Interview: Mike Gold, Corporate Counsel, Bigelow Aerospace

April 28, 2008 at 4:09 pm | Posted in Interview | 1 Comment

Mike Gold currently serves in dual roles as Corporate Counsel and head of Bigelow Aerospace’s Washington, DC area office. In his position at Bigelow Aerospace Mr. Gold is responsible for overseeing a variety of activities including contracts with launch providers, international export control, the company’s relationship with NASA, and corporate strategic planning. Prior to joining Bigelow Aerospace in a full-time capacity Mr. Gold previously assisted Bigelow Aerospace as an attorney in the Washington office of Patton Boggs, LLP. While at Patton Boggs Mr. Gold supported several clients in high-tech and education-related fields with a specialty in advanced aerospace ventures. Mr. Gold has also served as a State aerospace business development officer, an attorney in the Washington office of McGuire Woods, LLP, and as a summer law clerk at NASA Langley Research Center. Mr. Gold is a member of the District of Columbia and New York State Bar Associations, and graduated from the University of Pennsylvania Law School where he founded the Journal of Constitutional Law and won a place on the Moot Court Board.

Res Communis: What do you do as corporate counsel for Bigelow Aerospace?

Gold: I wear many hats, which is probably a good thing since my hairline is receding quickly. I take care of numerous legal issues from NASA Space Act Agreements and NASA IP Licensing Agreements to export control reform. Export control took up a very large portion of my time over the course of the launch campaigns for Genesis I and Genesis II. I support some media requests, have drafted Op Eds, and conduct interviews such as this one. There is also additional regulatory work with the Federal Communications Commission, the FAA Office of Commercial Space Transportation, the Department of Defense, the Department of State, and occasionally an interaction with Congressional folks. I usually tackle a wide variety of issues on a daily basis.

Res Communis: Is your practice transactional or litigation?

Gold: I would call it more regulatory than litigation, or even transactional. In terms of transactions I worked on our launch contracts for Genesis I and Genesis II and deal with some other contractual issues from time to time. I have not been involved in a lot of litigation, and certainly hope it stays that way.

Res Communis: How long have you been corporate counsel?

Gold: Since February 2003 when I joined the company on a full time basis. I’m celebrating the five-year anniversary now. Previously when I was at Patton Boggs, I represented Bigelow Aerospace as a client. I have known Mr. Bigelow and been interacting with him in one capacity or another for almost ten years now.

Res Communis: What did your prior practice provide that you found useful working in an aerospace company?

Gold: I have always worked on aerospace or space-related issues to a greater or lesser extent. Even going back to law school I spent my first year summer clerking at NASA Langley Research Center. I had a choice between going to Kennedy Space Center or Langley Research Center and not only did Langley actually pay a stipend but I got to work under Kathy Kurke; and, as a Star Trek fan, I could not turn down working for a ‘Kirk’ at NASA. It really was a good experience and helped introduce me to NASA and the space world as a whole. Space has been a life-long interest for me although that may have been the first formal work that I did in the field. Subsequent to that experience, a law school writing requirement project that I worked on was “The Feasibility of an International Space Agency”, for which I attended a U.N./E.S.A. workshop in Honduras in my second year summer. Space has always been an interest and I have always tried to keep it as part of my career.

Res Communis: Do you consider yourself a space lawyer?

Gold: Yes, absolutely, although I do think the term ‘space lawyer’ can come with some misperceptions.

Res Communis: Your interest in space predated law school. Where did you get your interest in space?

Gold: I would probably go back as far as my grandfather on my mother’s side. He was always interested in radios and technology and actually did some work for the Apollo program. He was one of those great folks who was old school; his basement was like Frankenstein’s dungeon. I mean it had ripped apart elevators, televisions, and all sorts of discarded electrical equipment. He was a ham radio operator. Probably one of his greatest disappointments was that I couldn’t master Morse code and therefore under the rules at the time I could never talk to him on ham radio. I probably inherited some of my love of science and space from him, although, frankly, I can’t remember a time when I wasn’t interested in space, physics, and science fiction.

Res Communis: What is your undergraduate degree?

Gold: Political Science, with minors in legal studies, international studies, peace and conflict studies, and economics.

Res Communis: What would you tell young lawyers looking to do your kind of work? Do you see the field growing? What advice would you give to law students looking to get involved in space activities?

Gold: Well, I would say believe in the dream. A lot of people—whether it is pursuing a career path or anything else in life—I think they give up far too easily. I’m not going to say it doesn’t take a lot of work and a lot of sacrifice, but, you’d be surprised what can be achieved when one puts their mind to it. I mean, if the Red Sox can win the World Series, not once, but twice in four years then pretty much anything is possible, right? As I look at the accomplishments of Genesis I and Genesis II, there is no limit to what imagination combined with hard work can achieve with sufficient dedication and sacrifice. The same is true in terms of pursuing a space law career. You just need to look for opportunities like I did with NASA. Opportunities are even more abundant now than when I was going to law school. Try to develop some experience and knowledge in the area and take every opportunity and shot you can.

Res Communis: What is the most challenging part of being corporate counsel for a new space company?

Gold: The strengths and weaknesses are actually the same. I end up dealing with a wide variety of issues, some legal, some policy, some regulatory, all on a daily basis. Often the workload can be a bit all-consuming, and this was never more true than during our launch campaigns in Russia where I ended up working all day on the launch campaign and then all night on domestic issues because the U.S. is beginning its day when Russia is entering night. Those were some difficult and challenging times. As Dickens said, “It was the best of times, it was the worst of times.” However, while the work on Genesis I and Genesis II was substantial, if not overwhelming, the results were well worth it.

Res Communis: How long were you in Russia all together?

Gold: Between technical meetings, site visits, and the launch campaigns themselves, it seems like I was traveling overseas at least once every three months or so for the past few years. During Genesis I, I think I was in Russia for nearly two months, coming back and forth once in between. Living with the time changes could be brutal.

Res Communis: Did you go to Kazakhstan; Star City, or, elsewhere? At which Russian space institutions were you?

Gold: Kosmotras takes Russian SS-18s and turns them into commercial space launchers (called the Dnepr). It is literally a ‘swords-into-plowshares’ program. Transforming a weapon of war into a tool for peaceful commerce, and working with former Cold War opponents is what space exploration is all about, and is part of what made the Genesis campaigns so special. We weren’t just building better technology, but building a better, more peaceful future. In any event, the SS-18 conversion process is certainly a sound idea and has proven itself. However, prior to Bigelow Aerospace, Kosmotras had only worked with groupings of small satellites on the Dnepr. This was the first time there was a single, large payload on the rocket. It was unique in that way. It was the first time an American company had ever purchased such a system from them. As if that wasn’t enough of a challenge, to get back to your question, we also decided to conduct the launch not from Kazakhstan—where all previous Dnepr launches had emanated—but from an actual Russian Strategic Rocket Forces base near the town of Yasny in Siberia. That led to why I have had such wonderful experiences with U.S. export control regulations. As a new cosmodrome there was no technology safeguards agreement covering it and no commercial space launch had ever occurred from there before. We were on a Russian military base so it posed some extraordinarily unique questions, problems, and challenges as we went forward. This is why it was a singular experience for me and for the company.

Res Communis: What do you think of the International Traffic in Arms Regulations (ITAR); and, what is the most important thing you think people need to know about it?

Gold: I probably think of ITAR in about the same way as I think of the New York Yankees: it’s not helping anyone and only hurting America. What I find particularly pernicious about ITAR is—not only is it failing to accomplish its twin goals of 1) preventing technology from going to our ‘enemies’ and 2) supporting America’s edge in terms of aerospace—but it is having the opposite effect. Basically, what ITAR has done has sent U.S. jobs and money overseas. The Chinese are purchasing the same or better technology from the Europeans, the French, and the Israelis. In the meantime, whole sectors of U.S. industries are going bankrupt. Second and Third tier U.S. satellite component manufacturers are really suffering, and that’s where a lot of your innovation and ‘real’ work takes place. So, if the purpose of ITAR is to destroy the U.S. manufacturing base which then forces the Department of Defense to become dependent on foreign sources; to move jobs overseas; to eliminates tax dollars; and, to lose billions of dollars in business, all while making the nation less safe, then the ITAR’s mission has been accomplished.

Res Communis: Can the ITAR be fixed? If they can be fixed where would you start? Or, do they need to be eliminated?

Gold: I don’t even think it needs to be fixed, at least not the actual language of the ITAR itself. This is what I find so tragic, that no real ‘reforms’ to the ITAR are even necessary. One of the reasons that this fact is missed so often is that some of the people who talk about ‘ITAR Reform’ often lack real, first hand experience with the process. It is this ignorance that in some ways has led to a general lack of progress. Going back to the 1999 Defense Authorization Act, all Congress intended was to protect against the export of ‘advanced communication satellites and related technologies’ in a way that would hurt national security. That’s certainly a fairly limited and rationale desire. However, when the Act was implemented, Congress’s language was perverted to include, not just ‘advanced communication satellites’, but literally all space-related systems. Now remember, nothing we at Bigelow Aerospace say should be taken as being against ITAR or export control. We are patriots, we support export control, we recognize there are certainly many systems and technologies that require extra scrutiny and perhaps should not be shipped overseas. As a matter of fact, what we hope to do is to give the government bureaucracy more time to focus on these sensitive technologies and systems by allowing them to stop wasting their time on hardware that can be purchased easily and quickly in the international market place. In many cases technologies under ITAR scrutiny are decades old. By not focusing on these, in some instances, ancient systems that have been available globally for as long as I’ve been alive, we can free up government export control officers to focus on technologies that really do warrant protection. So, again, no real ‘reform’ is necessary, at least to the Congressional direction itself. The Congressional intent was reasonable and valid. All that needs to be done is for the Department of State to follow what the Congress initially intended; limit the application of the language to that; and, act accordingly. The majority of the problems being caused would go away. Now, that won’t solve everyone’s problems, particularly for some of my friends in the communication satellite industry, but it would be a terrific and much needed start. Bottom-line, I believe, working within the system, that much can be accomplished without new legislation.

Res Communis: It has been implementation that has been the problem?

Gold: Absolutely. For example, if you look specifically at the provisos that are written into technical assistance agreements, if the licensing officers were instructed by the Directorate of Defense Trade Controls (DDTC) to discern between sensitive, military technologies, and those that are widely available in the commercial marketplace, and not request monitoring and Technology Transfer Control Plans in those instances, that alone could go a long way toward resolving many of these problems. An example is the Genesis test stand. It was a round metal sheet that had several legs sticking out from the bottom. If it was flipped upside down, had a tablecloth and some cups placed on it, the stand would be indistinguishable from a coffee table—it was literally a metal coffee table. Yet, this coffee table was subject to the ITAR. It had to be monitored. We were required to have not one, but two guards to keep an eye on this “vital” technology. I can only imagine the national security repercussions if this technology should leak to the Chinese or the Iranians. They could serve coffee—or in a worst case scenario—even tea on it. The inability to distinguish metal coffee tables from actual militarily sensitive space technology that does deserve protection, demonstrates the broken and counterproductive nature of our export control process. If the system and implementation of the United States Munitions List is so overly broad that it can’t distinguish a table from sensitive technology, then I think it is obvious that there is a problem here.

Res Communis: There is wide professional opinion about the nature of the ITAR and that it must change. Do you think it is changing?

Gold: Well, as the X-Files Agent Mulder used to say, “I want to believe”. There are some indications of our moving in the right direction, among them a great report put out in February by the Center for Strategic and International Studies, as well as a GAO study on export control performance that was released last year, and, of course, most recently, our own commodity jurisdiction request.

Res Communis: Have you seen changes? As a practical matter do you see it happening?

Gold: Potentially. If our commodity jurisdiction request is accepted, I think that would be a signal that common sense can prevail and that we can have both security and sanity in American export control.

Res Communis: When do you expect to hear about that?

Gold: Well, to quote Yogi Berra, it’s very difficult to make predictions, particularly about the future. And this is even more true when it comes to predicting actions by the government. My hope would be to hear back immediately, but, I suppose it could be May or even June before we receive a final response. You know, in this case, the problem has been one of bad policy and misinterpretation, not personnel. There are some excellent, very intelligent individuals within the Department of State, the Defense Technology Security Administration (DTSA), and the DDTC. It is my faith in them that makes me think that common sense will prevail. If this commodity jurisdiction request succeeds, I believe it can herald a change that will not only be important for Bigelow Aerospace, but also for the entire industry.

Res Communis: Can you comment on a company’s cost of implementing ITAR?

Gold: Yes, absolutely. Paying so much for export control is a bit like being asked not just to dig your own grave, but to jump in it as well. Our best estimates are that we pay roughly $130.00 per hour, per person, for every hour that a government official monitors us or reviews our documentation during the day, plus overtime, which can add up on overseas trips. What amazes me is that when we travel to Russia for meetings, we sometimes travel with not one, but two government officials, monitoring every word we say. Then, across the table from us are the Russians, all great folks, who came out of a Communist system, and they have no explicit monitors. If we were to have brought someone down from Mars to attend our meetings, and asked them which of these two nations represented the free country, the Martian would point to the Russians. The U.S. holds itself out as the bastion of freedom. But when I am sitting there at those meetings I have to wonder: which is the free country? Now again, this is a problem of policy not personnel. The monitors we get are often good, smart people, who can even be quite helpful at times. However, what I want is for these monitors to be able to spend their limited time and resources focusing on military sensitive technologies that really matter rather than wasting their efforts on us. The Russians basically do this. They have the unique policy of protecting information that is actually sensitive. They don’t care about metal coffee tables. It makes a lot more sense. And, in regard to the financial costs, you know, the KGB may have spied on you back in the Soviet days, but at least they had the courtesy to do it for free. It is unfathomable to me what we have to pay for export control review and monitoring.

Res Communis: You do cover their travel expenses also?

Gold: Absolutely, including airfare and hotel. Specifically, in 2006, the year of the Genesis I campaign, we paid over $160,000 in monitoring fees alone. In 2007, when the Genesis II launch campaign took place, we paid the government nearly $150,000 for monitoring and reviews. Thanks to Mr. Bigelow’s generosity and commitment, we’re able to afford such fees, but there are a lot of small companies that can’t. This is why the ITAR has stifled innovation and stunted development in the American aerospace sector. The ITAR should be re-named “The Full Employment for European and Foreign Aerospace Workers Act.”

Res Communis: As between a new space company like Bigelow and the big aerospace corporations, is the ITAR burden disproportionate for the new companies?

Gold: Everyone has problems with it, but a large, well established company is better able to absorb the expenses and can pass the cost on to their customers relatively easily. Anecdotally, I have spoken to a number of friends and colleagues at small aerospace businesses and start-ups. They tell me that they don’t even look at international collaboration because they know they can’t afford to work through the export control problems without a hoard of attorneys. Frankly, it took a lot of work and diligence and a little bit of luck on our own part to have been able to survive the ITAR gauntlet with just myself, my deputy, and some limited support from outside counsel.

Res Communis: What other areas of law do you deal with on a regular basis?

Gold: In terms of strictly legal work, in addition to the launch contracts for Genesis I and II, we went through a period where we thought Genesis I would be launched domestically. The legal work for this included an FAA-AST payload review. I’ve also had a great deal of experience with NASA Space Act Agreements and, NASA intellectual property licensing agreements, which is a whole other discussion. There are some excellent people in the NASA technology transfer offices. The folks at Johnson Space Center (JSC) have done a great job. But I think the agency needs to work to use the intellectual property that it holds to encourage investment rather than to discourage it or to create a barrier to entry. The current group at JSC has done a great job in trying to do just that. However, I believe that it would be well warranted for NASA to take a second look at the way it handles IP on a comprehensive basis so that some of the lessons we learned the hard way when Bigelow Aerospace licensed the initial TransHab technology from JSC aren’t lost.

Res Communis: Do you have an example of an IP problem that is analogous to the coffee table story that you can share?

Gold: This goes back a number of years, but prices to license technology from NASA should not be unreasonably high. Again, when NASA proceeds with such pricing it discourages rather than encourages the development of technologies. It doesn’t serve NASA and it doesn’t serve the American tax payer. I have yet to understand what policy purpose is really served by gouging entities for the privilege of spending hundreds of millions of dollars of their own money to develop unproven technologies. It should be just the opposite. Again, there are currently some good people at JSC legal and in the technical group that we have worked with. But, I do believe this is an issue that needs to be evaluated in a more holistic sense.

Res Communis: Who will win the pennant this year?

Gold: That is a tough one, however, I hear there is an excellent team in Boston that I feel will win out in the end.

Res Communis: Did you hear about the worker who put the Boston jersey in a cement block of Yankee Stadium?

Gold: Yes, and I hope that once the new Yankee stadium is finished, Red Sox fans will call the Yankees back and say that there are actually dozens of jerseys hidden in random places throughout the stadium, so they have to rip it down and start all over. I’m kidding of course, and I have to give the Yankees credit on this one. After unearthing it, the Yankees gave the jersey at issue back to the Red Sox where it was auctioned off for the Jimmy Fund, a local Boston charity that fights childhood cancer. The jersey ultimately sold for over $175,000, which is why I think it would be a great thing if there were more! In any event, giving the jersey back was a classy move by the Yankees and will help a lot of sick kids; in the end we’re all baseball fans who want to make a positive difference in the community.

Res Communis: Is there anything that hasn’t been covered or asked that you would like to raise just to make sure the record and the interview is complete?

Gold: Yes, I want to emphasize that Bigelow Aerospace is not asking to eliminate the ITAR. Per our Commodity Jurisdiction (CJ) request, we believe that the system as it’s currently structured can function, and we have great faith in the people at the DDTC and DTSA that a prudent and sensible outcome on our CJ can be achieved. I have high hopes that the next time we talk about this it will be with good news.

Res Communis: Thank you.

1 Comment »

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  1. That was a great interview!

    I wish we had more insight into what Bigelow was doing (perhaps they should consider starting a blog alongside their email list) as this interview did provide some insight as to the problems regarding ITAR.

    Hopefully someone from Congress can look at this, or (better yet) a presidential candidate as this would make life easier for the industry.

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