On May 3, 2013, the first completely plastic 3D-printed gun was fired. (1) It was printed with a melted polymer material on an $8,000 printer. (2) The gun fired one shot and then exploded into shards. (3) Less than three weeks later another individual using a cheaper, stronger polymer and a printer that was a quarter of the cost, printed a different plastic gun. (4) This gun fired nine consecutive rounds. (5) In March of 2015, Mr. Joseph DeSimone gave a TED Talk entitled What if 3D Printing was 100x Faster? (6). During the 15-minute talk he printed a complex, golf ball-sized object that consisted of "concentric geodesic structures (7) with linkages between each structure." (8) The object is impossible to manufacture using traditional manufacturing methods, including molding and milling. (9) Where a typical 3D printer would have taken three hours or more to print the object, Mr. DeSimone demonstrated that newer 3D printing technology could print the object in less than seven minutes. (10) These just a few examples that demonstrate how quickly 3D-printing technology is advancing.
Today a 3D printer costs less than $500 and can print nearly any object modeled with three-dimensional modeling software. (11) The widespread availability of 3D printers combined with the ability to print objects subject to legal restrictions, for example guns and drugs, demanded the attention of governments around the world, (12) and some have already taken action. In 2015, New South Whales, Australia enacted a bill that made it a crime to possess "digital blueprints for the manufacture of firearms on 3D-printers." (13) Additionally, in 2013 Philadelphia became the first U.S. city to enact an ordinance prohibiting the 3D printing of firearms or firearm parts by anyone not licensed by the Attorney General to manufacture firearms under 18 U.S.C. [section] 923(a). (14) Although these actions appear to be primarily concerned with the unregistered manufacture of firearms, 3D printing presents other significant issues that governments should consider. These include dangers associated with the 3D printing of weapons other than firearms (15) and its implication to commercial air travel, the health risks associated with the ability to 3D print food (16) and drugs, (17) and the industrial safety and health hazards that may arise with 3D printing's enablement of home-based manufacturing, which some claim is the basis of the next industrial revolution. (18) Though some lawmakers took steps to address one of the many issues that 3D printing presents, the revolutionary nature of the technology suggests a broader question: what approach, if any, should be taken to manage the broader set of risks associated with 3D printing?
To address this question, this Article argues that governments ought to proactively consider preemptive legislative or regulatory actions regarding 3D printing. The primary considerations should be to ensure that as 3D printing technology evolves, existing laws are not circumvented; that the technology does not put the health and safety of the public at risk; and that it does not sacrifice national security. This is not to suggest a knee-jerk reaction to uncertain or imaginary dangers, but rather an approach that permits lawmakers to react meaningfully and efficiently to real dangers as they manifest themselves, while not impeding innovation in 3D printing and supporting technologies.
To accomplish this objective this Article looks at the concepts of "permissionless innovation" and the "precautionary principle." (19) These concepts represent opposing ends of the regulatory spectrum; the former promoting a "wait-and-see" approach while the latter promotes a preemptive or preventative approach to government regulation. (20) After defining these terms the Article will describe the characteristics of technologies that lend themselves either to permissionless innovation or to the precautionary principle. It will provide a few specific areas where policies of each type have been employed, and why it may or may not have been appropriate. The Article then describes 3D printing and its characteristics in order to explain why it would be irresponsible for governments not to take some preemptive steps regarding 3D printing. These steps should be designed to manage the significant health, safety, and national security risks that 3D printing presents, while promoting innovation that enhances and improves our standard of living and the general economic welfare. In this sense, the article responds in opposition to Messrs. Adam Thierer's and Adam Marcus' position in their 2016 article Guns, Limbs, and Toys: What Future for 3D Printing?, (21) in which they argue that permissionless innovation should be the default position for 3D printing technology. (22)
In his revised and expanded 2016 book, Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom, Mr. Therier defines permissionless innovation as "refer[ring] to the notion that experimentation with new technologies and business models should generally be permitted by default." (23) The crux of the argument is that lawmakers should "permit" uninhibited experimentation and risk-taking with new technologies until and unless there is a compelling reason to do otherwise. (24) That is, only upon the occurrence of a real harm or problem, or the demonstration that serious harm will come to society as a result of unchecked innovation, should lawmakers act. (25) The primary rationale for the position is rooted in economics. (26) Defaulting to permissionless innovation, the argument goes, "helps advance long-term economic growth." (27)
Perhaps the most compelling example of the extraordinary difference that permissionless innovation made, relates to its impact on Internet-based technologies. Mr. Therier cited the Telecommunications Act of 1996 (28) as a key enabler of permissionless innovation that in turn resulted in the explosive growth of Internet capabilities. (29) In particular, [section] 230 of the Act protected actions taken by Internet service providers to block or screen offensive material and eliminated liability for those actions. (30) It also eliminated liability associated with enabling other content providers to similarly block or screen offensive material. (31) More importantly, the Act shielded Internet service providers from being treated as the publisher or speaker of content provided by another content provider. (32) Section 230 also eliminated liability pursuant to any state law inconsistent with it. (33) This "immunization" from liability for content traveling on service-provider networks was intended to allow the facilitation of free speech via the Internet and the development of beneficial interactive computer services ("ICSs"). (34) Along with "The Framework for Global Electronic Commerce" released by the Clinton administration, [section] 230 formed the basis for the Internet's explosive growth because it precluded precautionary governmental regulations. (35) Rather, it promoted private-sector self-regulation. (36) For example, it encouraged ICS providers to police defamatory or illegal content through self-regulation by providing immunity where they acted as a "Good Samaritan" in blocking that content. (37) Personal data protection or privacy, is another important area where ICS providers self-regulate. (38)
There is no question that the permissionless innovation approach resulted in profound beneficial changes to the general economic welfare. (39) The question is, does the fact that permissionless innovation worked well for the Internet, make it an appropriate default position for other technologies? In his book, Mr. Therier asserts that permissionless innovation should be the default for Big Data, Internet of Things, Private Drones, Wearable Technologies, Immersive Technologies, Smart Cars, the Sharing Economy, and 3D Printing. (40) With the exception of private drones, smart cars, and 3D printing, all of these are primarily information collection or information sharing technologies. "Big Data" refers to the collection and analysis of large amounts of shared data to detect patterns applicable to some purpose. (41) "Internet of Things" refers to a vast collection of sensors that collect data on physical phenomena and share that data on the Internet other processes use. (42) For example, an application of the "Internet of Things" concept is a collection of thermometers that measure and share historical temperature data that is then used by a "smart" thermostat to adjust the heating or cooling of a building. "Wearable Technology" is a particular category of sensors that are worn and collect data on the wearer's physical activities and conditions. (43) "Immersive Technologies" are interactive information-based simulations that make digital information seem real. (44) Finally, the "Sharing Economy" is information sharing via the Internet about un- or under-utilized resources (e.g., cars, apartments, or houses). (45) Drones and smart cars also use information collection to accomplish their tasks, however, unlike the other technologies described above, they can, and do, have significant physical real-world, and potentially disastrous, effects. (46) It is not surprising that lawmakers have sought to take action related to these two technologies. Legislation, for instance, has been introduced to address concerns smart car remote hacking, (47) and Congress ordered the FAA to "come up with a plan to integrate drones into domestic airspace" because of safety issues related to the sharing of that airspace with commercial airplanes. (48) It would seem that where physical safety resulting from the real-world effects of a technology is a concern, lawmakers feel compelled to respond to its potential dangers. Like smart cars and drones, 3D printing breaches, are referred to here as the...