"Ghost guns," underage sex, and the First Amendment: Defense Distributed's legal saga

[Tama]

Legal turmoil for company rolls on as Cody Wilson faces felony charges for sex with a minor.

<https://arstechnica.com/tech-policy/2019/01/with-founder-out-on-bail-whats-next-for-3d-gun-printer-defense-distributed/>

Plenty has happened since Ars last took a moment to outline the legal mishegas involving Defense Distributed, its founder Cody Wilson, and the future of 3D-printed guns.

After a surprising settlement with the Department of Justice in summer 2018 ended a five-year legal battle, Defense Distributed finally had the go-ahead to legally publish its 3D-printable firearms CAD files online. Wilson initially announced the files would be restored on August 1, 2018-but he put them up early, on July 27.

Within days, several US states sued to stop the distribution. On July 31, a federal judge in Seattle granted a "temporary restraining order" (TRO) preventing Defense Distributed from further publishing its 10 firearms files. Wilson and Defense Distributed complied.

The move also prompted Defense Distributed itself to preemptively sue the state of New Jersey in an attempt to try to stave off further legal pressure.

Despite the legal hullabaloo, even Wilson acknowledged that the files were not substantively different from ones that had circulated on BitTorrent for years-nor were they different from ones that continue to be available through various mirror sites.

At the end of August, Wilson arranged Defense Distributed's first official press conference at an Austin hotel. In an effort to comply with the TRO, the then-CEO announced that, rather than give the files away for free, Defense Distributed would sell them, pay-what-you-want style, for a "suggested price" of $10.

The files would not be available directly online; rather, they would be delivered via a Defense Distributed-branded flash drive sent by mail. (Ars successfully bought one.)

Less than three weeks later, this legal back-and-forth was bumped from the headlines by a separate Wilson saga. In late September 2018, the Austin Police Department unexpectedly issued an arrest warrant for Wilson, who was accused of sexually assaulting an underage teenager on August 15. The alleged incident took place just weeks before the Defense Distributed press conference.

Authorities soon laid out a narrative substantiated by what they described as testimony from the girl and hotel, parking, and video records.

Local police didn't have Wilson in custody, however, because the firearms activist was overseas in Taiwan. Wilson skipped his return flight after authorities believe he was tipped off about the accusations. Through an international effort, Wilson was eventually taken into custody in Taipei and escorted back to Texas, where he was booked then quickly released on bond.

The incident led Wilson to resign from his own company despite Defense Distributed's increasingly heated legal battles. Suddenly, those efforts against various state attorneys general would be led by an unlikely new leader, Paloma Heindorff. A British woman with a background in the arts rather than weaponry, she had worked at Defense Distributed for three years. By her own admission, she had never even shot a firearm before 2015.
Today, three primary cases involve either Wilson or Defense Distributed: State of Washington et al. v. Department of State et al, which is underway in federal court in Seattle; Defense Distributed v. Grewal et al, which is pending in federal court in Austin; and State of Texas v. Cody Wilson, which is just starting to unfold in Travis County court, also in Austin.

What has happened in these cases so far, and how are they related-or not? Perhaps more importantly, what are the stakes for Defense Distributed and for the distribution of its CAD files? Let's break down the situation.

1) What's the status of State of Washington v. Department of State?

The case is moving ahead at a normal, methodical pace.

On August 28, 2018, US District Judge Robert Lasnik granted the plaintiffs' motion for a preliminary injunction-in essence, mandating that Defense Distributed cannot publish its relevant CAD files.

"It is not clear how available the nine files are: the possibility that a cybernaut with a BitTorrent protocol will be able to find a file in the dark or remote recesses of the Internet does not make the posting to Defense Distributed's site harmless," he wrote.

As Ars previously reported, the judge also found that the plaintiffs were likely to succeed based on their argument that the Department of State, in allowing for a modification of federal export law, had unwittingly run afoul of a different law, the Administrative Procedure Act.

In essence, the judge concluded that, because the Department of State did not formally notify Congress when it modified the United States Munitions List, the previous legal settlement that Defense Distributed struck with the Department of State-which allowed publication of the files-is invalid.

Since then, no substantive rulings have been issued.

In mid-November, the federal defendants asked for the case to be put on hold for four months while the State Department considered new rules that "will directly bear on this case." In a filing, government lawyers explained that if the State Department goes ahead with its proposed final rule, there will be no question that Defense Distributed can legally publish its files.

In early December, the plaintiffs began the process of civil discovery-trying to force Defense Distributed to hand over relevant materials related to the company's support of file hosting elsewhere. Primarily, this is about an August 28, 2018 promo video. The original version (seen below) urged supporters to "host the files or pay the tax for the men who will." This video was quickly edited and re-released to remove the line.

Washington state's lawyers did not like this at all. As they wrote:

> Indeed, as discussed below, the Private Defendants appear to have an exceedingly narrow understanding of what it means to "export" the files in violation of federal law: they erroneously believe it is limited only to posting the files on their own website. Their mistaken belief underscores the need for discovery to determine whether and to what extent they may be involved in illegal and dangerous exports. Similarly, Defense Distributed may well be mailing the files to individuals who are ineligible to possess firearms, without checking their age, criminal history, or other eligibility requirements. The threat of "violations of gun control laws" if 3D-printable firearm files were to proliferate is a significant aspect of the harm to which the injunction was addressed.

(In light of that concern, it's worth noting that, when Ars Features Editor Nathan Mattise bought a USB stick with the files from Defense Distributed, the company did not ask about his citizenship or check his age, criminal history, or any other eligibility requirements. The purchase simply required address information for billing and shipping.)

In response, Defense Distributed told the court that it shouldn't even be part of the lawsuit. Furthermore, the company's lawyers argued, the plaintiffs (including the state of Washington) "have no right to rifle through the Private Defendants' papers, no right to demand disclosure of the Private Defendants' membership lists, and no right to demand disclosure of who the Private Defendants have been talking to, who they plan to talk to, and how they carry out their constitutionally protected advocacy."

By the end of December, federal lawyers again asked that the case be put on hold to allow the export rules to be fully changed, which "would render the current controversy moot." But the plaintiff states requested again that the judge order compelled discovery.

Judge Lasnik has yet to rule on either the discovery question or the stay question. No further hearings have been scheduled, and there has been no more news about federal changes to the export rules. (The four-month time frame of the requested stay would approximately end in March).

2) What is the status of Defense Distributed v. Grewal?

There are a few important distinctions between State of Washington and the Grewal case, which will be heard in federal court in Austin next week.
State of Washington didn't limit Defense Distributed's business directly. But Grewal is a case initiated by Defense Distributed, its legal team, and the Second Amendment Foundation because these plaintiffs believe New Jersey is directly targeting them. In Grewal, Defense Distributed hopes a judge will grant its latest motion for a preliminary injunction, thus stopping what the company sees as New Jersey's "campaign of harassment" against it.

The "Grewal" in the case is Gurbir Grewal, the current New Jersey attorney general and the first Sikh attorney general in American history. In filings, Defense Distributed argues that it is being deprived of civil rights like freedom of speech because of legal actions from Grewal and the state. The case began taking on a particular relevance for Defense Distributed when, in the fall, the state of New Jersey finally enacted Senate Bill 2465, a criminal law essentially aimed at "ghost guns." That law prohibits:

> distribut[ing] by any means, including the Internet, to a person in New Jersey who is not registered or licensed as a [gun] manufacturer... digital instructions in the form of computer-aided design files or other code or instructions stored and displayed in electronic format as a digital model that may be used to program a three-dimensional printer to manufacture or produce a firearm, firearm receiver, magazine, or firearm component.

In light of the law, Defense Distributed altered its business.

"Out of fear of prosecution by New Jersey, Defense Distributed refrains from continuing to offer and advertise its digital firearms information to persons in New Jersey," the company argued in its motion for a preliminary injunction (PI).

Defense Distributed believes the New Jersey law violates the First Amendment, the Commerce Clause (which allows Congress, not states, to regulate commerce with foreign nations), and the Supremacy Clause (which gives federal law precedent over state law) of the US Constitution. As such, it first asked the court to grant a Temporary Restraining Order on November 9, shortly after SB2465 went into effect. The court denied that request on November 13, noting that the threshold for a TRO is high and that Defense Distributed's argument did not reach it.

TROs rely on a four-point test that involves criteria including a need to establish "a substantial threat that irreparable harm will result if the injunction is not granted" and "the threatened injury outweighs the threatened harm to the defendant." Defense Distributed tried again on December 4, claiming a misinterpretation by the court. The court denied that second motion for a TRO on December 6.

Defense Distributed is now arguing instead for a preliminary injunction. A TRO only concerns a statute (in this case, SB2465) whereas a PI can ask a court to halt a broader array of actions. Defense Distributed seeks this, according to attorney Joshua Blackman, because New Jersey has "waged a campaign against Defense Distributed." On top of the legal case and the new law, New Jersey sent several cease and desist letters to entities like the hosting and firewall companies working with Defense Distributed.

"When they signed this bill into law, for example, the governor mentioned Defense Distributed and the attorney general mentioned Cody," Blackman told Ars. "They've made direct statements about Defense Distributed throughout the entire policy."

New Jersey has already responded to the PI motion. New Jersey argues Defense Distributed's case for a PI is not "appreciably different" from the TRO motions that have been twice denied, and it says the courts should not review things further until state courts have a chance to weigh in on the constitutionality of the new statute. Defense Distributed and its colleagues filed a reply to this reply late last month, insisting that there's more than just the statute harming the company and its efforts.

A hearing regarding the PI is set for January 15.

Leading up to this courtroom showdown, Defense Distributed has called New Jersey's law "totalitarian" and claimed that "even an attempt to circulate a novel firearms manufacturing concept (read: innovate), in a totally different corner of the country or world now makes one subject to political imprisonment in the wastelands of New Jersey."

3) What's the status of State of Texas v. Cody Wilson?

Wilson has been out on bond since the fall, and he's being monitored, as evidenced by a court motion that allowed him to visit family for the holidays. Despite the September arrest, Wilson and his personal legal team have yet to appear in court. Previously scheduled dates in November and December 2018 were each pushed back, a common occurrence in cases where an individual has yet to be indicted.
On December 28, Texas finally indicted Wilson on multiple sexual assault of a child and indecency charges. Each of the eight counts he faces is punishable by up to 20 years in prison and a $10,000 fine. Wilson is scheduled to be formally arraigned on February 1.

Prosecutors have not been idle in the time between Wilson's arrest and his indictment. Multiple search warrants have been granted for authorities to look at Wilson's iPhone and iCloud data, to take photos of him that might match with the victim's descriptions, and to obtain information from SugarDaddyMeet.com, the website where Wilson allegedly met the underage woman. Just this week, a new court filing shows that authorities will collect a DNA specimen from Wilson, too.

Wilson has not made any public statements, and he has not returned any messages from Ars. The only post-indictment comment available instead came from one of his new attorneys, F. Andino Reynal.

"Mr. Wilson at all times believed reasonably that the complaining witness was a consenting adult," Reynal told the Austin-American Statesman. "We are confident that once all of the facts are out and we have a chance to interface with the DA's office more directly that we'll be able to resolve this matter."

4) How are the three cases related?

They're not. The three legal cases are distinct and have no official bearing on one another despite the two federal cases-State of Washington and Grewal-involving many of the same issues.

The criminal case in Texas against Wilson is also separate from the other two cases involving Defense Distributed. The fact that the company appears to have continued apace without Wilson shows that those legal fights will likely continue even if Wilson is incarcerated.

5) How is Defense Distributed doing as a company?

Ars has confirmed that it remains business as usual at Defense Distributed-as much as business can ever be "usual" for the provocative firearms company. Engineer John Sullivan told us he's full-speed ahead working on as-yet-to-be-announced products, while visiting GhostGunner.net shows Defense Distributed's full product suite remains available for purchase (outside of New Jersey, of course).

The last round of available sales statistics came during Heindorff's introductory press conference last fall. In September, she noted that Defense Distributed's donation-driven legal defense fund had reached $400,000. She also announced 3,000 Ghost Gunner sales that, at roughly $1,500 each, would provide $4.5 million in revenue. (That's on top of what Wilson told Ars in summer 2018; by his estimate then, he had sold approximately 6,000 Ghost Gunners by that point, for roughly $9 million in revenue.) Those figures don't include USB sales, which Wilson said reached $20,000 on the first day of availability back in August 2018.

Still, during what seems to be her only public comments since being installed as director, Heindorff said that she expects Defense Distributed to need more funds if the legal efforts continue.

"We did a big fundraiser recently which went pretty well. Obviously it's moving along, but I imagine we'll have to do another fundraiser to keep things going," she told Gun Talk on September 30, 2018. "But we've been fighting this battle for a long time, and a lot of our products from the company go straight into that. We also have a great partnership with the Second Amendment Foundation. We've been footing that bill, but we'll need to ask for help in the future I imagine if [the states] keep attacking us like this."

The other major update for Defense Distributed in a business sense is that Heindorff has now fully assumed her role as director. The company's Public Information Report (PIR) with the Texas Comptroller's Office no longer carries any trace of Wilson. The same cannot yet be said for Ghost Gunner, Inc., the "manufacturing concern managed by Defense Distributed." That entity is separate under the Texas Comptroller's office, and it's the organization that customers interact with when purchasing any Defense Distributed products. As of January 10, 2019, Wilson remains listed as the director in the organization's PIR. (However, organizations typically have until May to file reports for the prior year.)

Perhaps the biggest impact of Wilson's removal thus far has simply been about Defense Distributed's public profile-the organization just seems quieter. Wilson never shied away from chatting with the press or from taking public shots at his legal opponents (whether that involved the State Department or more recently state attorneys general).

Heindorff, by comparison, has been quieter. Leading up to the next preliminary injunction hearings in the case with New Jersey, no cable news hits happened. Instead, Defense Distributed simply posted a statement on its LEGIO site.

Still, Heindorff did star in a quick trailer for the upcoming hearing with the state of New Jersey.

6) If Defense Distributed loses on all fronts, what will change?

Here's the thing-the files at issue have already been online for years. There's no sign that this will change any time soon. And of the mass shootings that have plagued America in recent years, all have involved conventional firearms, not 3D-printed ones.

So what's the end game? Back in the fall, Heindorff told Gun Talk that the legal campaign against the company was about depleting Defense Distributed. "The way I see it is the object here is not to present a legal argument, not to present a legal case, but to simply run us out of resources, to disable us from being able to fight," she said. But Sullivan reiterated what Wilson once told us nearly six years ago: this battle isn't about guns that currently exist; rather, it is about forthcoming firearms.

"Our plight isn't to defend the files that are already out there, but rather to defend Jane Q Public's ability to create and express herself publicly, using 21st-century communications channels," Sullivan emailed Ars. "A ruling against DD would substantially alter Jane Q Public's ability to access First Amendment-protected concepts regarding Second Amendment technologies."