense Distributed began posting the Published Files on the

Internet for free, at no cost to the public. That publication inherently advanced Defense

Distributed’s educational mission.

        27.     At the time Defense Distributed posted the Published Files, there was no publicly

known case of Defendants enforcing a prepublication approval requirement under the ITAR.

        28.     Notwithstanding the Department of Justice memoranda, the 1980 guidance, the

1985 ITAR amendment, Defendant the United States Department of State’s representations to a

federal court in Bernstein v. United States, and Defendants’ failure to previously enforce a

prepublication approval requirement under the ITAR, on May 8, 2013, DDTC sent Defense

Distributed a letter that warned:

        DTCC/END is conducting a review of technical data made publicly available by
        Defense Distributed through its 3D printing website, DEFCAD.org, the majority
        of which appear to be related to items in Category I of the USML. Defense
        Distributed may have released ITAR-controlled technical data without the
        required prior authorization from the Directorate of Defense Trade Controls
        (DDTC), a violation of the ITAR.

        29.     At the time it posted the Published Files, Defense Distributed did not know that

DDTC would demand pre-approval of public speech. Defense Distributed believed, and

continues to believe, that the United States Constitution guarantees a right to share truthful

speech—especially speech concerning fundamental constitutional rights—in open forums.

Nevertheless, for fear of criminal and civil enforcement, Defense Distributed promptly complied

with DDTC’s demands and removed all of the Published Files from its servers.

        30.     The DDTC letter further directed Defense Distributed to submit the Published

Files to DDTC for review using the DDTC “commodity jurisdiction” procedure, the ITAR

procedure “used with the U.S. Government if doubt exists as to whether an article or service is

covered by the U.S. Munitions List.” 22 C.F.R. § 120.4(a).



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       31.        Defense Distributed complied with DDTC’s request and filed ten (10) commodity

jurisdiction requests covering the Published Files on June 21, 2013.

       32.        On June 4, 2015—nearly two years from the date of Defense Distributed’s

commodity jurisdiction requests and six days before their first responsive pleading was due in

this case—Defendants issued a response to the ten commodity jurisdiction requests. They

determined that six of the Published Files, including the handgun files, were ITAR-controlled.

                                      The “Ghost Gunner” Files

       33.        DDTC identifies the Department of Defense Office of Prepublication Review and

Security (“DOPSR”) as the government agency from which private persons must obtain prior

approval for publication of privately generated technical information subject to ITAR control.

       34.        Neither the Code of Federal Regulations nor any other public law establishes a

timeline for decision, standard of review, or an appeals process for DOPSR public release

determinations.

       35.        Worsening this situation, DOPSR refuses to review information that it deems is

not clearly subject to the ITAR.

       36.        On September 25, 2014, Defense Distributed sent DOPSR a request for

prepublication approval for public release of files containing technical information on a machine,

named the “Ghost Gunner,” that can be used to manufacture a variety of items, including gun

parts (the “Ghost Gunner Files”).

       37.        On October 1, 2014, DOPSR sent Defense Distributed a letter stating that it

refused to review Defense Distributed’s request for approval because DOPSR was unsure

whether the Ghost Gunner was subject to the ITAR. Also in its letter, DOPSR recommended that

Defense Distributed submit another commodity jurisdiction request to DDTC.




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        38.     Defense Distributed submitted another commodity jurisdiction request for the

Ghost Gunner to DDTC on January 2, 2015.

        39.     On April 13, 2015, DDTC responded to the Ghost Gunner commodity jurisdiction

request. It determined that the Ghost Gunner machine is not subject to ITAR, but that “software,

data files, project files, coding, and models for producing a defense article, to include 80% AR-

15 lower receivers, are subject to the jurisdiction of the Department of State in accordance with

[the ITAR].” Defense Distributed did not seek a determination with respect to such files, but it

did seek a determination as to whether the software necessary to build and operate the Ghost

Gunner machine is ITAR-controlled. DDTC subsequently clarified that such software is, like the

machine itself, not subject to ITAR controls, but reiterated its ruling with respect to files related

to the production of a “defense article.”

                                     Prior Restraint on CAD Files

        40.     Since September 2, 2014, Defense Distributed has made multiple requests to

DOPSR for prepublication review of certain computer-aided design (“CAD”) files.

        41.     On December 31, 2014, nearly four months after Defense Distributed submitted

the first of the CAD review requests, DOPSR sent Defense Distributed two letters dated

December 22, 2014, stating that it refused to review the CAD files. DOPSR’s decision was

made, in whole or in part, with specific direction from DDTC.

        42.     The DOPSR letter directed Defense Distributed to the DDTC Compliance and

Enforcement Division for further questions on public release of the CAD files. However,

because this is not the DDTC division responsible for issuing licenses or other forms of DDTC

authorization, on January 5, 2015, Defense Distributed sent a written request to DDTC for

guidance on how to obtain authorization from DDTC Compliance for release of the CAD files.




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        43.     To date, DDTC has not responded to Defense Distributed’s request for guidance

on how to obtain authorization from DDTC Compliance for release of the CAD files.

                                    Prior Restraint on Other Files

        44.     Defense Distributed has and will continue to create and possess other files that

contain technical information, to include design drawings, rendered images, written

manufacturing instructions, and other technical information that Defense Distributed intends to

post to public forums on the Internet. Many of these files are described in the USML.

        45.     Plaintiff SAF’s members, including, e.g., Conn Williamson and Peter Versnel,

have a keen interest in accessing, studying, sharing, modifying, and learning from Defense

Distributed’s various files, as well as similar 3D printing files related to firearms that they or

others have created. They would access and share these files on the Internet, and use the files for

various purposes, including the manufacture of firearms of the kind in common use that they

would keep operable and use for self-defense, but cannot do so owing to the prepublication

approval requirement. But for DDTC’s prepublication approval requirement on such files, SAF

would expend its resources to publish and promote, on the Internet, the distribution of Defense

Distributed’s various files, and similar files generated by its members and others.

                             High Price Tag for Public Speech Licenses

        46.     The ITAR requires that any person who engages in the United States in the

business of exporting technical data to register with the DDTC. See 22 C.F.R. § 122.1(a). For

the purpose of the ITAR, engaging in such a business requires only one occasion of exporting

technical data. Id.

        47.     DDTC Registration is a precondition to the issuance of any license or other

approval under the ITAR. See 22 C.F.R. § 122.1(c).




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        48.     The base fee for DDTC registration is $2,250.00 a year. See 22 C.F.R. § 122.3(a).

This fee increases based on the number of licenses requested in the previous year.

                              Great, Irreparable, and Continuing Harm

        49.     But for DDTC’s impositions upon the distribution of the Published Files, Ghost

Gunner Files, CAD Files, and Defense Distributed’s other files (collectively, the “Subject

Files”), Plaintiffs would freely distribute the Subject Files. Plaintiffs refrain from distributing the

Subject Files because they reasonably fear that Defendants would pursue criminal and civil

enforcement proceedings against Plaintiffs for doing so.

        50.     DDTC’s acts have thus caused irreparable injury to Plaintiffs, their customers,

visitors, and members, whose First, Second, and Fifth Amendment rights are violated by

DDTC’s actions.

                                               C OUNT O NE

                                  U LTRA V IRES G OVERNMENT A CTION

        51.     Paragraphs 1 through 50 are incorporated as though fully set forth herein.

        52.     The Defendants’ imposition of the prepublication requirement, against any non-

classified privately-generated speech, including on (but not limited to) the Subject Files, lies

beyond any authority conferred upon them by Congress under the AECA, as confirmed by the

1985 ITAR amendment. Accordingly, Defendants’ imposition of the prepublication approval

requirement is ultra vires and Plaintiffs are entitled to injunctive relief against Defendants’

application of the prepublication approval requirement.




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                                             C OUNT T WO

                           R IGHT OF F REE S PEECH —U.S. C ONST. A MEND. I

        53.      Paragraphs 1 through 52 are incorporated as though fully set forth herein.

        54.      Defendants’ prepublication approval requirement is invalid on its face, and as

applied to Plaintiffs’ public speech, as an unconstitutional prior restraint on protected expression.

        55.      Defendants’ prepublication approval requirement is invalid on its face, and as

applied to Plaintiffs’ public speech, as overly broad, inherently vague, ambiguous, and lacking

adequate procedural protections.

        56.      Defendants’ prepublication approval requirement is invalid as applied to Defense

Distributed’s posting of the Subject Files, because Defendants have selectively applied the prior

restraint based on the content of speech and/or the identity of the speaker.

        57.      Defendants’ interruption and prevention of Plaintiffs from publishing the subject

files, under color of federal law, violates Plaintiffs’ rights under the First Amendment to the

United States Constitution, causing Plaintiffs, their customers, visitors and members significant

damages. Plaintiffs are therefore entitled to injunctive relief against Defendants’ application of

the prior restraint.

                                             C OUNT T HREE

                       R IGHT TO KEEP AND B EAR A RMS—U.S. C ONST. A MEND . II

        58.      Paragraphs 1 through 57 are incorporated as though fully set forth herein.

        59.      The fundamental Second Amendment right to keep and bear arms inherently

embodies two complimentary guarantees: the right to acquire arms, and the right to make arms.

        60.      If one cannot acquire or create arms, one cannot exercise Second Amendment

rights. Infringing upon the creation and acquisition of arms of the kind in common use for




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traditional lawful purposes violates the Second Amendment. District of Columbia v. Heller, 554

U.S. 570, 627 (2008).

        61.     By maintaining and enforcing the prepublication approval requirement and

forbidding Plaintiffs from publishing the subject files, which enable the lawful manufacture of

firearms, Defendants are violating the Second Amendment rights of Plaintiffs, their customers,

members, and visitors. Plaintiffs are therefore entitled to injunctive relief against Defendants’

application of the prior restraint.

                                              C OUNT F OUR

                      R IGHT TO D UE P ROCESS OF L AW—U.S. C ONST. A MEND . V

        62.     Paragraphs 1 through 61 are incorporated as though fully set forth herein.

        63.     The Due Process Clause of the Fifth Amendment to the United States

Constitution requires the Government to provide fair notice of what is prohibited, prohibits

vague laws, and prevents arbitrary enforcement of the laws.

        64.     On its face, Defendants’ prepublication approval requirement is overly broad,

vague, arbitrary, and lacks adequate procedural safeguards. Plaintiffs are therefore entitled to

injunctive relief against Defendants’ application of the prior restraint.

        65.     As applied to Defense Distributed, Defendants’ imposition of the prepublication

approval requirement, failure to clearly describe the information subject to the prior restraint,

and failure to provide a process for timely review of Defense Distributed’s speech have deprived

Defense Distributed of its right to fair notice of what is required under the law and adequate

process, in violation of the Fifth Amendment. Defense Distributed is therefore entitled to

injunctive relief against Defendants’ application of the prior restraint.




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                                          P RAYER FOR R ELIEF

        WHEREFORE, Plaintiffs request that judgment be entered in their favor and against

Defendants as follows:

        1.      A declaration that Defendants’ prepublication approval requirement for privately

generated unclassified information is, on its face and as applied to Plaintiffs’ public speech, null

and void, and of no effect, as an unconstitutional Ultra Vires government action.

        2.      A declaration that Defendants’ prepublication approval requirement for privately

generated unclassified information, on its face and as applied to Plaintiffs’ public speech, to

include Internet postings of the Subject Files, violates the First Amendment to the United States

Constitution;

        3.      A declaration that Defendants’ prepublication approval requirement for privately

generated unclassified information, on its face and as applied to public speech, to include the

Internet posting of files used in the production of arms of the kind in common use for traditional

lawful purposes, including but not limited to the Subject Files, violates the Second Amendment

to the United States Constitution;

        4.      A declaration that Defendants’ prepublication approval requirement for privately

generated unclassified information, on its face and as applied to Plaintiffs’ public speech, to

include Internet postings of the Subject Files, violates the Fifth Amendment to the United States

Constitution;

        5.      An order permanently enjoining Defendants, their officers, agents, servants,

employees, and all persons in active concert or participation with them who receive actual notice

of the injunction, from enforcing the prepublication approval requirement against public speech

on privately generated unclassified information;




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        6.      An order permanently enjoining Defendants, their officers, agents, servants,

employees, and all persons in active concert or participation with them who receive actual notice

of the injunction, from enforcing the prepublication approval requirement against Plaintiffs’

public speech, to include Internet postings of the Subject Files;

        7.      Attorney fees and costs pursuant to 28 U.S.C. § 2412; and

        8.      Any other further relief as the Court deems just and appropriate.

        Dated: January 31, 2018                         Respectfully submitted,

        /s/ Alan Gura                                   /s/ William B. Mateja
        Alan Gura                                       William B. Mateja
        Virginia Bar No. 68842*                         Texas State Bar No. 13185350
        Gura PLLC                                       P OLSINELLI P.C.
        916 Prince Street, Suite 107                    2950 N. Harwood, Suite 2100
        Alexandria, Virginia 22314                      Dallas, Texas 75201
        909-285-1279/Fax 909-285-1279                   909-285-1279/Fax 909-285-1279
        allisonedwards@example.net                               allisonedwards@example.net

        /s/ Matthew Goldstein                           /s/ Josh Blackman
        Matthew Goldstein                               Josh Blackman
        D.C. Bar No. 975000*                            Virginia Bar No. 78292
        Matthew A. Goldstein, PLLC                      1303 San Jacinto Street
        1875 Connecticut Avenue, N.W.                   Houston, Texas 77002
        10th Floor                                      909-285-1279/Fax: 909-285-1279
        Washington, DC 20009                            allisonedwards@example.net
        909-285-1279/Fax 909-285-1279
        allisonedwards@example.net

        /s/ David S. Morris
        William T. “Tommy” Jacks
        Texas State Bar No. 10452000
        David S. Morris
        Texas State Bar No. 24032877
        FISH & RICHARDSON P.C.
        One Congress Plaza, Suite 810
        111 Congress Avenue
        Austin, Texas 78701
        909-285-1279/Fax 909-285-1279
         allisonedwards@example.net
        allisonedwards@example.net                                                 *Admitted pro hac vice




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