By: Dora Haque
The conversation of human exploration and leisure in outer space is usually discussed in the context of the future, generally considered beyond our time or along the lines of a sci-fi movie. However, in recent years military and commercial exploitation of space has been a topic of discussion. One such catalyst of this discussion was the establishment of the U.S. Space Force (“USSF”) as the sixth branch of the American Armed Forces.[i] Commercial ingenuity followed thereafter, such as in the case of a French champagne producer, Mumm International, in collaboration with a space design agency, Spade, which developed a champagne bottle that would allow for pouring and drinking in zero gravity.[ii] Other commercial actors, such as Elon Musk’s SpaceX and Jeff Bezos’s Blue Origin are seriously considering permanent human settlements in space.[iii] From a legal perspective, questions on the regulation of the relationships between projects and their participants, as well as the incorporation of human rights is dense and convoluted. Discussion of the relationship between human rights and space have usually only regarded rights of individuals on Earth, though some may view these discussions as ineffectual and underdeveloped.[iv] For instance, raw data processed by satellites and the application of such data raise questions on the ethicality of such applications and the potential human rights violations that may arise.[v] The lack of consistency and standardization in this realm can be extremely detrimental to the essential rights of human beings and may become breeding grounds for human rights violations.
One of the most important legal aspects of data collection is privacy rights. Article 12 of the Universal Declaration of Human Rights (“UDHR”) states “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.”[vi] Though this declaration has no binding force, it is recognized as having customary value, which is a kind of international tradition so vital to society and crystallized into international law, that it is treated as if it were binding law. Other widely acclaimed international treaties such as the International Covenant on Civil and Political Rights (“ICCPR”) and the European Convention on Human Rights (“ECHR”) also protect the right to privacy against intrusions.[vii]
“The fundamental rights of each individual require protection in every scenario of the future development of technology, and further discussions are necessary on how space can contribute to the protection of human rights but also to the protection of the right to privacy from digital interference.”[viii] The rapid progression of remote sensing technology makes data received from space tremendously accurate and up-to-date, with multiple utilizations such as the development of cartographic and thematic maps, meteorology, and imaging.[ix] Remote sensing is the gathering of information without physical contact, which can be made by UAVs, planes, balloons, satellites, etc.[x] This technology, capable of high-resolution images, can be government owned, quasi-private, or private and government owned.[xi]Although remote sensing has enabled discovery of human rights abuses, they also have massive potential to be exploited and enable privacy violations. Thus, it is necessary to analyze and understand how commercial and governmental use of satellite imagery may violate privacy rights.[xii]
The Outer Space Treaty (“OST”), created in 1967, is arguably the most successful instrument of space law and provides the basic framework on international space law.[xiii] Article I of the OST provides that outer space is to be used “for the benefit and in the interests of all countries … without discrimination of any kind, on a basis of equality and in accordance with international law.”[xiv] Article I also considers the use of satellites for remote sensing for surveillance by governments and private entities for state and commercial purposes and authorizes governments/commercial entities to monitor other states without permission of the sensed state.[xv] Article III, however, clarifies that the treaty prohibits violations of international law and must be in accordance to the UN Charter in the interest of maintaining peace and security.[xvi] Additionally, the “Principles Relating to Remote Sensing of the Earth from Outer Space” was adopted by the a General Assembly Resolution in 1986 to provide regulations on remote sensing.[xvii] However, the scope of the resolution is limited to natural resources and environmental management, privacy matters are not considered. Although there are other UN treaties that consider space related issues, public authorities and commercial use of satellite technology is not clearly regulated.[xviii]
A hotly debated issue involves the free flow of information and the government/commercial monitoring of civilians and other countries.[xix] Although international space law stipulates that nations’ spacecrafts may explore outer space for peaceful purposes, there is no comment on the rights to gather information from a nation’s territory.[xx] Some nations contend that they do not recognize the absolute right to derive information from their territory without their permission.[xxi] Some states have even formulated a “right to prior consent,” which argues that a nation must provide its permission for information to be gathered from its territory before a foreign entity or third party can collect this information.[xxii] On the other hand, the United States and other countries oppose prior consent or other limitations that violate the free flow of information, which are principles embodied in various UN treaties and other international instruments.[xxiii] Fundamental doctrines of the First Amendment: content-based regulation and prior restraint, prevent the U.S. government from regulating the free flow of information to the public by censoring the press.[xxiv] In the context of remote sensing, these principles mean the government cannot preclude what imagery may be published or who they grant licenses to, nor can they limit the resolution the images may be published in.[xxv] According to a high-ranking intelligence official, reconnaissance satellites have the capability of photographing faces of individuals on the ground with distinguishable quality.[xxvi] Clearly, individuals are at the highest risk of having their privacy violated, especially due to the high possibility that they would be unaware that a satellite is collecting detailed information on their physical characteristics. The lack of agency and resources against a government or commercial entity create even more potential for these violations to persist.
As remote sensing technology and space commercialization advances, dangerous intrusions of human rights principles may occur. Currently satellites and other remote sensing technology are expensive to build and operate, keeping it out of reach of many commercial enterprises and governments.[xxvii] However, the technology with remote sensing techniques will become increasingly accessible as space commercializes, becoming more accessible to all governments, private companies, and even individuals.[xxviii] The advancement of AI technology will also likely advance the abilities of remote sensing technologies and allow for processing of larger quantities and more accurate data from space.[xxix] Not only will privacy concerns expand in these situations, but the degree of protection of privacy that is acceptable differ depending on the culture of a given society, which may also change over time.[xxx] Due to this, the full extent of privacy violations remains uncertain.
Though the free flow of information is critical to promote a democratic society, the lack of regulation of remote sensing technology can allow for privacy violations at an enormous scale. The right to privacy has long been considered an indispensable right; it has been codified in international documents as well as within many state constitutions. It is imperative that regulations be put in place and that human rights doctrines be read alongside and incorporated into these regulations, especially in contemplation of technological advancements in order to inhibit present and perhaps more profound future privacy violations.
[i] Gerrit Ferreira & Anel Ferreira-Snyman, The Application of International Human Rights Instruments in Outer Space Settlements: Today’s Science Fiction, Tomorrow’s Reality, 22 Potchefstroom Elec. L.J. 2, 2 (2019) (discussing whether existing international human rights instruments enjoy extra-territorial application in outer space); What’s the Space Force, U.S. Space Force, https://www.spaceforce.mil/About-Us/FAQs/Whats-the-Space-Force/ (last visited Feb. 15, 2022).
[ii] Ferreira & Ferreira-Snyman, supra note 1.
[iii] Id.
[iv] Id. at 4.
[v] Annette Froehlich & Claudiu Mihai Tăiatu, Space in Support of Human Rights 1, (23 Stud. in Space Pol’y., 2020).
[vi] UDHR, Art. 12.
[vii] ICCPR, Art. XVII; ECHR, Art. VIII.
[viii] Froehlich & Tăiatu, supra note 5, at 21.
[ix] Id.
[x] Id.
[xi] Id.
[xii] Id. at 22.
[xiii] Id. at 26; Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, UN, https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.html (last visited Feb. 15, 2022).
[xiv] Outer Space Treaty art. 1, Oct. 10, 1967, 9 UST 7570, 610 U.N.T.S. 205.
[xv] Id.; Froehlich & Tăiatu, supra note 5, at 28.
[xvi] Outer Space Treaty, Art. III; Froehlich & Tăiatu, supra note 5, at 28.
[xvii] Froehlich & Tăiatu, supra note 5, at 29; G.A. Res. 41/65, (Dec. 03, 1986).
[xviii] Id.
[xix] Michael Allen Potter, Human Rights in the Space Age: An International and Legal Political Analysis, 4 J. L. & Tech. 59, 67 (1989).
[xx] Id.
[xxi] Id.
[xxii] Id.
[xxiii] Id. at 67-68.
[xxiv] Id. at 67.
[xxv] Id.
[xxvi] Id. at 68.
[xxvii] See Froehlich & Tăiatu, supra note 5, at 13.
[xxviii] Id.
[xxix] Id. at 12.
[xxx] Id.
