Op-ed | We’ll need more than Trump’s Space Policy Directive to fix commercial remote-sensing regulations

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This op-ed originally appeared in the June 25, 2018 issue of SpaceNews magazine.

There has been significant discussion surrounding commercial space regulatory reform following President Trump’s signing of Space Policy Directive 2. Among other things, SPD-2 addresses the need to modernize outdated commercial remote-sensing regulatory practices. At the rate the commercial sector is innovating, regulatory practices will need to be agile, evolving quickly while still providing needed order and protections. This would require fewer bureaucratic barriers in both regulatory process and its evolution. Unfortunately, bureaucracy plagues just about every corner of the U.S. government. For the commercial space industry, commercial remote sensing faces particularly sharp bureaucratic pains.

NOAA, the federal agency currently responsible for licensing commercial remote-sensing systems — as delegated by the Department of Commerce — requires a strict cross-organizational approval process before it can license a remote-sensing system. The process is meant to protect critical U.S. interests but not limit commercial innovation and growth. Maintaining the delicate balance between enabling the commercial sector and protecting critical U.S. national security interests and international obligations will continue to be difficult for NOAA given the pace of commercial innovation, however. Take for example EarthNow, the commercial remote-sensing startup backed by Airbus, SoftBank, Bill Gates and OneWeb founder Greg Wyler.

EarthNow, according to its website, aims to deploy “the first satellite system expressly designed to deliver real-time, intelligent video observations of the Earth.” U.S. regulators have yet to deal with such a service. As such, current commercial remote-sensing regulations will be pushed to their limits.

Commercial remote sensing is broadly defined but includes all spaceborne systems which actively or passively collect data about the Earth’s surface. At its origin, commercial remote-sensing legislation was designed to develop the United States’ digital geo-information market. With an eye toward the future, the U.S. Land Remote Sensing Policy Act of 1992 was meant to stimulate the development of the commercial market while preserving “national security interests, foreign policy and international obligations.” In addition to the act, the 2003 National Security Presidential Directive 27 and the 2006 Licensing of Private Land Remote Sensing Space Systems final rule reflect the evolution of U.S. commercial remote-sensing regulations. Collectively, the evolution reveals the difficult balance of enabling the commercial sector while protecting critical U.S. interests and obligations.

EarthNow says it plans to launch a constellation of hundreds of satellites to provide continuous global video of the Earth in real-time. The applications include monitoring conflict, illegal fishing, sea levels, forest fires, among others. In addition to government applications, EarthNow plans to have a mass-market application accessible from smartphones. While the specifics on the technology, like imagery resolution, haven’t been released, real-time video imagery of the entire Earth certainly represents a significant leap in commercial remote-sensing technology.

For new, innovative commercial remote-sensing activities, regulators will have to make tough decisions to balance government and commercial priorities. NOAA has been improving in their regulatory role, and still, they have been caught off guard by novel commercial remote-sensing operations, such as SpaceX’s inclusion of a camera on the Tesla Roadster it launched toward Mars as part of its Falcon Heavy demo in March.

Those at NOAA are doing their best and reforms are in the works, but real-time video imaging of our entire planet like EarthNow is proposing is a first of its kind. Though the technical advancement would bring much needed capacity to the U.S. intelligence, surveillance, and reconnaissance (ISR) architecture, the mass-market product will likely conflict with many national security interests, foreign policy and international obligations.

The April 2017 Memorandum of Understanding between Departments of Commerce, State, Defense, Interior, the Office of the Director of National Intelligence, and the Joint Chiefs of Staff concerning the Licensing and Operation of Commercial Remote Sensing Satellite Systems details the “interagency consultation process for adjudicating remote-sensing licensing actions, and the consultation process for the interruption of normal commercial operations pursuant to the Act and applicable directives.” Importantly, not only must all parties to the memo approve a license, they can also interrupt routine service for national security interests, foreign policy or international obligations. Additionally, real-time video (even at degraded resolutions) raises individual privacy considerations that are not currently addressed in commercial remote-sensing policies.

There are big technical and functional differences between daily still photos (like Planet or Google Earth) and real-time video. More importantly, current regulatory safeguards, like resolution restrictions, delaying the release of data, and operational control requirements, among others, may prove more difficult or complicated to enforce with live video than with still imaging. For example, the increased amount of information gleaned from real-time video — opposed to still imagery — would require limiting commercial resolutions to a greater extent, or otherwise conflict with government priorities. Equally, while implementing a safeguard, like delaying the release of data, may be appropriate for still imagery, to do so for a live feed would require the unexpected interruption of an otherwise continuous service, which can be very telling in and of itself.

Limited real-time global ISR is currently a capacity that only the most developed states have through large, costly satellites or fleets of unmanned aerial vehicles. Even still, the most advanced ISR architectures don’t provide real-time video of the entire Earth. Advanced military systems are designed to provide critical battlefield advantages and situational awareness is one of the most important.

As technology continues to evolve and proliferate, the average person gains access to resources once reserved for only the most developed states, changing the strategic dynamic. While regulations would restrict the mass-market product from having the same resolution as the product provided to the government, real-time video at resolutions useful to farmers, for example, would still introduce new concerns.

According to SPD-2, President Trump is “committed to reform these [regulatory] systems in order to ensure American companies have every advantage in the international marketplace.” While that is all well and good, commercial remote-sensing systems can offer America’s adversaries critical technological capabilities which conflict sharply with national security interests. Though the directive is a positive step, conflicting commercial and national interests will complicate finding a solution.

A statement from EarthNow’s leadership suggests NOAA is supportive, but this is uncharted territory for NOAA, as it will be for the State Department, DoD, the intelligence community and other agencies required to approve a commercial remote-sensing license. Importantly, it is hard to envision a regulatory process that doesn’t require similarly complex interagency consultation when priorities touch on all “national security interests, foreign policy and international obligations.”

Regardless of where U.S. regulators are now, technology will continue to evolve. The challenge going forward will be to create practical regulatory frameworks which allow the commercial remote-sensing market to develop at a pace matching commercial innovation. Commercial remote-sensing regulators will have their work cut out for them.


Adam Routh is a research associate with the defense program at the Center for a New American Security where he focuses on national security space policy. He is also a former member of the Army’s 75th Ranger Regiment.