U.S. national security and government regulation of commercial remote sensing from outer space

Air Force Law Review, Wntr, 2001 by Michael R. Hoversten

CAPTAIN MICHAEL R. HOVERSTEN [*]

I. INTRODUCTION

Space-based remotely sensed imagery became commercially available on a world wide nondiscriminatory basis in 1972 with the advent of the United States of America's (U.S.) Earth Resources Technology Satellite (ERTS). [1] Until that time, such information was the exclusive province of military and intelligence communities of the major world powers. With the launch of the French Systeme Probatoire d 'Observation de la Terre (SPOT) I satellite in 1986, remotely sensed imagery with ten meter resolution [2] became commercially available. In 1987, the former Soviet Union made data with five meter resolution available. [3] Today, Space Imaging Inc., a private company, sells images with better than one meter resolution on the international market and hopes to achieve 0.5 meter resolution by 2004. [4] While Space Imaging Inc. was the first to produce commercial images for sale, "only Space Imaging, Inc. has put a one-meter craft into orbit, other companies in the U.S., Russia, Japan, Israel, and South Korea are planni ng to follow suit. [5] It is estimated that the remote sensing market will generate $2 to $2.5 billion dollars in revenue by 2005. [6]

From its beginning in the early 1960s and through the mid 1980s, remote sensing activities were operated by the U.S. government. In 1984, the U.S. attempted to privatize the industry with limited success. [7] Space-based remote sensing by private companies became possible when the U.S. Congress passed its 1992 Land Remote Sensing Policy Act (Remote Sensing Policy Act) authorizing the Secretary of Commerce to issue licenses for private space-based remote sensing systems. [8] The Clinton Administration gave the go-ahead to sell remotely sensed data internationally in 1994. [9]

The commercial availability of high-resolution imagery presents both a great benefit and a deep concern for U.S. national security and military operators. On one side of the coin is the fact that the U.S. government is a primary customer of the commercial remote sensing industry. The military is certain to benefit from access to high-resolution commercial imagery, potentially saving it the billions of dollars required to produce, field and operate some space-based remote-sensing systems. There is a dark side, however. Just as the military will have access to high-resolution commercial imagery, so too will the general public and foreign entities, allies and adversaries alike. Without proper protections, military movement and buildup, the lay-out of military facilities and even the locations of individual pieces of military equipment could be made available to the public eye within a matter of hours. Obviously, this circumstance could have grave consequences for military operations and U.S. national security. W ith the potential profits to be realized and technological advances to be achieved from the commercialization of space-based remote sensing, it is clear that a balance must be struck between maintaining the viability and profitability of the commercial industry and protecting the national security of the U.S.

This article examines the national security safeguards incorporated into U.S. law, regulations, and policy. It also examines the way in which the needs of the commercial industry have been balanced with national security concerns. Section II provides background information, including relevant definitions, a technical summary of space-based remote-sensing, a brief discussion of remote-sensing applications, and a synopsis of the relevant international law. Section III analyzes how law, policy, and the regulatory regime promulgated to implement the law and policy actually protect national security, and attempt to balance that protection with the needs of commercial industry. A final section summarizes the examination contained herein, and draws some concluding observations.

II. BACKGROUND INFORMATION

A. Definitions, Technology & Applications

1. Definitions

Under the Remote Sensing Policy Act, land remote sensing is defined as "the collection of data which can be processed into imagery of surface features of the earth from [a] ... satellite ..." [10] In essence, space-based remote sensing is the collection of data regarding the surface of the earth by satellite. Various technical means are employed to accomplish data collection from space.

There are four types of remote sensing data or information: (1) raw data, (2) unenhanced data, (3) processed data, and (4) analyzed information. Raw data is data collected by a satellite that has not been processed at all. Unenhanced data basically consists of energy signals that have been preprocessed beyond raw data but have not yet been processed into a usable image or other product. [11] Processed data is defined as "the products resulting from the processing of the primary data, needed to make such data usable." [12] Processed data can then be further analyzed and once it has been so analyzed, it is referred to as "analyzed information." Analyzed information is information gleaned from the interpretation of the processed data, including inputs of data and knowledge from other sources. [13] For example, a processed image may clearly depict an aircraft. However, to ascertain the type of aircraft the image must be analyzed using outside data or knowledge. Once processed and analyzed, remote sensing data ca n be utilized for a variety of applications.