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

120 EXPANDING GLOBAL REMOTE SENSING SERVICESthe Secretary of State."172 Although the proposedstandard has yet to be formally adopted, a current radarsystem licensee is already restricted from providing datato a sensed state.173 A current license also requires ahyper-spectral system operator to first consult withNOAA, who in turn consults with DoD and the StateDepartment, when a sensed state requests data.174 Underthe broad proposed standard, the licensee could berequired to deny the requested data on the merepossibility that a "policy...may be compromised."A special question of openness is rased if a licenseapplicant is a news-gathering agency, or will serve alegitimate news-gathering agency for legitimate newsgatheringpurposes. This raises specific FirstAmendment doctrines in the licensing process regarding"shutter control." The standard in the proposed rules isif national interests "may be compromised."175 TheGovernment could require a licensee to stop imagingand/or distributing data of a particular area. Thisstandard falls far short of the Constitutional FirstAmendment standard that a prior restraint can only beimposed where there is a "clear and present" danger.176A license restriction based on what "may" occur is animpermissible prior restraint. Additionally, theproposed rules provide that the decision to imposeshutter control will be made "at the Secretarial level."In the case of restricting a Constitutionally guaranteedFirst Amendment freedom, like news-gathering, theproper procedure is to seek a determination of legalityin a court. Placing the decision "at the Secretarial level"as to whether or not a newsgathering activity may beimpeded is to substitute a political decision for a legaldecision.172 Proposed Licensing Of Private Remote-Sensing SpaceSystems, 15 C.F.R. § 960.10, at 59328, (1997), [hereinafter,Proposed Rule].173 Space News 1, supra note 162.174 STDC license, supra note 164.175 Proposed Rule, supra note 172 at 59318.176 Schenck v. United Stales, 249 U.S. 47, at 52 (1919).Finally, it should be expected that openness, in thiscase in the form of commerce, will be compromised tothe degree that conflict exists or is believed to exist.Conversely, it can be expected that in times of lessconflict, the more openness will be fostered. If conflictprevails then more militarily-required regulations willcontinue because the new restrictions are attempting tocontrol advanced capabilities which provide anadvantage in times of crisis. Where the existence ofconflict is debatable, it should be noted that the currentregulations provide a bias toward openness. Theyrequire that where "a tension between the policy ofpromoting the commercial use of remote-sensingsystems and the policies of promoting national securityinterests" the Secretary of Commerce has the"discretion [to] undertake reasonable efforts tosatisfactorily resolve the matter in favor ofcommercialization."177Unsurprisingly, some of these legal issues are tiedto political ones. A primary political issue is regardingthe role that commercial imagery will play in the futureof national security. This issue is being addressed interms of the Future Imagery Architecture, the NationalReconnaissance Office (NRO)/DoD initiative to definetheir next generation of satellites. There is strongCongressional support for a large measure of privateparticipation in future national security activities,particularly in the form of using private systems formilitary operations. It is unclear whether relevantnational security institutions agree. The use of privatesystems is discussed further in the next section.Joint Vision 2010, the proposed doctrine of"Space Control," and employing privatesector remote sensing systems for militaryusesWith the end of the Cold War and the turn of themillennium, institutions around the world are lookingahead for new purpose and direction. This includes themilitary whose responsibility and effectiveness depends177 Licensing Of Private Remote-Sensing Space Systems, 15C.F.R. § 960.1, at 267, [Revised as of January 1, 1998].