Bain Feels Boeing's Pain
The aerospace giant's top lawyer was not happy.
In light of two recent major defense scandals, the incarceration of two former executives, ongoing federal investigations and prosecutions, pending penalties, settlement negotiations and other concerns, counsel had a lot to vent.
According to the Times, Bain told company honchos, "There are some within the prosecutors' offices that believe that Boeing is rotten to the core. They talk to us about pervasive misconduct and they describe it in geographic terms of spanning Cape Canaveral to Huntington Beach to Orlando to St. Louis to Chicago. They talk about it in terms of levels within the company that go from nonmanagement engineers to the chief financial officer."
And the "State Department's view of Boeing is, we just don't get it."
In the speech, Bain delineated a range of legal and ethical troubles at Boeing, including the likes of:
- Fifteen company vice presidents "pushed out for various ethical lapses in recent years."
- Possible coming indictments under the Economic Espionage Act, the Procurement Integrity Act, the False Claims Act, the Major Frauds Act, conflict of interest laws, conspiracy and aiding-and-abetting charges.
- Ongoing legal threats including a denial of export licenses, loss of security clearances, a possible re-suspension on bidding for space contracts or debarment from all government defense contracts.
- 900 formal ethics cases brought to the company's Office of Ethics and Business Conduct in 2005 "found to have substance."
And as Boeing faces damages assessments that, as Bain warns, could exceed $5 billion, (although some call this estimate intentionally high,) where does the company stand? As the embattled but hopeful general counsel concludes, "I really feel that we've turned the corner and that there's a renewed emphasis and energy on doing the right thing."
(Meanwhile, Corporate Crime Reporter commented, "Whoever leaked the speech to the Times performed a public service.")
Sir Richard in Davos
(On Maria Bartiromo's show this weekend I saw a clip from the ultra-elite retreat in Switzerland of the gracious space entrenpreneur greeting Angelina Jolie and Brad Pitt; unfortunately, there is no podcast of that meeting to indicate whether the knighted one extended an invitation to the celebrity couple to fly to space. We might only imagine.)
(photo credit: Laurent Gillieron/AP)
Isle of Man in Space
Boasting a space friendly business environment (featuring zero corporate income tax for space and satellite companies) the tiny island off the coast of Scotland has reportedly attracted the likes of Inmarsat, Boeing, Sea Launch, Loral, most recently SES Global, and seeks to secure a place for itself as a hub for space players.
According to Isle of Man Today, last week Tynwald -- the island's Parliament -- addressing a concern about competition for space business from places like Bermuda, Cayman, Gibraltar, Luxembourg and Singapore, approved £955,000 for "space marketing."
Tim Craine, the island's new director of space commerce (whose salary does not appear to be included in the marketing fund) says, "Tynwald will see a major return on investment many times that which has been approved. Within two years I would like to see the Island having reached a critical mass of clustering, in the space and satellite industry and have an international reputation as a prime jurisdiction."
Isle of Man treasury minister Allan Bell wants the island to be the "Switzerland of space" (-- a reference which drew a bit of teasing from The Register, but never mind).
Mr. Bell explains that the Isle of Man finds itself "in a space race of our own. An increasingly volatile and aggressive race with other jurisdictions to compete for this very lucrative economic sector. The monies will be spent on a fully integrated and co-ordinated marketing campaign and will include specific expenditure in areas such as web site development, brochures, advertising, sponsorship, speaking events, conferences, exhibitions and targeted visits."
A "volatile and aggressive space race" indeed. And what about the ongoing wrangling with Bermuda over orbital slots? Just this weekend The Royal Gazette in Bermuda following up on the issue, quoted telecommunications minister Michael Scott saying "any inference that Bermuda has lost the war that has been brewing between the two islands" over the slots was "categorically untrue" and that Bermuda and the Isle of Man are "currently engaged in coordination discussions."
Space law on the island is a work in progress. In an article last week on Isle of Man space business The Lawyer (a U.K. publication) reported that "groundbreaking" proposed legislation drafted by US space law luminary Art Dula along with Isle of Man honorary space counsel Christopher Stott (both now based in Houston) will come before the Parliament within the next six months.
The proposed legislation does not appear to be available online yet -- although I do see Manx Space Law Initiative information on ManSat's website, along with the UK Outer Space Act -- but I'll report on it when I see it. The Lawyer does have this overview:
The primary purpose of this proposed legislation would be to make the law of the Isle of Man compatible with existing international space law and to encourage Manx private activities in outer space.
The secondary aim of the proposal is to codify existing practices in outer space and torecognizee the well-established precedents already adopted by the prior activities of space powers, their space agencies and their space companies. The proposal is therefore based on existing practice and legal precedent; from the construction of the International Space Station in orbit, to the sale of lunar materials at auction and the use of solar power by geostationary satellites.
Although the proposal is a codification of existing law and practice, it would be, if enacted, nevertheless a world first. It is thought that other small jurisdictions may be considering analogous legislation to seize the initiative in this increasingly attractive area.
Meanwhile, if Art Dula or Chris Stott would like to fill us in on developments, I'd love to post their input here.
(And I'm sure we won't have to speak Manx Gaelic.)
Gura mie ayd!
* * *
UPDATE: 1/30/06 - Chris Stott has e-mailed confirming that "the draft legislation is a direct result of the Manx Space Law Initiative." He and Art Dula received input from industry before putting together the draft. He promises updates when the proposal moves forward (at which time I'll ask again for a copy!); meanwhile, he refers us to the glossy Isle of Man space site with the cool domain, Spaceisle.com which I hadn't seen until now, and mentions the ads in Via Satellite, which I'll check out, too.
Friday Flybys (vol. 24)
* * *
Capitol Storm: It's time again -- ProSpace March Storm registration is on. Put on your citizen advocate hats and prepare to descend on Capitol Hill during the week of February 26th - March 1st, 2006. (Yes, unless you live on Pluto, you've already seen the ads for this on HobbySpace. Which tells us what we already know -- these guys know how to get noticed.)
Space lawyer on The Space Show: Sunday, Jan. 29, 12:00-1:30 PM PST, Virgil Pop from Romania will be Dr. Livingston's guest on The Space Show talking about space law, Moon property issues and his soon-to-be-available book, Unreal Estate - The Men who Sold the Moon. (Not to be confused with The Man Who Sold The Moon by Robert A. Heinlein, or Wernher von Braun: The Man Who Sold the Moon by Dennis Piszkiewicz. ;)
Speaking of The Space Show, if you missed Rand Simberg on Thursday, listen now (MP3). (I got the download; can't wait to hear him.)
Out of Abuja: Here are the conclusions, observations and recommendations of the recent UN space law conference in Abuja, Nigeria (Nov. 2005).
State space: Who knew that state space policies and business would become such a hot topic?
Enviro Space: In case you haven't looked in the Federal Register lately, here's a hot item, from the Associate Administrator for Commercial Space Transportation: Notice of Intent To Prepare an Environmental Impact Statement (EIS) and Conduct Public Scoping Meetings for the New Mexico Economic Development Department's (NMEDD's) proposal to develop and operate a commercial launch site near Upham, New Mexico. A page-tuner. (But I guarantee, no comparison in terms of plot and drama to the actual EIS.) And keep in mind, of course, the "successful completion of the environmental review process does not guarantee that the FAA would issue a launch site operator license to the NMEDD. The project also must meet all FAA safety, risk, and indemnification requirements. A license to operate a launch site does not guarantee that a launch license or experimental permit would be granted for any particular launch proposed for the site." (The FAA will hold two meetings to solicit public input -- Feb. 15th and 16th in New Mexico.)
Uh-oh: It didn't explode, the crew didn't die instantly and it wasn't inevitable - James Oberg looks at Challenger myths.
Why not? Sam Dinkin for governor of Outer Space Territory.
Timing is Everything: Right, so I finally caught up with Taylor Dinerman on GPS, Galileo and the US "chronographical arms race" with the EU.
From Pluto Fast Flyby to New Horizons: In a lovely essay, Jeff Foust stops to reflect on the voyage before the voyage to Pluto. (And he sure looked cute at CalTech too.)
ConsolidationSat: Intelsat and PanAmSat. SES Global and New Skies. As satellite industry consolidation continues, Futron has an interesting snapshot of "C-Band and Ku-Band capacity now on orbit around the globe"
Dick Stafford has been adding to that cool Future Space Access Database.
And over at RocketForge, Michael Mealling posted (via Space News) Rick Tumlinson's commentary on the space transportation industry consensus statement. (And if you missed all the buzz about the consensus, check out the coverage by Clark Lindsey and Jeff Foust.
J. Matthew Buchanan says on the whole, it was actually a very interesting year in patent law.
Sovereignty: Over in Dan Schrimpster's sovereign blog, I caught up with a discussion in which space settlers declaring independence are king (part 1 and 2).
The Wall Street Journal now has a Law Blog.
Not for stringheads only: Corey S. Powell reviews The Cosmic Landscape by Leonard Susskind.
Ooh la la: Via Monsieur Lindsey, cherchez la French space tourism movie.
At Orbital Maneuvers, Danielle offers a poem to the stars.
* * *
Happy second anniversary VSE.
And SLP joins NASA in remembering and honoring the Apollo 1, Challenger and Columbia astronauts.
Illegal moon dust auction
The Economist reports that a sample of moon dust (labeled "Lot 195") has been withdrawn from Bonhams auction in London this week due to a "legislative wrinkle" the anonymous seller appeared to have overlooked.
The dust, as space law professor Art Dula explained, rightly belongs to the US government.
Apparently, the mysterious seller worked as a technician at a lab where the moon dust sample had been kept.
According to the report, the "sale was halted after The Economist called Bonhams to inquire about this legislative wrinkle. On Tuesday afternoon a spokeswoman for Bonhams said the firm was working with the vendor and the American embassy to 'clarify the title' of lot 195. The embassy and NASA declined to comment, although the agency is investigating the matter."
A minor international incident involving an estimated $540-715 of moon dust that US taxpayers shelled out &25 billion to collect? Priceless.
An Army of Davids Invades Space
I read Professor Reynolds' buzz-magnet of a new book, An Army of Davids: How Markets and Technology Empower Ordinary People to Beat Big Media, Big Government, and Other Goliaths (due out in March, but don't tell that to everyone who's been ordering it on Amazon for months) expecting to find everything it in but space.
Well, I was wrong. It has space, too.
What isn't in the book? Professor Reynolds' wisdom on home brewing beer? Lessons from his experience as an indie music producer and distributor? A peek inside eighteenth century coffee-houses? Fascinating insights into everything from say, nanotechnology, life extension, horizontal thinking, terrorism prevention, video gaming, CB radio and blogging, to the approaching singularity? Ten thousand years of technological, economic and societal evolution? Yes, it's there and more, and despite my understandable chagrin that clearly the book is, let's just say, no juicy black letter space law treatise, I couldn't help but love it.
And now I must apologize for all my complaining about what I imagined was Professor Reynolds' complete departure from the subject of his first famous book.
(Although, what were the Professor's long-time admirers to think? Trying his hand every now and again at a touch of harmless blogging can be easily excused. And that stuff is enough of a distraction. But really, a professor with an expertise in a particularly rarefied area of the law might be expected to someday find time to write a follow-up to his acclaimed legal treatise, mightn't he?)
Happily, I can now confirm that all the rumors (which I started) about An Army of Davids neglecting to cover space, are false. And although I sat down with An Army of Davids (somebody at the publisher must have said send her a copy if it'll shut her up) with skepticism, I am delighted to report that among the book's heralded ordinary folks who are creating markets and using new technologies to take on the big entrenched Goliaths and transform work, media, commerce, social life and more, Professor Reynolds does not for a moment forget the high-flying Davids of the space arena.
The professor begins the chapter entitled, "Space: It’s Not Just for Governments Anymore," by noting, "The old government-based approach hasn’t done very well, but fortunately some smaller players, empowered by technology and competition, are stepping up to the plate. They may be just in time."
Indeed. The professor, who supports commercialization of space, settlement of space, and would love to go to Mars, then discusses the state of space and "what to do about the dire situation that the interplay of space development and big government has created." He also considers the X-Prize Foundation, NASA's prize-winning contests and other innovations, and recognizes space advocacy folks who used the Internet to affect space policy and law. He believes we should support space tourism "any way we can, especially through regulatory relief and liability protections." He talks about the role of government in working on research and development to produce cheap new technologies which should quickly be turned over to the private sector. Lots more. And if you're a bit behind the space tech curve, he explains terraforming, nuclear space propulsion, and other cool things. It's enough to get everyone in touch with their inner space David. The professor even breaks out some space treaties, because he can. I was in heaven.
But try not to hurry through the rest of the book to get to the space stuff. I know, at first you will wonder, with all that stuff going on from page one, how is he going to top the first ten chapters? The answer: Chapter 11.
I regret ever doubting.
As the Professor likes to say, read the whole thing.
* * *
(By the way, unless the Professor Reynolds says so, I cannot necessarily assume he accepts my apology. In which case I'll have to make it up to him some other way. For example, by not starting a rumor, right here in this post, that the Professor's next book, after the hot new one, will be a follow-up to his space law text. Sure, I'd be tempted. But I wouldn't do that. You heard it here first.)
NASA & ESA
Then there's this really neat space debris found in the form of a disk, like our asteroid belt, which encircles a sun-like star and could be in the process of forming planets.
But then no one likes this kind of debris event (as in, "[w]e had a debris event on the PAL ramp along the LOX field line - below the point where the LH2 ramp begins. Our expectation is that we would not have an unexpected debris event.") But foam debris from the shuttle external fuel tank is, presumably, fixable.
On the other hand, according to a widely picked up AP story last week, in a new report by NASA scientists J.-C. Liou and N. L. Johnson published in Science (sub. req'd) -- although as far as I can tell this is not exactly breaking news -- given the tons of debris orbiting Earth, even without further launches new debris would arise from collisions of existing pieces of clutter. And the new junk will "exceed the amount of material removed as orbits decay and items fall back to Earth."
And, reiterating warnings we've always heard about space debris, the researchers say only cleaning up the mess "can prevent future problems for research in and commercialization of space."
What to do? Well. In a phone interview one of the researchers told AP, and we've heard this warning, too, there is "no viable solution, technically and economically, to remove objects from space."
Of course, we can always check out HobbySpace for good ideas.
Aside from removal of debris (-- isn't Tony Soprano in the "waste management" business?), steps to mitigate accumulation of space clutter are key. According to NASA's Orbital Debris Program Office, "Mitigation measures can take the form of curtailing or preventing the creation of new debris, designing satellites to withstand impacts by small debris, and implementing operational procedures ranging from utilizing orbital regimes with less debris, adopting specific spacecraft attitudes, and even maneuvering to avoid collisions with debris."
Some folks have called for an international treaty governing space debris. Another view, as I've previously posted, is set forth by Steve Mirmina who writes in favor of a voluntary code of conduct concerning space debris because "the most effective way to reduce orbital debris is through compliance with self-imposed guidelines and apolitical, technically based safety standards," especially since, as Steve posits, the UN's Legal Subcommittee of the Committee on the Peaceful Uses of Outer Space, lacking a consensus here, "is unlikely to agree on legally enforceable commitments with respect to orbital debris in the foreseeable future."
For now, the feds have come up with U.S. Government Orbital Debris Mitigation Standard Practice. And here are NASA's decade old Guidelines and Assessment Procedures for Limiting Orbital Debris (NASA Safety Standard 1740.14); while other space junk-makers including Russia, Japan, France, and Europe have also weighed in with their own guidelines for mitigating orbital junk.
And the Inter-Agency Space Debris Coordination Committee (IADC), made up of the space agencies of Italy, U.K., France, China, Germany, Europe, India, Japan, US, Ukraine and Russia currently serves as a "forum for the worldwide coordination of activities related to the issues of man-made and natural debris in space."
A space-faring civilization can get rather sloppy. Meanwhile, why couldn't Stardust do a little housekeeping while it was out there? (And speaking of housekeeping, I wonder where can I get my hands on some of that nifty aerogel to help clean up a bit around my apartment?)
* * *
UPDATE: On Talk of the Nation's Science Friday last week (Jan. 20), Nicholas Johnson, Program Manager and Chief of NASA Orbital Debris Program gave an interesting interview on space debris. Listen in (MP3).
At approx. T-Minus 10 minutes and counting... much more on the cool COTS initiative to come (and check out Michael's COTS Watch). I hope everybody is hard at work on those proposals (due by March 3).
Today, some things only NASA can do.
Space Law School is Cool
Probably could use some updating, but it's an interesting listing of mostly post-grad space law programs, featuring contact information, links and a brief description of each program, broken down by nation. It includes of course, space law education giants like world famous International Institute of Air & Space Law of Leiden University in the Netherlands, and McGill University's Institute of Air and Space Law in Montreal. (Although after Leiden let D. J. Den Herder in, that school's reputation appeared shaky. Just kidding -- hi Dave! Send more pictures!!)
(The Office for Outer Space Affairs compiled this information in "response to the recommendation" of the Legal Subcommittee of the Committee on the Peaceful Uses of Outer Space at its 42nd session in 2003. OOSA "invited a number of institutions to provide the Office with information on their programmes relating to space law. The directory of education opportunities in space law has been compiled based on the information received from those institutions.")
And by the way, it's a compilation of space law programs, not individual classes offered at various law schools. If anyone has of a current list of space law classes and related offerings at US law schools, send it to me! Thanks.
Just say no regs
Yaron is entitled to that view. And he's not alone. But I think most would agree with Clark's response: "I've noticed that many of the startup rocket companies involve people with strong libertarian leanings. I've also noticed that most of them nevertheless believe that some level of regulation of the industry is necessary, if only to reassure investors, insurance companies, and customers." Exactly.
(But hey, then again, this is space tourism! Who needs investors, insurance companies and -- worst of all -- customers?!)
Clark suggested Yaron talk with folks "in the trenches of the rocket business..." That's a fine idea.
He can also consider market media reaction such as this, from Motley Fool: "Though SpaceShipOne's historic flights captured the headlines, it was the Feds who were responsible for potentially jumpstarting suborbital space tourism. The Commercial Space Launch Amendments Act (even less romantically known as H.R. 5382) ultimately allows average Americans to hitch a ride on a rocket at their own risk."
And he can talk to industry types like space lawyer Sean Fleming of Zuckert Scoutt & Rasenberger, who pointed out last year as the rules were in progress, "Some believe that regulatory certainty is helpful when trying to access capital markets. ... Over time, as the industry matures, it may require further regulation (of orbital activities). It may even want it."
I understand people's aversion to heavy-handed regulation. And in the end, more rules just mean more lawyers hanging around, and who wants that? But it seems the FAA really is committed to helping space tourism fly. As U.S. Transportation Secretary Norman Mineta has said, the government is not out to "stifle innovation" and that his "goal is to have this fledgling industry succeed."
Still don't like it? No matter. The feds are in private space and they're not getting out. We just have to get used to it.
Tangled up in ITAR
Some would suggest US lawmakers grappling with some of these technology transfer issues take a look at what they're trying to protect and remember the dictum of the Roman physician, Galen: first do no harm. As Ryan notes, "export policy is just one factor" contributing to a downturn in the satellite manufacturing sector. But John Vinter of International Space Brokers testified before a House hearing, The Future Markets for Commercial Space,
I would also recommend that the International Traffic In Arms Regulations, as regards to commercial space activities, be reviewed to see if they really achieve what they are meant to achieve... The practical impact of these regulations should be noted. From the insurance point of view, it is important to recognize that two thirds of the market is located outside of the country and the same underwriters appear on most of the programs. It could benefit US industry if the ITAR process can be streamlined. However, I should point out the whole process is pushing satellite business overseas as non US operators find it increasingly difficult to cope with the process, particularly, in a tough competitive environment. (April 20, 2005)
Of course, all this means no rest for lawyers, at least the ones who understand the satellite trade issues here and can help.
(Speaking of which, here are some dates for an Advanced ITAR Workshop for continuing legal education credit in 2006.)
Regardless of the turnout at a protest event, it does seem there will always be a degree of concern about harnessing and working with nuclear power (whether from radioactive decay or nuclear fission). But both the US and the former Soviet Union have been sending RTG's into space for decades, and a whole new nuclear propulsion ballgame is in the works with Project Prometheus. SLP is not a rocket blog (unfortunately), nor am I a physicist like Clark Lindsey. (In my dreams, yes.) I wanted to throw some law into the mix, since advocating non-nuclear power sources for space travel because nuclear power poses a degree of danger is one thing -- and vigilant attention to safety issues is fine -- but some NPS opponents (including Karl Grossman, whose activity in this arena, as Jeff points out, goes back to before Cassini) claim NASA's use of RTG's violates law. I hope their science is better.
I am not aware of details of the opposition's pre-launch litigation activity, if any, (but isn't there always litigation?) however I do recall the attempt to enjoin launch of the RTG-powered Cassini mission to Saturn (whose probe Huygens landed on Titan one year ago tomorrow, as a matter of fact) -- Hawaii County Green Party v Clinton, 980 F Supp 1160 (D Hawaii 1997). Apparently, the mission lifted off.
(To say nothing of other vehicles powered with RTGs like Apollo, Pioneer, Viking, Voyager, Galileo and Ulysses as well as lots of civil and military satellites.)
For a comprehensive analysis of the law of NPS, now would be a good time to look again at Steve Mirmina's recent Chicago Journal of International Law Journal article, Nuclear Power Sources and Future Space Exploration, which I posted in September. (Steve is a senior attorney, International Law Practice Team at NASA's Office of the General Counsel.)
Steve overviews the history of NPS, then discusses the legal regimes covering the use. His thorough analysis includes the relevant international space law, nuclear energy law and international environmental law; he then takes an indepth look at the US regulatory processes applicable to NPS.
And, as Steve reminds us, there are always the non-binding, but enlightening: Principles Relevant to the Use of Nuclear Power Sources In Outer Space (General Assembly Resolution No. 47/68, 1993).
I also found instructive this GAO report to Congress, Space Exploration: Power Sources for Deep Space Probe, prepared with Cassini in mind (May 29, 1998), but which outlines the regulatory hoops NASA goes thorough in preparing for an NPS mission.
For now, heads up. SLP wishes NASA a safe and successful launch and a long, fruitful voyage to the planet Pluto.
[Or, rather, the celestial body formerly known as a planet, Pluto?
Either Pluto is not a planet, or many other things are planets. Which is a better choice? I want my planets to be more special, not less special, so I favor Pluto not being a planet. Emotionally, though, I have to admit that I have grown up thinking Pluto this special odd-ball planet at the edge of the solar system. While I now know scientifically that Pluto is less special, it's still hard to let go. -- Mike Brown, Caltech astronomer who helped find Sedna]
Space Lawyer Seeks Position
Let me take the opportunity to introduce myself. I am Balakista Reddy Vundhyala, working as Associate Professor at NALSAR University of Law, Hyderabad, India.
NALSAR University in India is a residential university recognized as an institution of national eminence in the field of legal education and research. Presently, I am in New York (as a J2 Dependent) and also have an employment authorization card to work in USA.
I have specialized in international air and space law, with a doctoral dissertation on "The Law and Policy of International Air Transport: A Study of Some Contemporary Issues" from the Jawaharlal Nehru University (JNU), New Delhi.
My two co-edited books on "Air Law and Policy in India" (1994) and the other on the "Recent Trends in International Space Law and Policy" (1997) have won international acclaim. My third book on Emerging Trends in Air and Space Law is under publication. At present, I am engaged in various prestigious projects, which include the WTO and India: Issues and Challenges and Drafting Space Legislation for India.
I have six years of teaching and ten years of research experience in international law and allied subjects. I am involved in teaching and guiding LL.B and LL.M courses at NALSAR including international law, international environmental law, international human rights law, international economic and trade law, international intellectual property law, global insurance regulations, international humanitarian and refugee law. I offered seminar courses on international air and space law, international litigation and dispute settlement, international transport law and international commercial arbitration.
I look forward to gaining further expertise in the field of air and space law working with a law firm.
By the way, if you have space law-related announcements or items you'd like me to post, send them over. (And if this works out, who knows -- I may start a space lawyer/space tourist dating service here on the blog. Why not? Come together. ;)
Never a shortage of drama. As we saw in December, close to being voted off the island, Landsat found itself rescued by the White House (Office of Science and Technology Policy) in the form of John Marburger's latest Landsat memo which reversed the earlier decision on the fate of the program (see, Aug. 13, 2004 directive to transition the collection of land remote sensing data to NPOESS. A program which struggles with its own challenges. But never mind that.) NASA is now authorized to acquire a free-flying Landsat spacecraft. Hurray. While the two rickety old Landsat satellites suffer glitches and breakdowns in orbit, Space.com reports NASA says it will move quickly to issue a solicitation, accept proposals and award a contract to build a dedicated Landsat spacecraft, which the U.S. Geological Survey will operate.
And yes, as OSTP confirmed, it remains the government's goal is to make Landsat a permanent program rather than a series of independent missions. Still.
Everyone knows about the great contributions made by Landsat imagery for more than 30 years. As OSTP says, Landsat images are used in "land use/land cover change research, economic forecasting, disaster recovery and relief, and the scientific study of human impacts on the global environment."
All true. But I also like occasionally to consider uses of Landsat that sometimes gets overlooked. Clever lawyers for years have been bringing Landsat and other satellite data into court for use as evidence in all kinds of litigation.
For example, here's an update this week from the heartland (actually, AP via The Kansas City Star) on the USDA using Landsat satellite images to prosecute farmers for fraud.
Apparently just the threat of lawyers getting hold of a Landsat image or two can be a powerful enforcement mechanism or deterrent. Said one agricultural economist (not a lawyer) who reportedly warned farmers on his e-mail distribution list of the increasing use of satellite imagery in courtrooms, "what it does is keep honest folks honest."
In its Compliance Highlights for 2005, USDA's Risk Management Agency (RMA) says it "continues to use remote sensing data and related technologies to support its program compliance efforts and aid RMA personnel and outside customers working on Agency mission critical projects. RMA uses remote sensing to identify waste, fraud, and abuse in its programs using Landsat 5 and 7 data to support investigations of conspiracy, fraud, false claims, and false statements to the Department of Agriculture. Based upon the success of using remote sensing in the past, RMA has provided remote sensing training to a number of its compliance investigators. Investigators are trained to acquire Landsat 5 and 7 imagery from the USDA Image Archive and make preliminary determinations either to approve a crop insurance claim, or forward it to a remote sensing expert for further investigation. Such training has increased RMA image requests to the USDA Image Archive."
And see my post, Orbiting Witnesses.
Just a few examples of lawyers making use of Landsat, while it survives. And the adventure continues, because earth gives Landsat a lot to look at every day...
And Landsat gives it right back.
Space Radio Rocks First Amendment
I didn't expect Howard Stern.
Along with literally millions, I followed with interest as shock jock Stern, notorious for a lot of things, but mostly for being the highest-paid and most fined radio star in history, stepped off the terrestrial radio planet and blasted himself into space (with an introduction yesterday by Star Trek's George Takei). Regardless of whether you're a member of the cult of Stern, or would rather swallow plutonium pellets than listen to even one of his broadcasts, you gotta agree the presence of the self-proclaimed "King of All Media" on the spacewaves can help the satellite radio industry lift-off like nothing else. Profanity and all.
Why did Stern take a chance and jump the earthly dial? Obviously, for money. But also, he says, to escape the FCC and its decency policing of his not always decent programming.
But why doesn't the FCC reach out and regulate the content of satellite radio?
The indecency rule (47 CFR 73.3999, enforcing 18 U.S.C. 1464) which sanitizes programming aired between 6 a.m. and 10 p.m., applies to broadcast -- radio as well as television -- only. ("Obscene" content, by the way, is always forbidden. And I don't know how Mr. Stern feels about it but apparently his stuff is not obscene, merely indecent.) And Howard's famous terrestrial radio show is aired in the good, clean morning.
But why doesn't the FCC rule apply to programming transmitted via subscription services like satellite radio or pay TV? What is the basis for the distinction?
In his article, Howard Stern Goes Into Orbit, Taking the First Amendment With Him, Columbia University School of Law's Prof. Michael Dorf looks into it: "Although a number of answers have been suggested in judicial opinions and elsewhere, none of them stands up to close scrutiny. That may mean that in the long run, the FCC will catch up with Stern, even in space." He adds that we "would do better to liberate the airwaves here on Earth than to extend a dubious regime of censorship to the heavens."
It's easy to see where the legal theories upon which content regulation are based -- the scarcity theory and the pervasiveness theory -- rationally "apply with equal force to satellite and conventional radio" as Prof. Dorf argues. Calling those theories "downright idiotic," he concludes,
The First Amendment should not be interpreted to permit the FCC to regulate indecency, whether the allegedly indecent programming enters the home via a cable, antenna, telephone line, or satellite dish. Nor should it matter whether the material is then viewed and/or listened to on a radio, TV, computer, iPod, or any other device.
Whether in space, cyberspace or even on good old Planet Earth, the same simple rule ought to apply: If you find some program offensive, don't tune in (and if you have pre-sets or screening devices, feel free to use them).
Sounds decent to me.
It's not true I had nothing on, I had the radio on.
-- Marilyn Monroe
Speaking of ITAR, in this week's issue of The Space Review, Ryan Zelnio has a brief look at the history of export controls (first of two essays).
UPDATE: Someone at NASA has weighed in (although anonymously). See Keith's update at his original post.
I don't know about you, but for me, groovin' to a discussion about space toursim, space treaties, remote sensing issues and other topics in space law can be as engaging as listening to, for example, the new Rolling Stones CD, A Bigger Bang, (which I picked up on iTunes because I liked the name).
This is the summary of the show, courtesy of our gracious host, Dr. Livingston.
Professor Joanne Gabrynowicz returned for this Space Show program for several important space law updates. We began the program discussing the Disaster Charter (www.disasterscharter.org) and its meaning for satellites and emergency assistance. This is an important discussion. We also spoke about the importance of the Group On Earth Observations (www.earthobservations.org) and a different type of satellite assistance for emergencies and humanitarian reasons. Professor Gabrynowicz gave us new information about the Journal of Space Law which she edits at the University of Mississippi, Landsat and the Office of Science and Technology Policy which issued a new key decision on Dec. 23, 2005, she updated us on the space law workshops with the UN Office of Outer Space Affairs, and the new space tourism proposed regulations available on the FAA website (www.faa.gov). We also talked about how best to get your voice heard on issues of concern, Russian and Chinese participation in earth observation satellite programs, and much more. In response to questions, Professor Gabrynowicz spoke about the frontier history for settlement and compared it to Australia regarding space law and frontier law. This is a great program and after hearing it, you will want more. You can send questions or comments to Professor Gabrynowicz at firstname.lastname@example.org.
(By the way, speaking of our host Dr. Livingston, guess who gave an interview over at Out of the Cradle last month.) (Or, see the reprint in The Space Review).
Podcasting is supercool. And now that the Instapundit and the lovely, multimedia Dr. Helen are podcasting, we all better get on board with it. (But really, we don't need all that hardcore equipment and weird record producing software our musical producer/professor uses, he just happens to have the stuff lying around in his basement.)
For more podcasting fun, here's the first podcast from space.
And some lovely Spitzer Space Telescope podcasts.
In fact, download the universe with all the official NASAcasts.
This settle it. SLP will podcast something soon.
Regulating Rocket Rides
But last night he took a gander at my hefty printout of the FAA's proposed rulemaking, Human Space Flight Requirements for Crew and Space Flight Participants, and plainly scoffed. "What business is it of the government's if people want to go blow themselves up in rockets?"
Many folks -- lawyers and others -- would agree with the sentiment. But Dad envisions small group of folks getting together in remote places who like to play rocket equation games and experiment with their own bodies as projectiles. He just doesn't see commercial human space flight as an industry.
And yes, it does appear the FAA has put a lot of time and effort into regulating a segment of the economy that consists of exactly one company. (OK, two, if you include XCOR, which as the FAA notes, is also licensed to perform launches with humans on board. But only Scaled Composites has actually used theirs.) The FAA estimates that five to six companies will successfully enter the human space flight industry in the next ten years. Which sounds like serious business to me. (How many airlines do we have in the U.S.?)
Overall, I think the proposal reflects a reasonable balance from regulators who are carefully working through the Commercial Space Launch Amendments Act of 2004's (CSLAA) mandate to protect public safety with requirements that do not unduly burden this nascent industry.
(By the way, at least the 30-page Federal Register entry for the proposed rulemaking does not look quite as bad the 124-page unpublished version, which appeared first, and many people referenced initially.)
Reactions to the NPRM? Round up the usual supporters and detractors. Of course, regulation will cost too much, drive business out of the U.S. and kill the industry. Naturally, regulation will establish the government's seriousness about commercial human space flight and boost the credentials of the industry.
I looked at the comments already submitted and posted on DOT's docket (four, at last count). I'll do a roundup of those later. But already the submissions reflect both ends of the spectrum of opinion. From the side that wants the feds to back off, Dennis Dupuis objects to the pilot licensing provision, writing in that, "Orville & Wilbur Wright did not have pilot licenses, yet they did just fine." And for the folks who want more oversight and would go even further than the NPRM, finding no mention of EVA activity, and noting that a passenger "can easily decide to throw something at earth that might pose public risk," David Deutsch calls on the FAA to impose "fines and penalties for leaving uncontrolled satalites [sic] near earth's orbit." It's like Crossfire over there.
By the way, if you comment, be careful about disclosing to the government any proprietary or confidential info because (unless you request otherwise) it will all get published. And there is plenty to comment on if you feel like it.
I don't mind the requirement that each crew member possess and carry an FAA second class airman medical certificate issued in accordance with 14 CFR part 67 and issued within 12 months prior to launch or reentry, and also that there is no medical requirement for space flight participants. (But maybe some folks like the idea of the government mandating medical testing of private citizens participating in commercial activities?)
As to informed consent of space flight participants provision (§460.45, which goes farther than the statute, 49 U.S.C. 70105(b)(5)(A)), what can we say? They know that we all know that they darn well know what they are getting into.
The financial responsibility provisions (Part 440) -- insurance, waivers, government payment of excess third-party liability claims, etc., are a treat to read and if someone pays me, I will go through them in a lot more depth than I did after work last night during the Rose Bowl. (But first I will admit right here on SLP that I know even less about waivers and reciprocal waivers and things like that than I do about football.)
That "no-fly list" issue is already sending up red flags. For the record, it's not in the proposed amendment, but in the discussion of the security requirements, the NPRM reads, "The FAA notes that one means of satisfying part of this requirement would be for an operator to consult the 'no-fly' list of the Transportation Security Administration." (Does anyone really support the idea of a no-orbit list?)
In contrast to the security issue (including the prohibition against space flight participants carrying weapons on board), some things that worry the FAA do sound kinda quaint. Rocket engineers understand all the devilish engineering details, but I was surprised to see the extent of the FAA's concerns about "fog." Apparently, and there is no indication that Congressional hearings were held, but the government has determined that given "a flight crew depended on visual information through a window, humidity control would be necessary to avoid windows fogging and condensation that can hinder the pilot's vision." I don't know. It's a spaceship. If you can build one, you understand condensation without the government having to explain it to you.
(In any case, I don't hesitate to point out here that my reading of the Federal Register section in question reveals no mention of a certain exciting on board activity some space tourism enthusiasts have proposed, and which I have talked about here, that could fog up the spacecraft's windows for sure. Ahem. So far, no rule against that in space.)
So how much will all this regulation cost space flight companies? You have a right to ask, and under the Paperwork Reduction Act, the feds have to estimate at least the burden of recordkeeping. For purposes of its analysis here, the FAA uses the mid-point between its high and low cost scenarios (which are based on estimates ranging from one to more than 100 space flights annually) and calculates "the proposed rulemaking would take 2,975.05 hours per year, costing $206,469 annually."
(Those hours could certainly launch the careers of a few young space lawyers. But not at the skimpy hourly rate the FAA appears to be using of about $69.)
Not to mention what the added paper pushing will cost taxpayers (because government lawyers have to get paid, too). Using again the "mid-point" between the high and low end scenarios, the FAA says the proposed rulemaking would take 1,522.3 hours per year, costing $79,221 annually.
And what about the cost per mission of industry compliance with the proposed rule? The Regulatory Flexibilty Act calls for an analysis of the impact, and here the FAA, while specifically inviting comment on this issue, make its own "extremely speculative" calculations, estimating that "costs to perform 10,142 missions (upper bound) over ten years are $2,739,149 or an average of $270 per mission."
Really? Where I come from, nothing costs $270. That won't buy a space company half an hour of legal services, even at a fraction of Peter Pettibone's rates, it won't even pay for sandwiches and coffee during crew training. And you'd have to be using an Etch-A-Sketch as a space flight simulator.
The FAA offers no calculus for what these rules might save commercial space business. How much value does the industry gain from a new perception of safety? Might it sell more rides? (But then gain, what about the lost business as thrill seeking customers who prefer unregulated risk go climb Everest instead?)
In the end, what should the feds rightly do about the dangers of space tourism? I agree with Professor Reynolds who writes, "Protecting the 'uninvolved public' -- those who simply don't want to find themselves underneath crashing rockets -- is a proper role for the government.
As the space tourism industry grows, obviously a body of law will grow around it. (So Dad, relax, and go watch the NFL; there's not much government regulation in football.
Although, hey, there sure are a lot of rules.)
Coming Space Law Attractions
First, over at the Washington Convention Center, Feb 6-9, it's Satellite 2006, where you can enjoy close enounters with legal luminaries who will be on hand to share the lastest legal and business info and insights about the high-flying fast-moving satellite sector. Here's an overview (subject to change):
Maury Mechanick of White & Case moderates a panel on "The Top Five New Satellite Service Markets of the Next Five Years."
Peter Nesgos of Milbank, Tweed, Hadley & McCloy LLP moderates "Latest Trends In Satellite Financing: What's New For '06?"
Gerry Oberst of Hogan & Hartson hosts "Europe: Expanded Opportunities and Increased Consumer Demand."
John Janka of Latham & Watkins will speak about "Financial State Of The Industry: From Private Investment To Public Trading."
Brian Weimer of Skadden moderates the panel, "Managing Risk in a Risky Business."
Owen Kurtin of Brown Raysman moderates "The Global Operators Roundtable: The New Face Of The Industry."
Suzanne Hutchings, senior regulatory counsel at ICO, will cover "Next Generation Mobile Technology: Going Beyond Narrowband."
That ought to get your blood pumping.
Next, at the 3rd Annual U.S. Remote Sensing Industry Commercial Conference, February 9-10, 2006, Prof. Joanne Irene Gabrynowicz, director, of course, of the National Remote Sensing and Space Law will give a talk on "National and International Remote Sensing and Earth Observations Activities 2004 - 2006" -- covering "the U.S. and international private and government activities that have occurred in the last two years, including Landsat, industry changes, the group on Earth Observations, and the Disasters Charter" and more.
(Joanne will be followed by Congressman Mark Udall -- not a lawyer, but his wife is -- who will discuss the Remote Sensing Applications Act of 2005, which directs NASA to establish grants for projects to explore the integrated use of sources of remote sensing and other geospatial information to address state, local, regional and tribal agency needs.)
By the way, if you can't make this event, you can catch up with Joanne on The Space Show this Saturday, January 7, 12 to 1:30 PM PST. (Or tune in to the reply, Sunday, January 8 12 to 1:30PM PST. Or, download the podcast.) She's always a popular guest.
And of course, over at the AST/FAA 9th Annual Commercial Space Transportation Conference (is it the 9th already?), which is unfortunately scheduled for the same dates as the remote sensing conference, you can hobnob (do people actually "hobnob" anymore? Nah, probably too busy networking...) with lawyers like Mike Gold of Bigelow Aerospace, John Gantt of Mizrack & Gantt, and lots of government sector law and policy folks. Patti Smith and the gang do a fine job each year.
(Oh, and some guy named Elon Musk is listed as a keynote speaker. But he looks too smart to be a lawyer ;)
(Hat tip to Jeff Foust, for this post last month.)