Cameron Worrell is a second year student at the University of Mississippi School of Law pursuing a certificate in Remote Sensing, Air, and Space Law.
In the last blog post, I gave a skeletal overview of the current law on space debris, along with some of the issues inherent with that law. This blog post will focus on possible changes to existing law to address those problems, namely the assignation of liability to a specific party. These potential changes on space debris liability can be divided into the same two groups as before: damage to space objects and damage to objects within Earth’s atmosphere.
The foundation for all further change is identification of the culprit—in the case of space debris, the launching party. However, given that there are between 19,000 and 500,000 pieces of space debris currently in orbit according to varying government reports, the likelihood of identifying the perpetrator of a relatively small impact (regardless of its large consequences) is slim. To solve this problem, the international community could come to a couple of possible agreements, at least. They could shift the burden of proof slightly, only asking that the tortfeasor prove that it was likely to be debris from the offending party, and giving the defendant the opportunity to show otherwise. Another possibility is the idea of a “signature” unique to each launching party, such as a nonlethal radioactive substance, that could indicate the nation of origin of any future debris. The problem with these plans is the same as the problem with any plans calling for more accountability in space: those with the most to lose are those that matter. The United States, Russia, and China have little incentive to sign an international agreement that makes them more vulnerable to foreign lawsuits. If they wish to extract concessions for a satellite incident, all they do is expend a bit of political capital and get on with their day. Smaller countries do not have that luxury, so are deterred from investing heavily in space.
For space-to-space incidents, the primary problem is observation. With no way to witness potentially tortious incidents, both sides can claim it was the other’s fault and call their respective experts on orbits to disagree with the other. Installing video cameras is not as implausible an option as it seems at first glance. Operators of streaming webcam footage from places as wide-ranged as savannah watering holes and urban bars sustain themselves with advertisement money from viewers, a policy that could be repeated with consumers interested in seeing a live view of outer space. Furthermore, even discarding that assumption, it is a small price to pay relative to the hassle saved. A camera would not only show what happened in the accident, but also exactly where the objects were when they collided, via measurements of relative points like stars. If the point of impact is determined, the responsible party is likely also determined.
For space-to-earth debris, there is a different problem. While the protocols in place were followed somewhat by the USSR and Canada in the 1970s (as mentioned in the previous article), their execution was not strong. For one, the Canadians received less than half the money they requested for cleanup. Both sides argued their numbers were correct, as they should, but this outlines the problem in not having a binding impartial arbitrator. If they were willing to swallow the miniscule loss of sovereignty, the various spacefaring nations could recognize a third-party arbitrator, determined before any incident occurred, to determine international space-to-earth tort damages.
Blake Hempill is a native Mississippian and rising 2L. He intends to enter the field of Entertainment Law.
While last week I focused on remote sensing overall, and how it is used by both States and their citizens, this week I’ll focus more on how it is viewed legally. While its use, and possible abuse, is one of global concern, this week’s post will focus more on the domestic views that have developed surrounding the issue. In the United States, the governing opinion on remote sensing, and its use on actors within the country’s borders, stems from the decision in Kyllo v. United States.1
Kyllo is an opinion dealing with the federal government’s use of thermal imaging to detect possible grow houses, used in the growing of marijuana. After establishing a house was emitting an excessive amount of heat, an indication that a lot of lamps were possibly being used to grow something inside, law enforcement would then secure a search warrant and make a raid on the property to recover any evidence of drug manufacturing and make arrests. The question being put to the court in this case was whether the use of thermal imaging technology constituted an illegal search of private property, since they were clearly intending to search for people having a higher heat register.
The court in the past ruled that simple flyovers of property were not in violation of the fourth amendment, because commercial and private air travel had long been established as a routine occurrence, and that people should therefore have no reasonable expectation of privacy when it comes to something that is clearly visible by the naked eye from a normal altitude of a plane in flight. The court upheld this in future cases, with rulings that helicopters and planes that broke below the normal altitude did not fall into this category, and would therefore not be a proper plain view exemption to the fourth amendment. Kyllo represents a hybrid problem, a plain view vantage point but with the use of sense enhancing technology.
The Kyllo court ruled that this was not a proper search, as the use of thermal imaging falls outside of the plain view doctrine. The court found the government’s argument that sense the simple use of thermal imaging did not penetrate the walls of the home, either through the ability to see in or listen to conversations, to not be very persuasive. This decision could very well be one to keep an eye on in the future, however, as the court was split five to four in its decision, and could very well flip the other way in the future.
Kyllo brings about many questions about the implications for advanced imaging technology in satellites and its use. It appears that the decision, puts a clear barrier on what can and cannot be used, at least when it comes to being able to obtain a proper warrant against someone. Satellite images are fine, because air traffic has already made the space above us, unless someone has the very unlikely chance of having a no fly zone over their property, open to all eyes, therefore anything that can be easily seen is fair game. Anything beyond this parameter seems to cross the boundaries, however, and enter an area where if not illegal, at least gets murkier.
___________________________________________________________ 1 Kyllo v. United States, 533 U.S. 27 (2001)
MT Smith is from Jacksonville, FL and grew up in a military family, moving around the U.S. He calls Jacksonville, FL and Charlotte, NC home. MT graduated from the University of North Carolina at Wilmington with a Bachelor of Arts degree in Communication Studies. He then pursued a career in Naval Aviation as a pilot in the US Navy, flying multiple aircraft with his primary platform being the Navy’s E-6B Mercury. His many deployments as an Aircraft Commander and Mission Commander in support of USSTRATCOM’s TACAMO and Looking Glass operations fueled his interests in the arena of Communications and National Security issues as well as Air and Space Law. He is in his second year of law school at The University of Mississippi where he hopes to earn the National Center for Remote Sensing, Air and Space Law Certificate.
It’s easy to point the judging finger at North Korea, condemning their recent attempted launch of the UNHA-3 rocket, and to claim that it is a masked attempt to conduct intercontinental ballistic missile (ICBM) testing operations. Of course, there is North Korea’s history of deceitful uranium enrichment, deliberate and defiant prior launches, and their ultimate blatant disregard for U.N. Security Council Resolutions, which justify a certain amount of skepticism, but is it that simple to conclude the UNHA-3 launch was a definitive violation of international space law, in fact an attempted launch of an ICBM, or were they in fact, as they claim, simply exercising their right to peaceful space development? Whether it is an absolute violation of international space law or a launch of peaceful purposes, how do we legitimately make that determination?
In addressing what constitutes an internationally legal space vehicle launch, one could find numerous articles clearly suggesting the legal parameters of “peaceful purpose” space launches and the international standards regulating, or prohibiting, ICBM launch activities. The problem facing North Korea’s launch is in their defining rhetoric which claims no more than an attempt to peacefully launch an “earth observing satellite” via a rocket that is incapable of intercontinental travel.1 According to the Encyclopedia Astronautica website, “despite western press speculation that the UNHA-3 could be the basis for an intercontinental ballistic missile that could reach the United States, this three stage rocket is incapable of lofting the payload necessary for that mission.”2 If this is true, the Outer Space Treaty of 1967 clearly states in it’s preamble that there is a “common interest of all mankind in the progress of the exploration and use of outer space for peaceful purposes”3 While White House Press Secretary Jay Carney claims North Korea’s “provocative action threatens regional security, violates international law and contravenes its own recent commitments,” it would seem a case for North Korea’s claim could certainly be made.4
On the other hand of the equation, if mere words were taken as truth at the international level, one could obviously see the inevitable problems that would arise. Although North Korea claims “peaceful purposes” as a given right in the Outer Space Treaty of 1967, often enough, they have shown the international community that their intentions do not appear “peaceful” at all. As previously mentioned, this is not the first occurrence of a defiant act from the North Korean regime. Launches in August 1998, July 2006, and April 2009 were all met with international resistance and even resulted in The U.N. Security Council Resolution 1695, stating, “the United Nations Security Council today condemned the Democratic People’s Republic of Korea’s recent test-firing of a series of missiles, and demanded that the North-East Asian country suspend all ballistic missile related activity and reinstate its moratorium on missile launches.”5 There are documented cases of North Korea’s secret uranium enrichment operations which have caused much international skepticism and concern.6 To add insult to injury, a defected North Korean propagandist went on record in front the House Committee on Foreign Affairs reporting that the sole mission of the current North Korean regime is to find any, and every, source for hard currency to fund ICBM technology.7 To further this accusation, Scott Snyder, the US – North Korea policy director on the Council for Foreign Affairs, claims that the Chinese government has turned a blind eye to the activities between the two nations in many hard currency producing illicit activities, in a sense, opening the back door to the current closed front door financial sanctions imposed by the United States.8 If “peaceful purposes” are the goals of the North Korean regime, in the eyes of the international community, they have done a fine job of conveying anything but that.
Andrew Taylor is currently a law student at the University of Mississippi. He is pursuing a certificate in Remote Sensing, Air, and Space Law.
On 12 February 2008 Sergey Larov, Minister of Foreign Affairs of the Russian Federation, introduced the draft of the Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects (PPWT). This draft was prepared jointly by Russia and China.1 The objective of the PPWT is to prohibit using space as a weapons platform and to also prevent the threat or use of force against space based objects.2 Generally, most people would agree with these twin aims. Trying to limit armed conflict in space would be in the best interest of all (except where space weapons provide a strategic advantage to States involved in armed conflict of course). Armed conflict in space creates the possibility of interrupting everyday tasks that we take for granted, such as using GPS to guide our cars or knocking out our satellite TV signals. Those problems are on an individual level and the tip of the iceberg. At the State level, bringing space weapons into play would only create more tension between states and the possibility of another arms race.3
Generally, the PPWT would go a long way to trying to keep space weapons free. However, there is one area where the PPWT is lacking. It is lacking in the area of regulation of Earth to space based weapons. While the PPWT attempts to prevent the placement of weapons in space, it only applies a clause to Earth based weapons that prevents the use or threat of force to space based assets. The PPWT does nothing to prevent the creation, development, testing, storing, etc. of Earth to space based weapons. Without measures to prevent the creation of these types of weapons, there remains the possibility that these will be developed and used whenever a State feels it’s necessary to break from the treaty.
The PPWT can be stronger in the area of conventional Earth to Space based weapons. The portion about Earth to space weapons should be more akin to the ban of space weapons themselves. By making this area stronger the PPWT there would be more certainty of keeping space weapon free. However, this certainty comes at a price, as most States would not want to sign a treaty that takes away even more of their strategic assets. However, it would be easier, relatively, to verify whether these types of weapons were being built and thus States would not have as many problems signing onto this portion of the PPWT. Essentially it would try to keep the Earth to space arms race limited to as few weapons as possible.
While the PPWT has the capacity to help keep space weapon free, or at least weapon limited, it could also incorporate clauses that limit Earth based space weapons as well.
_______________________________________________ 1 Victor Vasiliev, “The Draft Treaty on the Prevention of the Placement of Weapons in Outer Space, The Threat or Use of Force Against Outer Space Objects,” Security in Space: The Next Generation-Conference Report, 31 March-1 April 2008, United Nations Institute for Disarmament Research, 2008, pg. 145. 2 Id. at 146 3 Id.
Sara Hyde is a 2L at the University of Mississippi School of Law. She hopes to pursue a career in transactional law.
Remote sensing offers possibilities that have never been available before. This technology has been particularly helpful for environmental regulators. With more restrictions being created by lawmakers and other agencies, environmental regulatory bodies are responsible for regulating more entities than ever. With resources stretched thin, remote sensing satellites offer an affordable, comprehensive means by which to regulate. While this may seem to be a perfect solution to some, others are concerned that such surveillance will infringe on the rights given by the Fourth Amendment.
Karen Greer, author of “The Constitutionality of Remote Sensing Satellite Surveillance in Warrantless Environmental Inspections,” believes that using remote sensing satellites to monitor compliance with environmental regulations is allowed under the Fourth Amendment. She uses the case Dow Chemical Co. v. United States, a case examining the constitutionality of aerial surveillance photography, to strengthen the arguments for the constitutionality of remote sensing satellites. (For a brief overview of the holdings for this case visit http://supreme.justia.com/cases/federal/us/476/227/). First, Greer points out that the court determined that this case invoked the open field doctrine, therefore not invoking the protection of the Fourth Amendment regarding warrantless searches. Under the open field doctrine, investigators can observe what is in plain sight without a warrant. (For more on the open field doctrine http://definitions.uslegal.com/o/open-field-doctrine/). Under this analysis, since the site in question had not taken steps to protect against aerial viewing, remote sensing would be allowed because it can only see what is visible to, for example, a passenger in a commercial airline. Second, Greer contends that satellite sensors are not any more intrusive than the aerial photography allowed under Dow Chemical Co. since they are unable the infiltrate walls or see anything more than a non-satellite observer could. Third, she believes that a satellite would not give the EPA an unfair edge in investigation because the satellite images cannot be enhanced to show any more than regular photographs had that the court already ruled were permissible. Fourth, Greer noted that the court in Dow Chemical Co. had also ruled that the wide availability of the technology to the public allowed the investigators to use it without a warrant. Greer reminds us here that satellite images are now readily available to the public, making the use of this technology acceptable by investigators since the court only wanted to protect areas where people reasonably expected to be private and people do not expect to be “free” from satellite surveillance.
While Greer’s arguments seem to support the constitutionality of remote sensing satellites, there is something inherently different between allowing photographers in a plane to take pictures of a specific area and a satellite in constant orbit over the earth to indiscriminately take pictures. One concern with Greer’s argument is that availability to public is questionable. While the Dow Chemical Co. court decided that any member of the public could own that type of camera or fly over in that type of plane, satellites are different. Greer argues that the public has access to imagery from satellites which is true, but the public does not have access to satellites which allow them to decide when to update the imagery or maybe even what specifically to look at. While the public has some access, they do not necessarily have total access or control. Another concern is that footage taken from a plane and footage taken from space differs further in that entities do not know that they are being watched. Though people should always abide by the law regardless of who is watching, there is a difference in the ability to see or hear a plane fly over your home or business and the anonymity of surveillance from space. While Greer contends that the court has established that there is no expectation of privacy from air traffic, there may still be an expectation of privacy from an anonymous, invisible all-seeing eye in space. Lastly, even if remote satellite sensing is constitutional, there are other questions to be answered. For instance, although this technology may prove to be comprehensive, cost effective, and successful, is it good to have a constitutionally approved means by which to see everything? Although the reality of a ‘big brother’ still seems far away from the proposed uses of today, the success of the EPA’s usage could encourage a wider spread use of the technology, covering more people and used for more purposes.
Tyler Pittman is a 2L at the University of Mississippi School of Law. He is fascinated by American criminal law, by space law, and by international law. He is pursuing certificates in Space Law and Criminal law at Ole Miss.
As explained in Part I, California v. Ciraolo1 suggests that police observation of a home through satellite photo imagery would not constitute a Fourth Amendment search. The primary question this raises is how the Katz analysis applies to those situations and how to deal with new issues technology forces on the law. As it stands under Ciraolo, there is no reasonable expectation of privacy2 in uncovered areas of the home and its curtilage, but Ciraolo only speaks to areas outside the structure of the home (i.e. fenced in back yard). Fifteen years after Ciraolo, in 2001, the Supreme Court addressed another issue involving the Fourth Amendment and technology-based searches that has a significant effect on Fourth Amendment analyses when meshed with Ciraolo. In Kyllo v. United States,3 the Court held that using a sense-enhancing device not in general public use to obtain information from inside a home that would otherwise only be obtainable with physical intrusion is a search under the Fourth Amendment and is de facto unreasonable without a warrant.4 The questions that arise from Kyllo, like that of Ciraolo, build on the second prong of the Katz5 analysis.
Kyllo involved a search of a private home by police using a thermal imaging device from public areas outside the home. The police used the imaging device in the dark hours of early morning to detect abnormal heat radiating from inside the home. Detecting the heat would support suspicions of an indoor marijuana-growing operation and thus support the police’s probable cause requirement for a search warrant. The police did detect abnormal heat emissions and obtained a warrant using this information. The defendant challenged the validity of the search due to the use of a thermal imaging device, and the Supreme Court held the search unconstitutional. The Court reasoned that the thermal imaging device peered into the home in ways that would otherwise require physical intrusion and was analogous to police entering the home without a warrant.
The broader issue this case presents is the effect it and Ciraolo have on the Katz analysis as applied to searches from space. If the two are simultaneously applied to a situation in which a home is observed from space, the outcome is complicated because Kyllo affects the Ciraolo analysis. Kyllo is narrowly tailored to technology not in general public use that peers inside the home and observes things the naked eye could not. This would seem to apply equally to space technology, and the Court’s reasoning, that the issue is with sense-enhancing technology allowing for intrusions not otherwise possible, suggests that a reasonable expectation of privacy exists in situations where sense-enhancing technology would be required for observation or obtaining information without close proximity or physical presence. Ciraolo actually supports this thought.
In Ciraolo, the police flyover was at 1,000 feet and an officer used a standard 35-millimeter camera for records.6 The officers identified the marijuana with their naked eye.7 Assuming Kyllo can be extended beyond the home, adding it to the Ciraolo holding would not change the outcome because there was no sense-enhancing device used. The first pertinent change comes when the observation is from an altitude much higher than that in Ciraolo, that is, when the observation or information gathering takes place from space. Since a central focus of Kyllo is technology enhancing human senses, the observing of an uncovered back yard through satellite imagery would violate the sense-enhancing device part of the Kyllo holding – remote sensing technology is necessarily sense-enhancing. Under this, two further questions arise, one involving whether Kyllo applies only to the home or can be extended, and the other involving the ‘general public use’ restriction.
If Kyllo cannot be extended beyond the home, it is likely that a situation in which a home is observed from space would be seen as analogous to Ciraolo. But the dicta in Kyllo suggests that the purpose of the decision was to leave room for situations presented by new technologies and new uses of technology.8 If that in fact is the case, Ciraolo would probably be restricted to cases involving aerial observation where no sense-enhancing devices were used, and the Kyllo analysis would control those situations and more where sense-enhancing devices were used. In effect, a modified Kyllo analysis would be the applicable law when presented with questions of observation or information gathering from space. In order to satisfy the objective prong of Katz, the modified Kyllo analysis would need to show that the sense-enhancing device did not make possible anything that would not have been possible otherwise.9 In essence, this means that a reasonable expectation of privacy would have to exist in the object of the search regardless of the use of sense-enhancing devices.
What then becomes an obstacle in analysis is the ‘general public use’ restriction.10 In order to prevent circular reasoning where Kyllo leads to Ciraolo and vice versa, ‘general public use’ would first need to be defined. As technology develops, it becomes more and more available to the public. If a technology is in general public use, the sense-enhancing aspects no longer affect the analysis under Kyllo, and it seems that Ciraolo would be more applicable based on the public vantage point aspect of the holding. Allowing an obstacle like this to remain in the analysis makes any clear delineation of law even more difficult and allows for much more litigation by forcing courts to decide each case on more fact-specific analyses.
The effects of these cases on each other and Fourth Amendment search analysis show that the current law is not quite clear on when and where a reasonable expectation of privacy from a spatial vantage point exists. If Kyllo cannot be extended beyond the home, the problems arising under the Ciraolo analysis come back into play. In order to have more practicable, clearer law regarding searches from space, it seems that a modified Kyllo analysis is the best response.
_______________________________________________________ 1 476 U.S. 207, 106 S.Ct. 1809 (1986); See also Dow Chemical Co. v. U.S., 476 U.S. 227, 239, 106 S.Ct. 1819, 1827 (1986) 2 Katz v. United States, , 389 U.S. 347, 360, 88 S.Ct. 507, 516 (1967) (J. Harlan concurring) 3 533 U.S. 27, 121 S.Ct. 2038 (2001) 4 533 U.S. at 40, 121 S.Ct. at 2046 5 Katz, 389 U.S. at 360, 88 S.Ct. at 516 (J. Harlan concurring) 6 Ciraolo, 476 U.S. at 209, 106 S.Ct. at 1810 7 Id; See also Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693 (1989) (holding naked eye police observation from 400 foot altitude did not constitute a search) 8 Kyllo, 533 U.S. at 37, 121 S.Ct. 2044 (Footnote 3) 9 This is similar to 4th Amendment inevitable discovery doctrine. The idea here would be that although the sense-enhancing device was used, the information could have been obtained without it in another, independent way not involving a sense-enhancing device. See Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501 (1984). 10 The Court says in dicta that further limiting the decision would be impractical in application. Ironically, ‘general public use’ is left undefined.
Aaron Herrington is a rising 2L at the University of Mississippi. He is currently pursuing a Certificate in Remote Sensing, Air, and Space Law.
Currently the primary method of aerial surveillance employed by the average police station is a Bell Model 206 Helicopter costs on average a minimum of $875,000 capable of only 4.5 hours of flight, requires 2 crew members, and on average costs $500 per hour to operate.1 Whereas any individual, including the private citizen may for an average cost of $35,000 purchase a MLB Company’s BAT-4. The Bat-4 is a portable unmanned aerial vehicle (UAV) capable of high resolution imagery with 25x magnification, up to 12 hours of flight time, and weighs only 55 to 100 pounds.2 For the price of one standard helicopter, police departments could employ 40 Bat-4 UAVs. The use of UAVs would give police departments virtually unlimited real-time monitoring. UAVs would eliminate the need for high-speed pursuits, allow for constant monitoring of high-crime areas, and even allow for monitoring of a location until enough evidence for a warrant is obtained.
UAV surveillance consists of both remote sensing and aerial observation, both of which have previously been discussed in the context of the Fourth Amendment. Remote sensing is categorized one of two ways in the context of the Fourth Amendment, either “open Fields” or “curtilage.” Open fields consist of public areas and private property that, “do not provide the setting for those interment activities that the Fourth Amendment is intended to shelter from government interference [or] surveillance.”3 Curtilage is an area surrounding a home, determined by four factors: the proximity of the area claimed to be cartilage, whether the area is included with an enclosure, the uses to which the area is put, and the steps taken to protect the area from observation of an individual passing by.4 Therefore, surveillance of an area by remote sensing will not fall under the protection of the Fourth Amendment if it is done from a point where an individual passing by may make observations.
A number of cases have developed the law applied to Fourth Amendment cases involving aerial observation. Essentially, aerial observation, regardless of method, of private or commercial property from any aircraft legally in navigable airspace is not a search as described under the Fourth Amendment.
To tie this back into the initial discussion of police employment of UAVs rather than standard surveillance technology, it would seem rather simple to employ the use of UAVs for aerial observation. The Federal Aviation Administration (FAA) has taken steps to regulate the use of UAVS, requiring that no person may operate an UAV in the National Airspace System without specific authority under one of three modes of operation: amateur, public, or civil. No police agency can argue that a UAV is an amateur model aircraft, which just happens to have a powerful camera capable of 25x magnification attached. The preferred manner for a police agency to employ UAVs in operation would be to operate them as public aircrafts and apply for a COA (a waiver from the FAA which would allow an operation which would otherwise be a violation of the Federal Aviation Regulations). The other manner in which a UAV may be employed is with an experimental aircraft certification. That is, if typically built by amateurs or non-standard manufacturers, or prototypes, it will receive permission for essentially experimental flight testing. COAs are preferred to experimental aircraft certifications because COAs apply to all aircraft types with an area, whereas experimental aircraft certifications are specific to one model aircraft.
Overall, while the employment of UAVs by law enforcement agencies seems as if it would be simple both under current Fourth Amendment jurisprudence and fiscally, due to FAA regulations the use of UAV surveillance is currently overly burdensome. That being said, as technology advances and becomes more readily available it is likely that regulations regarding UAVs may become more lax, making it easier for law enforcement to employ them, and if that happens then “Big Brother” will truly be watching.5
_____________________________________________________________ 1 Bell Helicopter, http://www.bellhelicopter.com/en_US/Commercial/Commercial.html (Last visited July 10, 2012). 2 The MLB Company, http://spyplanes.com/pages_new/products.htm (follow “Bat 4”
hyperink to find downloadable PDF file) (last visited July 10, 2012). 3 Oliver v. U.S., 466 U.S. 170, 179 (1984). 4 U.S. v. Dunn, 480 U.S. 294, 301 (1987). 5 Jared Roy Endicott, Domestic Drones and the Fourth Amendment, http://jared.realizingresonance.com/2012/06/19/domestic-drones-and-the-fourth-amendment. (Last Visited July 10, 2012).
Jason Olinger is a second year law and graduate student working towards a Certificate in Remote Sensing, Air, and Space Law and a Masters in Global Business. Prior to attending law school Jason graduated from the University of Alabama with a degrees in Political Science and Economics. He is a former NCAA Baseball Academic All-Conference athlete and currently works in the aviation industry.
In continuation with the analysis of my most recent blog entry, we find ourselves stuck in the depths of whether ITAR makes positive steps towards achieving its primary goal of the protection of national defense to the extent that ITAR’s existence is justified at all. There is no argument that the United States by far posseses the largest space economy in the world; further, it is arguable that the United States is also the most technologically advanced in this aspect as well. United States companies in general say that in a competitive world with ever developing challengers to United States technological superiority ITAR is not working correctly and is hindering their ability to stay ahead. Is this true or are the complaints simply a minimalized by-product of a definite need for the security that ITAR allegedly provides?
The major issues as defined by the Space Foundation are as follows:
1) The licensing process is overly complicated, provides no certainty of outcome, and is greatly inefficient.1
2) ITAR unfairly restricts companies within the United States by placing additional regulatory burdens upon them that the rest of the world is not forced to comply with. More specifically technology that is listed on the US Munitions List and unavailable for export is freely exchanged outside of the United States.2
3) The cost of compliance is significant barrier to competitive entry. Further compliance can delay collaboration with foreign companies increasing the incentive to look to companies beyond the United States.3
As highlighted by the Space Foundation, the concerns over ITAR stem from issues with competitiveness, collaboration, the United States eroding leadership role, and the ability to competitively enter and compete in the global market as a whole. The primary purpose of ITAR is to establish rules that prevent the transfer of strategically sensitive technology to foreign companies; however, as highlighted in point two above, many times foreign companies already have the technology that ITAR prohibits. The primary purpose of ITAR is undermined and impossible from the start in these situations. The regulatory nature of ITAR has effectively created a monopoly against American companies in these situations and worse, stifled their ability to generate funds through market entry that would lead to technological research and advancement. It is always best to not politically polarize topics, but the regulatory nature of ITAR is directly contributing to the loss of headwind by the United States as a technological leader in the industry.
Much like any industry, the name of the game is the bottom line. Adding additional cost to exportation as a result of compliance only acts as an exponential factor to the erosion of leadership when combined with the above. A historic analysis will show that the ability of the United States to establish national security through rapid technological advancement was developed in a system of generally open industry with limited regulation from the beginning. Driving up costs for entry means that more innovative ideas and projects are left to the wayward because they are in their nature riskier and the potential profit margin is diminished resulting in less incentive to provide new technologies as solutions to long term problems.
In short ITAR no longer completely serves its original purpose. It has instead been manipulated by few in such a way as to control the many.
____________________________________________________________ 1 Marty Hauser “ITAR and the U.S. Space Industry,” pg. 2, http://www.spacefoundation.org/docs/SpaceFoundation_ITAR.pdf 2 Id. 3 Id.
Todd Bowen is a 3L from Southaven, MS. He is pursuing a certificate from the National Center for Remote Sensing, Air and Space Law.
Justice Alito begins his concurrence to U.S. v. Jones by writing, “This case requires us to apply the Fourth Amendment’s prohibition of unreasonable searches and seizures to a 21st-century surveillance technique . . . Ironically, the Court has chosen to decide this case based on 18th-century tort law.” Justice Scalia, author of the majority opinion and self-proclaimed Originalist,1 responds to this by claiming, “What we apply is an 18th-century guarantee against unreasonable searches, which we believe must provide at a minimum the degree of protection it afforded when it was adopted.” While this method of interpretation worked in this case (as is evident by the 9-0 ruling), an Originalist method of interpretation will prove to be more difficult in future cases.
According to Justice Scalia, an Originalist is someone whose “manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people.”2 This method of interpretation was depended on to form the majority opinion. For example, Justice Scalia writes, “ . . . our Fourth Amendment jurisprudence was tied to common-law trespass . . . ” He later quotes the case of Kyllo v. United States stating, “At bottom, we must ‘assure preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’”
The alternative to Originalism is the concept of the Living Constitution. In the 1931 case of Bain Peanut Co. v. Pinson, Justice Oliver Wendell Holmes, Jr. wrote, “The interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints.” Justice Alito criticizes the majority opinion in U.S. v. Jones in writing, “But it is almost impossible to think of late 18th-century situations that are analogous to what took place in this case.”
Justice Alito’s criticism highlights the difficulties an Originalist interpretation will face in the future. He comically asks, “Is it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach’s owner?” While funny to picture, this is perhaps the best way to show how the evolution of technology presents a challenge to the Originalist method. Additionally, Justice Sotomayor’s concurrent opinion hints to problems the Originalist method might face in the future. “And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: ‘limited police resources and community hostility.’”
Justice Alito refers to a Michigan Law Review article by Professor Orin S. Kerr which “aims to reorient current thinking about how the legal system should regulate criminal investigations,” pushing for a focus on legislative rules.3 While this seems to be the ideal answer to problems arising from fast-paced technological changes, the Supreme Court will likely hear another case similar to U.S. v. Jones at some point in the future. The concurrent opinions make it clear that, absent legislative changes, a Living Constitution method of interpretation will soon be necessary to answer Fourth Amendment challenges involving new technology.
_________________________________________________________ 1 From Justice Scalia’s March 14, 2005 speech at the Woodrow Wilson International Center for Scholars in Washington, D.C., http://www.cfif.org/htdocs/freedomline/current/guest_commentary/scalia-constitutional-speech.htm 2 Id. 3 Kerr, Orin S., “The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution,” 102 Mich. L. Rev. 801, 805-6.
Matt Picciotti is a second year law student working towards a Certificate in Remote Sensing, Air, and Space Law. Prior to attending law school Matt graduated from Mississippi State University with a degree in Business Administration. He is a private pilot and plans to pursue a career in the aviation field.
Prior to 1967 when determining “reasonable expectation of privacy” for purposes of discussing Fourth Amendment violations, the analysis was focused on whether police had trespassed on a private location.1 This soon became known as the trespass theory and was the prevailing test until Katz v. United States which shifted Fourth Amendment analysis away from individual places and moved it to afford individuals more privacy even in public.2
In Katz, Charles Katz was a gambler who used a public telephone booth to place bets.3 The police investigating Katz’s activity attached a listening device to the outside of the telephone booth and recorded several of Katz’s calls, which the prosecutor introduced into evidence at trial and subsequently Katz’s was convicted.4 The Ninth Circuit affirmed the conviction and noted the absence of any physical trespass into the phone booth.5 The Supreme Court thought otherwise.
The Supreme Court departed from this trespass theory and declared “the Fourth Amendment protects people, not places.”6 In coming to this conclusion the court held that “one who occupies a phone booth, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.”7 Justice Harlan phrased the application differently in his concurring opinion by laying out a two party test to determine what activity would be considered a search. First, the individual must have exhibited a subjective expectation of privacy and second the expectation must be one that society is prepared to recognize as reasonable.8 This two part test has become the standard for analyzing if a search has occurred though it appears the Court may be making a shift away from this with its ruling in United States v. Jones.9
In my previous post from last week I discussed the trespass theory and have now moved on to discuss the “Katz test” as noted above. Each of these theories can be analyzed in light of the tension between technologies versus privacy. The trespass theory is a narrow reading of the Fourth Amendment and can be considered an originalist view. This view seems to afford less privacy for the individual yet in turn may promote the development and use of technology. In contrast the “Katz” test is a broader view, which affords more privacy for the individual though this is subject to the fluctuation of social norms and expectations of privacy. Under this view it leans heavily towards the individual in the technology versus individual spectrum. It may in some ways hinder the use and development of technology, but this may be a sacrifice the public is willing to make to insure privacy in the realm of the Fourth Amendment.
__________________________________________________ 1 Kaitlyn A. Kerrane, Keeping up With Officer Jones: A Comprehensive Look at the Fourth Amendment and GPS Surveillance, 79 FORDHAM L. REV. 1695, 1707 (2011). 2 Katz v. United States, 398 U.S. 347 (1967). 3 Id. at 354. 4 Id. 5 Id. at 348-49 6 Id. at 351. 7 Id. at 352. 8 Id. at 361 (Harlan, J., concurring). 9 Renee McDonald Hutchins, Tied up in Knotts? Technology and the Fourth Amendment, 55 UCLA L. REV. 409, 427 (2007); United States v. Jones, 132 S. Ct. 945 (2012).