U.S. National Security And Government Regulation Of Commercial Remote
Sensing From Outer Space

[Captain Michael R. Hoversten]{.smallcaps}[^1]

I. INTRODUCTION

Space-based remotely sensed imagery became commercially available on a
world wide nondiscriminatory basis in 1972 with the advent of the United
States of America's (U.S.) Earth Resources Technology Satellite
(ERTS).[^2] Until that time, such information was the exclusive province
of military and intelligence communities of the major world powers. With
the launch of the French *Systeme Probatoire d'Observation de la Terre*
(SPOT) I satellite in 1986, remotely sensed imagery with ten meter
resolution[^3] became commercially available. In 1987, the former Soviet
Union made data with five meter resolution available.[^4] Today, Space
Imaging Inc., a private company, sells images with better than one meter
resolution on the international market and hopes to achieve 0.5 meter
resolution by 2004.[^5] While Space Imaging Inc. was the first to
produce commercial images for sale, "only Space Imaging, Inc. has put a
one-meter craft into orbit, other companies in the U.S., Russia, Japan,
Israel, and South Korea are planning to follow suit.[^6] It is estimated
that the remote sensing market will generate \$2 to \$2.5 billion
dollars in revenue by 2005.[^7]

From its beginning in the early 1960s and through the mid 1980s, remote
sensing activities were operated by the U.S. government. In 1984, the
U.S. attempted to privatize the industry with limited success.[^8]
Space-based remote sensing by private companies became possible when the
U.S. Congress passed its 1992 Land Remote Sensing Policy Act (Remote
Sensing Policy Act) authorizing the Secretary of Commerce to issue
licenses for private space-based remote sensing systems.[^9] The Clinton
Administration gave the go-ahead to sell remotely sensed data
internationally in 1994.[^10]

The commercial availability of high-resolution imagery presents both a
great benefit and a deep concern for U.S. national security and military
operators. On one side of the coin is the fact that the U.S. government
is a primary customer of the commercial remote sensing industry. The
military is certain to benefit from access to high-resolution commercial
imagery, potentially saving it the billions of dollars required to
produce, field and operate some space-based remote-sensing systems.
There is a dark side, however. Just as the military will have access to
high-resolution commercial imagery, so too will the general public and
foreign entities, allies and adversaries alike. Without proper
protections, military movement and build-up, the lay-out of military
facilities and even the locations of individual pieces of military
equipment could be made available to the public eye within a matter of
hours. Obviously, this circumstance could have grave consequences for
military operations and U.S. national security. With the potential
profits to be realized and technological advances to be achieved from
the commercialization of space-based remote sensing, it is clear that a
balance must be struck between maintaining the viability and
profitability of the commercial industry and protecting the national
security of the U.S.

This article examines the national security safeguards incorporated into
U.S. law, regulations, and policy. It also examines the way in which the
needs of the commercial industry have been balanced with national
security concerns. Section II provides background information, including
relevant definitions, a technical summary of space-based remote-sensing,
a brief discussion of remote-sensing applications, and a synopsis of the
relevant international law. Section III analyzes how law, policy, and
the regulatory regime promulgated to implement the law and policy
actually protect national security, and attempt to balance that
protection with the needs of commercial industry. A final section
summarizes the examination contained herein, and draws some concluding
observations.

II\. BACKGROUND INFORMATION

## A. Definitions, Technology & Applications

## *1. Definitions*

Under the Remote Sensing Policy Act, land remote sensing is defined as
"the collection of data which can be processed into imagery of surface
features of the earth from \[a\] ... satellite ..."[^11] In essence,
space-based remote sensing is the collection of data regarding the
surface of the earth by satellite. Various technical means are employed
to accomplish data collection from space.

There are four types of remote sensing data or information: (1) raw
data, (2) unenhanced data, (3) processed data, and (4) analyzed
information. Raw data is data collected by a satellite that has not been
processed at all. Unenhanced data basically consists of energy signals
that have been preprocessed beyond raw data but have not yet been
processed into a usable image or other product.[^12] Processed data is
defined as "the products resulting from the processing of the primary
data, needed to make such data usable."[^13] Processed data can then be
further analyzed and once it has been so analyzed, it is referred to as
"analyzed information." Analyzed information is information gleaned from
the interpretation of the processed data, including inputs of data and
knowledge from other sources.[^14] For example, a processed image may
clearly depict an aircraft. However, to ascertain the type of aircraft
the image must be analyzed using outside data or knowledge. Once
processed and analyzed, remote sensing data can be utilized for a
variety of applications.

### 2. Technical Summary

Remote sensing from space can be as simple as taking photographs of the
Earth from space using an optical camera and photographic film. More
often, however, sensors on board a satellite in either geosynchronous
orbit (GSO), or an inclined or polar low-Earth orbit (LEO), perform
remote sensing from space.[^15] The satellites are able to sense
electromagnetic radiation from the objects they are viewing.[^16] Once
the sensors collect the data, it is then transmitted to earth stations
where it can be processed and analyzed. Sensing instruments can be
classified into two categories, passive and active. Passive instruments
merely observe radiation emanating from the sensed object or reflected
from another source. Active instruments emit energy and measure the
energy reflected or "backscattered" from the object.[^17]

Several types of passive and active sensors exist. These sensors measure
different types of energy and are used for obtaining several types of
data. Table 1 lists various sensor types and the measurements they
perform.

**TABLE 1**

**Remote Sensing Instrument Types and Measurements**[^18]

+-------------------------+--------------------------------------------+
| SENSOR TYPE             | MEASURMENTS                                |
+-------------------------+--------------------------------------------+
| ####### Passive         |                                            |
+-------------------------+--------------------------------------------+
| Imagers                 | Reflected sunlight or emitted radiation at |
|                         | any wavelength, yielding high spatial      |
|                         | resolution images of the surface or        |
|                         | atmosphere                                 |
+-------------------------+--------------------------------------------+
| Multispectral           | Reflected sunlight or emitted radiation in |
|                         | several wavelength bands producing false   |
|                         | color images                               |
+-------------------------+--------------------------------------------+
| Sounders                | Emitted radiation in five or more          |
|                         | wavelength bands from which vertical       |
|                         | profiles of atmospheric temperature and    |
|                         | composition are computed                   |
+-------------------------+--------------------------------------------+
| Radiometers             | Reflected sunlight or emitted radiation    |
|                         | with little or no spatial resolution;      |
|                         | measures total power                       |
+-------------------------+--------------------------------------------+
| Monitors                | Magnetic fields, particles, x-rays in the  |
|                         | vicinity of the sensor                     |
+-------------------------+--------------------------------------------+
| ## Active               |                                            |
+-------------------------+--------------------------------------------+
| Radars                  | Backscattered radiowaves from the surface  |
|                         | or atmospheric particulates to measure     |
|                         | distance, altitude, or velocity            |
+-------------------------+--------------------------------------------+
| Synthetic Aperture      | Backscattered radiowaves from the surface  |
| Radars                  | resulting in high spatial resolution       |
|                         | images                                     |
+-------------------------+--------------------------------------------+
| Lidars                  | Backscattered laser light from surface or  |
|                         | atmospheric particulates to measure        |
|                         | composition or wind speed                  |
+-------------------------+--------------------------------------------+

#### 

#### 3. Remote Sensing Applications

Applications of space-based remote sensing data are seemingly endless.
Perhaps most widely known is the use of remotely sensed imagery in
weather forecasting seen daily on every local television news program.
While news media applications continue to grow, remote sensing
applications in the civilian sector go far beyond reporting the news and
forecasting the weather. In agriculture, crops can be monitored for
disease and drought, ultimately providing estimates of crop yields.
Similarly, the health of forests can be ascertained and the scale of
deforestation monitored. Geographical and geological studies allow for
detailed mapping of the earth's surface and the discovery of potential
mineral resources. Water and marine resources can be observed to monitor
pollution or to track icebergs and marine life. Air pollution and the
depletion of the ozone layer can be monitored as well. Remote sensing
can also be of assistance in monitoring and relieving the devastation
caused by natural disasters. In addition to the numerous civilian
applications, remote-sensing technology is also used for military
reconnaissance and verification of compliance with arms control
treaties, contributing to world security.[^19] Although certainly not
inclusive, Table 2 lists various remote sensing applications.

**TABLE 2**

**Remote Sensing Applications**[^20]

+---------------+-------------+----------------------------------------+
| CATEGORY      |             | APPLICATIONS                           |
+---------------+-------------+----------------------------------------+
| #             | ## Earth    | Glacier evolution                      |
| # Environment |             |                                        |
|               |             | Snow cover and runoff                  |
|               |             |                                        |
|               |             | Forestry: evolution, diseases, fires,  |
|               |             |                                        |
|               |             | deforestation                          |
|               |             |                                        |
|               |             | Agriculture: yield prediction, damage  |
|               |             |                                        |
|               |             | assessment, diseases                   |
|               |             |                                        |
|               |             | Surface composition                    |
|               |             |                                        |
|               |             | Artifacts, urban development           |
+---------------+-------------+----------------------------------------+
|               | ## Air      | Temperature profiles                   |
|               |             |                                        |
|               |             | Humidity profiles                      |
|               |             |                                        |
|               |             | Trace constituent profiles             |
|               |             |                                        |
|               |             | Cloud types                            |
|               |             |                                        |
|               |             | Wind                                   |
|               |             |                                        |
|               |             | Smoke and air pollutants               |
+---------------+-------------+----------------------------------------+
|               | ## Water    | Temperature                            |
|               |             |                                        |
|               |             | Currents                               |
|               |             |                                        |
|               |             | Wave spectra                           |
|               |             |                                        |
|               |             | Contaminants                           |
|               |             |                                        |
|               |             | Biological activity                    |
|               |             |                                        |
|               |             | Ice cover                              |
|               |             |                                        |
|               |             | Iceberg monitoring                     |
+---------------+-------------+----------------------------------------+
|               | Atmosphere  | Magnetospheric conditions              |
|               |             |                                        |
|               |             | Ionospheric conditions                 |
|               |             |                                        |
|               |             | Solar wind                             |
|               |             |                                        |
|               |             | Aurora                                 |
|               |             |                                        |
|               |             | Ozone monitoring                       |
+---------------+-------------+----------------------------------------+
| Military      |             | Reconnaissance                         |
|               |             |                                        |
|               |             | Missile launch detection               |
|               |             |                                        |
|               |             | Strategic and tactical planning        |
|               |             |                                        |
|               |             | Arms treaty compliance                 |
+---------------+-------------+----------------------------------------+
| ## Media      |             | News gathering                         |
+---------------+-------------+----------------------------------------+
| #             |             | Various types                          |
| # Cartography |             |                                        |
+---------------+-------------+----------------------------------------+
| Humanitarian  |             | Natural disaster assistance            |
+---------------+-------------+----------------------------------------+

# B. Relevant International Law

All activities conducted in outer space are subject to a body of
international law. The United Nations Committee on Peaceful Uses of
Outer Space (COPUOS) promulgates the majority of international law
related to space activities.[^21] While there is no specific treaty
dealing with remote sensing from space, there are several treaties
relevant to the subject. Moreover, the United Nations General Assembly
(UNGA) has adopted a non-binding Resolution embodying several remote
sensing principles.[^22]

##### *1. International Treaties*

There are three international space treaties of import to commercial
remote sensing: (1) the 1967 Treaty on Principles Governing the
Activities of States in the Exploration and Use of Outer Space,
Including the Moon and Other Celestial Bodies[^23] (Outer Space Treaty);
(2) the 1975 Convention on Registration of Objects Launched Into Outer
Space[^24] (Registration Convention); and (3) the 1972 Convention on
International Liability for Damage Caused by Space Objects[^25]
(Liability Convention). The U.S. and all other current space-capable
nations are party to these treaties.[^26]

Article I of the Outer Space Treaty requires the "exploration and use of
outer space . . . be carried out for the benefit and interests of all
countries . . . and shall be the province of all mankind."[^27] Article
I further provides that "\[o\]uter space shall be free for exploration
and use by all states without discrimination of any kind, on a basis of
equality and in accordance with international law ..."[^28] Under
Article II, "\[o\]uter space ... is not subject to national
appropriation by claim of sovereignty, by means of use or occupation, or
by any other means."[^29] These are the so-called "common interest,"
"freedom" and "non-appropriation" principles. These three principles are
relevant to remote sensing in relation to the collection and
distribution of data. Unlike airspace, outer space is free and is not
subject to State sovereignty. States cannot dictate the activities of
others in space even when orbiting above their territory. The common
practice of States has been to allow free passage of space objects over
their territories. Thus, it can be argued that remote sensing satellites
are free to collect data from space regarding any portion of the Earth.
Additionally, since space activities must be carried out for the benefit
and interest of all mankind, many states argue that any such data
collected should be made available to everyone.[^30]

Article VI of the Outer Space Treaty is of particular importance.[^31]
Under Article VI, State parties bear international responsibility for
national activities in outer space including any activities by
non-governmental entities. States must assure any activities carried out
by private entities are done so in conformity with the Treaty.
Furthermore, the activities of non-governmental entities require
authorization and continuing supervision by the appropriate State.
Hence, Article VI essentially requires that States regulate the space
activities of non-governmental or private entities.

Article VII of the Outer Space Treaty is unique in international law in
that it holds States liable for damage caused by private entities in
their space endeavors.[^32] The 1972 Liability Convention is an
expansion and clarification of Article VII of the Outer Space Treaty.
Under the Liability Convention, States are absolutely liable for damage
caused by the space objects of private entities on the surface of the
earth or to an aircraft in flight.[^33] For damage caused to a space
object itself, or to persons or property on board a space object,
located other than on the surface of the earth, or to an aircraft in
flight, fault based liability attaches.[^34] As such, States must be
sure to address liability concerns in any regulatory scheme.

Finally, pursuant to Article VIII of the Outer Space Treaty, States that
place space objects on their national registry retain jurisdiction and
control over such objects[^35]. The 1975 Registration Convention expands
and clarifies Article VIII, requiring that launching States maintain a
national registry and that the Secretary General of the UN maintain an
international registry.[^36] Under Article IV of the Registration
Convention, States must furnish the Secretary General with specific
information regarding each space object maintained on its registry.[^37]
States comply with these requirements by, in turn, regulating private
entities involved in space activities.

## *2. United Nations Remote Sensing Principles*

After a lengthy debate over whether remotely sensed data should be
internationally available on a nondiscriminatory basis and the alleged
right of prior consent on the part of the sensed state, the UNGA adopted
the UN Remote Sensing Principles in the form of a non-binding Resolution
on January 22, 1987.[^38] Initial discussions regarding remote sensing
from outer space took place at the First UN Conference on Peaceful Uses
of Outer Space in Vienna in 1968.[^39] In the early 1970s, Argentina,
Brazil and other developing countries asserted that each State has
permanent sovereignty over natural resources within their territory and
that any information acquired regarding those resources was included in
the concept of sovereignty.[^40] Thus, developing countries argued that
the consent of the sensed State was a prerequisite to any space-based
remote sensing of their sovereign territory. Moreover, they maintained
that if remote sensing did occur, they were entitled to any data
generated and that the distribution of such data to third parties was
impermissible without the consent of the State sensed.[^41]

The U.S. has long been a proponent of the international availability of
remotely sensed data on a nondiscriminatory basis, commonly referred to
as the "Open Skies" policy. The UN Remote Sensing Principles (UN
Principles) largely embody this policy.[^42] Although non-binding, the
U.S. commercial remote sensing regulatory regime recognizes them, for
the most part, as international obligations and requires those licensed
in the U.S. to comply with the data accessibility principle. The UN
Principles apply only to "natural resources management, land use, and
the protection of the environment," meteorological and military
(reconnaissance) applications are not included.[^43] In a nutshell, the
UN Principles permit States to freely sense and distribute data from
outer space without the consent of the sensed State. Moreover, it is now
well-established customary international law that remote sensing may be
conducted without prior consent.[^44]

Under the UN Principles, remote-sensing activities must be carried out
for the benefit and interest of all countries and in accordance with
international law.[^45] Additionally, remote-sensing activities must be
conducted with respect to all States' permanent sovereignty over its
wealth and natural resources, and may not be conducted in such a manner
detrimental to the legitimate rights of the sensed State.[^46] These
particular UN Principles are merely a restatement of terms from the
Outer Space Treaty or other well-established customary international
law. Furthermore, States conducting remote sensing are required to
provide technical assistance on mutually agreed terms and are
encouraged, preferably through regional agreements, to establish data
collection, storage, processing and interpretation facilities.[^47] The
UN Principles also make it clear that the protection of the earth's
environment and the protection of mankind from natural disasters are of
extreme importance.[^48]

States conducting remote sensing activities must inform the Secretary
General of the UN regarding their remote sensing program.[^49] Moreover,
states conducting remote sensing activities must make available to all
States, at their request and to the greatest extent feasible and
practicable, any relevant information regarding such activities.[^50]
Additionally, remote-sensing States are required to enter into
consultations with sensed States upon request.[^51] Finally, and most
significantly, sensed States shall have access to primary and processed
data concerning the territory under their jurisdiction as soon as it is
produced on a nondiscriminatory basis and on reasonable cost terms.[^52]
This includes access to available analyzed information in the possession
of any State participating in remote sensing on the same basis and
terms.[^53]

######## III. PROTECTING NATIONAL SECURITY

The commercial availability of better than one-meter resolution imagery
is a double-edged sword. As discussed in Section II above, the benefits
for the military, agriculture, the environment, and countless other
applications are immense. Such benefits include the potential commercial
profit to be realized by remote sensing. Along with those benefits,
however, come national security risks. Processed images taken by Space
Imaging Inc.'s IKONOS satellite are available on the international
market within a day of the object or area being sensed.[^54] Thus, any
type of military build-up or movement is easily monitored throughout the
world. Moreover, the layout of static military sites and positioning of
military equipment generally unknown to the general public could soon
become common knowledge for both friend and foe. For instance, IKONOS
recently produced an image of a secret missile launch site in North
Korea. When the image was shown to a U.S. intelligence official, the
official remarked, "that's classified."[^55] Images of the infamous
"Area 51" or "Groom Lake" in Nevada, as well as a nuclear reactor and
missile base in Pakistan, and several Chinese air bases have recently
become commercially available as well.[^56]

While the commercial production of such images can certainly play a role
in advancing international security through arms control monitoring and
deterrence, it also poses potential threats to national security. One
such threat is the threat of attack on space systems, either on the
ground segment or on the satellite itself through the use of
anti-satellite (ASAT) weapons. According to Vice Admiral Thomas R.
Wilson, the director of the U.S. Defense Intelligence Agency, countries
are sure to develop capabilities to defeat space assets through denial
and deception, signal jamming and ground segment attack; adding that
satellite denial weapons are a future concern.[^57] It is only a matter
of time before both the ground and space segments of remote sensing
systems are targeted and attacked in armed conflict. This type of threat
brings into issue the protection of U.S. national space systems, an
issue recently receiving substantial attention,[^58] and is outside the
scope of this article. However, the mere availability of high-resolution
commercial imagery could be devastating to national security, especially
during times of armed conflict, and is addressed herein. For instance,
in the 1991 Persian Gulf War, Allied forces conducted a two-month
build-up of forces without detection by Iraq.[^59] Such operations could
prove to be impossible today absent some type of control over the
commercial industry.

In the past, the U.S. intelligence community protected its intelligence
secrets and methods, as well as other national security interests, in
two ways: (1) spatial resolution limitations; and (2) access to
data.[^60] The Remote Sensing Policy Act and 1994 Clinton Administration
Policy on Foreign Access to Remote Sensing Capabilities (Presidential
Decision Directive (PDD 23)) diminished the power of these two forms of
control by permitting international access to high-resolution commercial
imagery. However, the Act, PDD 23 and the regulations implementing them
contain significant safeguards for the protection of national security.

**A. General Protections**

Through licensing rules, procedures and conditions for operation, the
U.S. government not only complies with the relevant international law
but also seeks to protect national security interests. To date, the
Department of Commerce has not issued final regulatory rules and
procedures under the 1992 Remote Sensing Policy Act. On November 3,
1997, the National Oceanic and Atmospheric Administration (NOAA)
published a set of Proposed Rules and Regulations.[^61] Based on the
amount of substantive comments received, NOAA determined it appropriate
to revise the proposed rules and seek further public comment.[^62] From
1987 through August 30, 2000, the Rules and Regulations in effect
consisted of those promulgated under the 1984 Act.[^63] On July 31,
2000, the Department of Commerce issued an interim final rule which
became effective on August 30, 2000.[^64] The interim final rule
requires a commercial remote sensing operator to obtain at least three
and possibly four different licenses: (1) a remote sensing operating
license; (2) a radio frequency license; (3) a launch license; and (4) an
export license (if required).[^65]

The Land Remote Sensing Policy Act and interim final rule set out in
detail operating licensing procedures and operating conditions.[^66]
Under the Act, the Secretary of Commerce is authorized to license
private parties to operate private space-based remote sensing systems in
consultation with other appropriate U.S. Government agencies.[^67]
Licensing authority has been delegated to the National Oceanic and
Atmospheric Administration (NOAA).[^68] The Secretary is also empowered
to condition and transfer licenses.[^69] A license may not be issued
until the Secretary determines that the applicant will comply with all
of the requirements of the act, any regulations issued pursuant to the
act, and any international obligations and national security concerns of
the U.S.[^70] The Secretary may terminate, modify, or suspend licenses
on an immediate basis if the Secretary determines that the licensee has
substantially failed to comply with the Act, the terms and conditions of
the license, or with the international obligations and national security
concerns of the U.S.[^71] It is strictly prohibited to operate a private
remote sensing system without a license[.]{.mark} Any person[^72] who is
subject to the jurisdiction or control of the United States who operates
or proposes to operate a private remote sensing space system, either
directly or through any subsidiary or affiliate, or who establishes
substantial connections with the U.S. regarding the operation of a
private remote sensing system, must obtain a license to operate the
system.[^73] Once a license has been issued, operators are required to
notify the Secretary of any deviation from the submitted orbit and data
collection characteristics of the remote sensing system.[^74]

The application is reviewed not only by the Commerce Department but also
by the Department of Defense (DOD), the State Department, the Department
of the Interior, and any other Federal agencies determined to have a
substantial interest in the matter.[^75] The Secretary of Defense is
responsible for determining the conditions necessary to meet national
security concerns of the U.S. and the Secretary of State is responsible
for determining the conditions necessary to meet the international
obligations of the U.S.[^76] Space-based remote sensing applications are
reviewed to ensure compliance with those conditions. To comply with U.S.
international obligations, applicants must demonstrate the ability to
make unenhanced data collected by the system available to the government
of any sensed state (including the U.S.) as soon as the data is
available and on reasonable terms and conditions.[^77]

PDD 23 contains several provisions aimed at combating any potential
national security problems as well. [^78] Pursuant to the Policy,
operators licensed under the 1992 Remote Sensing Policy Act are required
to maintain a record of all satellite taskings over the previous year
and provide the U.S. Government access to such records.[^79] Licensees
may not change the operational characteristics of their systems without
formal notice and approval of the Department of Commerce.[^80] All
encryption devices must be approved by the U.S. Government for the
purpose of denying unauthorized access during periods when national
security, international obligations or foreign policies may be
compromised.[^81] Furthermore, operators must use a data downlink
format[^82] that provides the Government access and use of the data
during such periods.

**B. Specific Protections---Conditions for Operation**

It should already be quite evident that significant national security
safeguards exist within the 1992 Act, PDD 23 and the interim final rule
issued by the Commerce Department to implement the provisions of both
the 1992 Act and PDD 23. Various types of conditions for operation may
be included in any commercial remote sensing license. Section 960.11 of
the interim final rule sets forth 12 minimum conditions that must be
included in all licenses, the following six of which are directly
relevant to national security:

> \(1\) Specific limitations on operational performance, including, but
> not limited to, limitations on data collection and dissemination;
>
> \(2\) A requirement that the operator maintain operational control of
> the system from a location within the U.S.;
>
> \(3\) Operators must maintain and make available records of system
> tasking, operations, and other data as specified in individual
> licenses for the purposes of monitoring and compliance. Moreover,
> operators must allow NOAA access to all facilities comprising the
> remote sensing system for inspection;
>
> \(4\) Operators may be required to limit data collection and/or
> distribution by the system as determined to be necessary to meet
> national security or foreign policy concerns, or international
> obligations of the U.S. During any such limitation, the operator must
> provide unenhanced images on a commercial basis exclusively to the
> U.S. Government using encryption and a format that allows the
> Government access to the data;
>
> \(5\) Operators must notify NOAA of any significant or substantial
> foreign agreement and submit the agreement for review; and
>
> \(6\) No data shall be provided to a foreign state if the release of
> such data is contrary to the national security concerns of the U.S.
> The Government may require, as a specific license condition,
> coordination with NOAA prior to providing specific foreign state
> requests for unenhanced data.[^83]

The conditions for operation can be grouped into four primary
categories: (1) limitations on operational performance; (2) monitoring
and compliance; (3) limitations on foreign involvement; and (4)
limitations on data collection and/or dissemination or "shutter
control."

*1. Limitations on Operational Performance*

As a general rule, remote sensing operating licenses will be issued
covering the full operational capability of a remote sensing
system.[^84] In other words, all data and imagery the system is capable
of collecting and disseminating may be collected and disseminated under
the license. However, where new or advanced technologies are involved,
such as the employment of hyperspectral and synthetic aperture radar
(SAR) systems, a so-called "two-tiered" license may be issued.[^85] Such
a license will allow the operator to operate its system at one level,
available to all users, while reserving the full operational capability
of the system for the U.S. Government or U.S. Government approved
customers only.[^86] Moreover, while the conditions for operation
contained in section 960.11 of the interim final rule apply to all
systems, specific limitations may be placed on the operational
parameters, design characteristics, and data throughput[^87] of
hyperspectral and SAR systems due to national security, foreign policy
and international obligations.[^88] Some of the more significant
limitations could include resolution limitations; system throughput; and
protection, such as encryption, of uplinks and downlinks.[^89] Thus,
although a remote sensing system may be capable of producing images with
a half-meter resolution in a matter of hours, the operational
limitations contained within a specific license may, for example, only
permit the collection of images with a one meter resolution made
available for dissemination no earlier than 24 hours after data
collection. This puts commercial operators in the unique position of
possessing highly sensitive remote sensing data unavailable to the rest
of the world.

*2. Monitoring and Compliance*

The department of Commerce has established a fairly rigorous monitoring
and compliance program. Operators are subject to reporting and record
keeping requirements (including records of system tasking, operations
and other data as specified in individual licenses), records reviews,
audits and on-site inspections.[^90] Quarterly reporting is required for
any anomalies or events that have caused the systems to operate outside
license parameters.[^91] Various records of operation for the previous
year, as specified in individual licenses, must be maintained and made
available to the U.S. Government upon request.[^92] Licensees are
"expected to provide various data as verification of compliance with the
operating restrictions detailed in the operating license."[^93] An
on-site audit must be conducted at least annually to assure compliance
with the national security, foreign policy, international obligations of
the U.S. and all other license conditions.[^94] Finally, a separate
annual operational audit is also required under the interim final
rule.[^95]

*3. Limitations on Foreign Involvement*

In an attempt to strike a balance between promotion of the commercial
industry and protection of national security, foreign entities may be
involved in the operation of a remote sensing system only after approval
from NOAA. Remote sensing system operators are required to notify NOAA
of any significant or substantial agreement[^96] that they intend to
enter into with any foreign nation, entity or consortium.[^97] NOAA will
then ensure that the proposed foreign agreement contains provisions to
ensure compliance with all requirements regarding national security
including the ability to implement restrictions on the foreign party's
acquisition and dissemination of imagery as imposed by the license.[^98]
NOAA will also ensure the agreement sets forth the obligation of the
operator to convey to the foreign party any reporting and record keeping
requirements, and the obligation to facilitate any monitoring and
compliance activities required by the license.[^99] The proposed foreign
agreement will be reviewed not only by NOAA but also by any other
interested Federal Agencies as well.[^100] The proposed agreement may
not be implemented until NOAA is sufficiently satisfied that any such
agreement will not affect NOAA's ability to enforce the Commercial
Remote Sensing Act or the operator's ability to comply with the Act, the
regulations or the terms and conditions of the operator's license.[^101]

The fundamental requirement for the protection of national security
where foreign entities are involved in the operation of a system is that
"operational control" must be maintained from a location within the
United States.[^102] Operational control is defined as "the ability to
operate the system or override commands issued by any operations center
or station."[^103] Thus, while a foreign entity may have a hand in the
operation of a space-based remote-sensing system, the ability to shut it
down must reside on U.S. soil. This requirement also complies with U.S.
obligations under the 1967 Outer Space Treaty that hold State
government's responsible for private entities' actions in outer
space.[^104]

*4. Shutter Control*

Perhaps the most important, and most controversial, national security
protection is the ability of the U.S. Government to limit data
collection and/or dissemination, more commonly referred to as "shutter
control." PDD 23 provides that:

> During periods when national security or international obligations
> and/or foreign policies may be compromised, as defined by the
> Secretary of Defense or the Secretary of State, respectively, the
> Secretary of Commerce may, after consultation with the appropriate
> agency(ies), require the licensee to limit data collection and/or
> distribution by the system to the extent necessitated by the given
> situation. Decisions to impose such limits only will be made by the
> Secretary of Commerce in consultation with the Secretary of Defense or
> the Secretary of State, as appropriate. Disagreements between Cabinet
> Secretaries may be appealed to the President. The Secretaries of
> State, Defense and Commerce shall develop their own internal
> mechanisms to enable them to carry out their statutory
> responsibilities.[^105]

Shutter control essentially provides the U.S. Government the ability to
shut down U.S. commercial remote sensing operators when national
security concerns dictate, such as in time of armed conflict. This
capability is of great importance to military operations as it ensures
that high-resolution imagery depicting military movement, facilities and
equipment locations will not be made available to the general public by
U.S. commercial operators.

On February 2, 2000, the Departments of Commerce, State, Defense,
Interior and the Intelligence Community entered into an inter-agency
memorandum of understanding (MOU) outlining the procedures for
exercising shutter control.[^106] The MOU requires all parties to
consult in an attempt to come to an agreement as to the appropriate
conditions to be imposed.[^107] However, the Secretaries of State and
Defense can determine that the urgency of a given situation precludes
consultation.[^108] Moreover, the MOU makes clear that the Secretaries
of Defense and State can exercise shutter control even over the
objections of the Secretary of Commerce.[^109] Any decision to exercise
shutter control will remain in effect until the President reverses it or
the secretary making the decision withdraws it.[^110]

While the Clinton administration promised a hands-off approach except in
extreme situations, American military officials debated whether to
impose restrictions on Space Imaging's IKONOS satellite during the
Kosovo conflict in 1999.[^111] The issue became moot when the satellite
was destroyed in a launch mishap and the replacement satellite was not
launched until after the conclusion of the NATO campaign.

The Commerce Department received numerous comments on the November 3,
1997 proposed rules and regulations regarding shutter control.[^112]
Commercial space-based remote sensing operators asserted that the
conditions for implementation were too vague, that there were no clear
guidelines as to when the shutter control may be invoked, and that they
lacked needed transparency.[^113] Shutter control has been criticized as
being so vague and over broad that not only is it detrimental to the
commercial industry, but it violates the First Amendment to the U.S.
Constitution.[^114] Critics claim that the uncertainty of the policy
makes the space-based remote sensing business a risky undertaking as
there are no clear conditions under which the shutter control can be
implemented. Critics further argue that the policy deters investment in
U.S. companies and systems for the same reason and will only increase
foreign competition. Free speech advocates claim the vagueness of the
policy gives government officials too much latitude in making the
decision to invoke the policy.[^115] Some journalists would go as far as
requiring a federal judge to approve any shutter control.[^116] What the
critics fail to acknowledge is that the conditions for implementation
must be somewhat vague. It is impossible to predict the precise
conditions under which it would be necessary to limit data collection or
distribution pursuant to the policy. Furthermore, requiring judicial
approval to invoke shutter control would undermine its very purpose. The
delay necessitated by judicial approval could prove devastating to
national security and even deadly to military troops.

It has also been suggested that the decision to invoke shutter control
should rest with the President as opposed to the Secretaries of
Commerce, Defense and State. According to former U.S. Central
Intelligence Agency director R. James Woolsey, this would make it more
likely that the policy would be invoked only in extreme cases, providing
additional protection for the operators.[^117] This recommendation fails
to recognize the potential urgency of any given national security
situation. The current decision-making policy provides adequate
safeguards for both industry and for national security. It gives the
Secretaries of Commerce, Defense, and State the ability to make
immediate decisions, protecting national security interests when the
urgency of any given situation requires an immediate decision.

Despite the concerns of some in the industry and of various other
critics, the Commerce Department has concluded "the regulations strike
an appropriate balance between promoting the U.S. commercial remote
sensing industry and protecting U.S. national security, foreign policies
and international obligations."[^118] That finding is quite justifiable
as the fundamental underlying concept of both the Remote Sensing Policy
Act and the policy decision to allow commercial sale of remotely sensed
imagery (PDD 23) is the protection of national security, foreign
policies, and international obligations.

Moreover, the U.S. government is not free to exercise shutter control on
a whim. The inter-agency MOU provides that "\[a\]lternatives to
prohibitions on collection and/or distribution shall be considered such
as delaying the transmission or distribution of data, restricting the
field of view of the system, encryption of the data if available, or
other means to control the use of the data."[^119] Furthermore, under
the terms of the MOU, shutter control should be imposed for the smallest
area and for the shortest time necessary to protect national
security.[^120] Finally, it is likely that the exercise of shutter
control will have little or no adverse impact on commercial operators in
times of national crisis. Although commercial operators stand to lose
profits generated by private entities and foreign governments during a
period of shutter control, U.S. Government demand for commercial
remotely sensed data is likely to increase substantially during the same
period. That increased demand seems likely to more than offset any
profits lost from private entities and foreign governments. For
instance, if shutter control had been imposed on Space Imaging, Inc.
during the Kosovo conflict in 1999, U.S. Government demand for IKONOS
imagery of the region would likely have increased a great deal.

Debate over shutter control is likely to continue until it either
becomes moot or is resolved within the international community. The
ability to implement shutter control applies only to commercial remote
sensing operators licensed in the U.S. As commercial remote sensing
systems with high-resolution capabilities become more commonplace
worldwide, the debate may well become moot. While U.S. companies may be
able to maintain somewhat of a technological edge over foreign
companies, space-based remote sensing capabilities throughout the world
will most likely continue to improve. There will be no reason for the
U.S. to invoke the shutter control clause and shut down one of its
companies when identical data can be obtained from a French or Russian
remote sensing company. In fact, the images that recently became
available of Area 51 were generated by a Russian remote sensing
system.[^121] Some analysts believe remote-sensing satellites have
become so numerous and competitive that government abilities to control
what is disseminated have already been substantially diminished.[^122]

Due to the increasing availability of commercial imagery, the
international community may conclude that to protect both national and
world security interests, the creation of some type international
shutter control is in order. International shutter control could arise
from diplomatic pressure or it could arise in the form of formal
bilateral or multilateral treaties. While high-resolution imagery can
play an important role in world security by creating transparency and
monitoring compliance with arms control treaties, States are likely to
remain concerned about the implications of high-resolution imagery on
their national security when systems similar to those in the U.S. become
common throughout the world. The resulting collective concern may lead
to some form of international agreement or agreements containing
provisions similar to that of the U.S. shutter control.

**C. The Kyl-Bingaman Amendment**

The U.S. has already made a move toward protecting the security
interests of its allies. The U.S. has advocated nondiscriminatory access
to space-based remote sensing data since the inception of the data
distribution debate in the late 1960s.[^123] This position, for the most
part, has not changed unless national security concerns dictate
otherwise. The 1992 U.S. Land Remote Sensing Policy Act requires that
any unenhanced data generated by any land remote sensing system funded
and owned by the U.S. Government be made available to all users on a
nondiscriminatory basis and on reasonable terms.[^124] In accord with
the UN remote sensing principles, the Commerce Department's interim
final rule includes a requirement that *all* unenhanced data be made
available on a nondiscriminatory basis.[^125] This requirement applies
to any cases in which the U.S. Government funds all or a substantial
part of the development, fabrication, launch, or operation costs of a
remote sensing system.[^126] If the U.S. government has not provided any
such funding, unenhanced data collected by a remote sensing system must
be made available to the government of any country, upon request,
concerning *only* the territory under the jurisdiction of such
government in accordance with reasonable commercial terms and
conditions.[^127]

Thus, U.S. Government funded systems must make all unenhanced data
available on a nondiscriminatory basis whereas nongovernment-funded
systems need only make unenhanced data available to "sensed states."
However, there is an exception to these general rules. The data need not
be so provided where the release is contrary to national security,
foreign policy or international obligations. Additionally, under
two-tier licenses, only data and imagery licensed for commercial sale is
subject to these requirements, and even then the operator is required to
notify NOAA of any sensed-state requests. If the U.S. Government has
provided some of the funding, NOAA, in consultation with other
appropriate U.S. agencies, shall, subject to national security concerns,
determine whether any data should be made available on a
nondiscriminatory basis. There is some evidence to suggest that the U.S.
may be backing away from its "Open Skies" policy, if ever so slightly.

In 1996, the U.S. Congress passed a law as part of the National Defense
Authorization Act for Fiscal Year 1997 restricting the collection and
dissemination of imagery with respect to Israel.[^128] Under this law,
commonly referred to as the Kyl-Bingaman Amendment, private remote
sensing operators may not be licensed to sell imagery regarding Israel
unless the imagery to be sold is no more detailed or precise than that
routinely available from other commercial sources.[^129] "Pursuant to
that law, the Department of \[C\]ommerce will make a finding as to the
level of detail or precision of satellite imagery of Israel available
from commercial sources."[^130] At a minimum, the Department of Commerce
reviews non-U.S. commercially available imagery on an annual basis. Its
findings will be in the Federal Register.[^131] At present, the best
resolution available from other commercial sources is approximately two
meters.[^132]

To obtain an operating license, private remote sensing operators must
submit a plan explaining how its proposed system will comply with these
restrictions.[^133] Hence, while private companies such as Space Imaging
Inc. are technically capable of producing imagery with better than
one-meter resolution, they cannot sell such imagery regarding Israel.
Beyond this, the President of the U.S. has the power under the law to
designate other countries or geographic areas as falling under the same
policy. There are no restrictions or guidelines as to when or under what
circumstances the President may make such designations. Presumably, the
President would exercise his prerogative for national security or
foreign policy reasons but the law places no such restrictions on any
designation.

It seems unlikely that the U.S. will significantly back away from its
Open Skies policy unless national and world security concerns dictate
otherwise. However, the passage of the 1997 Defense Authorization Act
opens the door to such a scenario. In 1996, imagery with one-meter
resolution was not available on the commercial market. With the
currently available high-resolution imagery, it is likely that countries
are much more concerned about the dissemination of commercial imagery
today than they were four years ago. The problem the U.S. may soon have
to contend with is States other than Israel demanding equal treatment.
This could pose competitive problems for the U.S. commercial remote
sensing industry as well as foreign relations problems for the U.S.
Government. In the near future, the U.S. may well be faced with the
choice of either abolishing the policy regarding Israel or extending the
policy to other States.

## D. Miscellaneous Protections

There are additional U.S. laws restricting the collection and
distribution of remote sensing imagery in the interests of national
security. Federal espionage statutes prohibit gathering and
disseminating defense information, photographing defense installations,
and gathering and delivering defense information to foreign
governments.[^134] Additional national security safeguards exist in
export control statutes and regulations. For example, during times of
crisis, the Trading with the Enemy Act of 1917 is applicable.[^135]
These laws add to the national security protections contained within the
remote sensing regulatory regime.

**IV. CONCLUSION**

Space-based remote sensing consists of collecting data regarding the
surface of the earth via satellite. Various technical means are employed
to collect the data. The information gleaned from such data can be used
in a variety of applications. Existing international legal instruments
essentially require national regulation of space-based remote sensing
activities. Under existing international law, remote sensing activities
may be conducted without the prior consent of the sensed State and any
data collected should be made available to everyone on a
non-discriminatory basis.

The 1992 U.S. Remote Sensing Policy Act opened the door to private
remote sensing operators. The widespread availability of high-resolution
imagery presents a paradox for the military. On the one hand, they can
certainly benefit from the use of such imagery. On the other hand,
providing too much information to potential adversaries about sensitive
U.S. military installations and operations could prove devastating to
overall military operations.

A fundamental precept under the Remote Sensing Policy Act is the
protection of national security. An extensive regulatory regime exists
under the Act and is aimed at balancing the competing interests of the
commercial remote sensing industry and national security concerns.
Through limitations on operational performance, an extensive monitoring
and compliance program, limitations on foreign involvement, and
limitations on data collection and/or dissemination or "shutter
control," the U.S. law, policy and regulatory regime adequately protect
national security while preserving the viability of the commercial
industry.

The greater threat to U.S. national security may well be posed by the
advancing technologies of foreign remote-sensing operators. While the
U.S. can control its own commercial remote sensing industry, it cannot
control those of other states. To resolve this potential threat, U.S.
officials should exert diplomatic pressure on foreign states to
implement practical and legal controls on the dissemination of
commercial remotely sensed data similar to those of the U.S. Moreover,
as high-resolution imagery becomes increasingly available from foreign
sources, it may become necessary to conclude bilateral or multilateral
treaties with other states providing for controls on the distribution of
data in times of crisis.

[^1]: ^\*^ *Captain Hoversten (B.S., Park College, J.D., University of
    Mississippi, LL.M., McGill University) is assigned as Chief, Air and
    Space Law Branch, International and Operations Law Division, Office
    of the Air Force Judge Advocate General.*

[^2]: See M. Umberger, *Commercial Observation Satellite Capabilities,
    in* C[ommercial]{.smallcaps} O[bservation]{.smallcaps}
    S[atellites]{.smallcaps} [and]{.smallcaps}
    I[nternational]{.smallcaps} S[ecurity]{.smallcaps} 9 (M. Krepon et.
    al., eds., 1990) \[hereinafter *Commercial Observation Satellite
    Capabilities*\].

[^3]: The term "resolution" can have different meanings. For the
    purposes of this paper, resolution corresponds to the size of the
    smallest discernible object in an image.

[^4]: *See* *Commercial Observation Satellite Capabilities*, *supra*
    note 1.

[^5]: In December 2000, Space Imaging, Inc.'s next-generation imaging
    satellite, capable of 0.5 meter resolution, was granted a license by
    the National Oceanic and Atmospheric Administration (NOAA). Space
    Imaging, Inc. plans to launch the satellite in 2004. *See* V. Loeb,
    *U.S. is Relaxing Rules on Sale of Satellite Photos; After a
    Year-Long Policy Review, Far Greater Detail Being Allowed*, [Wash.
    Post,]{.smallcaps} Dec. 16, 2000, at A.3. *See also* J.C. Anselmo,
    *Commercial Spaces' Sharp New Image*, 152:5 [Av. Wk. & Space
    Tech.,]{.smallcaps} Jan. 31, 2000, at 52 \[hereinafter *Sharp New
    Image*\].

[^6]: See W.J. Broad, *Snooping's Not Just for Spies Any More*, N. Y.
    T[imes,]{.smallcaps} Apr. 23, 2000, at 4.6 \[hereinafter *Snooping's
    Not Just for Spies Any More*\].

[^7]: *Sharp New Image*, *supra* note 4, at 54.

[^8]: The U.S. Government operated its space-based remote sensing "Land
    Satellite" (Landsat) system until 1984 when the U.S. Congress passed
    the Land Remote Sensing Commercialization Act. Land Remote Sensing
    Commercialization Act, 15 U.S.C. § 4201 *et. seq.* (1984), repealed
    by Land Remote Sensing Policy Act, 15 U.S.C. § 5601 *et. seq.*
    (1992). Under the 1984 act, a private company would operate the
    Landsat System, but the Government would continue to own it. In
    1985, the U*.*S. government contracted with EOSAT Corporation to
    operate the system and EOSAT was designated as the Government's
    agent. *See* R. B[ender]{.smallcaps}, L[aunching]{.smallcaps}
    [and]{.smallcaps} O[perating]{.smallcaps} S[atellites]{.smallcaps}:
    L[egal]{.smallcaps} I[ssues]{.smallcaps} 242 (1998) \[hereinafter
    L[aunching]{.smallcaps} [and]{.smallcaps} O[perating]{.smallcaps}
    S[atellites]{.smallcaps}\].

[^9]: Land Remote Sensing Policy Act, 15 U.S.C. § 5601-5672*.* (1992).
    In 1992, the Land Remote Sensing Policy Act was enacted repealing
    the 1984 Act and permitting full commercialization (privately owned
    and operated) of remote sensing satellite systems with the exception
    of weather systems which remain within the public domain. *Id*. §
    5671.

[^10]: U.S. P[olicy]{.smallcaps} [on]{.smallcaps} F[oreign]{.smallcaps}
    A[ccess]{.smallcaps} [to]{.smallcaps} R[emote]{.smallcaps}
    S[ensing]{.smallcaps} C[apabilities]{.smallcaps}, H.R. 6133 at 243,
    103d Cong. (1994) (commonly referred to as Presidential Decision
    Directive 23 or "PDD 23") \[hereinafter PDD 23\].

[^11]: Land Remote Sensing Policy Act, 15 U.S.C. § 5602(5) (1992).

[^12]: The Land Remote Sensing Policy Act defines the term as follows:
    "The term 'unenhanced data' means land remote sensing signals or
    imagery products that are unprocessed or subject only to data
    preprocessing." Land Remote Sensing Policy Act*,* 15 U.S.C. §
    5602(13) (1992).

[^13]: *Principles Relating to Remote Sensing of the Earth from Outer
    Space*, Principle I(c), U.N. Doc. A/Res/41/65 (1986) \[hereinafter
    *UN Remote Sensing Principles*\].

[^14]: *Id*. at Principle I(d).

[^15]: D.H. Staelin & J. Kerekes, *Remote Sensing Capabilities*, *in*
    H[eaven]{.smallcaps} [and]{.smallcaps} E[arth]{.smallcaps}:
    C[ivilian]{.smallcaps} U[ses of]{.smallcaps} N[ear]{.smallcaps}
    E[arth]{.smallcaps} S[pace]{.smallcaps}, 163 (D.G. Dallmeyer & K.
    Tsipis, eds., 1997) \[hereinafter *Remote Sensing Capabilities*\]. A
    satellite in the geosynchronous orbit flies at an altitude of
    approximately 22,300 miles and appears to remain relatively fixed
    over a point on Earth because its speed and altitude match the
    rotation of the earth on its axis. Low-Earth orbits range from 60 to
    250 miles in altitude. *See* [John M. Collins, Military Space
    Forces: The Next]{.smallcaps} 50 Y[ears 151]{.smallcaps} (1989).

[^16]: *Remote Sensing Capabilities*, *supra* note 14, at 164.

[^17]: *Remote Sensing Capabilities*, *supra* note 14, at 164.

[^18]: *Remote Sensing Capabilities*, *supra* note 14, at 165.

[^19]: *See*, *e.g.,* S. G[orove]{.smallcaps},
    D[evelopments]{.smallcaps} [in]{.smallcaps} S[pace]{.smallcaps}
    L[aw]{.smallcaps}: I[ssues]{.smallcaps} [and]{.smallcaps}
    P[olicies]{.smallcaps} 294 (1991) \[hereinafter
    D[evelopments]{.smallcaps} [in]{.smallcaps} S[pace]{.smallcaps}
    L[aw]{.smallcaps}\].

[^20]: Partially reproduced from *Remote Sensing Capabilities*, *supra*
    note 14, at 167.

[^21]: COPUOS was created in 1958 as an ad hoc committee of the UN.
    *Questions on the Peaceful Use of Outer Space*, GA Res. 1348 (XIII),
    Dec. 13, 1958. In 1959 it was extended for two additional years.
    *International Co-Operation in the Peaceful Uses of Outer Space*, GA
    Res. 1472 (XIV), Dec. 12, 1959. It was re-established as a permanent
    committee in 1961. *International Co-Operation in the Peaceful Uses
    of Outer Space*, GA Res. 1721 (XVI), Dec. 20, 1961.

[^22]: *See UN Remote Sensing Principles, supra* note 12.

[^23]: Treaty on Principles Governing the Activities of States in the
    Exploration and Use of Outer Space, Including the Moon and Other
    Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205,
    T.I.A.S. No. 6347 (entered into force Oct. 10, 1967) \[hereinafter
    Outer Space Treaty\].

[^24]: Convention on Registration of Objects Launched Into Outer Space,
    Jan. 14, 1975, 28 U.S.T. 695, 1023 U.N.T.S. 15, T.I.A.S. No. 8480
    (entered into force Sept. 15, 1976) \[hereinafter Registration
    Convention\].

[^25]: Convention on International Liability for Damage Caused by Space
    Objects, Mar. 29, 1972, 24 U.S.T. 2389, 961 U.N.T.S. 187, T.I.A.S.
    No. 7762 (entered into force Sept. 1, 1972) \[hereinafter Liability
    Convention\].

[^26]: For a list of current parties to all space treaties, see Office
    for Outer Space Affairs, Status of International Agreements Relating
    to Activities in Outer Space, last modified Jan. 1, 2001, *at*

    http://www.oosa.unvienna.org/Reports/treaty_status_2001E.pdf (copy
    on file with the *Air Force Law Review*).

[^27]: Outer Space Treaty, *supra* note Error: Reference source not
    found, at Art. I.

[^28]: Outer Space Treaty, *supra* note Error: Reference source not
    found, at Art. I*.*

[^29]: Outer Space Treaty, *supra* note Error: Reference source not
    found, at Art. II.

[^30]: *See generally* R. B[ender]{.smallcaps}, L[aunching]{.smallcaps}
    [and]{.smallcaps} O[perating]{.smallcaps} S[atellites]{.smallcaps}:
    L[egal]{.smallcaps} I[ssues]{.smallcaps} 215-218 (1998)
    \[hereinafter L[aunching]{.smallcaps} [and]{.smallcaps}
    O[perating]{.smallcaps} S[atellites]{.smallcaps}\].

[^31]: The full text of Article VI read as follows:

    > State Parties to the Treaty shall bear international
    > responsibility for national activities in outer space, including
    > the moon and other celestial bodies, whether such activities are
    > carried on by governmental agencies or non-governmental entities,
    > and for assuring that national activities are carried out in
    > conformity with the provisions set forth in the present Treaty.
    > The activities of non-governmental entities in outer space,
    > including the moon and other celestial bodies, shall require
    > authorization and continuing supervision by the appropriate State
    > Party to the Treaty. When activities are carried out in outer
    > space, including the moon and other celestial bodies, by an
    > international organization, responsibility for compliance with
    > this Treaty shall be borne both by the international organization
    > and by the State Parties to the Treaty participating in such
    > organization.

    Outer Space Treaty, *supra* note Error: Reference source not found,
    at Art. VI.

[^32]: Outer Space Treaty, *supra* note Error: Reference source not
    found, at Art. VII.

[^33]: Liability Convention, *supra* note 24, at Art. II.

[^34]: Liability Convention, *supra* note 24, at Art. III.

[^35]: Outer Space Treaty, *supra* note Error: Reference source not
    found, at Art. VIII.

[^36]: Registration Convention, *supra* note 23, at Arts. II, III.

[^37]: Registration Convention, *supra* note 23, at Art. IV.

[^38]: *UN Remote Sensing Principles*, *supra* note 12, at Principle
    I(a).

[^39]: C.Q. C[hristol]{.smallcaps}, T[he]{.smallcaps}
    M[odern]{.smallcaps} I[nternational]{.smallcaps} L[aw]{.smallcaps}
    [of]{.smallcaps} O[uter]{.smallcaps} S[pace]{.smallcaps} 721 (1982)
    \[hereinafter C[hristol]{.smallcaps}\]. Progress in the area was
    begrudgingly slow primarily due to disagreements concerning State
    sovereignty rights and the freedom of outer space. During the
    discussions, two major disputes arose, the first regarding prior
    consent of the sensed State and the second regarding the right to
    access and disseminate remotely sensed data. *See*, *e.g.*, *id.* at
    722; D[evelopments]{.smallcaps} [in]{.smallcaps} S[pace]{.smallcaps}
    L[aw]{.smallcaps}, *supra* note 18 at 294-298; H. DeSaussure,
    *Remote Sensing Satellite Regulation by National and International
    Law*, 15 R[utgers]{.smallcaps} C[omputer]{.smallcaps} &
    T[ech]{.smallcaps}. L.J. 351, 354-355 (1989) \[hereinafter *Remote
    Sensing Satellite Regulation*\].

[^40]: *See* D[evelopments]{.smallcaps} [in]{.smallcaps}
    S[pace]{.smallcaps} L[aw]{.smallcaps}, *supra* note 18, at 294-298;
    *Remote Sensing Satellite Regulation*, *supra* note 38, at 354-355;
    L[aunching]{.smallcaps} [and]{.smallcaps} O[perating]{.smallcaps}
    S[atellites]{.smallcaps}, *supra* note 7, at 215-216.

[^41]: In 1974, the Soviet Union and France announced their positions,
    through a draft convention submitted to the UN, that consent prior
    to remotely sensing a State's territory was unnecessary. However, it
    was their view that any data obtained must be provided to the sensed
    State on mutually acceptable terms and that the distribution of any
    data to third parties would require the permission of the sensed
    State. L[aunching]{.smallcaps} [and]{.smallcaps}
    O[perating]{.smallcaps} S[atellites]{.smallcaps}, *supra* note 7, at
    216. The U.S. and some Western European countries took the position
    that no consent of any kind was required. That is, it was their
    position that remote sensing activities did not require prior
    consent of the sensed State and any data obtained via remote sensing
    was freely distributable to third parties on a nondiscriminatory
    basis without the permission of the sensed State. This position is
    commonly referred to as the "Open Skies" policy and is founded in
    the principle of freedom of outer space. The U.S. argued that
    pursuant to the freedom principle under an early UNGA Resolution,
    and Article I of the Outer Space Treaty, States are free to conduct
    remote sensing activities in space. *See* UNGA Resolution 1721
    (XVI), *International Co-Operation in the Peaceful Uses of Outer
    Space*, Dec. 20, 1961, GA Res. 1721(XVI). Furthermore, they asserted
    that remote sensing activities are beyond the sovereign control of
    any state pursuant to Article II of the Outer Space Treaty. *See*
    L[aunching]{.smallcaps} [and]{.smallcaps} O[perating]{.smallcaps}
    S[atellites]{.smallcaps}, *supra* note 7 at 218. Hence, the Open
    Skies position regarding remote sensing is that all States may be
    sensed without prior consent. The collection and distribution of
    data, however, occurs on earth, not in space so the same argument
    cannot be maintained. Regarding the ground segment, the U.S. relies
    on Article 19 of the Universal Declaration of Human Rights which
    provides that "\[e\]veryone has the right to . . . seek, receive and
    impart information through any media and regardless of frontiers."
    *Universal Declaration of Human Rights*, G.A. Res. 217 (III), UN
    GAOR, 3d Sess., Supp. No. 13, at 71, UN Doc. A/810 (1948). The U.S.
    claims that any restrictions on the right to collect and distribute
    remotely sensed data on earth would violate Article 19. Thus, the
    U.S. maintains that remotely sensed data may be freely distributed
    without the permission of the sensed State.

[^42]: The UN Remote Sensing Principles are essentially a compromise
    between the Open Skies and Prior Consent positions, with Open Skies
    advocates emerging victorious on most issues and Prior Consent
    proponents earning a few concessions. The only potential victory
    achieved by proponents of prior consent is the right of access to
    primary data, processed data and analyzed information on a
    nondiscriminatory basis and on reasonable cost terms. While this
    could be viewed as a victory, it should be noted that the U.S. has
    always been a proponent of nondiscriminatory access and it was part
    of the Open Skies policy to begin with. Nevertheless, this could be
    viewed as a victory when it comes to furthering the development of
    lesser developed countries in that they should have access to state
    of the art data and information, provided they have the means to pay
    for it. Problems remain, however. How will the sensed State know the
    data or information has been produced? What is the real meaning of
    "nondiscriminatory?" What are reasonable cost terms? In the end, the
    Principles provide little more than political influence for
    developing countries advocating prior consent.

[^43]: *UN Remote Sensing Principles*, *supra* note 12, at Principle
    I(a).

[^44]: *See* *generally* D[evelopments]{.smallcaps} [in]{.smallcaps}
    S[pace]{.smallcaps} L[aw]{.smallcaps}, *supra* note 18.

[^45]: *Principles Relating to Remote Sensing of the Earth from Outer
    Space*, Principles II, III, U.N. Doc. A/Res/41/65 (1986).

[^46]: *Id*. at Principle IV. While remote sensing activities must be
    conducted with respect to State sovereignty over natural resources
    and may not be detrimental to the rights and interest of the sensed
    State, one is left wondering exactly what this means. It merely
    restates well-established law and under the circumstances, appears
    to be but a small concession to the concerns of developing countries
    containing little substantive meaning.

[^47]: *Id*. at Principles VI, VII.

[^48]: *Id*. at Principles X, XI.

[^49]: *Id*. at Principle IX.

[^50]: *Id*. The requirement that sensing States provide information
    regarding their remote sensing programs upon request and to the
    greatest extent feasible and practicable is of little real value.
    Since "feasible and practicable" are not defined, one can fathom
    endless circumstances under which a sensing State would not consider
    it feasible or practicable to provide the requested information.
    Sensing States basically need some kind of undefined excuse to
    legitimately withhold information.

[^51]: *Id*. at Principle XIII.

[^52]: *Id*. at Principle XII.

[^53]: *Id*.

[^54]: *See* *Sharp New Image*, *supra* note 4, at 54.

[^55]: *Sharp New Image*, *supra* note 4, at 52.

[^56]: See, *e.g.,* *Snooping's Not Just for Spies Any More*, *supra*
    note 5; A. Colhoun, *Top-Secret Kodak Moment in Space Shakes Global
    Security*, C[hristian]{.smallcaps} S[cience]{.smallcaps}
    M[onitor]{.smallcaps}*,* Mar. 21, 2000, at 2; Neil King Jr.,
    *Activists Use Satellite to Challenge View that China's Air Force
    Menaces Taiwan*, [Wall St. J.,]{.smallcaps} May 12, 2000, at A20.

[^57]: Quoted in R. Wall, *NRO's Mission Under Scrutiny* 152:6 [Av. Wk.
    & Space Tech.]{.smallcaps}, Feb. 7, 2000, at 33.

[^58]: *See*, *e.g.*, F.J. Gaffney, Jr., *Time for Countdown on U.S.
    Space Defense*, W[ash]{.smallcaps}. T[imes,]{.smallcaps} Jan. 9,
    2001, at A12; W. Pincus, *Rumsfeld Panel to Propose Councils to
    Safeguard Satellites*, W[ash]{.smallcaps}. P[ost]{.smallcaps}, Jan.
    9, 2001, at 24.

[^59]: J.C. Anselmo, *Commercial Satellites Zoom in on Military Imagery
    Monopoly*, 147:12 [Av. Wk. & Space Tech.]{.smallcaps}*,* Sept. 22,
    1997, at 75.

[^60]: Y. Sneifer, *The Implications of National Security Safeguards on
    the Commercialization of Remote Sensing Imagery* 19
    S[eattle]{.smallcaps} U.L. R[ev]{.smallcaps}. 539, 562 (1996).
    \[hereinafter Sneifer\] (citing F.B. Henderson III, *Private Sector
    Satellite Remote Sensing: Barriers to Commercialization*, *in* 2
    A[merican]{.smallcaps} E[nterprise]{.smallcaps}, [the]{.smallcaps}
    L[aw]{.smallcaps}, [and]{.smallcaps} [the]{.smallcaps}
    C[ommercial]{.smallcaps} U[se]{.smallcaps} [of]{.smallcaps}
    S[pace]{.smallcaps} 79, 102-105 (P.D. Mink, ed., 1986) \[hereinafter
    Henderson\]). Historically, high resolution imagery was the province
    of only the military and intelligence communities. Prior to the
    adoption of the 1992 Remote Sensing Policy Act, which allowed remote
    sensing by private companies, the U.S. Government owned and
    controlled all U.S. remote sensing systems. As such, it was able to
    control the type and quantity of data made available to the public
    as well as the quality of that data. For example, the government
    could choose to make unavailable to the public data regarding
    military installations. Moreover, although the government may have
    been capable of producing imagery with .05 meter resolution, it may
    have only made available to the public imagery with two meter
    resolution. Thus spatial resolution limitations and controlled
    access to data were and continue to be two methods of national
    security protection.

[^61]: Proposed Commercial Remote Sensing Satellite System Rules, 62
    Fed. Reg. 59317 (Nov. 3, 1997).

[^62]: *See* Department of Commerce Statement of Regulatory and
    Deregulatory Priorities, 64 Fed. Reg. 63911, 63915 (Nov. 22, 1999)
    \[hereinafter Statement of Regulatory Priorities\].

[^63]: Licensing of Private Remote Sensing Space Systems, 15 C.F.R. §
    960 (1987).

[^64]: Licensing of Private Land Remote-Sensing Space Systems, Interim
    Final Rule, 15 C.F.R. § 960, 65 Fed. Reg. 46821 (July 31, 2000)
    \[hereinafter Interim Final Rule\].

[^65]: The remote sensing operating license procedures and their
    associated conditions are the focus of this article. However,
    licensing requirements do not end with the remote sensing operating
    license. Radio frequency, launch and export licensing procedures and
    conditions have their own separate regulatory regimes. While a
    remote sensing operating license grants permission to operate a
    commercial system, it does not provide the means to do so. To
    operate a space-based remote sensing system, radio frequencies must
    be utilized and to gain access to those frequencies, a separate
    license is required. Radio frequency licenses in the U.S. are the
    domain of the Federal Communications Commission (FCC). The 1992 Land
    Remote Sensing Policy Act requires that a separate application be
    filed with the FCC for any radio facilities involved with commercial
    remote sensing space systems. Land Remote Sensing Policy Act, 15
    U.S.C. § 5656(a) (1992). Radio frequency license application
    requirements and procedures are located at Satellite Communications
    Licensing Regulations, 47 C.F.R. § 25.101-25.531 (1997). After
    permission to operate a commercial remote sensing system is obtained
    through the remote sensing operating license and the means to
    operate the system have been obtained through a radio frequency
    license, a commercial operator must then launch its system into
    outer space. To do so, a third license is required, the launch
    license. While a request for launch authorization may be included in
    the radio frequency license application, no person may launch a
    launch vehicle from the U.S. without a launch license issued under
    the Commercial Space Launch Act. Commercial Space Launch Act of 1984
    as Amended 1988, 49 U.S.C. § 70101-70121 (1999)*.* A U.S. citizen or
    entity must obtain a U.S. launch license to launch a vehicle outside
    the U.S. as well. Commercial Space Transportation Licensing
    Regulations, 14 C.F.R. § 413.3(b) (1999). Launch licenses are issued
    through the Department of Transportation and application
    requirements and procedures are located at Commercial Space
    Transportation Licensing Regulations, 14 C.F.R. § 400.1-440.19
    (1999) . An export license may also be required depending on where
    the remote sensing operator chooses to launch its satellite. Remote
    sensing satellites have been designated as "significant military
    equipment," and are listed in Category XV of the United States
    Munitions List (USML). International Traffic in Arms Regulations, 22
    C.F.R. §§ 120.7, 121.1 (1999). No item appearing on the USML may be
    exported without a license. Arms Export Control Act, 22 U.S.C. §
    2778(b)(2) (1999). As such, if the launch is to take place outside
    U.S. territory, an export license must be obtained from the
    Secretary of State under the U.S. export control regime. Export
    license requirements and procedures are located at International
    Traffic in Arms Regulations, 22 C.F.R. § 120.1-120.29 (1999).

[^66]: Land Remote Sensing Policy Act, 15 U.S.C. § 5621-5622 (1992);
    Interim Final Rule, *supra* note 63.

[^67]: Land Remote Sensing Policy Act, 15 U.S.C. § 5621(a)(1) (1992).

[^68]: Interim Final Rule, *supra* note 63 at 46822.

[^69]: Land Remote Sensing Policy Act, 15 U.S.C. § 5623(a)(1) (1992).

[^70]: *Id*. at § 5621(b)(1).

[^71]: *Id*. at § 5623(a)(2).

[^72]: A person is defined as:

    > \(1\) an individual who is a United States citizen, or a foreign
    > person subject to the jurisdiction and control of the United
    > States; (2) A corporation, partnership, association, or other
    > entity organized or existing under the laws of any state,
    > territory, or possession of the United States; (3) a subsidiary
    > (foreign or domestic) of a U.S. parent company; (4) an affiliate
    > (foreign or domestic) of a U.S. company; or (5) any other private
    > remote sensing system operator having substantial connections with
    > the United States or deriving substantial benefits from the United
    > states that support its international remote sensing operations
    > sufficient to assert U.S. jurisdiction as a matter of common law.

    Interim Final Rule, *supra* note 63, at 46823-46824.

[^73]: Interim Final Rule, *supra* note 63, at § 960.2(a).

    > In determining whether substantial connections exist with regard
    > to a specific system, the factors NOAA may consider include, but
    > are not limited to: the location of a system control center or
    > operations centers and stations; the administrative control of the
    > system; use of a U.S. launch vehicle; location or administrative
    > control of ground receiving stations; the investment, ownership,
    > or technology included in the system.

    Interim Final Rule, *supra* note 63, at § 960.2(b).

[^74]: Land Remote Sensing Policy Act, 15 U.S.C. § 5622(b)(5) (1992).

[^75]: Interim Final Rule, *supra* note 63, at § 960.6(a).

[^76]: Land Remote Sensing Policy Act*,* 15 U.S.C. § 5657 (1992);
    Interim Final Rule, *supra* note 63, at § 960.1(b).

[^77]: Land Remote Sensing Policy Act, 15 U.S.C. § 5622(b)(2) (1992).

[^78]: *See* PDD 23, *supra* note 9.

[^79]: *See* PDD 23, *supra* note 9.

[^80]: *See* PDD 23, *supra* note 9.

[^81]: *See* PDD 23, *supra* note 9.

[^82]: Data downlink refers to the transmission of remotely sensed data
    from a satellite to an earth-based ground station. Such data can be
    transmitted in different formats or even be encrypted.

[^83]: Interim Final Rule, *supra* note 63, at § 960.11.

[^84]: Interim Final Rule, *supra* note 63, at 46826.

[^85]: Interim Final Rule, *supra* note 63, at 46826.

[^86]: Interim Final Rule, *supra* note 63, at 46826.

[^87]: Throughput is the measurement of time during data collection,
    ground processing, and dissemination.

[^88]: Interim Final Rule, *supra* note 63, at 46826.

[^89]: Potential limitations for SAR systems include, but are not
    limited to: (1) resolution in terms of impulse response (IPR); (2)
    grazing angles; (3) geolocational accuracy; (4) multiple
    polarization; (5) system throughput (i.e., measurement of time
    during data collection, ground processing, and dissemination); (6)
    protection of phase history data; (7) location and function of
    non-U.S. operations centers and stations; and (8) protection of all
    uplinks and downlinks. Potential limitations for hyperspectral
    systems include, but are not limited to: (1)spatial and spectral
    resolution; (2) co-registration of hyperspectral data with data
    provided by other on-board sensors; (3) operational wavelengths; (4)
    system throughput; (5) protection of remote sensing space system
    commanding, sensor tasking, and tasking information; (6) protection
    of raw data; (7) location and function of non-U.S. operations
    centers and stations; and (8) protection of all uplinks and
    downlinks. Interim Final Rule, *supra* note 63, at 46826.

[^90]: *See* Licensing of Private Land Remote-Sensing Space Systems,
    Interim Final Rule, 15 C.F.R. § 960.119(b)(3), 65 Fed. Reg. 46821
    (2000).

[^91]: *Id*. at 46825.

[^92]: *Id*.

[^93]: *Id*.

[^94]: *Id*.

[^95]: *Id*.

[^96]: Significant and substantial foreign agreement is defined as

    > an agreement with a foreign nation, entity, consortium, or person
    > that provides for one or more of the following: (1) Administrative
    > control which may include distributorship arrangements involving
    > the routine receipt of high volumes of the system's unenhanced
    > data; (2) Participation in the operations of the system; (3)Direct
    > access to the system's unenhanced data; or (4) An equity interest
    > in the licensee held by a foreign nation and/or person, if such
    > interest equals or exceeds or will equal or exceed ten (10)
    > percent of total outstanding shares, or entitles the foreign
    > person to a position on the licensee's Board of Directors.

    *Id*., at § 960.3.

[^97]: *Id*. at § 960.111(5).

[^98]: *Id*. at § 960.8(b).

[^99]: *Id*.

[^100]: *Id*.

[^101]: *Id*. at § 960.8(d).

[^102]: *Id*. at § 960.11(b)(2).

[^103]: *Id*. at § 960.3.

[^104]: Outer Space Treaty, *supra* note Error: Reference source not
    found, at art. VI.

[^105]: PDD 23, *supra* note Error: Reference source not found.

[^106]: Fact Sheet Regarding the Memorandum of Understanding Concerning
    the Licensing of Private Remote Sensing Satellite Systems, Feb. 2,
    2000, 15 C.F.R. 960, Appendix 2; 65 Fed. Reg. 46836 (July 31, 2000)
    \[hereinafter MOU\].

[^107]: *Id.* at para. B(3).

[^108]: *Id.* at para. B(4).

[^109]: *Id.; see also* J. Bates, *U.S. Industry Upbeat, but Wary About
    Satellite Imaging Rules*, 11:9 S[pace]{.smallcaps}
    N[ews,]{.smallcaps} Mar. 6, 2000, at 1.

[^110]: MOU, *supra* note 105, at para. B(5).

[^111]: *See* *Sharp New Image*, *supra* note 4, at 52.

[^112]: *See generally* Interim Final Rule, *supra* note 63, at
    46822-46829.

[^113]: Interim Final Rule, *supra* note 63, at 46823. Transparency
    refers to making the reasons for invoking shutter control readily
    apparent.

[^114]: *See*, *e.g.*, M. Bourbonniere, *A Critical Review of American
    Regulations Pertaining to Commercial Remote Sensing Market
    Structures,* XXII-I A[nn]{.smallcaps}. A[ir]{.smallcaps} &
    S[p]{.smallcaps}. L. 455, 465-469 (1999) \[hereinafter
    Bourbonniere\]; Sneifer, *supra* note 59, at 564; J.C. Anselmo,
    *Shutter Controls: How Far Will Uncle Sam Go?*, 152:5 [Av. Wk. &
    Space Tech.,]{.smallcaps} Jan. 31, 2000, at 55 \[hereinafter
    *Shutter Controls*\].

[^115]: *See* *Shutter Controls*, *supra* note Error: Reference source
    not found, at 55.

[^116]: *See Shutter Controls*, *supra* note Error: Reference source not
    found, at 56.

[^117]: *See* *Shutter Controls*, *supra* note Error: Reference source
    not found, at 55.

[^118]: Interim Final Rule, *supra* note 63, at 46823.

[^119]: MOU, *supra* note 105, at para. B(2).

[^120]: MOU, *supra* note 105, at para. B(2).

[^121]: *Snooping's Not Just for Spies Any More*, *supra* note 5.

[^122]: *Snooping's Not Just for Spies Any More*, *supra* note 5*.*

[^123]: Canada has adopted the
    nondiscriminatory-collection-and-distribution-of-data policy with
    regard to its space-based remote sensing system, RADARSAT. The 1994
    RADARSAT Data Policy states that data shall be available to users on
    a nondiscriminatory basis. Furthermore, "\[d\]ata distribution shall
    be consistent with the United Nations Resolution 41/65 of December
    3, 1986 on the Principles Relating to Remote Sensing of the Earth
    from Space." CSA, NASA & NOAA/NESDIS, RADARSAT Data Policy,
    RSCA-PR0004 § 10.1(a) (July 13, 1994) at 11. For analysis of
    RADARSAT, SPOT, and European policies, see *e.g.* C. Phillipe,
    Civilian Satellite Earth Observation Policies in France and Canada:
    Comparative Analysis of RADARSAT and SPOT Policies (1996)
    (unpublished International Space University paper) (copy on file
    with the author); [F.G. von der Dunk]{.smallcaps}, [Earth
    Observation and Data Policy in Europe: The Legal Issues]{.smallcaps}
    (1999).

[^124]: Land Remote Sensing Policy Act, 15 U.S.C. § 5651(a) (1992).

[^125]: Interim Final Rule, *supra* note 63, at § 960.12(a).

[^126]: Interim Final Rule, *supra* note 63, at § 960.12(a).

[^127]: Interim Final Rule, *supra* note 63, at § 960.12(b). Reasonable
    commercial terms and conditions include making data available to
    different classes at different prices has been determined to be
    reasonable. Interim Final Rule, *supra* note 63, at 46826.

[^128]: Relevant provisions read as follows:

    > PROHIBITION ON COLLECTION AND RELEASE OF DETAILED SATELLITE
    > IMAGERY RELATING TO ISRAEL

    COLLECTION AND DISSEMINATION---A department or agency of the United
    States may issue a license for the collection or dissemination by a
    non-Federal entity of satellite imagery with respect to Israel, only
    if such imagery is no more detailed or precise than satellite
    imagery of Israel that is available from commercial sources.

    DECLASSIFICATION AND RELEASE---A department or agency of the United
    States may declassify or otherwise release satellite imagery with
    respect to Israel, only if such imagery is no more detailed or
    precise than satellite imagery of Israel that is available from
    commercial sources.

    National Defense Authorization Act for Fiscal Year 1997, § 1745,
    Pub. L. No. 104-201, H.R. 3230, S. 1064 104th Cong., 2nd Sess.
    (1996), \[hereinafter National Defense Authorization Act\].

[^129]: Commercial sources is interpreted for the purposes of the
    Interim Final Rule "as referring to satellite imagery so readily and
    consistently available from non-U.S. commercial entities that the
    availability of additional imagery from U.S. commercial sources may
    be permitted." Interim Final Rule, *supra* note 63, at 46827.

[^130]: Interim Final Rule, *supra* note 63, at 46827*.*

[^131]: Interim Final Rule, *supra* note 63, at 46827*.*

[^132]: *Snooping's Not Just for Spies Any More*, *supra* note 5.

[^133]: *Interim Final Rule*, *supra* note 63, at 46827.

[^134]: 18 U.S.C. § 792-799 (2000).

[^135]: 50 U.S.C. Appendix § 1-44 (2000).