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 the past, the U.S. intelligence community protected its intelligence secrets and methods, as well as other national security interests, in two ways: (1) spatial resolution limitations; and (2) access to data. [59] The Remote Sensing Policy Act and 1994 Clinton Administration Policy on Foreign Access to Remote Sensing Capabilities (Presidential Decision Directive (PDD 23)) diminished the power of these two forms of control by permitting international access to high-resolution commercial imagery. However, the Act, PDD 23 and the regulations implementing them contain significant safeguards for the protection of national security.

A General Protections

Through licensing rules, procedures and conditions for operation, the U.S. government not only complies with the relevant international law but also seeks to protect national security interests. To date, the Department of Commerce has not issued final regulatory rules and procedures under the 1992 Remote Sensing Policy Act. On November 3, 1997, the National Oceanic and Atmospheric Administration (NOAA) published a set of Proposed Rules and Regulations. [60] Based on the amount of substantive comments received, NOAA determined it appropriate to revise the proposed rules and seek further public comment. [61] From 1987 through August 30, 2000, the Rules and Regulations in effect consisted of those promulgated under the 1984 Act. [62] On July 31, 2000, the Department of Commerce issued an interim final rule which became effective on August 30, 2000. [63] The interim final rule requires a commercial remote sensing operator to obtain at least three and possibly four different licenses: (1) a remote sensing operati ng license; (2) a radio frequency license; (3) a launch license; and (4) an export license (if required). [64]

The Land Remote Sensing Policy Act and interim final rule set out in detail operating licensing procedures and operating conditions. [65] Under the Act, the Secretary of Commerce is authorized to license private parties to operate private space-based remote sensing systems in consultation with other appropriate U.S. Government agencies. [66] Licensing authority has been delegated to the National Oceanic and Atmospheric Administration (NOAA). [67] The Secretary is also empowered to condition and transfer licenses. [68] A license may not be issued until the Secretary determines that the applicant will comply with all of the requirements of the act, any regulations issued pursuant to the act, and any international obligations and national security concerns of the U.S. [69] The Secretary may terminate, modify, or suspend licenses on an immediate basis if the Secretary determines that the licensee has substantially failed to comply with the Act, the terms and conditions of the license, or with the international o bligations and national security concerns of the U.S. [70] It is strictly prohibited to operate a private remote sensing system without a license. Any person [71] who is subject to the jurisdiction or control of the United States who operates or proposes to operate a private remote sensing space system, either directly or through any subsidiary or affiliate, or who establishes substantial connections with the U.S. regarding the operation of a private remote sensing system, must obtain a license to operate the system. [72] Once a license has been issued, operators are required to notify the Secretary of any deviation from the submitted orbit and data collection characteristics of the remote sensing system. [73]