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

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

The application is reviewed not only by the Commerce Department but also by the Department of Defense (DOD), the State Department, the Department of the Interior, and any other Federal agencies determined to have a substantial interest in the matter. [74] The Secretary of Defense is responsible for determining the conditions necessary to meet national security concerns of the U.S. and the Secretary of State is responsible for determining the conditions necessary to meet the international obligations of the U.S. [75] Space-based remote sensing applications are reviewed to ensure compliance with those conditions. To comply with U.S. international obligations, applicants must demonstrate the ability to make unenhanced data collected by the system available to the government of any sensed state (including the U.S.) as soon as the data is available and on reasonable terms and conditions. [76]

PDD 23 contains several provisions aimed at combating any potential national security problems as well. [77] Pursuant to the Policy, operators licensed under the 1992 Remote Sensing Policy Act are required to maintain a record of all satellite taskings over the previous year and provide the U.S. Government access to such records. [78] Licensees may not change the operational characteristics of their systems without formal notice and approval of the Department of Commerce. [79] All encryption devices must be approved by the U.S. Government for the purpose of denying unauthorized access during periods when national security, international obligations or foreign policies may be compromised. [80] Furthermore, operators must use a data downlink format [81] that provides the Government access and use of the data during such periods.

B. Specific Protections--Conditions for Operation

It should already be quite evident that significant national security safeguards exist within the 1992 Act, PDD 23 and the interim final rule issued by the Commerce Department to implement the provisions of both the 1992 Act and PDD 23. Various types of conditions for operation may be included in any commercial remote sensing license. Section 960.11 of the interim final rule sets forth 12 minimum conditions that must be included in all licenses, the following six of which are directly relevant to national security:

(1) Specific limitations on operational performance, including, but not limited to, limitations on data collection and dissemination;

(2) A requirement that the operator maintain operational control of the system from a location within the U.S.;

(3) Operators must maintain and make available records of system tasking, operations, and other data as specified in individual licenses for the purposes of monitoring and compliance. Moreover, operators must allow NOAA access to all facilities comprising the remote sensing system for inspection;

(4) Operators may be required to limit data collection and/or distribution by the system as determined to be necessary to meet national security or foreign policy concerns, or international obligations of the U.S. During any such limitation, the operator must provide unehanced images on a commercial basis exclusively to the U.S. Government using encryption and a format that allows the Government access to the data;