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

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

Shutter control essentially provides the U.S. Government the ability to shut down U.S. commercial remote sensing operators when national security concerns dictate, such as in time of armed conflict. This capability is of great importance to military operations as it ensures that high-resolution imagery depicting military movement, facilities and equipment locations will not be made available to the general public by U.S. commercial operators.

On February 2, 2000, the Departments of Commerce, State, Defense, Interior and the Intelligence Community entered into an inter-agency memorandum of understanding (MOU) outlining the procedures for exercising shutter control. [105] The MOU requires all parties to consult in an attempt to come to an agreement as to the appropriate conditions to be imposed. [106] However, the Secretaries of State and Defense can determine that the urgency of a given situation precludes consultation. [107] Moreover, the MOU makes clear that the Secretaries of Defense and State can exercise shutter control even over the objections of the Secretary of Commerce. [108] Any decision to exercise shutter control will remain in effect until the President reverses it or the secretary making the decision withdraws it. [109]

While the Clinton administration promised a hands-off approach except in extreme situations, American military officials debated whether to impose restrictions on Space Imaging's IKONOS satellite during the Kosovo conflict in 1999. [110] The issue became moot when the satellite was destroyed in a launch mishap arid the replacement satellite was not launched until after the conclusion of the NATO campaign.

The Commerce Department received numerous comments on the November 3, 1997 proposed rules and regulations regarding shutter control. [111] Commercial space-based remote sensing operators asserted that the conditions for implementation were too vague, that there were no clear guidelines as to when the shutter control may be invoked, and that they lacked needed transparency. [112] Shutter control has been criticized as being so vague and over broad that not only is it detrimental to the commercial industry, but it violates the First Amendment to the U.S. Constitution. [113] Critics claim that the uncertainty of the policy makes the space-based remote sensing business a risky undertaking as there are no clear conditions under which the shutter control can be implemented. Critics further argue that the policy deters investment in U.S. companies and systems for the same reason and will only increase foreign competition. Free speech advocates claim the vagueness of the policy gives government officials too much la titude in making the decision to invoke the policy. [114] Some journalists would go as far as requiring a federal judge to approve any shutter control. [115] What the critics fail to acknowledge is that the conditions for implementation must be somewhat vague. It is impossible to predict the precise conditions under which it would be necessary to limit data collection or distribution pursuant to the policy. Furthermore, requiring judicial approval to invoke shutter control would undermine its very purpose. The delay necessitated by judicial approval could prove devastating to national security and even deadly to military troops.