New Tech and National Security Law – 3D Printing

For those who haven’t been following along, this recent story about 3D printing of plastic guns should be a revelation.   3D printing is one of those technologies where the reality is fast outrunning our imagination.  It is, in essence, the ability to construct a product from feedstock using a readily available “printer” linked to a computer where the source code for the product is executed.  According the Washington Post’s story, the new plastic guns are capable of firing lethal rounds and, naturally, they are beyond the detection of metal detectors. But for every “parade of horrible story” about 3D printing there’s also one of great promise.  For example, NASA recently announced plans to send a 3D printer to the space station.  This development, combined with the development of printing for metal objects (from liquid metal feedstock) means that many of our concepts of logistics will go out the window.  If a manufacturer can construct metal parts from an easily transported feed stock then, as Andrew Filo, a consultant with NASA on the 3D space station printing project, said: “You can get rid of concepts like rationing, scarce or irreplaceable.”  That’s a truly extraordinary development. To take just one more (non-National Security) example, the healthcare upside of 3D printing is immense and the possibilities limitless. The new hip replacement you need will be custom made just for you.  As a result some speculate that product liability will be much less frequent than it is with normal manufacturing --  3D products are not mass produced. The idea is that 3D takes mass production and turns it into mass customization.  Implications for intellectual property and patent law are mind-boggling as well. But this is a blog about National Security law, not commercial law.  So let’s just speculate for a moment on some of the legal and policy issues for national security that are likely to be impacted by the growth of 3D printing.  Here are few that I came up with over the course of a week of cogitation – I’m sure that others will occur to readers:

• Military contracting and procurement processes will have to be substantially changed.    Right now, most procurement of hardware works through a traditional “waterfall” model – requirements are developed; bids are sought; a product is produced.  Any change in requirements tends to significantly increase the price.  With the advent of 3D production, the model of development will become much more agile.  Upgrades and modifications will become the norm and they will be easy to implement – just change the code that guides production.  Production costs will now be based on the costs of feedstock, not the costs of a sophisticated manufacturing process for new weapons or platforms.  The defense industry’s pricing model will have to be modified as well.
• Export control laws will be almost unenforceable.  Today, where hardware is manufactured in large production facilities that are sited within the United States, the export of hardware can be controlled.  If that same hardware is nothing more than the evocation of a software program, the export prohibition on the software will be almost impossible to implement.  We learned this lesson back when we tried to ban the export of cryptographic algorithms and it is no less true today than it was in the 1990s.
• The corollary of this is that new production software will become some of the most highly prized and classified secrets our government has.  And that, in turn, suggests we will need to rethink classification law and enforcement, since if the Snowden disclosures teach us anything it is the increasing difficulty of keeping digital secrets.
• Homeland security screening paradigms will be outdated – leading either to more intrusive physical searches or more aggressive use of predictive analytics.  Plastic guns are just the tip of the iceberg.    To find contraband it is likely that government will need to be proactive.
• If, as some say, “code is speech” then  manufacturing might become protected First Amendment expression.  Admittedly, this one is a bit speculative – but we saw resonances of this in the encryption debates.
• Arms control will also become difficult, if not impossible.   Unless we can monitor 3D printing code capabilities, an adversary will be able to rearm almost at will.  If, for example, we outlaw cluster munitions, they will be easily recreated with software code – and it will be impossible to control the development and retention of code.
• Indeed, the only form of arms control that =might= work is a 3D printer limitation treaty.  But 3D printers are likely to be ubiquitous.  They will be a classic dual use technology, capable of manufacturing either commercial goods or military material.  One suspects that few countries would be willing to outlaw or limit their commercial manufacturing capability in the interests of arms control.

I could go on, but you get the idea – 3D printing is likely to severely disrupt our concepts of warfare and weaponry.  And that means that our legal concepts will be stretched, if not, broken by new technological reality.