The Implications of National Security Safeguards on the Commercialization of Remote Sensing Imagery
| Jurisdiction | United States,Federal |
| Citation | Vol. 19 No. 03 |
| Publication year | 1996 |
I. Introduction
In March 1994, the Clinton Administration announced its policy to allow American companies to sell remote sensing imagery to the public and foreign entities.(fn1) The Clinton policy is but one of the legal instruments governing the sale and preparation of remote sensing imagery. It attempts to modernize the United States regulatory scheme to allow United States companies to compete effectively in an increasingly competitive market.(fn2) The policy goals are especially significant because growth in the technological development of remote sensing imagery has outpaced the policies and regulations governing it. The United States has been attempting, since the 1970s, to create a legal framework, domestically and internationally, that provides the private sector with a stable and comprehensive regulatory scheme. With such a scheme in place, the private sector will have the incentive and support necessary to justify the substantial expenses and risks associated with private space ventures.(fn3)
The demand for remote sensing imagery is increasing, and the projected growth of the market of high-resolution imagery is very promising.(fn4) With the growth of a civilian market for remote sensing imagery comes national security concerns. In order to alleviate these concerns, the policies and laws governing remote sensing incorporate national security safeguards that are intended to protect United States national security interests by preventing the imagery and technology of remote sensing from falling into the wrong hands.(fn5)
These restrictions, embedded in every legal instrument that relates to remote sensing, led to a formalized regime that restricts the sale of remote sensing imagery and fails to provide a clear legal standard for the manner in which these restrictions will be applied and triggered. Consequently, legal risk and uncertainty are created, thereby weakening the competitive position of United States companies. In a highly competitive market, these restrictions put United States companies at a disadvantage, and they might be self-defeating and obsolete.
This Comment offers a critique of the national security restrictions contained in the United States policy and regulations and the uncertainty they inject into the commercialization of remote sensing imagery. After providing a brief technical description of remote sensing technology and the market realities associated with remote sensing imagery, this Comment analyzes the legislation and regulations affecting the private sector's commercialization and dissemination of remote sensing imagery with a special emphasis on national security concerns. Specifically, it reviews the Clinton Administration's policy with regard to the commercialization of remote sensing imagery, tracing its origins to the international obligations of the United States and various domestic legislative enactments. In addition, this Comment analyzes the reasons behind the inclusion of national security safeguards in the policy and the effects these safeguards have on the private sector. Further, drawing on lessons from the current export control regime, this Comment critiques the policy from a legal and economic viewpoint. Finally, this Comment maps the contours of a legal definition of "national security," while focusing on the reasons the policy will impede the progress of the private sector and fail to protect the interests it was designed to safeguard.
II. Remote Sensing: Scientific Background, Applications, and the Market
Remote sensing is "the collection of data which can be processed into imagery of surface features of the Earth from a . . . satellite."(fn6) On a more technical level, it means the "sensing of the Earth's surface from space by making use of . . . electromagnetic waves emitted, reflected or diffracted by the sensed objects."(fn7) It is performed through the interaction among a light source, such as the sun's reflected light; the earth's surface; and the atmosphere.(fn8) The sensing is actually done by "sensors on board a satellite which is [sic] usually placed on a low polar orbit so that it may vertically scan the Earth while the Earth is revolving around its axis."(fn9) It can also simply mean satellite photography with images taken by advanced photographic equipment and relayed to a ground station where the digital data is converted into imagery.(fn10)
The technology currently used is quite different from that used in 1972 when the United States launched the first commercially usable remote sensing satellite, LANDSAT.(fn11) However, the three main factors to consider when assessing the capabilities of a remote sensing system remain the same: (1) the type of sensor used, (2) the resolution of the images, and (3) the altitude of the orbit. The three principal types of sensors used are film, electro-optical, and radar.(fn12)
Despite the high quality images provided by the film sensor, it requires a large, heavy lens that makes it expensive to launch. In addition, the film has to be retrieved either from the ejected film capsule or by retrieving the satellite itself.(fn13) Once the satellite runs out of film, it becomes useless.(fn14) Electro-optical technology, introduced in the early eighties, helped solve many of the problems associated with the film sensor. The information collected through this process is assigned a digital value that is transmitted to a ground station where it is reconstructed.(fn15) The technology allows the information to be transmitted and reconstructed into high-quality images at almost real time.(fn16) Finally, space-based radar systems allow satellites to capture images in all types of weather by actively emitting microwave pulses that penetrate clouds, and they work at any hour.(fn17)
Remote sensing image quality is determined by its resolution, which measures the area clearly discernible from a remotely sensed photograph.(fn18) The term resolution varies in definition in relation to the technology used. In other words, resolution in an electro-optical sensor is different from resolution in a film sensor.(fn19) In this Comment, resolution corresponds to the size of the smallest discernible object in the photograph.
The altitude of the orbit is also very important because the lower the altitude, the better the ground resolution.(fn20) However, lower orbit leads to a narrow breadth of vision.(fn21) This important factor distinguishes military and reconnaissance oriented satellites from commercial satellites: narrow vision lowers the commercial value of the image, makes it unattractive for commercial users, and shortens the life of the satellite.(fn22)
The origins of remote sensing imagery are rooted in the military and intelligence establishment.(fn23) Operation Desert Storm demonstrated the importance of remote sensing imagery on battlefields.(fn24) However, the use of remote sensing imagery reaches far beyond military operations and espionage. The potential uses and benefits of remote sensing imagery are endless, ranging from environmental monitoring to agriculture, cartography, and land use.(fn25)
Demand for space-based imagery is growing tremendously in light of its various uses. Bangladesh used remote sensing to recognize the process of land accretion occurring in the Bay of Bengal, enabling it to extensively plan the use and development of the new land,(fn26) and Brazil used the data to map the tributaries of the Amazon River.(fn27) The United States and the former Soviet Union used remote sensing to monitor compliance with arms treaties.(fn28) The French commercial remote sensing system, SPOT (Satellites Pour l'Observation de la Terre), provided detailed images of the Chernobyl disaster. SPOT's imagery also aided in the search for the remains of twenty-eight passengers unaccounted for in the crash of Pan American Flight 103 over Scotland in 1988,(fn29) and it provided help to Thailand in tracking and mapping clandestine opium fields.(fn30) Remote sensing imagery also played a vital role in firefighters' efforts to combat the raging fires in Yellowstone National Park in the summer of 1988.(fn31) Recently, images of Muslim prisoners huddled in a military soccer field prior to their mass executions Serbian military forces were taken by an American reconnaissance satellite and presented as evidence to the United Nations Security Council.(fn32) Additionally, space-based imagery has proven to be a very important tool in the hands of the media.(fn33)
The decline in defense budgets has created economic incentives for private industry to enter the high-resolution imagery market.(fn34) While the market for space-based imagery is projected to reach from $5 to $15 billion by the turn of the century,(fn35) governments and private companies interested in entering the market of remote sensing imagery will have to battle in a fiercely competitive world market. Systems such as LANDSAT and the French system SPOT have cornered the market by being, since the seventies, the main sources for remote sensing imagery for the media and other commercial...
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