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

EXPANDING GLOBAL REMOTE SENSING SERVICES 119capability, the licensee must seek additional approval.163Second tier approval can also include requiringgovernment consultation before complying with arequest from a sensed state.164This raises a number of legal issues. The first is,upon what statutory basis are second tier restrictionsbased? If they are based on the applicable licensingauthorities,165 then a complete license can be grantedinitially and the multi-part process is an unnecessary,and perhaps an unauthorized, administrative procedure.If the second tier authority is an attempt to addressconditions not contained in the applicable authorities,then the statutory basis for the second-tier license isquestionable.The second question raised by a tiered approach isanalogous to the first: which agency has the licensingauthority for the second set of conditions? The PolicyAct the statutory basis for licensing private systemsauthorizes only the "Secretary of Commerce."166 Other"appropriate" agencies have "consultation" but notlicensing authority.167 If by requiring the licensee toreturn to the government for second tier authority, thelicensee is also required to obtain new approval from anagency other than the Commerce Department, then itmay be that the second tier process is a procedureoutside of the private system licensing authority.A third question raised by the two-tier processregards nondiscriminatory access. Nondiscriminatorybetter than 5-meter resolution to customers other than the U.S.government" To sell to non-US government customers will"require an amendment to the license" Restriction was placedby "Pentagon officials." [hereinafter, Space News 1.]163 Id.164 Space Technology Development Corporation license for itswide-area, hyperspectral Naval EarthMap Observer (Nemo)satellite in cooperation with the U.S. Navy, issued March 26,1999, [herein after STDC license]. Id.165 15 U.S.C. §§ 5621 through 5625; PDD 23. supra note 156.166 15 U.S.C. §5621.access applies to private systems by specificCongressional intent168 and operational activities likeonboard processing can not be used to preventaccess.169 Absent a national crisis, license requirementsthat modify operations and which preventnondiscriminatory access to commercial system data bya sensed state violate international and domestic law.170When national security is jeopardized, restrictions nototherwise allowable, are, of course, permissible. Thequestion then becomes, what standard is used to imposethe restrictions? The standard has shifted from adefinable "crisis" to a nebulous possibility that anynumber of policies might be compromised. In the firstlicense the standard was "[i]n the event of a nationalsecurity crisis, as defined by the Secretary ofDefense,",171 and has expanded to the proposed standardwhich is, "[d]uring periods when national security orinternational obligations and/or foreign policies may becompromised, as defined by the Secretary of Defense or168 Gabrynowicz, supra note 89 at 100."It thus seems clear that the United States should continue itspolicy of nondiscriminatory data access when space remotesensingactivities are commercialized. The Committee hasdrafted the legislation to reemphasize this policy forcibly, andto give it for the first time a statutory basis. Further, [it] hasbeen drafted to provide clear guidance to the Secretary ofCommerce and any system operator with respect to thecommercial implications of a policy of nondiscriminatoryaccess." H.R. Rep. No. 98-647, 98th Cong., 2d Sess., 10-13(1984)."[T]he Committee has refrained from making any changes inthe nondiscriminatory access provision as it applies to privatesystems. Specifically, the Committee is reluctant to take anyaction which: 1) could interfere with U.S. Treaty obligations; 2)might revive debate in the United Nations about the legitimacyof remote-sensing without prior consent by the sensed nation;and 3) sets a precedent which might lead other nations toimpose increased restrictions on access to their data from theirgovernment-operated remote-sensing systems." H.R. Rep. 102-539, 102d Cong., 2d Sess., 53, (1992).169 ABA, supra note 27, at 145-147.170 Gabrynowicz, supra note 89.167 15 U.S.C. §5621. 171 Worldview, supra note 158.