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

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

In 1996, the U.S. Congress passed a law as part of the National Defense Authorization Act for Fiscal Year 1997 restricting the collection and dissemination of imagery with respect to Israel. [127] Under this law, commonly referred to as the Kyl-Bingaman Amendment, private remote sensing operators may not be licensed to sell imagery regarding Israel unless the imagery to be sold is no more detailed or precise than that routinely available from other commercial sources. [128] "Pursuant to that law, the Department of [C]ommerce will make a finding as to the level of detail or precision of satellite imagery of Israel available from commercial sources."[129] At a minimum, the Department of Commerce reviews non-U.S. commercially available imagery on an annual basis. Its findings will be in the Federal Register.[130] At present, the best resolution available from other commercial sources is approximately two meters. [131]

To obtain an operating license, private remote sensing operators must submit a plan explaining how its proposed system will comply with these restrictions. [132] Hence, while private companies such as Space Imaging Inc. are technically capable of producing imagery with better than one-meter resolution, they cannot sell such imagery regarding Israel. Beyond this, the President of the U.S. has the power under the law to designate other countries or geographic areas as falling under the same policy. There are no restrictions or guidelines as to when or under what circumstances the President may make such designations. Presumably, the President would exercise his prerogative for national security or foreign policy reasons but the law places no such restrictions on any designation.

It seems unlikely that the U.S. will significantly back away from its Open Skies policy unless national and world security concerns dictate otherwise. However, the passage of the 1997 Defense Authorization Act opens the door to such a scenario. In 1996, imagery with one-meter resolution was not available on the commercial market. With the currently available high-resolution imagery, it is likely that countries are much more concerned about the dissemination of commercial imagery today than they were four years ago. The problem the U.S. may soon have to contend with is States other than Israel demanding equal treatment. This could pose competitive problems for the U.S. commercial remote sensing industry as well as foreign relations problems for the U.S. Government. In the near future, the U.S. may well be faced with the choice of either abolishing the policy regarding Israel or extending the policy to other States.

D. Miscellaneous Protections

There are additional U.S. laws restricting the collection and distribution of remote sensing imagery in the interests of national security. Federal espionage statutes prohibit gathering and disseminating defense information, photographing defense installations, and gathering and delivering defense information to foreign governments. [133] Additional national security safeguards exist in export control statutes and regulations. For example, during times of crisis, the Trading with the Enemy Act of 1917 is applicable. [134] These laws add to the national security protections contained within the remote sensing regulatory regime.