The US government has signed an exclusive contract with Space Imaging for access to satellite imagery over Afghanistan and surrounding territories from Space Imaging's commercial 1-meter resolution IKONOS satellite. MSNBC carries the AP wirestory (U.S. gets exclusive satellite rights). The UK Guardian reports that by using an exclusive commercial contract to obtain satellite imagery, the U.S. government has effectively denied news organizations and the public from getting access to one of the only means of obtaining information in Afghanistan without invoking "shutter control" regulations (US buys up all satellite war images). Plastic.com hosts a discussion on this issue (US Buys Up All Satellite War Images) as does Kuro5hin (Censorship by Dollars). For more background information, the New York Times (reg. req.) has recently run an article on commercial satellite imagery (Bird's-Eye Views, Made to Order). This raises a number of important issues relating to satellite imagery policy and US law - involving everything from regulations and statutes to issues of Constitutional concern.
UPDATED 1130 EDT 20 Oct 2001
Usurping the Secretary of Commerce's Powers?
Current US Law is based upon the Land Remote Sensing Policy Act of 1992 and Presidential Decision Directive 23, signed by then-President Clinton in 1994. Under these laws the National Oceanic and Atmospheric Administration (NOAA) has been delegated to administer the Licensing of Commercial Remote Sensing Satellite Systems. The law also provides for the Secretary of Commerce, in consultation with the Secretaries of State and Defense, to invoke "shutter control" in order not to compromise national security, international obligations or foreign policy. "Shutter control" permits the Secretary of Commerce to control the collection and distribution of commercial satellite imagery. According to Joanne Gabrynowicz, Professor of Law at the University of Mississippi School of Law and Director of the National Remote Sensing and Space Law Center, "Shutter control is a specific regulatory action which requires a decision at the level of the secretary. The secretary cannot delegate this decision." See, also 15 CFR 960. When asked if the Secretary of Commerce, Donald L. Evans, had invoked "shutter control", Doug Brauer, Assistant Licensing Affairs Officer in the Commercial Remote Sensing Licensing Office, replied, "No, he has not."
What we have here then, is "shutter control" by means other than those enumerated in the current regulations. The contract at issue was signed by the National Imagery and Mapping Agency (NIMA), which is part of the Department of Defense. According to a spokesperson at NIMA, the contract in question is only a "3 or 4 paragraph" addendum to an existing contract. The addendum has not been cleared for release, but includes the following clauses: NIMA has first right of refusal to extend the contract on a monthly basis; NIMA has exclusive access to the IKONOS satellite over certain territories (specifics not released due to security concerns); NIMA may purchase, for an additional fee, photos during these periods of access; NIMA can also purchase, for an additional fee, "data rights" which preclude Space Imaging from reselling the images. According to a NIMA spokesperson, this contract is a purely commercial transaction and not related to "shutter control" at all. However, the effect is the same - de facto NIMA claims the right to exercise shutter control on commercial US satellites. In other words, Lieutenant General James R. Clapper, Jr., USAF (Ret.), head of NIMA has decide to assume a power of the Secretary of Commerce that the secretary cannot legally delegate. This must please the Secretary of Defense, who no longer has to ask the Secretary of Commerce to exert "shutter control" but can simply order NIMA to issue another addendum to their ongoing contract with Space Imaging.
Although this question of administrative prerogatives is interesting, the consequences for the public are more important. As Prof. Gabrynowicz explains, "If the secretary imposes shutter control, the regulations require that it be for the shortest possible time and the smallest possible area." Unfortunately, there are neither such limitations for contracts that NIMA enters nor any mechanism to ensure compliance with those limitations if they existed. Ann M. Florini, a Senior Associate of the Carnegie Endowment for International Peace and co-author of Secrets for Sale: How Commercial Satellite Imagery Will Change the World (available online [PDF]), thinks these issues require additional scrutiny, that, "the government has rights to impose restrictions based upon national security concerns, but the bigger concern is how long this goes on." Miss Florini also worries that imagery restrictions will not be limited to the smallest area, but that "any government that is part of the coalition could at any time request that our commercial satellites not sell imagery of refugee flows, or something else the coalition government was uncomfortable with." Unfortunately, NIMA's decision making process does not require these concerns to be taken into consideration.
One interesting legal question regarding the issue of "shutter control" is whether or not foreign governments can request information that US journalists are not permitted access to. According to Prof. Gabrynowicz, "If shutter control hasn't happened it appears to be a contractual mechanism, issues of non-discriminatory access can be raised." The policy of non-discriminatory access, codified at 15 USC 5622(b)(2), requires that commercial satellite services make available to the government of any country unenhanced data collected by the system concerning the territory under the jurisdiction of such government as soon as such data are available and on reasonable terms and conditions. This means that if some of the exclusive satellite photography being gathered is of Russia or Pakistan, these countries have the right to get the satellite imagery.
The First Amendment
Of course, if the Secretary of Commerce had invoked "shutter control", there would be clear grounds for a First Amendment challenge invoking a very high level of scrutiny - since such restrictions would be a content-based prior restraint. Undoubtedly, the government would win - national security clearly involves troop movements and concentrations. However, judicial review would at least have the possible effect of keeping the Department of Defense from egregious abuses - such as preventing distribution of imagery of rioting in coalition nations, for example. According to Miss Florini, "It is not obvious why the Constitution would permit restrictions on the free flow of information to make another government happy."
Although the "commercial contract" aspect of the case may seem to provide immunity from First Amendment scrutiny ("simple commercial transaction between two market players - nothing nefarious here to see here - keep moving") this is not the case. The most obvious First Amendment concern is the "data rights" provision of the contract. Certainly, the U.S. has an interest in having complete access to the satellite for its passes over Afghanistan in order to take pictures. Although the government has its own spy satellites, they may not always be in the best position to take photos or have other tasks to perform. However, the only possible reason to obtain data rights, which prevent Space Imaging from reselling or licensing the images, is to prevent distribution of the information. When distribution of information is prohibited by the government this clearly rises to the level of First Amendment review. This is not to say that the government does not have entirely legitimate reasons for withholding information, but that those reasons must be subject to First Amendment review.
It is difficult to think of previous instances where the government has simply purchased all access to particular information. It would be as if the government simply bought all printing presses in order to prevent critical stories from being printed. More accurately, when news arrived from overseas via newspaper on ships - it would be as if the government purchased all the newspapers.
Of course, extensive control over tasking of the satellite could also rise to the level of Constitutional concern. For example, if NIMA were to task the IKONOS satellite so that photos of a particular region were not available during a period of unrest in an allied nation - courts should have the right to take a hard look at the intentions of the government.
Conclusion
The government clearly has legitimate interests to control commercial satellite imagery during this time. However, the ability to control such information lies with the Secretary of Commerce, and the Department of Defense should not usurp that power. Furthermore, any such limitations on access to this information must be subject to strict judicial review.
Additional Resources
In 1999, around the time IKONOS was launched, the Newshour with Jim Lehrer on PBS sponsored a debate on how and when "shutter control" should be implemented with James Woolsey, former Director of the Central Intelligence Agency and a Washington attorney; Barbara Cochran, former Washington Bureau Chief of CBS News who is the president of the Radio Television News Directors Association (RTNDA); and then-Senator Bob Kerrey, a Democrat from Nebraska, who was Vice Chairman of the Senate Intelligence Committee (Eyes in the Sky). Unsurprisingly, the idea of just signing an exclusive contract did not come up.
Read the RTNDA's statement from December 1999 calling for judicial oversight of shutter control (Fighting the Feds Over Shutter Control).
In May of 2000, the Freedom Forum/Newseum hosted a panel discussion on press access to satellite imagery (Satellite images getting so good that journalists worry about government control).
This BBC report implies that the U.S. is attempting to censor imagery of civilian casualties - "According to reports, the decision to shut down access to satellite images was taken last week, after reports of heavy civilian casualties near Jalalabad." (US buys Afghan image rights).
UPDATE 1130 EDT 20 Oct 2001
Reporters Without Borders, aka Reporters Sans Frontières, a Paris-based media freedom advocacy group, has sent a letter to the Secretary of Defense requesting that the exclusivity of the contract be revoked (The Pentagon censures satellite pictures of Afghanistan).
The New York Times (reg. req.) looks at the exclusive contract (Pentagon Corners Output of Satellite Images of Afghanistan).
The New Scientist reports that the Pentagon claimed "it was quicker for the US National Imagery and Mapping Agency to use financial clout. [The Pentagon] says this is because establishing shutter control would involve liaison with the state department, the commerce department and the legal team" (US government buys up rights to satellite pictures of Afghanistan). Of course, that is precisely the point. It would have been more efficient to give the Department of Defense the power directly, but that is not how the statutes and regulations have been structured. In any case, if there is an emergency, the Secretary of Defense can simply tell the Secretary of Commerce to implement shutter control immediately. See the Interagency Agreement (B)(4) below.
UPDATE 1200EDT 19 Oct 2001
U.S. Interagency Agreement on the Licensing of Private Remote Sensing Satellite Systems, February 2, 2000 Fact Sheet
The following quotation from the above MOU is the proper method for implementing "shutter control":
B. Consultation Regarding Interruption of Normal Commercial Operations.
(1) This section establishes the process for requiring the licensee to limit data collection and/or distribution by the system during periods when national security or international obligations and/or foreign policies may be compromised, as determined by the Secretary of Defense or the Secretary of State. DOC will provide to the other Parties copies of licensee correspondence and documents that describe how the licensee will comply with such interruptions of its commercial operations.
(2) Conditions should be imposed for the smallest area and for the shortest period necessary to protect the national security, international obligations, or foreign policy concerns at issue. Alternatives 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.
(3) Except where urgency precludes it, DOS, DOD, DOC and IC will consult to attempt to come to an agreement concerning appropriate conditions, if any, to be imposed on the licensee in accordance with determinations made by DOS or DOD. Consultations shall be constructed so that, in the event an agreement cannot be reached at the staff level, sufficient time will remain to allow the Secretary of Commerce to consult personally with the Secretary of State or the Secretary of Defense, as appropriate, prior to the issuance of a determination by the Secretary of State or the Secretary of Defense in accordance with (4) below. That function shall not be delegated below the acting Secretary.
(4) After such consultations, or when the Secretary of State or the Secretary of Defense specifically determines that urgency precludes consultation with the Secretary of Commerce, the Secretary of State or the Secretary of Defense, shall determine the conditions necessary to meet international obligations, significant foreign policy concerns, or significant national security concerns, especially where those interests identified in the National Security Strategy would be put at risk. This function shall not be delegated below the acting Secretary. The Secretary of State or the Secretary of Defense will provide to the Secretary of Commerce his or her determination regarding the conditions required to be imposed on the licensee. The determination will describe the international obligations, specific foreign policy, or national security interest at risk. Upon receipt of the determination, DOC shall immediately notify the licensee of the imposition of limiting conditions on commercial operations. Copies of the determination and any implementing DOC action will be provided promptly to the Assistant to the President for National Security Affairs and the Assistant to the President for Science and Technology.
(5) If the Secretary of Commerce believes the conditions determined by another Secretary are inappropriate, he or she will, simultaneous with notification of, and imposition of such conditions on, the licensee, so notify the Secretary of Defense or the Secretary of State, as appropriate, the Assistant to the President for National Security Affairs, and the Assistant to the President for Science and Technology. The Assistant to the President for National Security Affairs, in coordination with the Assistant to the President for Science and Technology, will initiate as soon as possible a Principals-level consultative process to achieve a consensus within the interagency, or, failing that, refer the matter to the President for decision. All efforts will be taken to resolve the disagreement within 7 working days of its submission to the Assistant to the President for National Security Affairs and the Assistant to the President for Science and Technology.
General Conditions for Private Remote Sensing Space System Licenses
The following quote from the above document shows that contracts such as NIMA has made can be done, but only after the Secretary of Commerce has adopted "shutter control":
4. 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. During those periods when, and for those geographic areas that, the Secretary of Commerce has required the Licensee to limit distribution, the Licensee shall, on request, make the unenhanced data thus limited from the system available exclusively, by means of government-furnished rekeyable encryption on the downlink, to the U.S. Government. The costs and terms associated with meeting this condition will be negotiated directly between the Licensee and the Department of Defense (for the U.S. Government) in accordance with Section 507(d) of the Act.