The Land Remote-Sensing Commercialization Act of 1984

The Land Remote-Sensing Commercialization Act of 1984, passed (after considerable deliberation) by the U.S. Congress, and signed by President Ronald Reagan, is a United States statute establishing a system to further the utilisation of satellite imagery data obtained from Earth observation satellites located in a geocentric orbit above the atmosphere of Earth. Two of the primary purposes of the Act were: a) to guide the federal government in achieving proper involvement of the private sector by providing a framework for phased commercialisation of land remote sensing, and b) to maintain the U.S.A.’s worldwide leadership in civil remote sensing, preserve its national security, and fulfil its international obligations.

Space technologies, because they involve activities that do not generally respect national boundaries, place new stresses on traditional international legal principles. These principles, based as they are on the rights and powers of territorial sovereignty, often do not supply sufficient direction for the use of new space systems. Both technologically advanced and developing nations have relied on international cooperation to resolve the complex legal problems that have arisen in the space age. As private firms begin to play a more significant role in space activities, the international coordination of space activities through domestic law and international agreements will continue to be essential to protect common interests and to ensure that special interests are dealt with in a common framework.

The Landsat program and liability

The Landsat program is the longest-running enterprise for acquisition of satellite imagery of Earth. On July 23, 1972 the Earth Resources Technology Satellite was launched. This was eventually renamed to Landsat. The instruments on the Landsat satellites have acquired millions of images. The images, archived in the United States of America and at Landsat receiving stations around the world, are a unique resource for global change research and applications in agriculture, cartography, geology, forestry, regional planning, surveillance and education.

When the first LANDSAT remote sensing satellite was launched in July 1972, the U.S. government owned and operated, through NASA, both the space and ground segments of the system. Since that time there have been many additional LANDSAT satellites launched. LANDSAT 8, the current and last satellite in this series, was launched in February 2013. In 1979, the responsibility for the operation of LANDSAT was transferred from NASA to the Commerce Department’s National Oceanic and Atmospheric Administration (NOAA). NOAA was chosen to operate LANDSAT partly because it already had responsibility for, and experience with, the U.S. meteorological satellites. Though NOAA was given interim operational control of the LANDSAT program, the ultimate goal of the transfer was to facilitate the transition of both the space and ground segments of the system to the private sector.

One of the most important attempts to delineate the responsibilities of states in outer space was the 1972 Convention of International Liability for Damage Caused by Space Objects. This 1972 Liability Convention extends the concept of state responsibility to include the concept of liability for damage caused by space objects. Article II establishes the principle that a launching state is absolutely liable for “damage caused by its space object on the surface of the Earth or to aircraft in flight”. Two points should be mentioned here.

First, the 1972 Liability Convention grants neither rights nor responsibilities to non-governmental entities. Under Article VIII, if the nationals of a launching state cause damage, it is the damaged state which “may present to a launching State a claim for compensation”. A second point of interest is that the 1972 Liability Convention applies, by its terms, only to “launching States” which are defined in Article I as: (1) a state which launches or procures the launching of a space object; (2) a state from whose territory or facility a space object is launched. Under this scheme, if state A launches a space object for the nationals of state B, both states are considered launching states and have joint liability for damage under Article V of the Liability Convention.

This is the case even though under the language of Article IX of the 1967 Outer Space Treaty, it is state B that bears the international responsibility for the “potentially harmful” activities of its nationals. This problem is somewhat alleviated by Article V of the 1972 Liability Convention, which allows a state that has paid compensation for damages “to present a claim for indemnification to other participants in the joint launching”.

The Land Remote-Sensing Commercialization Act of 1984

As the role of private industry varies between nations, and as it is those nations rather than their private industries that enter into international space agreements, it is understandable that some confusion exists as to the legal status of private industry in outer space. The U.S. Congress began passing in 1984 legislation designed to encourage the development of a U.S. private remote sensing industry. In the U.S.A., it has been consistent government policy to encourage the involvement of private enterprise in its space program. The U.S. PUBLIC LAW starts with the following: “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That this Act may be cited as the “Land Remote-Sensing Commercialization Act of 1984”.

The PURPOSES of the Land Remote-Sensing Commercialization Act of 1984 are to, according to SEC. 102., “(1) guide the Federal Government in achieving proper involvement of the private sector by providing a framework for phased commercialization of land remote sensing and by assuring continuous data availability to the Federal Government;”, “(2) maintain the United States worldwide leadership in civil remote sensing, preserve its national security, and fulfil its international obligations;”, “(3) minimize the duration and amount of further Federal investment necessary to assure data continuity while achieving commercialization of civil land remote sensing;”, “(4) provide for a comprehensive civilian program of research, development, and demonstration to enhance both the United States capabilities for remote sensing from space and the application and utilization of such capabilities;”, and “(5) prohibit commercialization of meteorological satellites at this time”.

Under SEC. 103. concerning POLICIES, it is stated that “(a) It shall be the policy of the United States to preserve its right to acquire and disseminate unenhanced remote-sensing data.”, “(b) It shall be the policy of the United States that civilian unenhanced remote-sensing data be made available to all potential users on a non-discriminatory basis and in a manner consistent with applicable antitrust laws.”, “(c) It shall be the policy of the United States both to commercialize those remote-sensing space systems that properly lend themselves to private sector operation and to avoid competition by the Government with such commercial operations, while continuing to preserve our national security, to honour our international obligations, and to retain in the Government those remote-sensing functions that are essentially of a public service nature”.

In order to comply with Articles VI and IX of the 1967 Outer Space Treaty, the Land Remote-Sensing Commercialization Act of 1984 requires that remote sensing operators be licensed by the Secretary of Commerce, and grants to the Secretary the power to develop appropriate regulations. Section 401. (b) of the Land Remote-Sensing Commercialization Act of 1984 states that “No license shall be granted by the Secretary unless the Secretary determines in writing that the applicant will comply with the requirements of this Act, any regulations issued pursuant to this Act, and any applicable international obligations”.

The primary purpose of the Land Remote Sensing Commercialization Act of 1984 is to provide an orderly transition from the Government’s LANDSAT program, to private operation of commercial remote sensing activities. However, in developing this legislation, great care was taken to ensure that private activities did not conflict with the international obligations of the U.S.A.. The success of this legislation has depended on the careful implementation of its provisions, and on the regulations provided by the Secretary of Commerce, in conjunction with other concerned federal agencies. Nonetheless, the Land Remote Sensing Commercialization Act of 1984 provides a useful means by which the economic needs of the private sector can be balanced with the legal and political concerns of the international community.