In Support of Global Accountability for Private Commercial Space Actors

• Jurisdiction: California,United States,Federal
• Citation: Vol. 48 No. 3
• Publication year: 2020
• topic: Aeronautics,Business of Law,Commercial Litigation,Contracts,Intellectual Property,Labor Law,Federal,Public Sector Law,Technology

In Support of Global Accountability for Private Commercial Space Actors

Julia Selman Ayetey^*

It is a pleasure to share my reflections on the theme "New Norms? Commercial Actors." Modern society is highly dependent on outer space. From agriculture, information technology, medicine, and transportation to energy, the environment and defense, outer space is used for many aspects of day-today life. Most of these services are provided by private companies. Whilst these companies are usually subject to domestic laws, they are not held accountable at an international level despite the fact their conduct may have global implications. My brief remarks center around two issues: the global public interest in space utilization and the need for global standards of accountability for private commercial space actors.

Space law and policy can sometimes appear to be largely concerned with intangible or hypothetical situations. In an effort to accentuate the practical realities of increasing utilization of outer space, the Swarm Technologies ("Swarm") incident will be used to exemplify the importance of the global public interest and the need for global accountability measures for private commercial space actors. The full facts of the incident are multifaceted, however, due to time constraints a summary will suffice.

Swarm is a company based in California. Their objective is to provide low-cost internet to rural communities throughout the globe via satellite. In furtherance of this objective, Swarm applied to the Federal Communications Commission ("FCC") in early 2017 for a license to both launch and operate its experimental "Space BEEs." The Space BEEs were a bundle of four picosatellites, satellites which are relatively tiny compared to the more traditional satellites with which we have become familiar. Picosatellites are currently in a testing phase and not yet in common usage. After Swarm submitted its application to the FCC, both parties engaged in conversations during which it became clear the FCC was concerned the Space BEEs were not going to be (easily) trackable. In December 2017, the FCC denied Swarm's application, stating that to grant the application would be contrary to "the public interest."¹

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Shortly after receiving the notice of rejection and in direct contravention of the FCC's decision, Swarm intentionally and unlawfully had its Space BEEs launched into orbit from India on an Indian rocket. About a month later, the FCC became aware that the Space BEEs had been launched. Its Enforcement Bureau conducted an investigation and found that in addition to the unlawful launch, Swarm had conducted a litany of other unauthorized and illegal space activities. This included illegal communications and experiments between its satellites in orbit and ground stations right here in the state of Georgia.² In December 2018, Swarm admitted liability for violating provisions of the Communications Act 1934 (as amended) as well as the Code of Federal Regulations. Swarm agreed to a number of measures including payment of a $900,000 fine and implementation of a compliance plan.³

Swarm violated domestic law, admitted liability and were, rightly, sanctioned. Some might thus consider the matter settled. However, beyond the fact that the U.S. government would be potentially legally responsible and liable at the international level had the Space BEEs caused any damage, the Swarm incident raises a number of other issues, including its incursion into the global public interest.

Before focusing on the concept of the global public interest, I would first like to highlight a related concept: the global commons—natural resources or areas which are shared by the global community as...