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Letter from Brady Campaign (7/24/18)

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Letter from Brady Campaign (7/24/18)
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    717 Texas Avenue | Suite 1400 |Houston, TX 77002 blankrome.com Blank Rome LLP | blankrome.com  Phone: (713) 632-8696 Fax: (713) 228-6605  Email: dcabello@blankrome.com July 24, 2018 Via Hand Delivery The Honorable Robert Pitman United States District Court for the Western District of Texas 501 West 5 th  St., Suite 5300 Austin, TX 78701 Re:  Defense Distributed et al v. United States Department of State et al.,  (Case No. 15-CV-00372-RP). Dear Judge Pitman: We write on behalf of the Brady Center to Prevent Gun Violence (“Brady Center”), Everytown for Gun Safety (“Everytown”), and Giffords Law Center to Prevent Gun Violence (“Giffords”), the leading organizations dedicated to the prevention of gun violence in America. We submitted an amicus curiae  brief in the Fifth Circuit appeal in this matter on behalf of the Brady Center, and the Court’s opinion invited us to remain involved as follows: The amicus briefs submitted in this case were very helpful and almost all supported Plaintiff-Appellants’ general position. Given the importance of the issues  presented, we may only hope that amici continue to provide input into the broader implications of this dispute.  Defense Distributed v. United States Dep’t of State , 838 F.3d 451, 461 (5th Cir. 2016). Earlier this month, Giffords and the Brady Center submitted public comments on proposed rule changes by the State and Commerce Departments that would deregulate the posting of  blueprints for the production of 3D printed guns like that planned by Defense Distributed here. 1   1  Giffords comment re Docket Nos. DOS-2017-0046, BIS-2017-0004 (July 9, 2018), available at http://www.forumarmstrade.org/uploads/1/9/0/8/19082495/giffords_exports_letter_7-9-18.pdf. A copy of both comments is attached as Exhibit A.   July 24, 2018 Page 2 www.BlankRome.com Boca Raton ã Cincinnati ã Fort Lauderdale ã Houston ã Los Angeles ã New York ã Philadelphia ã Pittsburgh ã Princeton ã San Francisco ã Shanghai ã Tampa ã Washington ã Wilmington   Giffords and Brady expressed concern that the proposed rules would not adequately protect the nation’s national security, foreign policy and anti-terrorism interests, and also questioned whether the proposed rules adequately addressed around the contemplated changes. Giffords noted in  particular that the proposed changes would “result in an increase in the number of untraceable firearms” made with “3D printing technology” and questioned the effect of the proposed changes on this ongoing litigation. We respectfully submit this letter to bring to the Court’s attention the troubling, dangerous, time-sensitive, and potentially illegal terms of the settlement agreement recently executed by the  parties. Immediately upon learning about the settlement, Everytown and the Brady Center submitted Freedom of Information Act (“FOIA”) requests to the Department of Justice and the Department of State for additional information about the settlement and the surrounding circumstances. Simply put, the Department of Justice and State Department have suddenly and completely reversed themselves about the threats to public safety posed by plaintiffs’ proposed actions. The resulting settlement agreement, if carried through, threatens to undermine national security and the national defense of the United States by authorizing the posting and downloading of computer files allowing the fabrication of dangerous make-at-home firearms by any person anywhere in the world. These are the very concerns which prompted the government’s intervention in the first place. We appreciate the unusual nature of this letter and wish to advise that we are working diligently to take legal action in this Court, including seeking immediate injunctive relief. We intend to do so by July 26, 2018. In this regard, as this Court may be aware, pursuant to the now- public settlement agreement in this matter, plaintiff Defense Distributed intends to make all of its firearms-related Computer Assisted Design (“CAD”) files available via its website within a matter of days, by August 1, 2018, if not sooner. It is highly unlikely that the Government will provide any additional documents regarding this settlement pursuant to the Brady Center’s FOIA requests  before the parties implement the key terms of this settlement. Given the extremely short time frame and the potentially significant and permanent impact to national security and public safety of making the CAD files available online, we feel compelled to bring this issue to Your Honor’s attention as soon as practicably possible, so that this Court has the opportunity to take any steps it deems proper to see that justice is done while this matter is still pending,  see Fed. R. Civ. P. 1, including but not limited to calling the parties in to discuss the issues laid out below. Background As this Court is aware, the plaintiffs filed this action in 2015, seeking, inter alia , an injunction to prevent the government from barring Defense Distributed’s export of CAD files. These files “directly facilitate the manufacture of weapons” through “automated processes.”   July 24, 2018 Page 3 www.BlankRome.com Boca Raton ã Cincinnati ã Fort Lauderdale ã Houston ã Los Angeles ã New York ã Philadelphia ã Pittsburgh ã Princeton ã San Francisco ã Shanghai ã Tampa ã Washington ã Wilmington   Defendants’ Motion to Dismiss Second Amended Complaint at 1,9, filed Apr. 6, 2018 (ECF No. 92). The Government strenuously objected to the plaintiffs’ request for an injunction, arguing that it was “particularly concerned that [the] proposed export of undetectable firearms technology could be used in an assassination, for the manufacture of spare parts by embargoed nations, terrorist groups, or to compromise aviation security overseas in a manner specifically directed at U.S. persons.” Defendants’ Opposition to Plaintiffs’ Motion for a Preliminary Injunction, filed June 10, 2015 (ECF No 32). Accepting the Government’s arguments, this Court denied the Plaintiffs’ motion for a preliminary injunction, finding among other things that the public interest in national defense and national security outweighed any countervailing interests. The Fifth Circuit upheld this Court’s ruling,  Def. Distributed v. United States Dep't of State , 838 F.3d 451 (5th Cir. 2016), and the Supreme Court denied the Plaintiffs’ petition for a writ of certiorari earlier this year.  Def. Distributed v. Dep't of State , 138 S. Ct. 638 (2018). After the Supreme Court denied cert, this Court lifted the stay on proceedings and entered a scheduling order, pursuant to which the Plaintiffs filed a Second Amended Complaint on March 16, 2018. See ECF Nos. 77, 88 and 90. On April 6, 2108, the Government filed a motion to dismiss the complaint, arguing that the CAD files at issue “can unquestionably facilitate the creation of defense articles abroad” and that “the Department of State has consistently and reasonably concluded that it is not possible to meaningfully curtail the overseas dissemination of arms if unfettered access to technical data essential to the production of those arms is permitted.” Motion to Dismiss at 3,7 (ECF No. 92). The Government told this Court that: At issue in this litigation is the United States’ ability to control the export of weapons – a system of laws and regulations that seeks to ensure that articles useful for warfare or terrorism are not shipped from the United States to other countries (or otherwise provided to foreigners) without authorization, where, beyond the reach of U.S. law, they could be used to threaten U.S. national security, U.S. foreign policy interests, or international  peace and stability.  Id  . at 1. Mere weeks after the Government stressed to this Court the critical national security reasons for prohibiting the export of Defense Distributed’s automated blueprints, the parties informed the Court that they had “reached a tentative settlement agreement” in the matter, “subject to formal approval by Government officials with appropriate approval authority.” Plaintiffs’ Unopposed Motion to Stay Proceedings to Complete Settlement filed Apr. 30, 2018 (ECF No. 93). According to news reports containing first-hand accounts from the plaintiffs, “the government surprised the plaintiffs by suddenly offering them a settlement with essentially everything they   July 24, 2018 Page 4 www.BlankRome.com Boca Raton ã Cincinnati ã Fort Lauderdale ã Houston ã Los Angeles ã New York ã Philadelphia ã Pittsburgh ã Princeton ã San Francisco ã Shanghai ã Tampa ã Washington ã Wilmington   wanted.” 2  On June 28, 2018, the parties filed a status report with the Court, indicating that they “expect to conclude the agreement and submit a stipulation for dismissal on or before August 4, 2018.” (ECF No. 95). The settlement agreement was executed by both parties on June 29, 2018 and was made  public on July 10, 2018 via a media blitz orchestrated by the plaintiffs. 3  What appears to be an accurate copy of the agreement is now available on the internet. 4  A copy of the posted agreement is attached hereto as Exhibit B.  Pursuant to the Settlement Agreement, in consideration for the plaintiffs’ dismissing the action, the Government has agreed to: a.   “[C]ommit[ ] to draft and to fully pursue, to the extent authorized by law (including the Administrative Procedure Act), the publication in the Federal Registrar of a notice of proposed rulemaking and final rule, revising USML Category I to exclude the technical data that is the subject of this Action.”  b.   “[A]nnounc[e], while the above-referenced final rule is in development, [ ] a temporary modification consistent with the International Traffic in Arms Regulation (ITAR), 22 C.F.R. § 126.2, of USML Category I to exclude the technical data that is the subject of the Action. The announcement will appear on the DDTC website,www.pmddtc.state.gov, on or before July 27, 2018.” c.   “[I]ssu[e] [ ] a letter to Plaintiffs on or before July 27, 2018 . . . advising that the Published Files, Ghost Gunner Files, and CAD DFiles are approved for public release (i.e. unlimited distribution) in any form and are exempt from the export licensing requirements of the ITAR because they satisfy the criteria of 22 C.F.R. § 125.4(b)(13).” 2  Andy Greenberg, “A Landmark Legal Shift Opens Pandora’s Box for DIY Guns, Wired (July 10, 2018  ), available at   https://www.wired.com/story/a-landmark-legal-shift-opens- pandoras-box-for-diy-guns/. 3   See e.g., Greenberg,  supra n.1; Josh Blackman, “DOJ, Second Amendment Foundation Reach Settlement in Defense Distributed Lawsuit,” Josh Blackman’s Blog (Jul. 10, 2018), available at   http://joshblackman.com/blog/2018/07/10/doj-second-amendment-foundation-reach-settlement-in-defense-distributed-lawsuit/. 4   See “Settlement Agreement,” https://www.exportlawblog.com/docs/Defense%20Distributed%20Settlement%20Agreement.pdf ; Alexander Bosch, “The Daily Bugle Weekly Highlights: Week 28 (9-13 Jul 2018), Full Circle Compliance, https://fullcirclecompliance.eu/the-daily-bugle-weekly-highlights-week-28-9-13- jul-2018/.
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