(by Galen Marston Pospisil, Colorado Law 3L)
Private companies like SpaceX have dramatically changed the market for space launch services, bringing prices down and flexibility up. New satellite operators, both commercial and non-commercial have begun to take advantage of lower costs to orbit. From multi-ton telecommunications satellites to cubesats weighing only a few pounds, growth in non-governmental satellite missions has exploded. However, satellite operators must deal with a maze of regulatory oversight dating back to the earliest days of spaceflight.
TLPC is working with university satellite researchers to ensure that regulators understand the impact of overly burdensome rules on satellite research and academic smallsat missions. Our work at the FCC includes ensuring access to spectrum licenses for university satellites and ensuring that new rules for debris mitigation recognize the unique needs of small satellite missions. However, the FCC is not the only regulatory agency that oversees satellite operations.
Among the cold-war era regulatory systems holding back satellite innovation are rules for earth observation systems overseen by the Department of Commerce. If a spacecraft includes an imaging system of any kind, the operator must obtain a license from, of all places, the Department of Commerce’s National Oceanographic and Atmospheric Administration (NOAA). The Department’s licensing rules for earth observation systems are rooted in Cold War-era space policy where almost all missions were at least affiliated with the U.S. Government. Prior to the adoption of the Land Remote Sensing Commercialization Act, taking satellite photos was exclusively the province of the U.S. Government. The statute was designed to enable commercial innovation in earth imaging while retaining government control over who could image the earth and to whom they could sell the photos to ensure that photos of sensitive governmental facilities did not fall into enemy hands.
The Department’s rules for earth observation systems are extensive and problematic. Satellite operators must apply for a license to launch a satellite containing a sensor capable of viewing the earth’s surface. Such “private remote sensing systems,” in the Department’s parlance, must be under operational control from a location in the United States. Any images captured by the system must be provided to the Department upon request. Operators must submit a “Data Protection” plan to prove to the Department that their imagery is protected by encryption and not available to foreign entities. The rules further define remote sensing systems as “any device . . . capable of actively or passively sensing the Earth’s surface, including bodies of water, from space by making use of the properties of the electromagnetic waves emitted, reflected, or diffracted by the sensed objects.” Nearly all observation of the earth’s surface, no matter how limited in detail would fall under such a broad definition.
The Department’s rules go well beyond the requirements of protecting national security and raise First Amendment issues. The Department’s “remote sensing systems” are nothing more than cameras in space. However, the Department’s rules encompass a wide range of cameras, including those designed for weather and climate observation in the atmosphere that are unable to resolve detail on the Earth’s surface. While the rules present an obstacle to innovation in commercial spacecraft, they also infringe upon the constitutionally-protected right to free speech.
The First Amendment protects a broad array of activities, including gathering information on issues of public interest. While written and spoken words are often thought of as the heart of First Amendment rights, “the Constitution looks beyond written or spoken words as mediums of expression.” Courts have long recognized that there is a “First Amendment right to film matters of public interest.”
Earth observation satellites gather information, in visual and other formats, on issues of public interest, including human rights, climate change, and land use. Earth observation activities are not merely of esoteric scientific interest, they are expressive activity protected by the First Amendment. Researchers and journalists have used satellite imagery to track the size of Chinese reeducation camps, document the Sudanese civil war, measure disappearance of Arctic and Antarctic sea ice, assess development in the Amazon rain forests, and log increasing levels of light pollution.
A traditional First Amendment analysis shows that the Department’s rules are impermissible. Restrictions based upon the content of speech are subject to strict scrutiny and the government “bear[s] the burden of showing their constitutionality.” The Department’s regulatory scheme focuses on the potential content captured by satellite observation systems. Devices capable of sensing the earth’s surface are distinguished from those devices only capable of sensing objects in orbit or on the lunar surface. Distinguishing between types of expression based upon their content is permitted only for a few types of speech, “including incitement, obscenity, defamation, speech integral to criminal conduct, so-called “fighting words,” child pornography, fraud, true threats, and speech presenting some grave and imminent threat the Government has the power to prevent.” Further, the Department’s licensing system for remoting sensing systems requires any potential operator of an earth observation system to apply for a license before launching and operating the spacecraft. As the Court wrote, “any system of prior restraints of expression . . . . [bears] a heavy presumption against its constitutional validity.” The Department’s licensing system requires operators of earth observation satellites to apply for a license prior to engaging in first amendment protected activity and thus amounts to a system of prior restraint.
However, both content-based regulation and regulations engaging in prior restraint are not completely prohibited under the First Amendment. Instead, such regulation is subject to strict scrutiny by a reviewing court. To survive strict scrutiny, the government’s interest must be compelling and the means narrowly tailored to address the identified harm. Here, the government’s stated interest is in protecting national security through restraining the dissemination of satellite imagery. The Court has long recognized that “no governmental interest is more compelling than the security of the Nation.” However, the Court has also rejected overly-broad claims of national security.
The Department has made no attempt to define how its broad rules advance the government’s national security interests. For example, all private remote sensing systems are required to apply for a license, including those unable to resolve anything of detail on the earth’s surface. Many types of sensors used for climate research are capable of resolving only whether they are over land or water, but are still required to apply for a license under the Department’s rules. The Department has not narrowly tailored its rules to address national security concerns. Instead, it has implemented a licensing system for any activity that uses a camera from space. Such an overly broad regulatory scheme must fail to meet the constitutional requirement for narrow tailoring.
Fortunately, the Department has recognized that its rules are outdated and require significant revision to support the continued growth of non-governmental earth observation systems. In 2018, the Department issued an Advance Notice of Proposed Rulemaking seeking comment on its rules. While the Department sought comment on streamlining licensing for certain types of imaging systems, it proposed to retain its broad authority to license all remote sensing systems. As the Department considers issuing a Notice of Proposed Rulemaking to modernize its rules it should take into account the free speech interests of non-governmental spacecraft owners and narrowly tailor the scope of its rules to only those spacecraft that impact national security.