A technological dream turned legal nightmare: potential liability of the United States under the Federal Tort Claims Act for operating the Global Positioning System.

• Author: Ehrhart, Brandon Eric

ABSTRACT

The U.S. Global Positioning System (GPS) provides precise positioning information to anyone in the world, regardless of nationality, as long as they have access to an inexpensive receiver. However, in managing and providing the GPS for no charge, the United States may have opened itself, to worldwide tort exposure. This Note analyzes U.S. liability for negligently operating the GPS under the Federal Tort Claims Act (FTCA) in four categories.

First, this Note examines the transformation of the GPS from its domestic military beginnings to its current role as the foremost radionavigation technique in history and as a vital tool to civilians across the world. Relying on historical data and the GPS's rapid expansion, this Note establishes how negligent GPS operation by the United States could harm a non-American outside of the United States.

Second, this Note addresses the applicability of the FTCA's foreign country exception to a lawsuit arising from negligent GPS operation. This second section argues that the foreign country exception should probably not prevent the lawsuit from progressing.

Third, this Note surveys and analyzes U.S. Supreme Court and U.S. Courts of Appeals caselaw to determine the applicability of the FTCA's discretionary function exception to this lawsuit. It then reveals the crucial issues relevant to a GPS lawsuit under the FTCA's discretionary, function exception.

This Note concludes by stating that Congress should exempt the GPS from FTCA liability because of the devastating effect unparalleled global liability would have on the planet's preeminent navigational device.

1. INTRODUCTION

   Pick up the phone and dial 1-703-313-5907.(1) After two rings, a recorded message curtly announces the availability of items listed by an alphanumeric sequence.(2) The voice then gives the expected downtime of these objects calibrated to ZULU time.(3) This constantly updated message concludes with additional information relevant to these items.(4)

   This recording does not relay information concerning an alien landing, the expected impact of an asteroid with earth, or a secret military code but instead provides information essential to more than a million people across the globe.(5) This mysterious message updates the status of the Global Positioning System (GPS).(6) The GPS is a navigational tool that fixes a position anywhere on earth but with a few more "bells and whistles" than your average compass and map.(7)

   Relying on GPS information, pilots land commercial airliners, mariners negotiate the stormy seas of the North Atlantic, architects determine where to build the world's next skyscrapers, motorists navigate through unknown cities, and hikers transverse uncharted terrain.(8) What began as a tool for the U.S. military to provide precise positioning for its targeting systems, such as nuclear ballistic missile submarines, has become a global resource that more and more people employ each day.(9) After spending a couple of hundred dollars to buy a receiver, any person, regardless of their nationality, can use the system free of charge, courtesy of the U.S. Government and its taxpayers.(10)

   Along with the pride of paying for the world's use of the most precise navigational tool in history, U.S. taxpayers should also recognize that this system has exposed the United States to liability from citizens around the globe.(11) In 1992, the Air Force inaccurately updated the position of one of the satellites in the GPS.(12) The resulting error caused a horizontal position error to GPS receivers that exceeded three hundred meters.(13) Had a Belgium citizen been relying on GPS information to land an airplane at a fogged-in airport in Germany at this time, the airplane may have crashed into the control tower instead of gently landing on the airstrip. Consequently, the descendants of the pilot and the passengers could sue the United States for the negligent operation of the GPS in U.S. federal district court.(14) While the GPS gives the world the capability to perform previously unthinkable tasks, it has also opened the United States to unparalleled liability.(15)

   The GPS consists of three components: (1) a receiver on earth that asks satellites in outer space to fix the receiver's location, (2) the satellites that determine the longitude, latitude, and altitude of that location, and (3) a manager that controls the system's integrity.(16) While private companies such as Rockwell Aerospace and Orbital Services manufacture many of the satellites and receivers used in the GPS, respectively, the United States is the GPS's manager.(17) Consequently, negligent GPS management could expose the United States to significant liability from people around the globe.(18)

   Persons suffering injury from a GPS miscalculation could recover loss through one of four ways. First, the person could recover through her respective country, which would seek redress against the United States under international law. The United States has liability under the United Nations since the United States signed the 1972 Convention on International Liability for Damage Caused by Space Objects.(19) Second, the citizen could sue under the Foreign Claims Act (FCA).(20) However, recovery under the FCA does not allow a person to recover in a court of law. It only allows the plaintiff to file an administrative claim against a government agency.(21) Therefore, these first two avenues of redress do not allow the wronged to personally pursue the claim.

   Nevertheless, the remaining possibilities do allow an injured party to directly pursue the United States in court. As a third option, a plaintiff could sue under the Federal Tort Claims Act (FTCA).(22) Finally, the plaintiff could sue under the Suits in Admiralty Act (SAA).(23) Both of these acts waive sovereign immunity for the acts of government employees.(24) Since the SAA is limited to torts committed in navigable waters controlled by the United States,(25) much of the liability exposure of the United States for negligent GPS operation would originate under the FTCA.(26)

   While the FTCA waives sovereign immunity, it does not waive U.S. immunity under all circumstances.(27) One of the more significant and litigated exceptions to the FTCA is the discretionary function exception.(28) The exception immunizes the United States for

   [a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation whether or not such statute or regulation be valid, or based upon the exercise of or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.(29) Since the SAA lacks a discretionary function exception, some plaintiffs have filed claims under the SAA when a tort occurs in waters controlled by the United States.(30) Nevertheless, U.S. courts have read a discretionary function exception into the SAA to prevent recovery that would ordinarily be barred had the tort occurred on land instead of on water.(31) Since a negligence suit involving the discretionary function exception of the SAA does not materially differ from the same lawsuit under the FTCA, this Note will hereinafter refer to the FTCA for clarity.(32)

   This Note addresses the global liability of the United States for negligent GPS operation under the FTCA with a focus on the FTCA's discretionary function exception.(33) Part II addresses the expansion of the GPS from a military to a civilian tool and the continued role of the United States in providing GPS information.(34) Part III evaluates the availability of the FTCA to civilians suffering harm outside of the United States.(35) Part IV analyzes the development of the FTCA's discretionary function exception through Supreme Court caselaw and an analysis of U.S. Courts of Appeals caselaw.(36) Part V assesses whether the discretionary function exception will protect the United States from liability for negligent GPS management.(37) Finally, Part VI concludes by recommending a course of action to protect the United States from the unlimited worldwide liability generated by its policy of providing GPS information free of charge.(38)

2. EXPANSION OF THE GPS'S CIVILIAN USE AND THE CONTINUED ROLE OF THE UNITED STATES IN ITS GLOBAL EVOLUTION

   In one of the more dramatic displays of the U.S. military's technological superiority in the 1991 Persian Gulf War, a Standoff Land-Attack Missile (SLAM) blew a hole in the wall of an Iraqi Power Plant.(39) Two minutes later, a second SLAM flew through the hole created by its predecessor.(40) Signals from the then partially complete GPS guided both of these SLAMs to their targets.(41) In the early bombing raids against Germany in World War II, only three percent of British bombs landed within five miles of their intended targets.(42) What began as a vision of using radio signals from satellites as a navigational tool during a 1973 Pentagon meeting has resulted in a weapon that provides the U.S. military with capabilities few could have imagined in 1940.(43) Furthermore, this system has continued to enhance the capabilities of the American military. The Tomahawk missile gained fame in the Persian Gulf War by matching visual landmarks to an inertial pre-programmed map to surgically destroy military targets amidst civilian structures after flying over 1500 miles.(44) When President Clinton resumed airstrikes against Saddam Hussein in 1998, an updated Tomahawk carrying a GPS receiver improved the Tomahawk's legendary precision.(45) While the U.S. government has extended the GPS's applicability to additional military uses, people from across the globe have begun exploring GPS civilian uses.

   1. Extending the GPS to Civilian Use

      In 1983, the Soviet Union shot down Korean Air Lines Flight 007 after the pilot accidentally strayed off course and violated Soviet Union...