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

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

IV. CONCLUSION

Space-based remote sensing consists of collecting data regarding the surface of the earth via satellite. Various technical means are employed to collect the data. The information gleaned from such data can be used in a variety of applications. Existing international legal instruments essentially require national regulation of space-based remote sensing activities. Under the prior consent of the sensed State and any data collected should be made available to everyone on a non-discriminatory basis.

The 1992 U.S. Remote Sensing Policy Act opened the door to private remote sensing operators. The widespread availability of high-resolution imagery presents a paradox for the military. On the one hand, they can certainly benefit from the use of such imagery. On the other hand, providing too much information to potential adversaries about sensitive U.S. military installations and operations could prove devastating to overall military operations.

A fundamental precept under the Remote Sensing Policy Act is the protection of national security. An extensive regulatory regime exists under the Act and is aimed at balancing the competing interests of the commercial remote sensing industry and national security concerns. Through limitations on operational performance, an extensive monitoring and compliance program, limitations on foreign involvement, and limitations on data collection and/or dissemination or "shutter control," the U.S. law, policy and regulatory regime adequately protect national security while preserving the viability of the commercial industry.

The greater threat to U.S. national security may well be posed by the advancing technologies of foreign remote-sensing operators. While the U.S. can control its own commercial remote sensing industry, it cannot control those of other states. To resolve this potential threat, U.S. officials should exert diplomatic pressure on foreign states to implement practical and legal controls on the dissemination of commercial remotely sensed data similar to those of the U.S. Moreover, as high-resolution imagery becomes increasingly available from foreign sources, it may become necessary to conclude bilateral or multilateral treaties with other states providing for controls on the distribution of data in times of crisis.

(*.) Captain Hoversten (B.S., Park College, J.D., University of Mississippi, LL.M, McGill University) is assigned as Chief Air and Space Law Branch, International and Operations Law Division, Office of the Air Force Judge Advocate General.

(1.) See M. Umberger, Commercial Observation Satellite Capabilities, in COMMERCIAL OBSERVATION SATELLITES AND INTERNATIONAL SECURITY 9 (M. Krepon et. al., eds., 1990) [hereinafter Commercial Observation Satellite Capabilities].

(2.) The term "resolution" can have different meanings. For the purposes of this paper, resolution corresponds to the size of the smallest discernible object in an image.

(3.) See Commercial Observation Satellite Capabilities, supra note 1.