In the advent of the “space race,” when the Soviet Union launched the world’s first artificial satellite, Sputnik I, Lyndon Johnson declared that “control of space means control of the world.”[1] The U.S. quickly followed suit with Explorer I.[2] Having started the space race in second place, domestic providers are pushing to maintain a competitive edge against international entities in this sequel. The combined synergy of improvements in satellite imagery resolution, facial recognition technology, real-time imaging, and big data analytical software are transforming the commercial space industry. However, from a legal standpoint, the permissive nature of current international space treaties and U.S. regulations create an environment ripe for abuse. National security safeguards prevent the disclosure of images which may contain information that can be abused by foreign intelligence agencies but have been overwhelmed by the need to compete.
Remote sensing is a method of data collection from a distance using sensors.[3] Satellite sensors use the Sun as a source of energy to collect, record, and transmit information to a receiving station which processes the data into an image.[4] The availability of VHR imagery and processing-intensive image analysis tasks have generated and distributed huge amounts of data, commonly known as “space-based big data.”[5] Some big data analytics offerings include:
(a) Autonomous, self-learning, and self-managing algorithms “trained” to automatically analyze imagery;[6]
(b) Facial detection systems and full-scale identification programs; and
(c) High-power zoom, thermal sensors, Wi-Fi sensors, real-time imagery, GPS systems, and systems to intercept electronic communication installed on LEO smallsat constellations.[7]
The international legal framework governing satellite operations does little to protect national security.[8] For example, the Outer Space Treaty characterizes outer space as the “common heritage of mankind,” demonstrating that signatory States are prohibited from restricting others in outer space, even when orbiting above their territory.[9] Pursuant to the Remote Sensing Principles, sensing and distribution does not require prior consent from the sensed state.[10] Under the international regime, the U.S. government is responsible for U.S. private operators’ activities in outer space.[11]
In 2018, the Department of Commerce (“DoC”) published an advance notice of proposed rulemaking for a two-category framework where license conditions applied to proposed systems were commensurate with the potential risk posed by such systems to national security.[12] Due to public comments criticizing the DoC’s failure to reduce restrictions, there were two major changes in the final rule. First, the DoC retained the categorical classification of systems but used a three-tier approach and based the selection on an analysis of whether the unenhanced data to be generated by the proposed system was already available in the United States or in other nations. Systems that are “substantially the same” as existing foreign systems are considered “Tier 1” with little restriction.[13] Systems that are “substantially the same” as only existing domestic systems are “Tier 2,” with a few more restrictions, such as shutter control.[14] Only systems with “completely novel capability” are considered “Tier 3” and are subject to additional, temporary conditions.[15] Second, the DoC abolished most existing permanent license conditions and eliminated any special requirements for systems, such as synthetic aperture radar (“SAR”) and shortwave infrared or nighttime imaging.[16]
This fragile regulatory regime is easily threatened. For example, Strava is a popular social media platform and mobile app, similar to Facebook, which posts a “global heatmap.”.[17] In 2018, 20-year-old Australian international security student Nathan Ruser tweeted: “Strava released their global heatmap. 13 trillion GPS points from their users…It looks very pretty, but not amazing for Op-Sec. US Bases are clearly identifiable and mappable.”[18] In order to fully digest the complexity of what the Strava case study represents, there are three relevant components to keep in mind: (1) the heatmap is created with only a “few hundred dollars” of computing costs; (2) the U.S. government failed to recognize or appreciate the scope of the threat; and (3) Strava did not break any existing laws by providing this information to the public.[19]
The U.S. has retained several tools to protect national security. First, satellite systems can be shut down in periods “when national security or international obligations and/or foreign policies may be compromised, as defined by the secretary of defense” or when the Secretary of State requires the licensee to limit data collection and/or distribution, which is known as shutter control.[20] Second, the U.S. government can buy out foreign satellite imagery to control distribution. Following the attack on 9/11, the government bought exclusive rights to all of the high-resolution Ikonos satellite images of Afghanistan.[21] Third, the U.S. government can utilize military resources, such as anti-satellite weapons, against potential threats.[22]
These options have not proven to be effective. First, shutter control has never been officially invoked, and under the new regulations, a majority of operators are no longer subject to shutter control restrictions.[23] Second, U.S. regulations are not binding on foreign entities outside of U.S. jurisdiction. If the U.S. gives up its technological edge in a competitive global market, other foreign entities will quickly capitalize on the opportunity. Third, the U.S. intelligence community (“IC”) and the Department of Defense (“DOD”) have not developed an effective approach to bring emerging commercial satellite capabilities into geospatial-intelligence (GEOINT) operations.[24] In order to balance commercial interests and national security protection, the legal regime will require a binding international treaty and strategic preparation.
[1] Alan Wasser, LBJ’s Space Race: What We Didn’t Know Then (Part 1), The Space Review (June 20, 2005), https://www.thespacereview.com/article/396/1; Nicholas Eftimiades, Small Satellites: The Implications for National Security, Atlantic Council (May 5, 2022), https://www.atlanticcouncil.org/in-depth-research-reports/report/small-satellites-the-implications-for-national-security/; Amanda Onion et al., The Space Race, History (Feb. 22, 2010), https://www.history.com/topics/cold-war/space-race.
[2] Onion, supra note 1; Steve Graham, Remote Sensing, Earth Observatory (Sept. 17, 1999), https://earthobservatory.nasa.gov/features/RemoteSensing/remote.php.
[3] Graham, supra note 2; see also GISGeography, What is Remote Sensing? The Definitive Guide., GIS Geography (May 30, 2022), https://gisgeography.com/remote-sensing-earth-observation-guide/ (explaining that active sensors illuminate its target and measures the reflected light and passive sensors measure reflective light emitted from the sun).
[4] Graham, supra note 2.
[5] Shakila Bu-Pasha & Heidi Kuusniemi, Data Protection and Space: What Challenges Will the General Data Protection Regulation Face When Dealing with Space-Based Data?, 4 Journal of Data Protection & Privacy 52, 53 (2021); Cristiana Santos & Lucien Rapp, Satellite Imagery, Very High-Resolution and Processing-Intensive Image Analysis: Potential Risks Under the GDPR, Air and Space Law 275, 280 (2019).
[6] See Martin M. Zoltick & Jenny L. Colgate, The Application of Data Protection Laws in (Outer) Space, Rothwell Figg 6, 6 (2019) (describing the “Internet of Things” as the widespread incorporation of smart network-connected devices and systems); see also Bing Zhang et al., Progress and Challenges in Intelligent Remote Sensing Satellite Systems, 15 IEEE Journal of Selected Topics in Applied Earth Observations and Remote Sensing 1814, 1814 (2022) (explaining how China, the U.S., and the E.U. are working towards building a next-generation intelligent remote sensing satellite system).
[7] Santos, supra note 5, at 280-82.
[8] See Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies art. 1, Jan. 27, 1967, 18.3 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty]; see also G.A. Res. 41/65, Principles Relating to Remote Sensing of the Earth From Space (Dec. 3, 1986) [hereinafter Remote Sensing Principles]; see generally Convention on International Liability for Damage Caused by Space Objects, Mar. 29, 1972, 24 U.S.T. 2389, 961 U.N.T.S. 187; see generally Convention on the Regulation of Objects Launched into Outer Space, Jan. 14, 1975, 29 U.S.T. 695, 1023 U.N.T.S. 15.
[9] Outer Space Treaty, supra note 8, at art. I.
[10] Remote Sensing Principles, supra note 8.
[11] Outer Space Treaty, supra note 13, at art. VI (explaining that member States have a duty to authorize and supervise space activities over which they have jurisdiction).
[12] 15 C.F.R. § 960 (2019) (responding to President Trump’s Space Policy Directive-2, Streamlining Regulations on Commercial Use of Space which required the Department of Commerce to review its regulations).
[13] Id.
[14] Id.; Edmund L. Andrews, U.S. to Allow Sale of the Technology for Spy Satellites, N.Y. Times, Mar. 11, 1994, at A1 (describing the “shutter clause,” which authorizes the government to shut down satellite systems in periods where national security or foreign obligations could be compromised).
[15] 15 C.F.R. § 960 (2019).
[16] Jeff Foust, Remote Sensing Industry Welcomes Revamped Regulations, SpaceNews (May 21, 2020), https://spacenews.com/remote-sensing-industry-welcomes-revamped-regulations/
[17] Strava, https://www.strava.com/heatmap#7.31/-120.21427/38.32224/hot/all (last accessed Oct. 19, 2022).
[18] Nathan Ruser (@Nrg8000), Twitter (Jan. 27, 2018, 10:24 AM), https://twitter.com/Nrg8000/status/957318498102865920; see also Christiaan Triebert et. al, How Strava’s Heat Map Uncovers Military Bases, N.Y. Times (Jan. 30, 2018), https://www.nytimes.com/video/world/middleeast/100000005705502/big-data-big-problems-how-stravas-heat-map-uncovers-military-bases.html (publishing a short video showing with startling clarity how satellite images combined with Strava’s heat map data revealed multiple U.S. special ops bases in remote locations).
[19] Anne Toomey McKenna et. al., The Role of Satellites and Smart Devices: Data Surprises and Security, Privacy, and Regulatory Challenges, 123 Penn St. L. Rev. 591, 624 (2019).
[20] Presidential Decision Directive on U.S. Policy on Foreign Access to Remote Sensing Space Capabilities, 1994 Weekly Comp. Pres. Doc. (Mar. 9, 1994).
[21] Sarah Scoles, How the Government Controls Sensitive Satellite Data, Wired (Feb. 8, 2018), wired.com/story/how-the-government-controls-sensitive-satellite-data/ (explaining how the U.S. bought out the only high-resolution images available on the market).
[22] Laurence Nardon, Satellite Imagery Control: An American Dilemma, The Centre français sur les Etats-Unis (CFE) 1, 32 (2002).
[23] 15 C.F.R. § 960 (2019).
[24] U.S. Government Accountability Office, National Security Space: Actions Needed to Better Use Commercial Satellite Imagery and Analytics (Sept. 7, 2022), https://www.gao.gov/products/gao-22-106106.
