Later this month, satellite-based remote-sensing in the United States will be getting a big boost. Not from a better rocket, but from the U.S. Commerce Department, which will be relaxing the rules that govern how companies provide such services.
For many years, the Commerce Department has been tightly regulating those satellite-imaging companies, because of worries about geopolitical adversaries buying images for nefarious purposes and compromising U.S. national security. But the newly announced rules, set to go into effect on July 20, represent a significant easing of restrictions.
Previously, obtaining permission to operate a remote-sensing satellite has been a gamble—the criteria by which a company’s plans were judged were vague, as was the process, an inter-agency review requiring input from the U.S. Department of Defense as well as the State Department. But in May of 2018, the Trump administration’s Space Policy Directive-2 made it apparent that the regulatory winds were changing. In an effort to promote economic growth, the Commerce Department was commanded to rescind or revise regulations established in the Land Remote Sensing Policy Act of 1992, a piece of legislation that compelled remote-sensing satellite companies to obtain licenses and required that their operations not compromise national security.
Following that directive, in May of 2019 the Commerce Department issued a Notice of Proposed Rulemaking in an attempt to streamline what many in the satellite remote-sensing industry saw as a cumbersome and restrictive process.
But the proposed rules didn’t please industry players. To the surprise of many of them, though, the final rules announced last May were significantly less strict. For example, they allow satellite remote-sensing companies to sell images of a particular type and resolution if substantially similar images are already commercially available in other countries. The new rules also drop earlier restrictions on nighttime imaging, radar imaging, and short-wave infrared imaging.
On June 25th, Commerce Secretary Wilbur Ross explained at a virtual meeting of the National Oceanic and Atmospheric Administration’s Advisory Committee on Commercial Remote Sensing why the final rules differ so much from what was proposed in 2019:
Last year at this meeting, you told us that our first draft of the rule would be detrimental to the U.S. industry and that it could threaten a decade’s worth of progress. You provided us with assessments of technology, foreign competition, and the impact of new remote sensing applications. We listened. We made the case with our government colleagues that the U.S. industry must innovate and introduce new products as quickly as possible. We argued that it was no longer possible to control new applications in the intensifying global competition for dominance.
In other words, the cat was already out of the bag: there’s no sense prohibiting U.S. companies from offering satellite-imaging services already available from foreign companies.
An area where the new rules remain relatively strict though, concerns the taking of pictures of other objects in orbit. Companies that want to offer satellite inspection or maintenance services would need rules that allow what regulators call “non-Earth imaging.” But there are national security implications here, because pictures obtained in this way could blow the cover of U.S. spy satellites masquerading as space debris.
While the extent to which spy satellites cloak themselves in the guise of space debris isn’t known, it seems clear that this would be an ideal tactic for avoiding detection. That strategy won’t work, though, if images taken by commercial satellites reveal a radar-reflecting object to be a cubesat instead of a mangled mass of metal.
Because of that concern, the current rules demand that companies limit the detailed imaging of other objects in space to ones for which they have obtained permission from the satellite owner and from the Secretary of Commerce at least 5 days in advance of obtaining images. But that stipulation begs a key question: Who should a satellite-imaging company contact if it wants to take pictures of a piece of space debris? Maybe imaging space debris would only require the permission of the Secretary of Commerce. But then, would the Secretary ever give such a request a green light? After all, if permission were typically granted, instances when it wasn’t would become suspicious.
More likely, imaging space debris—or spy satellites trying to pass as junk—is going to remain off the table for the time being. So even though the new rules are a welcome development to most commercial satellite companies, some will remain disappointed, including those companies that make up the Consortium for the Execution of Rendezvous and Servicing Operations (CONFERS), which had recommended that “the U.S. government should declare the space domain as a public space and the ability to conduct [non-Earth imaging] as the equivalent of taking photos of public activities on a public street.”