Sound commercial space regulations will accomplish three policy goals: promote industry growth, satisfy international obligations, and preserve national security. Policymakers should apply this Rule of Three as a framework for devising dynamic space policies.
The Commercial Space Act of 2023, introduced in the U.S. House of Representatives last month, aims to streamline regulatory processes for commercial space activity, create a favorable competitive environment, and enable the continuation of U.S. leadership in space activities. When analyzed using the Rule of Three framework, it comes up short. While it checks the box for satisfying international obligations and offers a light touch that will promote industry growth, it overlooks the goal of preserving national security.
Indeed, the legislation represents a step backwards. It would eliminate –and fail to replace– the mitigation tool the United States currently relies on to protect against the national security risks posed by novel remote sensing capabilities. The Commercial Space Act reflects a common assumption that encouraging industry growth must come at the expense of preserving national security. This is a false choice.
Two Out of Three Ain’t Bad?
The Commercial Space Act would accomplish two of the three components of the Rule of Three rather well.
It would require U.S. commercial entities to hold certifications issued by the Secretary of Commerce for the operation of space objects. These certifications fulfill the requirement to authorize and supervise non-governmental space activities, an international obligation set forth in Article VI of the 1967 Outer Space Treaty. Currently, the United States satisfies this obligation through multiple licensing regimes: the Department of Transportation, through the Federal Aviation Administration (FAA), licenses space launch activities; the Federal Communications Commission (FCC) licenses the use of radiofrequency spectrum (used for communication); and the Commerce Department, through the National Oceanic and Atmospheric Agency (NOAA), licenses private remote sensing (imagery) activities. Some current or near-future space activities, like commercial radiofrequency (RF) services or on-orbit servicing, fall into a regulatory gap outside the scope of FAA, FCC, or NOAA licenses. The new certification proposal will streamline the current licensing regime while closing the gap for those other space activities. If the Commercial Space Act were implemented, the only regulatory mechanisms would become FAA licenses for launch or reentry, FCC licenses for spectrum use, and Commerce Department certifications for everything else.
The new certifications are also designed to promote industry growth. The current regulatory mechanisms under the FAA, FCC, and NOAA “could be improved to relieve administrative burdens on nongovernmental space entities,” according to the legislation’s proposed finding of Congress. The Commercial Space Act would reduce these burdens. Unencumbered freedom for private operators is paramount. “To the maximum extent practicable,” the bill says, “the Federal Government shall interpret and fulfill United States international obligations in a manner that minimizes regulations and limitations on the freedom of United States nongovernmental entities to explore and use outer space.” Also, nongovernmental activities “shall only be authorized and supervised in a manner … that places minimal costs and burdens on the authorized and supervised nongovernmental entities.”
Unsurprisingly, then, the requirements for a certification are minimal. Operators must submit an application asserting the contact information of the United States national(s) taking responsibility for the space object; proof that the applicant is a United States entity; the planned date and location of launch and the identify of the launch provider, if available; the general physical form and composition of the space object; a description of the proposed operations, including when and where it will operate, and when and where operation will terminate; a space debris mitigation plan; and information regarding third-party insurance liability obtained, if any. The applicant must further attest that the space object will not carry – and is not itself – a nuclear weapon or a weapon of mass destruction (in compliance with Article IV of the Outer Space Treaty), that the space object will not be operated as a weapon or weapon of mass destruction, and that all information in the application is complete.
The ability of the United States to impose conditions or restrictions on certified space operations are similarly minimal. Conditions are permitted “only to the extent necessary to prevent a violation” of “an international obligation of the United States pertaining to a nongovernmental entity of the United States under the Outer Space Treaty.” Furthermore, only the Secretary of Commerce may determine if such conditions are necessary, and the Secretary is guided by language that limits how the Outer Space Treaty may be interpreted. “The Federal Government shall interpret and fulfill its international obligations under the Outer Space Treaty,” the bill declares, in a manner that “minimizes regulations and limitations on the freedom” of private operators and that “promotes free enterprise in outer space.” Conditions for reasons other than Outer Space Treaty compliance, such as for national security reasons, are not contemplated or authorized.
Trading National Security for Minimal Regulation and Maximum Freedom
The Commercial Space Act would also consolidate licensing mechanisms within the Commerce Department by repealing subchapter III of 51 USC § 601, which for decades has provided the legal authority for licensing private commercial remote sensing operators. The current NOAA remote sensing licenses would be replaced by the new certification mechanism. The effect of this change on national security would be profound.
Domestic space law must reconcile the countervailing policy goals of promoting industry growth and preserving national security. Nowhere is this more apparent than in the laws and regulations that govern remote sensing. Remote sensing reveals the nature and location of human activities on or about the Earth. This presents risks because it can expose U.S. national security activities and vulnerabilities. Security risks can be mitigated by imposing conditions on U.S.-licensed remote sensing operators. However, licensing conditions can be futile and even counterproductive if foreign operators who are not subject to U.S. regulations are technologically capable of posing the same risk. When foreign operators are equally capable, then licensing conditions on U.S. operators serve only to harm the ability of those U.S. operators to compete. Accordingly, good policy will strike an appropriate balance between the competing interests of protecting national security and enabling unencumbered commercial operations, and it will be dynamic enough to accommodate changes in technology or circumstances.
Recently, in 2020, NOAA’s remote sensing rules were recalibrated to achieve better balance and dynamism. Under those new rules, licensed systems with sensing capabilities that are the same as those available from foreign systems are Tier 1 and, generally, not subject to operating conditions. If a U.S. system can collect unenhanced data substantially similar to the unenhanced data available from another NOAA-licensed system, but not from a foreign system, then it will receive a Tier 2 license subjecting it to the possibility of government-directed limited operations (known as “shutter control,” this authority to limit or halt imaging operations has never been exercised). Tier 3 licenses are granted to systems that can collect unenhanced data not available from any other operator anywhere, foreign or domestic. Tier 3 systems are subject to shutter control as well as additional operating conditions carefully tailored to mitigate the security risks they may pose. Tier 3 operating conditions are temporary because they are intended to place the burden of mitigating the risk on the government rather than the operator. On the whole, the recalibrated remote sensing rules have done a good job of reducing regulatory burdens while arming the government with the ability to impose tailored licensing conditions under specific and changeable circumstances.
The Commercial Space Act would remove this important mitigation tool and leave nothing in its place. By repealing the relevant provision of the Land Remote Sensing Policy Act, the Commercial Space Act would eliminate the authority for imposing Tier 2 and Tier 3 licensing conditions. Operators of Tier 2 and Tier 3 systems could then “elect to be immediately considered certified” under the new law and have the terms and conditions of their current NOAA license continue to apply, or they apply for a certification under the new law and continue to operate pursuant to their NOAA license only until such time as the new certification is issued. In short, conditions on current remote sensing licenses would become either short-lived or voluntary. New conditions on new systems on the basis of protecting national security would not be possible under the Commercial Space Act’s certification scheme. Conditions are permitted only when, in the judgment of the Secretary of Commerce, they may be needed to prevent breaches of an international obligation under the Outer Space Treaty.
It is perhaps unsurprising that the Commercial Space Act does not offer adequate tools for mitigating national security risks despite removing the one tool currently available for remote sensing. “The purposes of this Act,” it says at the outset, are to “enhance the existing outer space authorization and supervision framework … to increase transparency and efficiency,” to “reduce the administrative burden” on U.S. nongovernmental entities, and to “ensure that the United States remains the world leader in commercial space activities.” Any reference to national security is absent. By contrast, the 2020 National Space Policy emphasizes in multiple places that commercial regulatory provisions must be “consistent with national security,” and Space Policy Directive-2 from 2018 says it is important that commercial space regulations “protect national security.” By neglecting to consider national security in its stated purpose, the Commercial Space Act demonstrates the importance of framing policy goals holistically in order to achieve holistic outcomes.
The lack of attention to national security in the Commercial Space Act is not the only aspect that warrants scrutiny. The bill also declares outer space is not a global commons, yet it does not define what it means by global commons. This is problematic. The label “global commons” is an obstacle to productive discourse, as I have written here, because it is not found in the Outer Space Treaty, has no authoritative meaning, and can be used in different ways to mean different things. Additionally, the Act declares “no agency may prohibit the launch or operation of a private sector space object in order to comply with a treaty obligation that is not self-executing.” This has implications beyond domestic space law because it would codify an incorrect interpretation of the domestic legal status of non-self-executing treaties. Properly speaking, even non-self-executing treaty obligations are the law of the land, if not a law for the courts, and executive branch agencies must follow the law (as I have written here, in part IV). Undoubtedly, though, the most troublesome aspect of the Commercial Space Act is that it neglects the Rule of Three by promoting industry growth at the expense of preserving national security. Any new commercial space law, policy, or regulations should strive to be balanced enough, dynamic enough, and holistic enough to preserve national security and account for any risks that commercial space activities, remote sensing or otherwise, may pose now or in the foreseeable future. The Commercial Space Act of 2023 misses this target.