On 9 March, it was first reported that four small satellites were operating in space without a license. Since then, reports have been steadily emerging regarding various aspects of the events that led up to the launching of the SpaceBees. However, these reports emerging in public domain are yet to clarify the critical question of how such an unauthorised space object cleared U.S. border area and made it all the way to orbit.
What is known is that, in the month of April 2017, Swarm Technologies of California filed for a license to launch and operate their experimental SpaceBee satellites with the US Federal Communications Commission (FCC). These tiny satellites measured 10cm in width and length, but only a quarter of that size in thickness. The FCC raised concerns about this matter, worried that the SpaceBees were too small to track and, ultimately, decided not to grant Swarm Tech a license in December 2017. Curiously, the SpaceBees were scheduled to fly in September 2017. Swarm Tech contracted with Spaceflight Inc, a launch broker, to organise a flight with Antrix onboard a PSLV rocket.
Unfortunately, a failed launch in August 2017 pushed the launch of the SpaceBees back to January 2018. By this time, Swarm Tech would have been made aware of the FCC's refusal. Nevertheless, shortly after the launch of the PSLV, amateur space trackers detected and were able to track four mysterious objects (contrary to the FCC's concerns, private actors have been able to track the SpaceBees). By March 8, Swarm Tech had been reprimanded by the FCC, having a second license application revoked.
Even as regulators in the United States investigate the lapses that allowed for an unauthorised space object to find its way to space, the Space Bees have revealed the cracks in regulations, both domestic and international, thus provoking nations to reflect on the limitations governing international legal systems applicable to the launch of space objects and explore solutions to prevent the repeat of such episodes.
It is important to recognise the need for policy and regulations to identify points of responsibility, to address the critical question of liability in the event of rogue satellites causing damages either on earth or in space. In this article, we explore the concerns from the perspectives of both the United States of America, the nation who has jurisdiction over Swarm Technologies and India, the state that launched the space bees and propose solutions that could likely prevent such unauthorised space activities in the future.
From the US perspective
As it has emerged, there are primarily three actors in the United States of America involved in the Spacebees incident, viz., Swarm Technologies, the owners of the Spacebees, Spaceflight Inc., the launch broker and finally the U.S. regulatory authorities, starting with the FCC.
At the very least, Swarm Technologies required a clearance from the FCC for being able to operate the Spacebees. In addition to the FCC clearances, the Spacebees would also have to secure an export license as a dual-use item from the Commerce Department in terms of the Export Administration regulations. Considering that the clearances issued by the FCC and the Commerce departments are the subject matter of independent processes, the likelihood of a space object receiving export clearances even before FCC clearances cannot be denied and the Spacebees may have thus been the beneficiaries of the independence and autonomy with which the FCC and the Commerce Department work. In the wake of this incident, it would be useful to reflect on optimizing inter agency cooperation even within the realm of domestic regulations.
The Spacebees incident also brings to focus, the roles and responsibilities of launch service brokers like Spaceflight Inc. A typical launch service brokering contract would a) Require the payload owners to represent and declare that they have secured requisite regulatory clearances and that their payload launch would not violate any laws, domestic and international and b) Indemnify launch service brokers against any claims or actions arising out of the payload owner's aforesaid declarations being found false. The question however, remains whether, launch service brokers must be expected and called upon to do more than just act on self declarations from payload owners?
While no precedents exist to answer this question, an analogous case that could throw some light on this question is that of Tiffany v. eBay , where Tiffay brought a claim against eBay, an online marketplace brokering sale and purchase of consumer goods, for failing to prevent counterfeit goods from being through its website to purchasers. eBay successfully argued that it does not have the responsibility of taking positive action to prevent counterfeit goods from being sold online and instead its responsibility is limited to taking down products for sale, if it is notified that they are counterfeit goods. To put it in simpler terms, brokers were absolved of liability if they had no knowledge of the illegality of the transactions they were facilitating.
In contrast, the judgement of the European Union Court of Justice in the case of L'Oréal v. eBay, better addressed the nuances of brokering services. In its landmark judgement, the court classified services of brokers like eBay into two categories, viz., a neutral function i.e., providing technical and automatic processing of data and an active function i.e., those functions which gives brokers active knowledge and control over data. Ultimately, it concluded that while brokers like eBay could claim exemption from liability for illegal transactions conducted through them, if they merely assumed a neutral function; wherever they played an active function, they were liable for allowing illegal transactions through them.
On a perusal of the above judgements from the U.S.A. and the European Union, launch brokers who play an active role in facilitating the launch of the satellite of satellite operators, may not be able to claim immunity from liability if the launch of the satellite is ultimately found without the authority of law. Though, no doubt, the context of a launch broker is very different from that of a ecommerce provider, because the stakes are higher in the launch service market, the responsibility that law might ascribe on the broker could either reflect the position expressed by the European Union Court of Justice or be much more stringent.
Looking at the flight of the SpaceBees from the US perspective then, one can see at least three checkpoints (operational authorisation, export authorisation, commercial facilitation) where the SpaceBees should have raised alarms. The main reason that the US would want to detect such an unauthorised launch by one of its nationals, even aboard a foreign rocket, is that the US may still be responsible for the activities of its nationals in space, even if it never granted the authorisation.
The Indian Perspective
It is a testament to the lack of detail and clarity in existing international regulations, when the point of responsibility for an unauthorised launch cannot be precisely identified. While the U.S. has much to reflect upon and change from its perspectives, questions are being asked on the role of a launching state like India in preventing the launch of unauthorised space objects.
Shortly after it emerged that Swarm Technologies had launched the Spacebees without requisite permissions and authorisations, Antrix, the company that acts as the commercial wing of the Indian Space programme, issued a statement in which it reminded that its customers have the onus of securing regulatory clearances effectively leaving it to the U.S. administration to address what Antrix felt was an internal issue.
The position expressed by Antrix is supported by its launch service agreement, in which the customer procuring the launch service is obligated to secure the requisite clearances. In defence of Antrix and ISRO, a key problem remains that domestic regulations governing the launch of satellites are not standardised from one country to the other and can often be complex and voluminous and thus indecipherable to other nations and its nationals.
Furthermore, unlike a launch broker like Spaceflight Inc., Antrix and ISRO are at the very end of the launch process and thus can't be expected, in the ordinary course of their activities, to have knowledge of the satellite operator's actions prior to the launch. Thus, Antrix's position is not unreasonable and therefore understandable.
However, in the recently released notice of proposed rule making by the Federal Communications Commission, a specific reference is made to ITU notification procedures for small satellites providing SATCOM services, which may make India's position a little vulnerable. After all small satellites are not exempt from ITU notification procedures. Though the procedures for such notification vary depending upon the frequency being utilised, the U.S. administration would still have to notify the ITU about any small satellites which have been assigned frequency by them small satellite utilising frequency.
These notifications are specifically required to be undertaken by the State administration and not the Satellite operator. Needless to say, an administration would not notify the ITU unless the satellite operator is compliant with applicable domestic regulations. This notification requirement of the ITU essentially acts as a medium for transparency, enabling other countries like India in this instance, to verify whether or not satellite operators like Swarm Technologies have in fact operated within the realms of domestic and international regulations.
The question for Antrix, ISRO and India is essentially the same as that for Spaceflight, Inc., viz., will contractual clauses obligating satellite operators to secure clearances absolve the launching agency of the responsibility to verify claims of regulatory compliance using the ITU platform? Unfortunately, international law at the moment fails to effectively answer this question. So in the worse case scenario of the Spacebees causing damage either in space or on earth, international law will not be able to easily assess who should be held responsible.
Containing the Swarm
Perhaps the least disruptive solution is simply one of inter-agency communication. At the national level, at least in the US, the FCC and Commerce might be able to form a dialogue that would provide greater awareness of where space objects are on both geographical and administrative maps. However, this would leave the problem of speaking to foreign agencies, like ISRO. To this end, it is worth noting that nearly every country has a requirement, particularly for telecommunication authorisations, to publish notices of licenses.
Though it could be argued that the notification system within the ITU platform, renders weak, the defence of launch service brokers as well as State owned launch service providers that it is not within their means to verify claims of regulatory compliance by Satellite Operators, the need to enable faster and more transparent means of verifications is never the less significant and important.
As commercial space activity increases and States increasingly actively facilitate commerce in this domain, systems of notifications within the ITU which is driven and managed by State representatives and agents may not have the speed and accessibility that the future of space activities demand. Keeping in mind that commercial space activities, albeit rogue launches, may still continue with greater momentum, more pragmatic solutions are necessary to contain the swarm.
Firstly, we propose that states should strive to harmonize domestic regulations governing clearances for satellite payloads. In the context of Intellectual property regulations, experience suggests that such harmonization efforts can potentially enable nations to better regulate the subject matter of cross border trade, as for example in the case of Intellectual Property.
Simultaneously, for commercial space actors, states ought to look at developing a transparent database under the aegis of the ITU, to where information of commercial applicants seeking domestic clearances for satellite launches and the status of their applications can be readily made available for stake holders like launch service providers and launch brokers to access and verify claims of regulatory compliance.
In addition to the long-term vision of harmonizing domestic and international SATCOM regulations, it is also necessary to define the responsibilities of launch brokers and launch service providers, through international and domestic regulations. However, if the idea is to make them liable for verifying claims of regulatory compliance made by Satellite operators, then it reiterates the need for harmonization of domestic regulations governing satellite launches and the regulatory compliance database referred to above.
Conclusion
In conclusion, the incident involving the Spacebees have thrown more questions than answers. Scenarios like this fundamentally challenge the originalist approach to space laws and invite the international community to reflect on the need to think innovatively in evolving more detailed and specific international laws to address space activities of both state and non-state actors in the day and age of space commerce. As alarming as it is to realise that there are unauthorized satellites in space, it is also a timely call for action. If states can remain committed to the spirit of existing international instruments like the Outer Space Treaty and build on the principles enshrined therein to evolve laws for emerging challenges, we are confident that mankind's foray into space will be not just be beneficial and inclusive but also sustainable.
Acknowledgement
The author is grateful for the valuable inputs and guidance of Daniel Porras, Space Security Fellow at the UN Institute for Disarmament Research (UNIDIR); Mr. Brad Powell, Associate, Akin Gump Strauss Hauer & Feld LLP; and Dr. R. Pillai Rajagopalan, Senior Fellow & Head of the Nuclear and Space Policy Initiative, Observer Research Foundation for their generous inputs and wisdom, which greatly enriched the efforts behind this article.
Originally published in ORF Quarterly on Space Affairs, Volume VI, Issue 2 – April 2018
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