Proceedings of the Workshop - United Nations Office for Outer ...

EXPANDING GLOBAL REMOTE SENSING SERVICES 109satellites, which previously had been unencrypted.EUMETSAT plans to continue this practice into theforeseeable future.82 Encryption, by design, is intendedto inhibit access to all except those with the proper"key." Whatever the motive, even well-justified, effortsto characterize this as anything other than a move awayfrom the principle of openness is contrary to fact andlogic. As to its effect on the expansion of global remotesensing services, at most this practice will enhance theability of a few services while decreasing the ability ofmany others.The revised WMO practice is far from the lastword, positions and issues will continue to be defined.It will also have to be reconciled with other dataexchange policies like the CEOS principles in supportof operational environmental use for the publicbenefit.83 Often members of one group are alsomembers of another, making the reconciliation an ongoingprocess. Whatever the outcome, there are twothings that are certain. First, weather data restriction isan on-going issue. Second, no single satellite operatingnation no matter how politically or economicallypowerful can control the international rules concerningweather data acquisition and distribution. From thispoint on, determining the law will be an evolvingmultilateral process.Industry and "availability"licenses for private systems pursuant to the new law.85As part of the licensing process, the Department ofCommerce issued a Notice of Proposed Rulemakingwhich solicited public comment regarding theregulations it was formulating.86 The remote sensingcommunity subsequently engaged in a debate regardingthe proposed rules.Chief among the questions raised was how thenondiscriminatory access policy would be applied toprivate system operators. The Policy Act contains asensed-state provision which requires that licensees"make available to the government of any country,including the United States, unenhanced data collectedby the system concerning the territory under thejurisdiction of such government as soon as such dataare available and on reasonable terms and conditions."87One position advanced in the debate was, if data isunavailable to the licensee due to system design orbusiness practice then the data is unavailable forpurposes of the sensed-state provision.88The question of what constitutes "availability"under nondiscriminatory access had been raisednumerous times under both international and UnitedStates domestic law. Each time, the answer was thatmaking data available is an integral element ofnondiscriminatory access, without which, the principlewould be violated and rendered meaningless.89When the United States Congress passed the 1992 LandRemote Sensing Policy Act (Policy Act)84 it authorizedthe United States Secretary of Commerce to issue85 Policy Act, supra note 9, at ' ' 5621 - 5625.82 Agreement Between the United States National Oceanic andAtmospheric Administration and the European Organisation forthe Exploitation of Meteorological Satellites on an Initial JointPolar-Orbiting Operational Satellite System, signed by theNOAA Administrator and EUMETSAT Director, 19 November1998, Washington, D.C. [hereinafter, IJPS Agreement],83 Committee on Earth Observation Satellites, Coordination forthe Next Decade 1995 CEOS Yearbook, at 7, (1995).84 Policy Act, supra note 9, at 15 U.S.C. §§ 5601 - 5642(1992).86 62 Federal Register 59317 (November 3, 1997).87 Policy Act, supra note 9, at ' 5622 (b) (2).88 Divis, Dee Ann, Wrangling Over Remote Sensing;Government Considers Regulation O f Commercial RemoteSensing Satellite Systems, GeoInfo Systems, at 16, (January1998).89 Gabrynowicz, J.I., Defining Data Availability fo rCommercial Remote Sensing Systems Under United StatesFederal Law, 23 Annals of Air and Space Law 93, at 94,(1998), [hereinafter, Gabrynowicz].