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

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

Due to the increasing availability of commercial imagery, the international community may conclude that to protect both national and world security interests, the creation of some type international shutter control is in order. International shutter control could arise from diplomatic pressure or it could arise in the form of formal bilateral or multilateral treaties. While high-resolution imagery can play an important role in world security by creating transparency and monitoring compliance with arms control treaties, States are likely to remain concerned about the implications of high-resolution imagery on their national security when systems similar to those in the U.S. become common throughout the world. The resulting collective concern may lead to some form of international agreement or agreements containing provisions similar to that of the U.S. shutter control.

C. The KyI-Bingaman Amendment

The U.S. has already made a move toward protecting the security interests of its allies. The U.S. has advocated nondiscriminatory access to space-based remote sensing data since the inception of the data distribution debate in the late 1960s. [122] This position, for the most part, has not changed unless national security concerns dictate otherwise. The 1992 U.S. Land Remote Sensing Policy Act requires that any unenhanced data generated by any land remote sensing system funded and owned by the U.S. Government be made available to all users on a nondiscriminatory basis and on reasonable terms [123]. In accord with the UN remote sensing principles, the Commerce Department's interim final rule includes a requirement that all unenhanced data be made available on a nondiscriminatory basis. [124] This requirement applies to any cases in which the U.S. Government funds all or a substantial part of the development, fabrication, launch, or operation costs of a remote sensing system. [125] If the U.S. government has no t provided any such funding, unenhanced data collected by a remote sensing system must be made available to the government of any country, upon request, concerning only the territory under the jurisdiction of such government in accordance with reasonable commercial terms and conditions.

Thus, U.S. Government funded systems must make all unenhanced data available on a nondiscriminatory basis whereas nongovernment-funded systems need only make unenhanced data available to "sensed states." However, there is an exception to these general rules. The data need not be so provided where the release is contrary to national security, foreign policy or international obligations. Additionally, under two-tier licenses, only data and imagery licensed for commercial sale is subject to these requirements, and even then the operator is required to notify NOAA of any sensed-state requests. If the U.S. Government has provided some of the funding, NOAA, in consultation with other appropriate U.S. agencies, shall, subject to national security concerns, determine whether any data should be made available on a nondiscriminatory basis. There is some evidence to suggest that the U.S. may be backing away from its "Open Skies" policy, if ever so slightly.