Litigation Highlight: State of Washington v. United States Department of State

  • Date:
  • November 19, 2019

This case traces its beginnings to a nonprofit by the name of Defense Distributed. Defense Distributed’s avowed purpose is to facilitate “global access to, and the collaborative production of, information and knowledge related to the three-dimensional (3D) printing of arms.” To that end, in 2013 the organization published computer aided design (CAD) data files that would enable users to print various guns using a 3D printer. The Department of State promptly advised Defense Distributed to take down the files, and later found that some (though not all) of the CAD files were subject to and in violation of the Arms Export Control Act’s (AECA’s) implementing regulations, the International Traffic in Arms Regulations. The AECA authorizes the President to control the importation and exportation of defense articles in “furtherance of world peace and the security of foreign policy of the United States.”

Defense Distributed filed a lawsuit in District Court in Texas, challenging “the federal government’s power to regulate its publication of the CAD files on the internet.” In April 2018, the government moved to dismiss the claims, arguing that “3D-printed weapons posed unique threats to world peace, national security, and the foreign policy of the United States” and therefore are subject to regulation under the AECA. Later that month, however the parties reached a settlement. The Department of State “abandon[ed] its prior regulatory and litigation positions” and agreed (1) to temporarily modify the United States Munitions List (USML) so as to allow the immediate distribution of the CAD files, and (2) issue a letter authorizing the on-line publication of certain CAD data files.

Following publication of the temporary modification of the USML, eight states and the District of Columbia filed suit in the Western District of Washington and sought a summary determination that the Department of State violated the Administrative Procedures Act (APA) in reaching the settlement. The APA provides that a “reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law . . . [or] without observance of procedure required by law (emphasis added).

The District Court in this suit first found that Department of State’s action was “without observance of procedure required by law.” Specifically, the agency “failed to give thirty days’ notice to the Congressional foreign relations committees specified in 22 U.S.C. § 2778(f)(1)” when it modified the USML and issued the letter.

Secondly, the court held that the Department of State’s action was “arbitrary and capricious” in two respects. First, it failed to consider aspects of the problem that Congress mandated the agency to take into account. Specifically, despite the fact that Congress “directed the agency to consider how the proliferation of weaponry and related technical data would impact world peace, national security, and foreign policy” the Department of State considered only “whether restricting foreign access would provide the United States with a military or intelligence advantage (emphasis added).” Secondly, the Department of State did not provide a reasoned explanation for its abandonment of the conclusion that the CAD files posed a threat to national security (a conclusion that triggered the original Texas suit).

The temporary modification and letter were therefore held to be unlawful and were vacated.