Laura Montgomery is the Federal Aviation Administration’s Senior Attorney for Commercial Space Transportation. She supports the Associate Administrator for Commercial Space Transportation, the FAA’s line of business that regulates the commercial space transportation industry. Laura Montgomery’s work at the FAA includes the development and application of regulations, legislative issues, and enforcement matters. Her rulemakings include the FAA rules for human space flight and experimental permits. Before coming to the government, Ms. Montgomery was in private practice with Arter & Hadden in Washington, DC, where she specialized in telecommunications, administrative law and appellate work. She received her law degree from the University of Pennsylvania in 1987, and her undergraduate degree with honors from the University of Virginia in 1983.
Res Communis: Thanks for taking the time to speak with us today. What is your formal title?”
Montgomery: Senior Attorney for Commercial Space Transportation
Res Communis: Would you consider yourself a space law lawyer?
Montgomery: Yes, definitely.
Res Communis: What does that mean to you?
Montgomery: I practice space law and, in my case, the law concerns the regulation of rockets.
Res Communis: Please give us an example of the kinds of things you do on a day-to-day basis.
Montgomery: I am a general practitioner in the space law area. I work on licensing issues; review licensing evaluations for legal sufficiency; and, address enforcement issues. I am involved in lots of rulemakings and have worked on many over the years. I’ve worked on legislative issues. Long ago, I testified to Congress once on how the agency construes its statute, and I get involved in international issues that affect the FAA.
Res Communis. So, as an attorney, would you consider yourself to be a transactional lawyer, a regulator, or litigator? Where on that spectrum?
Montgomery: I am a regulator.
Res Communis. What does a regulator do?
Montgomery: Administer and enforce the FAA’s regulations.
Res Communis. What is the most interesting thing about that work?
Montgomery: Getting to work with space issues. That is the most interesting thing for me. I love to see people coming in with new proposals, and I love being so deeply involved in new and exciting things like the recent SpaceX Dragon reentry. That was very exciting. We issued two waivers for that, and they were published in Federal Register. As a lawyer you can participate in some of the most cutting edge work from the legal side.
Res Communis. Tell us about that waiver. What did it involve as a matter of law? Where was your starting point? How was the decision made to make a waiver and what did the waiver make possible?
Montgomery: If I may take one of the waivers as an example, the regulations require that a licensee satisfy quantified risk numbers. The way our reentry rules are set-up there is a cap on the combined risk of launch and reentry. It looked like SpaceX’s reentry would lead the mission to exceed the cap, so we had to determine if that would be permissible and whether we should waive the regulations. There is a lot of work involved in figuring out what’s going on; whether a waiver is necessary; and, if it is necessary, how it is justified. In the end the waivers were granted for the reasons provided in the published notice. And, as everybody knows, Dragon came in safely.
Res Communis. Now prior to doing your current work, did you do space law anywhere else? What was your path into space law?
Montgomery: My path into space law probably started with reading The Moon is a Harsh Mistress when I was thirteen. I read a lot of science fiction in my youth, and halfway through college I realized I wasn’t going to be able to work for NASA unless I did something other than graduate with a philosophy degree, which is what I was getting. I decided law school would be a good way to use my writing and analytical skills, so I went to law school hoping I would be able to get into space law. I took administrative law and international law and when I came out, I managed to land a job with a firm that did a lot of administrative law. One of the partners had a satellite client, which was very appealing. At Arter & Hadden I worked on telecommunications issues, including some satellite work. Then, with administrative law experience and the satellite work, I landed my current job with the FAA.
Res Communis. What did you do at the firm regarding satellite work? Licensing work?
Montgomery: Yes. I was also involved in other areas, in rulemakings in front of the FCC. At one point, we handled an interesting opposition to the proposed relocation of a satellite used by one of our clients.
Res Communis. If a young law school student came to you today and said, “I’d like to do what you do and I want to be a space lawyer.” What is your best advice for that student?
Montgomery: I would strongly encourage them to take administrative law in law school and try summer jobs, internships, or clerkships in the field. There are companies that do this kind of work.
Res Communis. From your vantage point in the FAA, where do you see space law going? Where do you think the next new vista or challenges are going to be?
Montgomery: Well, our immediate challenge is reentry because the Dragon reentry was the very first one we licensed and there are going to be more. It’s one thing to write regulations. It’s another to apply them, and I’m sure we will face new challenges as the private sector develops new technologies and skills.
Res Communis. How about orbital licensing? Is there anything coming up with that in the future?
Montgomery: That would be for Congress to say. We do not have that authority. That was made very clear in the Committee report accompanying the passage of our reentry legislation.
Res Communis. So you work with the Commercial Space Launch Amendments Act of 2004 a lot?
Montgomery: Yes. We have done rule making under that law. There were two rules: the Human Space Flight Rule and the Experimental Permit Rule.
Res Communis. Were you involved in the definition of a “rocket” for the purpose of that legislation? The definition is a vehicle that has more thrust than lift for more than half of its ascent.
Montgomery: For the majority of the rocket powered portion of its flight.
Res Communis. Why it was important to create a definition that was so precisely technical?
Montgomery: Before the 2004 amendments were passed the question was whether a vehicle was an aircraft or a launch vehicle when it had wings and a rocket engine. What kind of craft is it? The answer to that determined which legislation it would fall under: the Federal Aviation Act or the Commercial Space Launch Act. That’s why we needed to be very, very clear about the definition.
Res Communis: So, as a philosophy major, how did you learn your engineering?
Montgomery: That might be an overstatement, but any lawyer has to know her facts. If you litigate a slip and fall case you need to know where the mop was. If you do space law at the FAA you have to learn all about the destruct system; the command receiver decoder; the shake, rattle, and roll test. You pick it up over time.
Res Communis: The analogy I give my students is that if you were to go into medical malpractice law you have to learn enough medicine to be able to serve clients and to know when it is time to call in a doctor as an expert.
Res Communis: So, you have to know enough engineering as a lawyer for space law to be able to apply the law but then know when to bring in an engineering expert to give you the information you need.
Montgomery: That’s very true.
Res Communis: Does your office call in engineers as experts to do that kind of technical background?
Montgomery: My client is the Office of Commercial Space Transportation. It is full of engineers, and they are the ones who evaluate applications. They are also usually the people who know when they need their rules changed and why. We then work together on the rules. No pun intended, but no one is working in a vacuum.
Res Communis.: Can you give us an example of when one of your engineering colleagues brought a technical issue to your attention that the law didn’t address adequately?
Montgomery: The teamwork between the lawyer and engineer is most evident in rule making. An engineer may want to accomplish certain goals and the lawyer has to assist in making the requirements work. Sometimes the simplest and most routine drafting issues unearth more information. For example, lots of people draft requirements in the plural: “Destruct systems must work thusly.” If I added an “all” to the beginning of the sentence or made it singular, I would sometimes be told, they didn’t mean all—there were exceptions to the rule. So I would say, let’s write down the exception. Sometimes it is just a drafting fix that leads you to questions you didn’t even know to ask. As you try to get more precise, you learn that there is more to write than you thought because you have to include the new ¬information they have in their brains but which has not been reduced to paper.
Res Communis. That is a great example. Would you recommend a law student to do some reading on aerospace engineering?
Montgomery: It could help, but you learn it where you need it. My first exposure to a lot of the engineering aspects related to the proper way to destroy a rocket, not how a rocket works, because the safety rules for expendable launch vehicles address keeping the rocket away from populated areas. This is a safety agency and you destroy the rocket if it goes off course.
Res Communis. For clarification, we are talking about range safety issues, absolutely one of the most important parts of what has to be planned. Is there anything else you would like to add to make the interview complete?
Montgomery: Just my usual point that everyone should take administrative law.
Res Communis: That is what I tell my students. It is absolutely critical. Even if they want to go in the private sector, they need to know administrative law. Thank you for a very informative interview.
Montgomery: You are most welcome.
Ricky J. Lee is a Senior Associate at the commercial firm Schweizer Kobras in Sydney, Australia, specialising in commercial law and international law. He is a Director of the International Institute of Space Law, Secretary of the Organising Committee and Asia-Pacific Regional Organiser of the Manfred Lachs Space Law Moot Court Competition, Member of the Outer Space Committee of the International Bar Association, Editorial Board Member of Convergence, Fellow of the Commercial Law Association of Australia and Member of the International Law Section of the Law Council of Australia. He was awarded the 2005 Distinguished Service Award and the 2002 Diederiks-Verschoor Award by the International Institute of Space Law. Since 2000, he has lectured in various subjects in administrative law, commercial law, comparative law, international law and space law. He has published extensively on international law, commercial law and constitutional law and has presented legal and technical papers at international conferences and workshops, including the 2002 and 2003 United Nations workshops on space law.
Res Communis: How did you get into space law?
Lee: When I was an undergraduate law student at the University of Adelaide in Australia, there was a talk on space law given by a commercial lawyer, Michael Davis. He had recently finished a Master of Space Studies at the International Space University, returned to Adelaide and gave a talk at the Law School. I went to that talk, was fascinated by it, and really never looked back. I introduced myself and, as it turned out, he knew my father. He later gave me the opportunity to do a clerkship, which I took. He then offered me a job, which I also accepted, and that was the start of an amazing journey in space law.
Res Communis: Did you do space law in the clerkship and in the job?
Lee: The clerkship involved a research project for a paper he was to present at the 1998 International Astronautical Congress in Melbourne, Australia. He wanted someone to do the background research for him. That was my first professional space law assignment.
Res Communis: What was the project?
Lee: If I remember correctly, it had something to do with licensing. At the time there was a lot of interest in Australia for commercial and private launch corporations mainly from Kistler Aerospace who were going to launch from Woomera the K-1 vehicle and there was the Asia Pacific Space Centre that was going to launch a two-stage rocket from Christmas Island, which an island on the coast of Western Australia. There were also a few overseas funded projects that were going to launch from Queensland. It was a very exciting time for the private launch industry in Australia and the timing was pretty good too.
Res Communis: What was your first job and what did that entail?
Lee: When I finished my undergraduate law degree, I actually decided I wanted to do an LL.M. instead of going straight into practicing law. I chose to go to the Australia National University in Canberra since it was one of the better-regarded international law degrees in Australia. About six months before I was going to go, the largest firm in Australia hired me as a graduate commercial lawyer and agreed to pay my education fees, which were substantial. So my first job was in a commercial practice in Canberra where it was mainly in technology contracts and regulations. I did quite a bit of work for the Australian government for research programs and coordination projects with NASA and the U.S. National Oceanographic and Atmospheric Administration (NOAA). I was also acted for a few of the launch operators that I mentioned before. I was very lucky early on in my practice. I was exposed to legal work for the largest launch operator in Australia as well as the only major satellite operator, which was Cable & Wireless Optus. I was very fortunate.
Res Communis: What is the state of space law in Australia today?
Lee: Australia probably has one of the world’s most complex and detailed regulatory regimes that exists for space activities. In terms of launch activities and operating satellites, the Space Activities Act 1998 has provided a very detailed and complex framework for launch regulations and launching satellite launches overseas. It is a very complex regime. Folders — like volumes of regulations — are quite substantial in the amount of regulations that exist. In terms of satellite communications, the Radiocommunications Act 1992 of Australia has provided satellite communications regulations for a long time as well. I suppose most of the regulatory framework needed is in place. It is not used as frequently as it was originally envisioned to be used. These laws were created at a time when it was thought that the demand for satellite services and launch services would be exploding. It was also a time when there was a lot of hype about Iridium and other satellite mobile communications networks, so there was perceived to be a lot of potential Low Earth Orbit launch services in Australia, which seems to be a very prime destination for that to take place. Australia has wide-open spaces and a very stable economic and political environment. It also has a very good geographical location and stable climate. The space industry explosion in Australia had died down by the time the regulations and laws came into place.
Res Communis: Australia ratified the Moon Agreement and joined the relatively small number of nations that did. What is the status of Australia’s ratification now and why did it ratify the Moon Agreement in the first place?
Lee: Ten years ago, there was serious consideration given to Australia withdrawing from the Moon Agreement. The Moon Agreement allows for withdrawal, so there were very serious discussions at very high levels of government to discuss that possibility. Ultimately it was decided not to withdraw because withdrawal would send the wrong signal among the international community regarding Australia’s compliance with the law.
Res Communis: How is a treaty ratified in Australian law?
Lee: Ratifying treaties in Australia are executive acts that do not require legislative oversight. The act of signing and ratifying a treaty is simply done by executive action. In order to ratify the Moon Agreement it did not need to be approved by either the Australian Senate or the House of Representatives. That being said, in order for treaties to be a part of Australia’s domestic law, it has to be legislated upon. The Space Activities Act actually incorporates the terms of all five United Nations treaties into Australian national law.
Res Communis: Tell us about your current practice, what kind of space law do you do now?
Lee: Mainly international advisory work. What I mean by advisory work is that a client comes to me whenever there is a legal problem posed. It is a consulting arrangement, more than anything else. It is difficult to maintain a space law practice in Australia because the industry has pretty much tumbled down. There is no commercial operator operating from Australia anymore and there has not been one for the last 6 or 7 years or so. There also has not been any major satellite operators except for Singtel Optus. That means that the amount of space law work in Australia is quite minimal. Most of the work that is done by space lawyers in Australia is imported work where they are simply added on in a consultant role to oversee clients for foreign law firms rather than having clients of their own in Australia.
Res Communis: What about remote sensing law in Australia?
Lee: Australia does not actually have any specific laws or regulations dealing with remote sensing. In Australia, remote sensing is not just satellite remote sensing. There is also aerial remote sensing and a lot of use of remotely sensed data. Australia just went through one of its worst droughts in recorded history. Agriculture especially pastoral agriculture reliable on the knowledge of where water and pasture are located. There is also a mining industry where satellite imagery is used constantly in order to determine where the most appropriate places to explore for ore are located. Australia is certainly a very prolific user of remotely sensed data but there are no regulations in relation to their collection. All we do is consume remotely sensed data. That is why it was felt that there is not a need to regulate.
Res Communis: Does Australia have an organization that is analogous to the UK’s Ordnance Survey or the United States’ Geological Survey that uses data for various mapping applications?
Lee: There is Geoscience Australia and the CSIRO (Commonwealth Scientific Industry Research Organization). Both Geoscience Australia and the CSIRO do obtain data from foreign sources such as NOAA and the passes them on to the private sector or the agriculture sector for use. They are normally regulated by contract in the sense that they are simply regulated based on the negotiated terms of a contract between the data supplier and the data user, rather then by legislative action.
Res Communis: Tell us about your work in the Manfred Lachs Space Law Moot Court Law competition.
Lee: My involvement started in 1999, which was my second International Astronautical Congress. It was particularly inspiring to watch the finals of the competition in the Peace Palace in The Hague. I watched two teams, one from France and the other from United States, argue space law before three Justices of the International Court of Justice. I found that quite inspiring, so the next day I volunteered to start an Asia-Pacific round of the competition and, of course by the end of the day, I regretted having done that. So in 2000 the first Asia-Pacific Regional Rounds were held.
Since then it has really taken off in Asia. The Asia-Pacific region is the largest one of the three regions. Every year since 2000 it has had more teams than the other two regions, Europe and North America, combined. The region’s record still stands at about 40 teams; which is about 30 or more than the record for Europe and North America. There are teams participating from China, Hong Kong, India, Indonesia, Japan, Korea, Malaysia, New Zealand, Singapore and Thailand, and, of course, Australia. It has grown to be quite an institution in Sydney every year. I am very proud to be associated with it. In 2009, the region is celebrating its 10th anniversary and for the first time all 3,200 law schools in the Asia-Pacific region that are eligible to participate are being invited. We anticipate that it will be a very large competition in April 2009; we are also very scared that it will be a very large competition.
Res Communis: Be careful what you wish for. What would you tell a law student today who is interested in making a career in space law, what kind of advice would you give him or her?
Lee: The first thing I probably would say is, to actually identify the interest they have in space law as either an interest in practice or academia. Space law in practice and space law in academia are two very different species. The practice of space law can be very regulatory, very contractual. Being involved in the mission activities may be very exciting, as a whole. But as a legal advisor, you have to look deep into the details; and, that may not be as good as it sounds. At the same time you do get involved in some of the more exciting work that does happen and that can be practiced by commercial lawyers.
Res Communis. Would you include government lawyers in that category?
Lee: I would, yes. It does not leave much to the imagination. The benefit of being an academic with an interest is space law is that you can let your imagination run wild. You can think about what kind of space law can be created for the most amazing creations of science fiction or lay down a foundation for how a future human civilization can evolve. Academia can be very rewarding work intellectually, but not financially rewarding. So the first thing I would suggest is to work out which aspects of space law in which a student has a particular interest. Then think about what path would actually place them in the best position to pursue a career regarding that interest. The sad reality is they tend to mix what makes a good space law practitioner, which is a well rounded background in commercial, contract, trade, and international business law, with what makes a good academic, which is a more vital grounding in international space law. Setting up a career in either field can be very different. I am very fortunate I think because my practice background is as a commercial and international transaction lawyer. I can draw on those skills. I would have been a very different lawyer had I not been exposed to those skills. When I was studying at university I never studied commercial law. I had always thought that I would study academics so I never bothered with tax, finance, or commercial law—really boring subjects like that. As it turns out I was very lucky I was able to learn in practice what I did not learn at university.
Res Communis: What is the most important issue in space law today?
Lee: The one that has the most far-reaching implications in the long-term would be property rights. I have a bias because my Ph.D. thesis was in property rights. I think as resources on Earth are becoming increasingly scarce, the environment is being destroyed more in order to obtain what is not easily available. As room on Earth runs out, for civilization to expand the next natural destination has to be space: be it the Moon, be it Mars, or be it Venus. To enjoy a hot summer all year round that is where we would have to go! Property rights is going to underpin every aspect of civilization, regardless of whether we are talking about settlement, mining, utilization, agriculture, or industrial production. All of those things require some element of property rights and it is one of the many debated topics that exist in space law today. It also occupies the media attention probably more than other issues.
In the short term, I think the more crucial issue is weaponization in outer space. Article IV of the Outer Space Treaty may be seen as prohibiting it but there is resistance by many states to that view.
Res Communis: One view is that although Article 4 prohibits major classes of weapons, it is silent as to conventional weapons.
Lee: I take a different view. To me, Article IV is an obligation that obviously arises under the Outer Space Treaty. Article 42 of the United Nations Charter proposes an obligation to comply with a Security Council resolution, which to some extent is a regulation on the use of force. Meanwhile, Article 103 of the Charter requires any obligations under the Charter to override any other obligations or rights that exist in any other treaty, regardless of whether the treaty existed before or after the Charter came into being. That means that the Article IV limitations — and of course, I agree it prohibits deployment of nuclear weapons or weapons of mass destruction in outer space and certainly prohibits the military use of celestial bodies — those obligations are overridden. So while it may be an expression of the international community to limit weaponization in space, Article IV of the Outer Space Treaty does not have that effect in international law. That is a roundabout way of saying that Article IV may prohibit nuclear weapons and weapons of mass destruction that but it does not have that effect if the United Nations Security Council resolves otherwise. It does not effectively prevent the weaponization of outer space. In the short term, this is probably a more crucial issue that needs to be resolved.
Res Communis. How ought the law respond to that issue?
Lee: Unfortunately, there is not a simple way of doing that. It does not matter how the Outer Space Treaty is amended or what a new treaty contains, the Charter will be able to override it. The only way that this can be avoided is to amend the Charter itself or by creating new international law to which the Charter will be subject. It will take a universal effort on the part of the international community to achieve either of these and the reality is that it is not going to happen anytime soon.
Res Communis. Do you want to add anything that I did not ask?
Lee: I think I find space law fascinating—not because it is “sexy”; not because it is interesting; not because it is different—but because it is an exciting part of the development of civilization. Humanity spent the last 4,000 years thinking about what is next; be it in a cave, be traveling across an ocean. With space law, it is what’s next. I probably will never be fit enough to be an astronaut or smart enough to be a space engineer, but I was lucky enough to be involved in the law. If space law is my contribution to civilization, then that is my cup of tea.
Res Communis. That is a good note on which to end. Thank you.
Pamela L. Meredith advises clients on commercial space project planning and implementation, risk management, contract negotiation, and dispute resolution at Zuckert, Scoutt & Rasenberger, L.L.P. She has written numerous articles and a textbook on these topics and is a frequent speaker at satellite communications and space law conferences in the U.S. and internationally.
Ms. Meredith is also an Adjunct Professor of Satellite Communications and Space Law at American University’s law school in Washington, D.C. – a course she started in 1989.
Interview with Pamela Meredith
Res Communis: How would you describe your practice?
Meredith: It is very broad based, but at the same time it has only one focus and that is space. All my clients are either doing something in space, or building something that goes into space, or insuring something that goes into space. My practice ranges from regulatory law, to contracts and commercial transactions, to dispute resolution and arbitration.
Res Communis: Do you consider yourself a space lawyer?
Meredith: I consider myself a space lawyer. Absolutely.
Res Communis: How did you find your way into space law?
Meredith: I started early on with an interest in space law. I went to McGill University’s Air and Space Law Institute in Montreal to pursue that interest. In 1981, I came down to Washington, D.C., which was the Mecca for space law, if ever there was one.
Res Communis: That was an early start.
Meredith: Yes, and at that time there really wasn’t that much space law around. I was lucky enough to get to work at a small law firm with an exclusive focus on space law; probably the only one at the time. We mostly did Federal Communications Commission (FCC) regulatory law relating to licensing of communications satellite operations. We assisted companies in obtaining licenses to operate communications satellites for a variety of uses. Some of these were novel, which in addition required lengthy FCC rulemakings. These uses included, for example, navigation satellite service and international fixed satellite service in competition with Intelsat. At the time this was very controversial because Intelsat was then a public international treaty organization with a monopoly on international satellite communications.
Res Communis: Now you are in a firm and you oversee a practice group within the firm that is dedicated to space?
Meredith: Our space law practice group consists of a number of attorneys with law practices that range from regulatory to transactional to tax to legislative to arbitration/litigation. Two of the attorneys in our group, my associate, Marshall Lammers, and I, work full time on space law matters. Depending on the particular projects we work on, other attorneys in the group contribute their expertise. Our space clients include financial institutions, including space insurance companies; launch companies, both expendable launch vehicle (ELV) and reusable launch vehicle (RLV) providers; satellite operators; and satellite and launch vehicle subsystems manufacturers.
Res Communis: Can you give us an idea of some current things you are working on?
Meredith: We work on a range of issues. Over the past months, we have worked on satellite manufacturing and launch contracts; a space asset acquisition; space insurance issues; launch licensing issues; the Cape Town Convention Space Protocol (registration of security interests in satellites); U.S. export control issues; analyzing space-related legislation and preparing white papers for submission to the U.S. government; and commercial space contract dispute resolution and arbitrations.
Res Communis: Is that litigation, arbitration, mediation?
Meredith: It depends. Most space contract disputes resolve amicably and they never go to arbitration or litigation. That is generally the goal and what the client wants. Disputes may also be settled during arbitration, and settlement negotiations may be initiated at various stages throughout the arbitration by one or the other party. Mediation is typically offered to both parties before the arbitration formally gets underway. Most space contract disputes do not go to litigation because the parties include arbitration clauses in their contracts requiring them to arbitrate rather than litigate if they can’t come to agreement. Arbitration has several advantages over litigation, including speed and confidentiality. With a panel of former judges, attorneys or other professional arbitrators, arbitration is generally a very efficient way to resolve a space-related dispute.
Res Communis: How much of your practice is dispute resolution, 50%, 25%?
Meredith: It varies. Some days or even weeks, it may be 80-100%, and other days or weeks it may be 10-20%. Other projects can be very time consuming, as well, for example, space asset acquisitions. If we represent the buyer, we need to do due diligence to determine the condition of the asset from a legal perspective. We look at title, permits/licenses, patents, liens and encumbrances, contracts, pending litigation, and more. Sometimes additional government permits are required, and we need to get them. And then there is the preparation, review, and negotiation of the transactional documents.
Res Communis: It sounds as if your practice is a mix of transactional work and litigation work.
Meredith: Yes, I would say it is basically a mix of transactions, dispute resolution/arbitration, regulatory and licensing work, and space insurance. On the regulatory side, which we haven’t really talked about, we have assisted launch company clients in obtaining FAA launch licenses for ELVs and operating permits for RLVs. We also advise ELV and RLV clients in FAA regulatory proceedings. The people in the FAA launch licensing office are very helpful and have a keen understanding of the industry they regulate, which makes the work very interesting. Also on the regulatory side, we get involved with International Traffic in Arms Regulations (ITAR). We can hardly do anything in the space business if a foreign company is involved without some sort of ITAR issue. Just to give you an example, when a European client wants to send us satellite documents with “technical data” – even though the documents originated here in the U.S. – we need to get a “retransfer” approval for the client from the State Department! For substantive technical discussions to take place between U.S. and foreign companies, a Technical Assistance Agreement (TAA) must be in place. But the TAA is often only the beginning, since the State Department may require prior review by the Defense Technology Security Administration (DTSA) of every document that is exported to the foreign company pursuant to the TAA.
We sometimes get involved in international treaty matters, such as the Space Protocol, which I mentioned already. The Space Protocol is now in the final drafting stages, and we are assisting clients in the determining the potential implications for their businesses and whether they need to request changes. Usually treaty issues arise with respect to treaties that are already in force and that may impact the client’s project. For example, we have been asked about the scope of the non-appropriation provision in Article 2 of the Outer Space Treaty of 1967. In the 1990s, we analyzed the Strategic Arms Reduction Treaty (START) for a client that wanted to convert ballistic missiles to launch vehicles. The treaty actually provided for this conversion. We have also analyzed the International Telecommunication Union (ITU) Radio Regulations for clients trying to obtain international protection of their national satellite frequency assignments. Back in the days when Intelsat, Eutelsat, and Inmarsat were international treaty organizations, we dealt with treaty issues more frequently.
Res Communis: Do you use conflict of law clauses a lot?
Meredith: Yes. They come up in virtually all the space contracts we draft or review, ranging from satellite procurement contracts to space insurance policies to alliance or teaming agreements to non-disclosure agreements (NDA). They get especially tricky when one of the parties is a foreign company. When we have non-U.S. parties and U.S. parties then the question is always what law should govern. Usually the buyer is in the stronger position, so the buyer will often try to force the law of its country. If the seller has sufficient bargaining power to resist, which is often the case when it is supplying, for example, a spacecraft or launch vehicle subsystems that the buyer wants, the parties may pick a compromise jurisdiction. For example, we represented a continental European company client recently in a contract negotiation with a U.S. company (the buyer). Our client was very adverse to the Uniform Commercial Code, which would apply as a result of choosing U.S. law. The client insisted that we not use U.S. law and the parties compromised on English law. We had another situation where our client here in the U.S. was negotiating with a company in Asia, in a non-common law jurisdiction. In that case, we compromised on the law of Singapore, which is a common law jurisdiction. If both parties are U.S. parties, then in the space world, there are two jurisdictions that come up very often: New York and California. New York is very often used because it is a well recognized business jurisdiction and there is a large body of law in New York to draw from. California is popular because it is home to many space companies.
Res Communis: What International jurisdictions have you seen the most or is that varied?
Meredith: Our space practice is very international, and most of our clients are non-American companies. These clients engage us to advise them in connection with their contractual or business relationships with U.S. counterparts. They may need us to review or negotiate contracts with U.S. companies, interface with the U.S. government on their behalf, obtain a U.S. regulatory permit, or represent them in a dispute resolution matter or in arbitration here in the U.S. We have also been retained by foreign governments to advise them in connection with bilateral space treaties and agreements with the U.S. government. Also, several European clients over the years have engaged us also to identify and assess potential U.S. business or alliance partners or target companies for acquisition.
Res Communis: What is the most rewarding part of your practice? What keeps you coming to the office everyday?
Meredith: Every part of it! I just feel so privileged to have this practice. I think it is the variety. Just the variety of issues that come up and of course the focus on space makes it inherently interesting. It is the variety coupled with the space focus.
Res Communis: It is fair to say that you are one of the space law pioneers. You are financially successful at it and sustaining a practice. You are obviously established. Are there going to be more practitioners? Is there is enough work starting to evolve to where space law may go beyond being a specialty?
Meredith: I think it will continue to be a specialty for a long time; but there is a lot of work in this area for someone who is broad-based and can handle a range of space-related regulatory and contracts issues. There is much more work now than ever before and the field is definitely growing. Satellite communications has grown to become a mature business with plenty of opportunities for legal work. It is driving associated businesses such as launch services. Satellite imagery is still largely government supported, but this will change. A whole new space industry involving human space flight – often referred to as “new space” – is only just emerging and should offer plenty of opportunities for space lawyers in the future. If you set your mind to it, you can make space law a full time occupation with some background and interest in the field. But you have to really work at it to make it happen. I don’t think we are at the stage yet where a space law career will just land in your lap. That I don’t see just yet.
Res Communis: What do you think are some of the most important issues in the field of space law today?
Meredith: That is a tough question to answer. I get so wrapped up in every-day practice issues that are important to my clients, I don’t get a chance to sit back and reflect on the larger issues. But there is one such issue that I have thought about quite a bit: There is no general regulation of orbital ventures today. There is a jurisdictional gap as far as U.S. regulation is concerned. There are specific regulatory regimes for satellite communications, satellite remote sensing, and space transportation, but there is nothing to cover activities that fall outside the boundaries of these specific regulatory regimes. The question is whether we need additional regulation, as a practical matter and/or given U.S. responsibilities under Article 6 of the Outer Space Treaty.
Res Communis: Do you have any thoughts on how that law should develop? There is launch law and the law for the return.
Meredith: Yes, we do have regulations for launches and re-entries, but not for what happens in between with respect to the vehicle and payload, except in the specific areas I mentioned. There is not, as many other countries have, a sort of an “umbrella” legislation for space. In the U.S. we regulate each specific activity. So the question is, do we need regulation to cover new activities that are coming online? For example, the Google Lunar X Prize. It calls for non-government, private activity on the Moon. There are also private orbital ventures in the planning.
Whatever we do, the key is not to over-regulate, because that could stifle a fledgling industry. The key is to facilitate activity that is safe and consistent with national security and treaty obligations. The risk of not having some sort of regulatory frame-work is that, at some point, a number of regulatory agencies may decide to assert jurisdiction and that could halt a project or delay it severely. This is what happened to the first commercial launch company, Space Services, back in the early 1980s, before DOT (later delegated to the FAA) was made the focal point for licensing of commercial launches. More than 10 U.S. government agencies claimed jurisdiction over some aspect of the launch.
These are things we need to think about. The space law community needs to give thought to this. [Editor’s note: The Third Eilene Galloway Symposium on Critical Issues in Space Law will address Article 6 issues. Keep on eye on the National Center for Remote Sensing, Air, and Space Law’s website.]
Res Communis: Do you have occasion to appear or practice in other countries?
Meredith: Not in the sense that I would represent a client before a foreign government body. We would hire foreign local counsel after consultation with the client.
Res Communis: Do you go there and work in the local legal systems?
Meredith: No, not in the sense that I practice their law. We typically work with local counsel. For example, we would engage UK local counsel to review a contract that is negotiated on behalf of our foreign client with a U.S. company but subject to English law. This arrangement would need to be approved by the client first, of course.
Res Communis: When a new client comes to you what kinds of questions do you ask yourself? Do you start by identifying the client as a launch provider, a satellite operator? Where do you begin so you can determine what kind of service you can provide?
Meredith: Typically a client comes with a specific problem or issue. Often clients will come to me when they have an urgent legal issue, for example, where a contract has been breached or if they have some other concern or dispute brewing, or if they need help with getting a U.S. government regulatory approval or arranging a meeting with the government. Clients also often ask us to review and draft space contracts. Occasionally, but not very often, we get a client who says “I’m starting up a business, and I want to have a lawyer involved. I know there are going to be a lot of legal issues and I want to get a lawyer on board from day one.” This situation gives us the opportunity to plan ahead, which may prevent legal issues and problems later on.
Res Communis: You raise the preventative aspect of using law. What would you advise a new space company if they were going to bring you in at the beginning rather than wait until there is a crisis?
Meredith: Just briefly, we would look at the space business plan and categorize the space business. For example, is it communications satellite business, satellite imagery business, space transportation business, or something else? We would determine whether the proposed business can be implemented under current law or whether legislation or agency rulemaking is required. We would determine what kinds of government approvals/licenses are required. We would assess the corporate structure of the venture, its intellectual property, and their financing needs. If there is foreign participation, that raises a whole set of export issues. We would consider potential phase-in opportunities for the business, e.g., placing a payload on someone else’s “host” satellite or buying and adapting a spare satellite. We would look at the need for procurement of hardware and services and who those vendors and suppliers would be. We would consider risk and liability issues. We would examine insurance needs and the potential contractual relationships with customers. We would ask the founders of the business about exit strategies. With this information and more, we would lay out a time line for initiating and completing legal steps and prepare a legal risk management/mitigation plan.
Res Communis: What advice would you give to a student who wants to become a space lawyer?
Meredith: I get those questions all the time. I teach at American University and I have been doing it for 20 years. What I say is, you have to want it; you have to be persistent. The jobs are out there, and there is more and more of them. I would tell a student to look at all the various places to work. There are in-house counsel positions; there are international organizations; there are government agencies like NASA, the FAA’s space office, DOD, State Department, and the Federal Communications Commission. These are all places to look for this kind of work. As for private practice, look for firms whose attorneys list space as a practice area. Find space law articles and see who they are written by and contact the author.
Res Communis: What kinds of subjects would you recommend that a student study?
Meredith: There are so many avenues into space law. Communications law is good because you can get into satellite communications and work for a communications law firm doing satellite work. Contract law is always good, but commercial and government contracts. Intellectual property law is another avenue. For the type of work that I do, one has to be interested in contracts. Take all kinds of contract and international transactions courses.
Res Communis: Is there anything you would like to add or anything you would like to raise?
Meredith: No. I think you were very thorough in your questioning. I can’t think of anything else.
Res Communis: Thank you.
Glenn Reynolds is a Professor of Law at the University of Tennessee College of Law and is also the Instapundit. His special interests are law and technology and constitutional law issues, and his work has appeared in a wide variety of publications, including the Columbia Law Review, the Virginia Law Review, the University of Pennsylvania Law Review, the Wisconsin Law Review, the Harvard Journal of Law and Technology, Law and Policy in International Business, Jurimetrics, and the High Technology Law Journal. Professor Reynolds has also written in the New York Times, Washington Post, Washington Times, Los Angeles Times, and Wall Street Journal, as well as other popular publications. He is also a contributing editor to Popular Mechanics. He is the co-author of Outer Space: Problems of Law and Policy and The Appearance of Impropriety: How the Ethics Wars Have Undermined American Government, Business, and Society. Professor Reynolds has testified before Congressional committees on space law, international trade, and domestic terrorism. He has been executive chairman of the National Space Society and a member of the White House Advisory Panel on Space Policy. A member of the UT faculty since 1989, Professor Reynolds received the Harold C. Warner Outstanding Faculty Scholarship Award in 1991, and the W. Allen Separk Outstanding Faculty Scholarship Award, 1998.
Res Communis: Do you consider yourself a space lawyer?
Reynolds: No, I consider myself a teacher of space law. There was a time when I practiced space law, but that time is in the past and I don’t really do that anymore. I do think that if you are going hold yourself out as a space lawyer you should have actual clients.
Res Communis: What was your practice?
Reynolds: I practiced in Washington, D.C. with Dewey, Ballantine. Space-related stuff was probably about a third of my practice then.
Res Communis: When was that?
Reynolds: That was in the late 1980s: ’87,’88,’89.
Res Communis: What kind of clients did you have? What kind of work did you do?
Reynolds: We represented the Martin Marietta Commercial Titan, we did some work for the Swedish Space Corporation. We also did various satellite work for GE, stuff like that.
Res Communis: As a teacher of space law, what do you cover, what do you think is interesting?
Reynolds: All the basic international law stuff: the Outer Space Treaty, the various other agreements, and the whole Moon Treaty debate. Increasingly, I focus on other issues, which I put into two categories: one is the down-to-Earth nuts and bolts of space tourism and regulations. The other is the farther out issues, such as contact with extraterrestrials. The balance shifts. I haven’t taught space law as a traditional classroom lecture course in a long time. I taught it that way as a visitor at the University of Virginia back in the 1990s. Now it is taught as paper writing seminar that means the main purpose of the class sessions is to help students find topics for their papers. It’s a looser, more flexible arrangement now.
Res Communis: You are one half of Merges and Reynolds. How did that textbook came about?
Reynolds: Yes, we were in law school together and wrote a joint paper for an international law class that related to space issues. It wound up being published in a law review in Jurimetrics. We stayed in touch after we graduated. I had some interest in the subject and it occurred to me while we were working on the paper that there really wasn’t any good introductory book on the subject. I had to dig around in the law library and teach myself. We talked about doing a book and when I was working as a law clerk after law school for a judge on the Court of Appeals, I did some research which led to a little outline. We swapped it back and forth a number of times. Then I sent the outline to a variety of big shots in the field: Art Dula; Walter Boyne, who was the Director of the Air and Space Museum, and, several other people. I included a letter that said we are thinking of doing a book along these lines: Do you think this is worth the trouble? Do you think anyone would be interested? Several of the people we sent it to passed it onto publishers with whom they had relationships. We wound up going from wondering if we should do a book proposal to talking to a couple of publishers about publishing it. We went with Westview and we were very happy with them. The first edition came out in 1989. The second edition was in 1998. I get asked if we are going to do another edition soon. The answer is that it depends on the meaning of “soon”. Rob has three major casebooks already so he’s busy with that. My scholarly work is moving in another direction, more into Internet law and constitutional law. We may do it at some point but it is not on our immediate “to-do” list.
Res Communis: One of the directions your career is taking includes Instapundit. Tell us about that.
Reynolds: I started this blog. I teach an Internet law course and I take pride in teaching stuff that I do “hands on”. I ran some downloadable music sites mostly for my own bands or bands of my friends. I had a site for a while called RaveRights.com that was designed to help defend Rave promoters and club operators. (The Drug Enforcement Agency held the position that because nobody could actually want to listen to the music at a Rave, it was merely an excuse for people to do drugs. There is a Federal statute that is known generally as the “crack house law”. It said a building or a facility that is maintained for the purpose of delivering or injecting drugs gets condemned. Under that law, they were going after places where Raves were held. I actually worked for the American Civil Liberties Union some. Then Moby gave a lot of money to the Electronic Music Defense Fund and they took over all that stuff.) I had read a lot of blogs and I thought this is something I could do. If I do well, I know enough people, and I can probably get a pretty decent level readership including a couple of hundred academics and journalists. That will be pretty cool. So in the summer of 2001 I started Instapundit and it just kind of took off.
Res Communis: I notice that your entries are single sentences. You must be processing enormous amounts of information.
Reynolds: Yes, I have proven the “less-is-more” philosophy with this stuff. What I blogged initially was mostly my own stuff with multiple paragraphs: long and containing more of my own opinions. My approach to blogging now is more like that of a D.J. It is mostly about other peoples’ songs but which ones I spin and in what order kind of sets the mood for the night, so that is my theory anyway.
The other side of it is when I started the blog, I didn’t have so many outlets for longer pieces. I started writing for a weekly column at TCS Daily. It was called Tech Central Station back then. I started blogging on MSNBC but my blog entries were more like mini op-eds. They were three to five hundred words. Now I’m writing for Popular Mechanics and I just wrote a piece for the Atlantic on space. I did a little market segmentation and I put the longer stuff usually, but not by any means always, in a piece that runs elsewhere.
Res Communis: What do you see as some of the more important issues in space law these days?
Reynolds: There are two or three things that I see as important. One of them— while I am professionally disappointed, even as I am personally delighted because it is basically going so well—is the regulation of space tourism and the like. The Federal Government is being shockingly sensible about its overall approach to this stuff. Basically informed consent and the assumption of risk are sort of the guiding principles. I am delighted, but that leaves me with less to do or to complain about. One question that I see as sort of an underappreciated question, and if I stir myself to write another space law article in the near future I think that maybe the topic will be, the whole nuclear weapons in space topic. I said before and I think its right that the Outer Space Treaty ban on nuclear weapons and other weapons of mass destruction in orbit shouldn’t apply to things like the Orion spacecraft because the nuclear explosive that is used to propel a spacecraft isn’t a weapon. Likewise if you are to use nuclear devices to blow up an asteroid or comet that is threatening the Earth, or something like that, I would argue that is also outside of the prohibition because, again, it is not a weapon. Dynamite is used to blow up stuff all the time and it is not a weapon. If it is put it in artillery to shoot, then it is a weapon.
Res Communis: We both wrote articles for a special volume of the Chicago Journal of International Law. You were talking about the future of space law. Do you want to give us a little synopsis of your thoughts on that?
Reynolds: The basic gist was, and this is particularly true for international space law, that most space law making took place during the Cold War. It was very much a creature of Cold War concerns. The Outer Space Treaty in particular was driven by mostly Cold War fears and concerns. The Cold War is over. A lot of the driving assumptions behind the 1960s treaty involved the Cold War, including the notion that space activity was going to be extremely, if not exclusively, governmental in nature. They really underestimated the importance of commercial activity in space and so on. That is something we should start thinking about.
Res Communis: What are your thoughts on emerging space faring nations, like Nigeria, Brazil, and China placing a human in space? What does the emergence of these activities suggest for space law development?
Reynolds: I think of it as a largely constructive activity. Look, for example, at the debate over The Moon Treaty back in the 70s. The assumption then was that space development and exploration and certainly generating money via space, was going to be done by only one or two rich countries. That is not the case now. Frankly, if I had to bet on a country to make money in space first it might be China. They have certainly shown an interest in making money.
Res Communis: The NASA Administrator recently said China is going to get back to the moon before the United States.
Reynolds: Yes, I actually said something about that in Popular Mechanics a while ago. I got some nasty emails from people saying I was crazy. It is nice to have some support on that. They are serious players now and that analysis, you know the 1970s Moon Treaty analysis, was in the interest of a lot of countries to just sort of demand a piece of the action if they could get it. They did not have anything at risk. It is different now. I think the Chinese would be reluctant to surrender development of lunar resources to an international authority or something like that. The political dynamic on that really does make a difference. The other side of it is—and I don’t think this is just a space law point, but a point in general—is we are losing the single point of failure. The fact is when NASA dropped the ball and it wasn’t really NASA’s fault entirely at all—let’s just say when the United States dropped the ball in space in the 70s—the whole world lagged behind because it was just the U.S. and the Soviets. The dynamic was a competitive one so that once the U.S. fell off so did the Soviets. Now with multiple entrants trying multiple strategies, with multiple sets of goals, it makes life different. If one player screws up, drops out, or otherwise falls behind, I think that’s a positive thing. If, like me, you think space development is good in itself.
Res Communis: Do you have any views on other aspects of space applications? For example, environmental monitoring?
Reynolds: The stuff I talked about in the 80s as happening in the future is now happening. I mean I look in the New York Times today and they’ve got an article on satellite imagery and human rights. They are taking pictures of villages in Ethiopia and showing where they have been destroyed as a way of keeping track of what the government is doing in areas where it is very difficult to be an outside observer. It is not even front page stuff anymore. It is just another feature in the science section. I think that is more and more common. Of course there is Google Earth and Google Street View and things like that. These are the kinds of capabilities that only intelligence agencies had not that long ago. I think we will see all that expand and it certainly does raise some privacy concerns. Privacy is pretty much a function of technology. Right now, technology is not that friendly to privacy.
Res Communis: We are on the verge of a new Presidential Administration and a new Congress. What would you tell a new Congress that the priorities ought to be in space law?
Reynolds: Looking at space activity in general, I’d say that the momentum is with private activity, space tourism, and private space exploration. I would encourage Congress to choose that as a task as soon as possible; and, perhaps make some changes in the tax laws, etc. that would be friendly to that kind of activity. This is something that is very, very good for the country. It is something where a relatively small amount of investment can make a big difference. It is a place where there is not only the technological and economic momentum, but the psychological momentum, as well. Right now, I think that is something that ought to be pushed ahead.
Res Communis: What would you say to the Legal Subcommittee of U.N. Committee on the Peaceful Uses of Outer Space and the U.N. at this time in history regarding space law? What would you urge them thinking about?
Reynolds: I would encourage a second look from a more free market perspective of extracting space resources, lunar and otherwise. I would suggest that things like orbital solar power are likely to be considered much more seriously in the next few decades. That is a topic that should be also revisited as well.
Res Communis: The reason why students study space law has changed over the years. Currently, one of the big drivers is that they are really interested in anything that has to do with technology and intellectual property. Do you see any important intellectual property issues related to space?
Reynolds: There is the Patents in Space Act. So, the general effort to revise the U.S. intellectual property laws will take space activity into account to a degree. I would say the majority of my students are interested in space law because they would like to go themselves. That is a pretty strong thread among my students. I can’t say I have seen it diminished. What I can say is that five or six years ago I think they were a lot less optimistic about the prospect of going. Now, today, they think they have a good chance of going just by buying a ticket as opposed to persuading some government entity or corporation to send them. That is probably realistic on their part but it is certainly encouraging interest. Richard Branson has done a whole lot for my enrollment and good for him.
Res Communis: If somebody comes to you today and said, “I want a career in space, I want to be a lawyer.” What would you advise them to do, to study?
Reynolds: I think my advice is generally, “Being a space lawyer means being a lawyer for space clients.” As much as it means special training space law is only one of those areas. There are lot areas of law like this. For example, from admiralty law to sports, and entertainment law, there is a horizontal field. You need expertise in a lot of different subjects that your client needs you to know as opposed to a vertical subject like torts or tax, or something where it is all about being in one particular discipline.
Res Communis: It is an amalgam of a lot of bodies of law within the context of space technology.
Reynolds: That is true of a lot of law practice, really. In law school we teach law in intellectual divisions because it is easier for us. But clients come to lawyers with messy factual problems, not clean intellectual ones. My advice to them is to acquire a lot of general expertise in business and technology-related subjects; to dig into the industry and get a job in a position where they can learn more. Recognize if they are going to work as an attorney for a space start-up they are probably going to be doing everything from labor law, to intellectual property, to perhaps even a bit of tax planning. If it is a small start up they are just going to have to be a utility infielder.
Res Communis: There is more discussion growing about the military use of space. The discussion ranges from operations to placement of physical weapons. Do you have any thoughts on that area?
Reynolds: Yes. My thinking is, as people experiment in space all kinds of human activities are going to follow them. Sometimes those are fun and hence pretty exciting, like sex in space, but some of them are not. War is something that people do and that is likely to go wherever humans go.
Res Communis: Is there anything you would like to raise to make this a complete interview?
Reynolds: To me, one of the fun things about space law is to believe that space law matters. For that you have to believe in two things: one is that humanity has a real future, that we are not going to wipe ourselves out before it matters. Second, you have to believe in a future in which law can make a difference for good. That makes space law a fundamentally optimistic enterprise. That is something I really like about it.
Res Communis: Let’s end it on that really great note. Thank you.
Franceska O. Schroeder is a Principal in the Washington, D.C. office of Fish & Richardson P.C. She is a member of the firm’s Regulatory and Government Affairs Group. Her practice emphasizes regulatory, administrative, commercial and government contracts, risk management, insurance, legislative, and policy matters in the areas of space, defense, security and satellite communications. Ms. Schroeder’s clients include space and defense contractors, satellite manufacturers and operators, launch services providers, systems engineering firms, and investors in satellite communications and other high-technology projects. She also is Legal Counsel to the American Astronautical Society and has served as a Private Sector Advisor to the U.S. Delegation to the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space.
Res Communis: Tell us about your practice. Do you consider yourself a space lawyer?
Schroeder: I consider myself a regulatory and transactional lawyer who serves the space industry.
Res Communis: What is a typical day in your practice? If there is such a thing as a typical day.
Schroeder: Well, there really isn’t. However, almost every day includes addressing trade compliance issues. This work includes helping clients identify whether the activities in which they want to engage trigger requirements of the U.S. export control regimes, namely the Export Administration Regulations (EAR) administered by the Commerce Department’s Bureau of Industry and Security or the International Traffic and Arms Regulations (ITAR) administered by the State Department’s Directorate of Defense Trade Controls. It also involves the economic sanctions or trade embargo programs administered by the Treasury Department’s Office of Foreign Assets Control (OFAC). A typical day also could include reviewing a commercial or government contract involving a satellite, launch vehicle or some other space system and advising on the regulations of the FAA’s Office of Commercial Space Transportation. I also help clients with liability and risk management issues, such as satellite launch and in-orbit insurance and understanding the scope of government-based indemnification programs.
Res Communis: Are they the same issues every day or does it vary depending on whom your client is?
Schroeder: My work varies because clients’ needs vary. For example, and staying in the export control world for a minute, a client that is a large company may be engaged in multiple international activities. That client could have issues under the EAR, ITAR and one or more of the OFAC programs, or it could have multiple issues under only one of the regimes. Also, a client that is engaged in both commercial and government activities, might ask me to review a satellite purchase or launch services agreement with a commercial customer one day, and a contract with the U.S. government on another day – or sometimes both in the same day.
Res Communis: If you have a client that comes to you for the first time wanting to deal with ITAR issues, what do you typically have to tell them? What is the education process you have to engage in for your client?
Schroeder: Often, the first thing I do is explain that just because they are called the International Traffic in Arms Regulations, the term “arms” is construed broadly. An item might not be something that one immediately would consider “arms” or “munitions”, but if it is listed on the United States Munitions List (USML), it is controlled by the ITAR. I then explain that technical data and “defense services” (for example, training on the system or troubleshooting) related to the item that is on the USML also are controlled by the ITAR. The example that I often use is the commercial communication satellite. Even though the satellite is going to be functioning exclusively for commercial purposes — let’s say it’s a satellite that is going to be providing digital audio radio or direct broadcast television – satellites are on Category XV of the USML. Therefore, the satellite and technical data and “defense services” related to the satellite are ITAR-controlled.
Res Communis: Do you get some surprised clients?
Res Communis: Do they come to you after they find out something they are trying to sell is on the list, or do they come in before?
Schroeder: Usually before, which is very good. The types of clients that I am privileged to serve range from highly sophisticated multinational defense contractors who are extremely knowledgeable in this area—and I serve in a support capacity and help with the trickier issues—to very small start up companies for whom this is a brand new area. That is where the need for education comes up the most. The good news is, at least in my experience, that clients in the space and defense industries are extremely receptive. They want to know how to do things right.
Res Communis: The way you describe it makes it sound like you have been involved as a preventive measure. Whereas, most people only go to lawyers after they are already in crisis and something is already wrong. You sound like what your practice is about is trying to prepare the client to go through a process to avoid those crises in the first place.
Schroeder: That is definitely true, but there is a mix. A lot of what I do is to help clients identify the potential problem before it might arise and then completely avoid the problem by being compliant. In other cases there might be a situation where a client inadvertently failed to comply, and I help manage that process as well. Another very important aspect of my work in this area is helping clients to establish, administer and maintain an internal trade compliance program. This includes drafting a manual and specific work procedures and helping to train employees — that includes everyone from the chief level officers to the people shipping the goods.
Res Communis: Very interesting. You were talking about small versus large companies. The big defense contractors have a lot of in-house expertise. Is it more difficult for small companies to comply?
Schroeder: I wouldn’t say more difficult to comply, but perhaps it’s more burdensome because a smaller company might not have the same level of in-house resources as a large company. But, if you are engaged in international trade you must comply with these rules, regardless of whether you’re a large or small company. So, some of your resources, no matter how limited they may be, must be dedicated to trade compliance. It tends to be a little more manageable for the larger companies who have or who are able to hire extra resources to apply to these issues.
Res Communis: The ITAR is a big issue in space law right now, at least at the national level. There has been a lot of discussion recently about changing them. From your experience what, if anything, would you recommend be done with the regulations to be more client friendly. What is your view on this debate?
Schroeder: To the extent change is possible, I think a positive change would be for the regulations to be clearer. By that I mean, the way the ITAR is promulgated now, many of the provisions are drafted in such a way that results in multiple interpretations. If there were a way to narrow or tighten definitions or provide additional guidance on other provisions – like brokering –I think that would be a big help.
Res Communis: One of the viewpoints that is often expressed is that it is not the regulations themselves but the implementation of the regulations that need to be improved, would you make a comment on that?
Schroeder: Regarding implementation, I would say one of the issues is resources. The regulatory agencies that are tasked with implementing these complex rules have limited resources. The people in these agencies are tasked with answering day-to-day questions, processing license applications, dealing with compliance issues, speaking at industry events, responding to the Congress. There is only so much a limited number of people can do.
Res Communis: At the Center’s Galloway event last December you spoke about an ITAR agreement between Great Britain and the United States. Can you tell us about that? What is its current status?
Schroeder: There are actually two bilateral agreements. They are called Defense Trade Cooperation agreements. One is between the United States and the United Kingdom and the other is between the United States and Australia. Both of those agreements would focus on defense projects, not commercial projects. The agreements have been signed by the governments of the involved countries but in the United States, the Senate has not yet ratified them.
Res Communis: So they have to go through a formal treaty ratification process.
Res Communis: What benefit would they provide to the parties?
Schroeder: The goal would be the streamlining of trade compliance requirements for eligible U.S.-U.K. and U.S.-Australia defense projects.
Res Communis: Would that mean less work for you?
Schroeder: No, because most of the work I do in the export control area is on the commercial side. So, I don’t expect it would have a significant impact on my practice.
Res Communis: In addition to export control issues, what other kinds of things come across your desk?
Schroeder: There is a lot of work on contracts, both on the government and commercial sides. These include contracts for the purchase of satellites and launch services and satellite transponder sales and leases. On the government side, the contracts involve planetary missions and other civil space projects. I also work on non-export control regulatory issues that affect the space industry. This includes FAA launch licensing and range safety, as well as NOAA licensing of privately-owned commercial remote sensing satellite systems.
Res Communis: When somebody comes to you as a launch provider do you think in different terms than if somebody comes to you as a satellite operator?
Schroeder: Yes, there are unique issues to satellite purchase agreements and to launch service agreements. Very often the kinds of contracts I work on are called “delivery in orbit” (DIO) contracts where the customer will purchase the spacecraft delivered in orbit. The contract will include the manufacture of the spacecraft and the launch of the spacecraft. I often think about satellite-unique issues and launch-unique issues simultaneously because if it is a DIO contract, I want to make sure that all the issues are covered from the moment the manufacturer starts manufacturing the satellite to the moment the satellite is delivered into the designated orbit.
Res Communis: What would you tell a law student who wants to do what you are doing? How should they prepare themselves? What advice would you give them?
Schroeder: I think it is very important, first and foremost, to be truly passionate about the industry. Much of what I do involves working with engineers, scientists, and businesspeople who have been in the space industry for a long time and who are very dedicated to the field. Sharing that passion makes the working relationship really terrific. As a practical matter, I would advise taking courses in contracts, administrative law, international trade and negotiations. I also think it is extremely important that young lawyers understand the relationship between law and policy.
Res Communis: Can you say something about that? That is very interesting.
Schroeder: The law often is informed by policy objectives that Congress wants to make sure are carried out. Understanding the logic or policy behind the rules makes it easier to understand how to follow them.
For example, law governing commercial space transportation came about because the U.S. government wanted to encourage development of the industry in the U.S. A law needed to be passed to authorize the licensing and regulation of commercial space transportation activities. The legal regime established a means to limit the liability of the private party launch participants and to protect the public. It also provides a means for the U.S. government to fulfill its international treaty obligations.
It’s also easier to understand U.S. export control laws and regulations when you keep in mind that the intent behind these controls is to achieve U.S. foreign policy and national security objectives.
Res Communis: How did you find your way into this kind of practice?
Schroeder: I started my career working on space issues in the government. I was fascinated by them. I took a course that the government offered on various space issues, one of which was space law. I thought if I could go to law school and work in the space industry as a lawyer, I needed to do that. So I went to law school with being a space lawyer in mind.
Res Communis: You weren’t a lawyer in the government?
Schroeder: That’s right.
Res Communis: You went to school with the intention of becoming a space lawyer?
Schroeder: Correct. I feel very fortunate that things worked out this way. I had some great mentors. And I was driven, or as I said earlier – I was passionate about it.
Res Communis: Did you go immediately into private practice or did you go back to the government?
Schroeder: I stayed in the government as a summer associate and then had an opportunity to move into the private sector as a law clerk in my third year of law school. Then I accepted an associate position in that law firm.
Res Communis: What would you say are some of the most important issues today in space law, either national or international?
Schroeder: Export control is certainly a top-tier issue. Another issue that likely will need to be addressed as the “space tourism” industry matures is the licensing and regulation of on-orbit activities. Currently, there is no statutory authority for the licensing and regulations of on-orbit activities.
Res Communis: Do you ever get involved with a client who either sells or purchases a satellite that is already on orbit?
Schroeder: Yes. And that’s a transaction that could trigger U.S. export control issues. For example, if the satellite is U.S.-origin and the owner wants to sell it to a non U.S. entity, the transfer cannot occur until the ITAR license has been issued.
Res Communis: Is there anything you would like to raise that hasn’t been raised or addressed?
Schroeder: Yes. It also would be very important for any law student or new lawyer in this field to have a solid understanding of the five multilateral treaties that govern outer space activities. These are the Outer Space Treaty, the Liability Convention, the Registration Convention, the Rescue and Return Agreement, and the Moon Treaty. I also would recommend becoming familiar with the work of the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS). The Legal Subcommittee is responsible for addressing international legal issues arising from the use of outer space.
Res Communis: Thank you.
A Dutch citizen, she holds a Masters degree in public international law from Leiden University in the Netherlands.
She was Co-Director of the International Institute of Air and Space Law (IIASL) at Leiden University from 1985-1990, where she has returned as Deputy Director, in charge of space law teaching, managing and marketing the LLM programme in air and space law, and other matters.
Later, she worked for the aerospace insurance and consulting company Aon Explorer in France, and then created Adastra Consulting, working as an independent consultant on various projects in the fields of air and space law.
Within IISL, Mrs Masson-Zwaan has been responsible as Secretary inter-alia for the organisation of the annual Colloquia on the Law of Outer Space held in conjunction with the International Astronautical Congress, a variety of regional conferences and other meetings. She also organised the Manfred Lachs Space Law Moot Court Competition and the representation of IISL at international forums.
Res Communis: Can you tell us what the International Institute of Space Law (IISL) is and how long it has been around?
Masson-Zwaan: The IISL has been around for quite a while. It was first created in 1958 as a Permanent Committee on Space Law by the IAF, and then it became an official institute in 1960. It has been established for almost 50 years. In 2007, the IISL was formally established as an independent association (NGO) under Dutch law, and its structure has been improved to better fulfill its role. The Institute is composed of a group of people around the world who are interested in the legal and societal aspects of space activities. Over the years they have organized conferences and colloquia and other activities where they meet and get together and try to move the law ahead. That, in a nutshell, is what the IISL is about.
Res Communis: What is the membership?
Masson-Zwaan: We have currently about 350 members from more than 40 countries. They are both individuals and institutional members but the majority are individual members. Institutional membership was established only ten or fifteen years ago, so the great majority are still individuals. They come from different backgrounds. They are lawyers, academics, government people, industry people, students, Ph.D. fellows, etc. It is very varied group both in terms of professional background in terms of nationalities.
Res Communis: Are there regional chapters or does the IISL exist only at the international level?
Masson-Zwaan: There is one regional chapter, the Association of U.S. Members of the IISL (AUSMIISL). They sometimes hold meetings during our annual colloquium. With 300 or 400 members there is not really a strong need to have regional chapters, I think.
Res Communis: What are IISL’s institutional goals or objectives?
Masson-Zwaan: Most importantly, to provide a forum relating to space law; by cooperating with international organizations and national institutions in the field of space law, by holding meetings, colloquia and competitions on legal and social science aspects of space activities, and by preparing studies and reports and publishing proceedings. The IISL wishes to address topics that are of real interest to all space actors, and involve them in the discussions at our annual Colloquia during the IAC. We also advise our sister organizations, the International Astronautical Federation (IAF) and the International Academy of Astronautics (IAA), if necessary. We serve as observers to the Legal Subcommittee of the UN Committee on the Peaceful Uses of Outer Space on behalf of the IAF. There is a close link with these sister organizations. We organize events for students including moot court competitions. We want to involve the new generation of space lawyers, to make sure this area is discussed and studied by lawyers of all ages. We also organize regional conferences, because sometimes it is hard for people from poorer regions to come and attend the annual Colloquium, which is quite expensive. So we go to them and set up a dedicated conference, addressing topics of relevance for the region. We have done 5 so far, since 2001. All have been in Asia but we would like to expand to other regions. We publish proceedings of all these colloquia and conferences, and we issue statements when we feel the need to do so.
Res Communis: About four years ago the IISL Board of Directors made a public statement on the question of the definition of property rights as it relates to space. How did the Board come to make that statement?
Masson-Zwaan: Yes, I remember it very clearly, it was in 2004. It came about because we had all been hearing stories about “entrepreneurs” who were “selling” bits of the Moon, establishing lunar embassies, and what have you. These persons were making a lot of money. At first, all of us on the Board had a humorous reaction. I would say, “OK, this is funny.” Of course we thought it was ridiculous and that we didn’t need to take action. But then we saw this going on and on, and saw that the so-called Lunar Embassy was opening offices in other countries and that it was really expanding a lot. Then, we thought it was time for the Board to intervene. So we created a group of a few of the Board members who came together to make the statement. Really the aim of the statement was to simply state what the law is. We wanted to make clear that these lunar property “claims” were unsupported in law. So we issued the statement and it has been on the IISL website since then. We have regularly received comments over the years since then. People write to us saying, “Come on, be honest. It is clear it should be happening” and, “You have to allow it”, and so on. But we have always replied to those requests by explaining again what the law is—explaining that there is a treaty signed by sovereign States which prohibits appropriation by the state, and hence by its subjects, and that there is nothing they can do to argue around that. So I think it is a useful tool and I hope that in the future we can do similar things. It was not an easy exercise because it took a long time to agree among ourselves on the most simple way to state the law without going into value judgments. It is quite a basic, simple statement and I think in that sense, it is useful.
Res Communis: Was this the first time the IISL or the Board made a formal statement on a space law question?
Masson-Zwaan: It was the first time. Since one of the main characteristics of the IISL is that it is a very open organization where everyone can express their view without necessarily having it attributed to a government or organization, it was not easy to agree on a statement that everyone could feel comfortable with and without taking strong positions. That is probably the reason why the Board has not issued statements more regularly. When you make a statement, you make choices, and perhaps that has been avoided more or less on purpose in the past.
Res Communis: You have recently been elected IISL President. Congratulations. You follow in the footsteps of one of the most prominent people in space law: Nandasiri Jasentuliyana. What has that been like for you?
Masson-Zwaan: I know I have big shoes to fill, Nandi has been an outstanding President for 14 years, and has achieved many good things for the IISL. But it was a smooth transition. After all I was IISL Secretary for 16 or 17 years. I feel I know the organization almost like I know my own family. Nandi has always involved me in everything and we worked as a team. I felt especially in the last year or so that he was quietly preparing me for him to withdraw and to leave me in the front line. He prepared me very well and I learned a lot from him. He is a veteran diplomat, and he has a good sense of humour too. I feel confident to take up the huge task before me, not in the least because there is a very competent Board of Directors, with many excellent space lawyers working with me in a friendly and professional atmosphere, that will help a lot.
Res Communis: What are some ideas, goals, or aspirations that you have for your administration?
Masson-Zwaan: I am not going to have any revolutions. I want to continue the work that has already been started. Innovations were initiated under Nandi’s presidency and I want to make sure those are fulfilled. The IISL has been restructured to be an independent registered organization under Dutch law. We are now going through the statutes, making them clearer, making them in tune with modern requirements, and so on. I would like to continue some reforms that have been initiated for our colloquia. IISL colloquia have been becoming increasingly interesting for a lot of people. For our five sessions we now receive some one hundred abstracts, which is a lot. I would like to find a way to make sure the sessions are interesting and at the same time encourage many people to keep coming to the sessions so they have a forum to express themselves. That is going to be a challenge. I would like to further expand the moot court competition by adding another region in Africa or Latin America and by expanding the number of European participant universities. We also need to make sure that we encourage space industry to actively take part in our work. I think that is quite a bit to keep us busy.
Res Communis: What do you see as some of the most important or emerging issues in space law? Without necessarily expressing an opinion or a view, what do you see on the space law landscape?
Masson-Zwaan: Well there is a lot. The nice thing for space lawyers is that there is always a new development that requires regulation or thinking and legal analysis. I’ve seen so many new topics arising. The most recent ones include issues such as space tourism, which of course is a very sexy topic and everyone is very interested in it. There are lots of conferences, meetings, and papers about that and of course it is something that needs thinking about. How to distinguish astronauts from space tourists? What kind of rules apply to them? Do we have to look at the synergies with air law? Should we have a kind of Montreal convention governing liability of the space operators vis-à-vis “space passengers”, and a Rome Convention for damage caused to third parties on the ground? Shouldn’t we create possibilities for space passengers to claim for damages directly, instead of having to claim via their State, which is the only possibility provided under current space law? Secondly, environmental issues—both protection of the space environment and protection of the Earth environment with the help of satellites—are of course very topical and important in today’s world. Thirdly, financing instruments and the development of the UNIDROIT Space Protocol are also very important. Hopefully, it will lead to some kind of agreement.
But in addition to these new topics I think there are also some older topics that merit our attention. A reform of the Registration Convention is important. IISL could contribute its legal expertise by advocating ways to reinforce registration requirements and to take into account, for instance, in orbit sales or transfers of ownership while a satellite is still operating. This reform is also important to adequately deal with the growing problem of space debris.
Lastly, perhaps the most important issue, and the reason why space law was established in the first place, is the militarization and weaponization of space. The recent tests by the Chinese and the Americans, shooting down their satellites to either test or show their military capacity, or to protect the space and earth environments from hazardous re-entry, whether you look at it one way or the other, exemplify and justify the growing concern about this issue. Initiatives to completely demilitarize outer space have been proposed over the years. I don’t know whether that is going to happen or not. I’m not too optimistic because in the beginning and in the end, space is of course still a military playground. It is definitely a topic that needs to have continuing attention from the lawyers as well.
Res Communis: Considering the North American, European, and Asian regions, are there any major differences or similarities that you notice in how the lawyers from those regions see space law? Do they come at it from different perspectives, or is there a foundational starting point that is common to all of them?
Masson-Zwaan: That is a difficult question. I have never really thought about it, but I think there probably are differences. Looking at the papers that come into the colloquia, the North American papers often deal with commercial topics. Papers from countries like India or Asian countries might deal more with applications of space for terrestrial needs, for example, disaster management, tele-education, tele-medicine etc. papers from Europe often address the roles of the European Commission and European Space Agency (ESA) respectively. It is a typical European problem, you have on the one hand a supranational body that also aspires to be involved with space matters, and on the other a regional space agency, ESA, which is involved with technical space issues. There are clearly topics that are more alive in one region than another. But to say what the viewpoints are on these issues is difficult because I think that in every region, and in every country, there are people who will say “white” and others who will say “black”. I would not say you can generalize, there is no typical European point of view, American point of view, or Asian point of view.
Res Communis: One of the most important space law agreements that exists is the multilateral treaty that established ESA, the ESA Convention. Could you give a brief overview of what that treaty is and what it means to Europe?
Masson-Zwaan: ESA comes from two different organizations, the European Space Research Organization (ESRO) which was established in Delft in the Netherlands, and the European Launcher Development Organization (ELDO). They merged in the early 1970s and became ESA. It has been in existence for some 35 years. It is a very efficient organization. Why? In my view because from the start it concentrated on the technical development of space for Europe. It has not been a very political organization. Now, with the European Commission coming in, politics are also coming in. Problems such as those with Galileo have taken many, many more years to solve than, in my view, they would have taken if it had been developed only by ESA from the start. Galileo would probably already be in the air. But, of course, there are other considerations in the current geopolitical reality that make it important for the European Commission to be involved. ESA is an organization of not only EU member states, there is an overlap of various different “Europes”; EU Europe, ESA Europe, and there are more. That makes it complicated. But it has been extremely successful. The Headquarters are in Paris, and there is a huge research and technology center in the Netherlands (ESTEC) in Noordwijk, the Netherlands. Then there are several other establishments such as the European Space Operations Center (ESOC) in Darmstadt, Germany, the Centre for Earth Observation (ESRIN) in Frascati, Italy, the European Space Astronomy Centre (ESAC) near Madrid, Spain and the ESA Satellite Station, for satellite control and for reception, processing, and distribution of data from onboard sensors near Kiruna, Sweden. The latest addition is the European Astronaut Centre (EAC) which was established in 1990 in Cologne, Germany. There are also several tracking stations. What I can say is that ESA has been a very efficient organization that has developed numerous succesful satellite projects, research, and technology, and that has really put Europe on the map in the space field. It is actually a model that is being followed, or trying to be followed, in Asia. There are local scholars and politicians trying to establish an Asian Space Agency because it is useful for small states to work together in a regional cooperation such as ESA. Together they are strong, and together they can do things that they could not do on their own. They are looking at the ESA Convention to see how they can apply it to their own region.
One of the big problems with the ESA Convention is the principle of fair return. There is a lot of criticism in the context of European community law where fair competition is a major characteristic. There is a clash of two fundamental principles here. I don’t see that solved yet but the concepts are coming closer and closer together. There is a lot of development still going on that may also provide interesting examples for other regions.
Res Communis: From time to time there is an attempt by the European Parliament or the EC to bring space within its jurisdiction, under its auspices. But ESA continues on and there is a back and forth effort there. Where does it stand now?
Masson-Zwaan: Well, I think they are a little bit like two fighting brothers each of whom wants to play with a ball their own way. For me it is very clear, ESA is the technical organization and the European Commission is the political entity. Projects such as Galileo or GMES have both technical aspects and political challenges. I think there is a role to play for each of them. In the beginning perhaps it was a little bit difficult for both organizations to find their exact identity and the role they need to play. Over the years I think that this has crystallized and, in my view, both of them respect the necessary role the other party has to play. They know that they have to do it together and that explains how the Framework Agreement between the European Community and the European Space Agency could enter into force in May 2004. This agreement establishes regular meetings of the EU and the ESA at ministerial level within a “Space Council”, for coordinating and facilitating cooperative activities. In this context, the Commission and the director general of ESA presented on 26 April 2007 a joint document on European space policy which was endorsed by the Space Council and formally adopted by both organisations. So, yes, there have been attempts in the past years by the European Commission or Parliament to have more say in the space arena. But the technicians and scientists are at ESA and one can’t do without the other. I think that is the bottom line.
Res Communis: The space law community has had some very important anniversaries recently. In the United States this is the 50th Anniversary of the National Aeronautics and Space Act of 1958. The 40th anniversary of the Outer Space Treaty was last year. Would share your views on that treaty forty years later? There is a lot of discussion on whether it needs to be changed, amended, or withdrawn from. What would you say about the Outer Space Treaty?
Masson-Zwaan: I think the Outer Space Treaty should stay as it is. In my view it is a brilliant document. It has been elaborated and put together by many very eminent specialists; some of whom are still with us; some of whom are not; but all have left their imprint. It is a document that is at the same time simple and also broad; it addresses a lot of topics. In my view, it does not hamper developments that are now taking place. It contains the basic principles that should always be kept in mind, such as, space is for the benefit of all countries and it is to be used only for peaceful purposes. The risk of opening it up, or making an amendment, or even to make a protocol, is the potential end of the Outer Space Treaty. I am not in favor of opening it up. I also think that now we should look at other forms of law making. The whole climate has changed from the 50s and 60s when the UN Committee on the Peaceful Uses of Outer Space was fairly limited and when it was still feasible to reach consensus. Since the Moon Treaty, this has not been possible. What has been achieved is UNGA Resolutions, which do not have the same binding force as a Treaty, and also all kinds of regional agreements such as the Intergovernmental Agreement for the International Space Station, or voluntary agreements as Agency level to deal with a specific problem, such as the very efficient Disasters Charter. Future lawmaking may go more in that direction instead of new treaties. I am hesitant whether that is still possible. With COPUOS having a broad membership and with a lot of States wanting their piece of the cake, it is now going to be very difficult to find consensus on a new treaty. This does not mean that COPUOS has become useless, far from that. So, in conclusion, I don’t think we should open up the Outer Space Treaty. It is enabling enough to accommodate various uses of space, even if additional rules are of course required in specific new fields.
Res Communis: Is there anything else that you would like to add or conclude with that has not been raised?
Masson-Zwaan: Well I think we discussed a lot and I wouldn’t know what to add, except to thank you for this opportunity. This was nice to do and I think it is a useful way to promote space law debate. Your blog is really contributing to that debate and I want to congratulate you on it.
Res Communis: Thank you.
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.
Kevin works with a broad-range of businesses, ranging from early-stage companies to public companies, in a variety of industries. He regularly counsels clients on significant business issues, including transactions, equity and debt financings, licensing agreements, joint ventures and employment agreements. He has negotiated numerous mergers and acquisitions involving both private and public companies. Kevin also assists private equity funds and venture capital funds in making investments and acquisitions.
Kevin represents a number of spatial technology companies, and works closely with leaders in the spatial community to identify solutions to the industry’s unique legal issues. Prior to law school he worked on developing the U.S. intelligence community’s imagery collection and exploitation requirements. Kevin also served as a satellite imagery analyst and a Soviet analyst for the U.S. government. He regularly writes and speaks on spatial law.
Kevin is a graduate of Washington & Lee School of Law and has served on a number of community boards since moving to Richmond in 1994. In 1996, Kevin was selected by “Inside Business” as one of Richmond’s “Top Forty Under Forty.” Kevin has been recognized as a Virginia “Super Lawyer” and a member of Virginia’s “Legal Elite.”
Res Communis: Tell us a little bit about your law practice.
Pomfret: We are a twenty person law firm based in Richmond, VA. My practice is twofold. I represent a wide variety of businesses in what I would consider general corporate law, matters such as mergers and acquisitions, contracts, license agreements, employment agreements; the whole range of things a business might find comes up on a day-to-day basis from the legal side. Then the other side of my practice is focusing on spatial law issues. I define these as unique issues associated with spatial data. That might include licensing agreements, privacy issues, and liability issues. There is a good deal of overlap between the two because spatial technology businesses will also have a number of business concerns that may or may not have a spatial law component to them.
Res Communis: How did you find your way into what you call spatial law?
Pomfret: I was a satellite imagery analyst for 6 years with National Photographic Interpretation Center, which was a predecessor of the National Imagery and Mapping Agency, which later became the National Geospatial-Intelligence Agency. Then I went to law school and have been practicing law since 1994. I continued to maintain my interest in geospatial technologies and the intelligence community. I actually spent some time working at EarthWatch, which was predecessor to DigitalGlobe. I saw an emergence of legal issues in this area so I began writing, speaking, and representing companies in this area of law.
Res Communis: What kinds of clients come to you for these issues? Tell us a few issues that you deal with.
Pomfret: The types of clients will vary. They will include satellite imaging companies, data acquisition companies that collect spatial data; and, software companies that process, analyze, and distribute spatial products. They are both on the commercial side and on the defense side. The issues will vary. On the acquisitions of data at the county level, for instance, I might review license agreements to be sure that the data that is being collected can be used the way the customer wants to use it. These license agreements can be restrictive in terms of derivative products, in terms of commercial use, etc. Some are subject to copyright at the county level. In the United States there is a great deal of disparity in terms of how much copyright protection a county can place on its data. On the software side, it would be either drafting or viewing license agreements for data or the software product, in making sure representations and warranties that are being made in respect of the data are accurate. In my mind, one of the issues out there right now is how does metadata fit into this; whether it is part of the product; whether it is part of the documentation; and, how it is included in legal agreements such as contracts or license agreements. There is also a good deal of litigation involved as you might imagine. Some of it is strict commercial litigation; but it will have a spatial component if it involves spatial technology, or a dispute involving the use of technology.
Res Communis: Do you see inherently different or similar issues for private sector client versus government clients?
Pomfret: I think there are three sets of issues that are unique to the private sector client. First is liability. I think that once private sector clients begin developing applications at a consumer level or to be used by a consumer, then the liability issue is much different than it would be if the product was being developed for the government, for a couple of reasons. One of the reasons is the concept of sovereign immunity, it can be difficult to sue a government. Another issue is simply that the government for the most part is probably an educated consumer for the technology. Individuals, as consumers, can’t be assumed to be educated. So, disclaimers, warranties, foreseeable use issues are probably more important for them. There is another set of issues that I think private sector companies need to consider: data ownership. Spatial technology products can be developed with data sets from the private sector and/or the public sector. Generally, private companies are a lot more concerned about how their data is being used than public entities, how it is being represented. This is an important issue that as a product is being developed must be looked at more closely. When developing private sector data bases, a client must be sure that it is abiding by the terms and restrictions of any license agreement. The third issue is privacy. Obviously the government is subject to protect its citizen’s privacy. In the commercial sector right now it is somewhat unclear as to what a spatial technology company has to do to; or how “privacy” is defined in a spatial context; and, what the obligations of a spatial technology company are. I think you can analogize based on other types of laws such as The Health Insurance Portability and Accountability Act (HIPAA) of 1996 which protects certain health information. The Federal Trade Commission (FTC) is also looking at and enforcing privacy actions against various companies and in these privacy rulings may be applicable for spatial data. These are some of the issues that are unique to commercial companies doing business in the commercial market rather than doing business with the public sector.
Res Communis: That sounds like a lot more than just spatial data. These sound like data issues, in general.
Pomfret: These are data issues, yes. That is one of the points. If a piece of data is tied to a geographical location and it becomes spatial data, it still may be subject to the legal regimes that it might not otherwise be subject to, for example HIPAA or FTC regulations. There is also a question of what level of spatial privacy is protected when data is aggregated. If enough data is put together a particular individual can be identified with a certain amount of clarity and that is the level that people are ultimately concerned about. Now with digitized data and powerful software, hardware, and telecommunications it makes it relatively easy and inexpensive to do that level of processing. That is where the real privacy concerns come from on the spatial side.
Res Communis: How about privacy as it relates to the U.S. Fourth Amendment? Does that ever come across your desk?
Pomfret: I certainly follow it. I think there are some interesting cases working their way through the court system with respect to using spatial data for tracking purposes; whether it be by cell phones or by GPS devices. Laws have been developed such as the Stored Communications Act that addresses the Government’s ability to collect spatial data from telecommunications companies. A lot of companies that are collecting spatial data now, or private location data, are not necessarily subject to this kind of law. So when the government comes to a company without a warrant and asks for particular information on a particular individual, or to collect a bunch of data to figure out what the company might have, there is going to be a question as to whether this is proper. The U.S. telecommunications companies are struggling with this now whether they are trying to get immunity for data they collected and gave the government after 2001. These will certainly become an issue for spatial technology companies.
Res Communis: Do the legal issues change depending on the source of the data, that is, the platform from which the data is gathered? Does it make a difference if it comes from a county, a handwritten database, an airplane, a satellite, or an imaging device at an airport? Do the issues change based on the platform?
Pomfret: I think it can, depending on how the data is being used or how it is being collected. Certainly for instance if you are collecting satellite data there is the international regime related to the ability to collect data as compared to going to a local GIS department and trying to collect parcel data or tax data. There has been some question about the use of imagery to collect data on companies or individuals. The U.S. Supreme Court has considered cases along these lines and has held that, generally, there is no reasonable expectation of privacy for open areas; for instance, in your backyard even if you have a fence up. That question becomes even more important regarding other technologies. What is a reasonable expectation of privacy in a Google Earth when people now know that there is fairly high quality satellite imagery of their house available on the Internet? Does that mean there is less expectation for other types of satellites or sensors? There are also some local laws that apply to collecting data or using data. For instance, use of photographs of individuals for commercial purposes can be subject to state law. So what might be the case in Virginia might not be allowed in another U.S. state. I do think there are local laws that need to be considered in collecting data.
Res Communis: Your practice includes mergers, acquisitions, and business law as well as geospatial data law. How much of your practice is one or the other? Is one more dominant than the other?
Pomfret: My practice is approximately two-thirds of business, mergers and acquisitions, and finance work and one-third on the geospatial law side. It depends on a number of factors. There’s a lot of ebb and flow that goes on depending on what the clients are doing and what the financial market looks like.
Res Communis: Is there a part of your practice that relates to space?
Pomfret: Issues are coming together in the sense that data from satellite sensors from a variety of different countries are subject to both national and international regimes. So, if those data sets are being used, for instance, in a Google Earth, it has to be determined what regime is associated with that. Because of all the other data sets that are added I think there is also a sense from the industry standpoint that solutions need to be resolved as much internationally as locally because satellites are collecting data across the globe. Companies do not want to have to deal with a myriad of legal regimes to develop applications from the data. There is a real convergence when it is necessary to determine what sensor collected the data; where it was collected; what legal regimes apply to it.
Res Communis: What was your undergraduate degree?
Pomfret: I was a Political Science major with a Russian minor. When I went to work for the U.S. Central Intelligence Agency (CIA), I had written a thesis on arms control and my work with the CIA as an imagery analyst was associated with arms control.
Res Communis: It sounds like you had a Cold War education and now you are evolving into a Globalization Era career.
Pomfret: I certainly had a Cold War undergrad. The interesting thing for me in regards to geospatial technology and spatial data is that it has so many different uses. When I was doing the satellite work at the CIA we were using it for arms control and national security. It is still being used for that but now it is also being used for scientific work; research and development; commercial purposes; and, for humanitarian purposes. Even back when I was working on Soviet issues with the data and technology, it was clear it could be used for different things. It just had not been commercialized to the point that it could have the broader global application.
Res Communis: How do you see the next generation or the emerging generation of lawyers that are so technology aware interacting or changing the practice of law?
Pomfret: They will be more mobile. In a lot of industries there is telecommuting and other ways of doing business, virtual companies if you will. Law firms are less willing to do that. They tend to be more traditional and it is harder for them to make that change; but I think that the younger generation is coming along and requiring or looking at law firms, as to whether they allow that flexibility. This generation thinks they can do the work at places outside of the office just as well as in the office because of technology.
The one area that I think is going to be very interesting from a legal standpoint is privacy. I have children 14 and 17 who use things like FaceBook, MySpace, and other sites. I think they have a real different sense of communicating and privacy. They are not as worried about those things as our generation is. Partly because they are younger and they feel safer. They are not as concerned and haven’t been burned so they don’t worry about those things. But I think they also just understand things differently than we do. They have grown up in a different generation and realize that technology provides both good applications and uses; but in exchange every now and then it may be necessary to give up personal data. Our generation is a little concerned about that. How that affects the law will be interesting over the next twenty years or so.
Res Communis: Last summer there was discussion in Washington about changing the Civil Applications Committee to the National Applications Office. Can you bring us up to date on that?
Pomfret: I have heard various things. I have heard that they have almost worked out some of the privacy concerns that Congress had; that any day now it will be up and running. I have also heard that it is a nonstarter and that there are certain folks in Congress that say there is no way they will let it happen. So I really don’t know, but I believe there has been some talk of trying to create some Foreign Intelligence Surveillance Act (FISA) type court that might consider privacy and civil rights issues.
Res Communis: We are coming close to the end of our time. Are there any subjects, issues, or comments you would like to raise that I may not have thought of?
Pomfret: Technology and applications have grown and developed so quickly that the legal and policy community have simply been unable to keep up in terms of liability, privacy, data ownership. It’s not clear how the old laws and statutes apply to this technology. I wonder if at some point the lack of a relevant legal regime is going to affect the development of technology. That is part of what I’m trying to do, to educate both the industry and legal community on some of the issues that I see arising. They need to be thinking about these issues if not for now, then for a contract that is in force 5 years from now, what they may be facing 5 years from now. I like to tell businesses I don’t want to sound like that if you don’t do this you are going to get sued, be out of business and lose all your money. That is certainly not the case and I understand that the businesses have a lot of concerns on a day-to-day basis. Legal terms may not be the most important focus at any given time. But by the same token, as the industry matures, makes more money, is more successful, and as companies enter a different market, then the legal issues will become increasingly important. This has happened to many other industries. Microsoft had to deal with it; Internet companies had to deal with it; and spatial technology companies will have to deal with it as well.
Res Communis: That brings us to the end of our time. Thank you very much.
INTERVIEW: Tracey L. Knutson, Adventure Sports Defense Attorney on Space Tourism Risk and Informed ConsentFebruary 14, 2008 at 10:57 am | Posted in Interview | Leave a comment
Tracey L. Knutson is a licensed attorney in Anchorage, Alaska whose primary practice involves working with recreation and adventure sports commercial operators, public land administrators and recreation oriented educational groups. An experienced trial lawyer, Tracey defends recreation companies and sports groups from liability claims, often negotiating pretrial conclusions that minimize time and expense. In addition, she provides risk management and training services. Tracey’s belief, when it comes to recreational endeavors, is that risk and opportunity exist simultaneously. Learning how to maximize the opportunities in your recreational endeavors by minimizing or mitigating the risks is a key component of operating a quality adventure sport or recreational endeavor or business. She is the author of “What is ‘Informed Consent’ for Space-Flight Participants in the Soon-To-Launch Space Tourism Industry?” in Volume 33, number 1 of the Journal of Space Law.
Res Communis: Can you give us a brief definition of what “informed consent” means?
Knutson: To me, the question really is, how is “written informed consent” being talked about in the space community? “Informed consent” outside of the space community means something a little different, by my way of thinking. As I wrote in “What is ‘Informed Consent’ for Space-Flight Participants in the Soon-To-Launch Space Tourism Industry?”, (JSL article) “informed consent” outside of the space community usually refers to a situation in which there is some type of therapeutic treatment, and a physician or therapeutic professional provides information on the risks associated with the treatment. This way the therapeutic provider obtains some legal liability relief from administering the treatment. In the space community, in the 2004 Commercial Space Launch Amendments Act (Act) Congress used the term, “written informed consent” or “informed consent” when it addressed how the commercial space flight providers would shift some of the risk back to a space flight participant (SFP). I want to be real clear when I talk about this: we are talking about different things inside and outside of the space community. Regarding space, Congress used the term “informed consent” and then in formulating the regulations, the Office of Commercial Space Transportation (AST) required “written informed consent”. I think what they are talking about is codifying a “duty to warn.” Commercial operators are going to have pretty strident duties to warn potential space flight participants about the risks associated with this emerging adventure activity.
Res Communis: What do you see as some of those duties? What do operators need to tell the SFP?
Knutson: It is clear that the Act required the AST to develop a set of regulations. This was done in 2006. It is also clear that Congress said to AST, take a hands-off and a wait-and-see-approach so we don’t harm this developing industry. And it’s clear that AST’s approach has been to establish a licensing regime, not a tort regime. So, the question of what do operators have to warn SFPs about is not really answered by the regulations. Right now they regulations really require only a couple of things. The current required warnings must state that the Federal Government does not license the vehicles themselves, that known risks, which could lead to, injury or death be disclosed and that simply participating in space flight could lead to injury or death. Therefore I think AST is trying to put an SFP on notice that the space flight vehicles don’t undergo the same amount of testing that a normal aviation style vehicle would before it would be licensed for public use. They require that an SFP be warned of all the things that could result in physical injury or death. The regulations are, of course, a lot more detailed than that but there really isn’t a lot mandated in them. So when the question, what do the operators have to tell SFPs is raised, other than those few things, they really aren’t required to tell an SFP anything. The bigger question becomes, if they want to engage in risk shifting; if they want to actually fulfill all the common law duties in warning cases; then they will have to tell you a whole lot. They will have to tell you that there really aren’t industry standards; that there are a myriad number of ways you can be sick; that you can die. One of the things that is going to be really critical is to be sure that warnings or explanations given to SFPs are done in a simple, cogent manner. Another really important issue will be to explain the risk-sharing regime established under space law. SFPs don’t really understand that as a participant she or he could be liable for damages caused by the space flight experience— not just for damages to themselves or to another SFP—but also for the damages if, for example, one of these vehicles drops out of the sky and drills a hole in the desert, or worse yet in a community. An SFP could bear a portion of the legal or financial risk for what happens. So, as to the question of what the operator has to tell an SFP, there is really going to have to be a lot of work to expand a full understanding of the various risks that have to be explained. It is an interesting, broad question. The JSL article that I wrote takes a stab at it. We are really going to have to expand on that and see what will satisfy the FAA AST when these groups apply for a permit. These written warnings—this “written informed consent”—has to be provided by the operators to take the SFP’s money, or to agree to fly them. So this certainly has to be accomplished before they are given a permit.
Res Communis: If operators are supposed to give written informed consent before they take an SFP’s money, does this include a deposit? Or, can a deposit be taken with the understanding that the full ticket price will be paid at a later date after the written informed consent is given?
Knutson: This can be argued both ways. The point is not to damage the industry through the kinds of discussions we’re having here. It will be up to AST to ultimately make the decision.
Res Communis: Is the law of informed consent mostly state, Federal, or some mixture of both?
Knutson: That is a very interesting question. Does the Act, Federal law, occupy the field in the terms of being preemptive of state law? I think I originally presumed it did. But the more I think about it, the more sure I am sure it does not. I have a defense attorney’s perspective, I defend industry. I have the view that because the Act directed the oversight agency to take a hands-off approach and because the regulation is very open ended, my view is that it establishes a licensing regime, not a tort regime. So I don’t think there is anything against establishing and codifying state law defenses. For instance, the Federal statute and regulations make it clear that Congress was saying that they want the commercial operators to be able to share or shift the risk shift back to SFPs, if they are given the appropriate warnings. That is what they were attempting to do with the informed consent language. Common law all over the country establishes assumption of risks; written informed consent; and the use of release and waiver style contracts. There are all kinds of different state level statutes for rafting, skiing, mountain climbing, and other adventure activities. They are all state legislative efforts to codify some assumption of risk ideas. I think that state level efforts to codify those ideas for SFPs will work hand-in-hand with the Federal statute and I don’t think that Congress intended to occupy that field yet. Congress also directed the oversight agency to put out the first set of regulations. They came out at the end of 2006. Beyond that the oversight agency is not supposed to regulate for eight years or until the occurrence of a critical incident. I don’t think that there is anything that says that states can’t get in there and legislate and that is, in fact, what they are doing and I think it is appropriate. I can make a pretty good set of arguments that we will not see preemption, at least in the area of legislative efforts that talk about risk shifting and assumption of risk and things like that.
Res Communis: There is a term-of-art used by some attorneys regarding informed consent: “cognizance test”. Is that a term with which you are familiar and if so, how would you define that?
Knutson: I used that term in the JSL article I wrote. In broader adventure sport law, that term is not often used but it has absolute application both in the space community and in adventure sports. This is because to effectively shift the risk back to a participant, courts will look at a lot of different things. Primarily they are going to look and see if the participant actually was warned about the risks they assumed. There are lots of different kinds of risks with adventure activities. They are aggregated into two primary types of risks. One is “inherent risk”. That is, no matter how competent the provider is, they can’t necessarily change that risk. The second is the simple risk of the provider’s negligence. What courts do with inherent risk, by and large, is to put it into one of two camps. They will either say, “We don’t care whether you understood it or not Mr. or Ms. Participant, it is an inherent risk. If you signed the document, or if you listened to the safety briefing, it really isn’t that important to us if you understood it. You assumed that risk.” In the second camp, we see that some state courts require that a participant not only be warned of inherent risks, but that they also must understand those risks. With negligence, Courts are a lot more strident. If they allow a provider to exculpate themselves in advance for their own negligence they usually want to know that the provider did a good job of explaining what the risk was. For instance, it is common for providers to warn or inform participants that, “You know our guides are trained but you also know they are human too. They are not infallible. So the risk you take is that the guides may make a mistake and that might be negligence. We want you to understand that.” The cognizance issue will go to a particular court’s examination as to whether a particular participant understood what she or he was doing when they signed up for the activity or that the participant understood because the provider did a good job explaining the risk to the participant. Each court is different. One may make an examination of what a participant understood, or not, in relation to inherent risk or negligence. Other courts won’t. This is a very relevant question. Did the operator do a good job of explaining so that the potential participants knew what they were doing when they signed up and went along? That in addition to the fact that the regulations require that operators provide an opportunity for SFP’s to question operators, is how cognizance relates to what is happening in the space community.
Res Communis: As part of its informed consent duties, would you advise an industry client to tell the SFP that he or she should have a will and get their final affairs in order before the flight?
Knutson: Absolutely. There are many statistics on the likelihood of flight crew and SFP death in this particular industry. Space News had an article in the January 14 edition. The authors made the point that the risk of dying in a commercial airplane is estimated to be one-in-2 million flights; the risk of being killed in combat or in a military jet aircraft is approximately one-in-10 thousand; and, that the risk of losing a life in human space flight is one-in-100 flights. I have also heard that figure to be one-in-200, one-in-50. These authors seem to be in the moderate one-in-100 range. If the SFP knows she or he is anywhere in the one-in-200 or one-in-100 range, they absolutely should have their affairs in order before they engage in this activity. It is clearly a right-minded type of warning for an operator to give a potential SFP. There is no doubt in my mind that this should be part of the advice or warning that is to be given between private operators and SFPs.
Res Communis: Can a parent give informed consent on behalf of a child?
Knutson: Not in the space community. Right now, under the regulations an adult can only give “written informed consent” for her or himself. There is a specific section of the regulations that expressly states that, at this point in time the FAA/AST does not consider someone under the age of 18 capable of providing written informed consent, nor may parental consent be substituted for the minor’s consent. It is pretty clear that this type of written informed consent can only be given by an adult because of the very high risk. The broader question in the normal adventure world is, can parents contractually or otherwise give written informed consent or written waiver documents on behalf of their child? Sometimes yes, sometimes no. That goes back to the issue of state law. Some states have legislation that allow parents to give consent for their child because it affects a lot of things like Cub Scouts, Girl Scouts, after school activities, things like that. Some states have said that because a parent’s consent releases liability, in other words gives away the child’s rights to sue and recover for injuries, that the parent is not empowered to so obligate or restrict their child’s legal rights In those states, if a parent does sign a release document on behalf of their minor child, the child will have until they are 18 to ratify anything that their parents signed. That is kind of a hot spot issue in larger adventure sports. But the space transportation regulations make it pretty clear that parents can’t do that.
Res Communis: Please define “adventure sports”.
Knutson: In my mind, “adventure sports” are things like heli-skiing, whitewater rafting, bungee jumping, mountain climbing, things like that. They are the individual-oriented, adrenalin-type sports that are different from large, commercial, team sports like football, soccer, and things like that. That is the critical distinction in my mind.
Res Communis: To be in the category of “adventure” does an activity have to have a certain amount of risk associated with it?
Knutson: You are exactly right in making that point. People are looking for that challenge, that rush, that adrenalin. It’s the getting off the couch; getting out of the normal parameters of day-to-day life: a job, a family, or whatever. It’s that challenge to go above and beyond, to see what one’s own capacities are. My career has been in adventure sport defense for a dozen or more years. I see all kinds of things being done in using the ‘juice’ of adventure sports, not just interpersonal one-on-one challenges, although that is the most common version. I see executives taking on sports challenge courses, rope climbing courses, whitewater courses. All manner of advertising is done using adventure sport images and themes. As individuals, many people want to face or push their personal boundaries. That’s why adventure activities are important. I have always been on the defense side and have said “Good. You ought to be able to go out there and do that kind of thing! It is healthy! It’s normal! It’s good for people! You should be able to make the choice to push your own boundaries.”
Res Communis: We understand that you are defense counsel, but if you were to represent a potential SFP, what one piece of advice is the most important to give him or her?
Knutson: The best advice I could give to a potential SFP is to understand that their role in the decision making process is equally important and as critically responsible as the operator’s. The operator will provide the hardware, the technology, the warnings, all of that kind of thing. The SFP has to come home to his or her own realization that this is worth doing, that they really want to risk everything to undertake this activity. They are going to have to critically decide that they feel confident that they want to do this. We have been talking a lot about the duty to warn; but under the law the duties between an operator and a participant run both ways. Both entities have to act reasonably in whatever situation they find themselves. At this moment in time, when everything is so new and so experimental, the best thing that an SFP can do is to decide for themselves that this is nobody else’s responsibility, that they have to decide for themselves that this thing is worth doing. They or in are confident enough in the machinery or in the relationship with the operator or in the whole endeavor. They have to take home this idea to themselves that they are assuming the risks. The best piece of advice that I could give somebody is to really get their head around the idea that it is their own responsibility to decide whether they want to take the risk; whether this is safe or not; whether they are willing to give it all up for this one opportunity.
Res Communis: And that they could die?
Knutson: Yes, and that they could die.
Res Communis: Space flight tourism has been getting a lot of press. A lot of people interested in the idea are generating a lot of publicity. Does publicity tie into what constitutes “informed consent”?
Knutson: Yes, it does. We do see an awful lot of publicity. Notably of course is Virgin Galactic: publicity about their company and for their innovative efforts. I find it both positive and problematic. It is positive for the industry because the public constantly hears about what is coming. It keeps the interest level up and the fascination factor going. On the other hand, looking at the experience of the adventure sport world and applying it to space flight, I urge a little note of caution. In the adventure sport world, lots of people see beautiful, sexy marketing and they take that marketing and receive it like it is a confirmation or an express representation of the way the activity is going to go. Then, they show up for the activity and they are handed the release, the contractual exculpation document, and of course they sign it and away they go. They may or may not read it but what they do have in their mind is the expressed representations in the marketing. Then when it doesn’t go the way the marketing depicts, what they argue in court is that those expressed marketing representations were something they were entitled to rely upon, in addition to the representation made in the release contracts. They are having some success with those arguments. So it may be true that marketing can be a type of express representation or commitment. Operators need to be aware of what people are thinking about the flight activities and what they think they are going to be provided; or what they think the activity is going to be like. In addition to how much fun, how much champagne, how sexy it’s going to be, operators have to realize that they could be held responsible for those marketing representations at a later point in time.
Res Communis: This has been fascinating. Is there anything you would like to add to make this a complete interview from your perspective?
Knutson: The only thing I would add is how fascinating it has all been for me, as well. I sort of got pulled into space; space kind of came and found me. I didn’t have a huge awareness of it a few years ago and it is a fascinating industry. The people, the products, the direction that it is going are fascinating, so I feel fortunate to be watching it, participating in it, and I think that should be said.
Res Communis: Would you become a space flight participant?
Knutson: Not now. I have a very young son for whom, and to whom, I will be responsible for a long time to come. He is my first priority. I have to limit taking risks that can prevent me from fulfilling my responsibility to him.
Res Communis: This was a fantastic conversation. Thank you.
Timothy Hughes serves as Chief Counsel for Space Exploration Technologies Corporation (SpaceX). SpaceX is an emerging launch services provider developing a family of launch vehicles intended to reduce the cost and increase the reliability of access to space. As lead corporate attorney for SpaceX, Mr. Hughes is responsible for the company’s legal, regulatory, and legislative affairs. Prior to joining SpaceX, Mr. Hughes served as Majority Counsel to the Committee on Science in the U.S. House of Representatives, providing counsel to the Science Committee generally, with a particular focus on the Space Subcommittee, and drafting and managing legislation, including the 2005 NASA Authorization Act (later enacted as P.L. 109-155), amendments to the Iran Nonproliferation Act, and space prize legislation, and drafting and shepherding the passage of commercial human spaceflight legislation, H.R. 3752 and H.R. 5382, the Commercial Space Launch Amendments Act of 2004 (enacted as P.L. 108-492). He also provided legal counsel to Science Committee during its review of the Space Shuttle Columbia accident and implementation of CAIB recommendations. Mr. Hughes was a senior associate with the Telecommunications and Litigation groups of Drinker Biddle & Reath, LLP, and an attorney in the Office of the Chief Counsel for the United States Secret Service. He is a graduate of William and Mary Law School and Georgetown University’s School of Foreign Service. Mr. Hughes is a member of the Bar in both Maryland and the District of Columbia. Mr. Hughes is the co-author of “Space Travel Law and Politics: The Commercial Space Launch Amendments Act of 2004,” JOURNAL OF SPACE LAW, Vol. 31, No. 1 (2005).
Res Communis: Let’s start with Commercial Orbital Transportation Services (COTS). It is being discussed a lot these days. As a practitioner and as an attorney with a client engaged in COTS, could you tell us what you see as some of the advantages and disadvantages of using a National Aeronautics and Space Act Agreement (Space Act Agreement) versus a regular procurement contract?
Hughes: Yes, certainly. I am a practitioner that represents a small business in the aerospace field. SpaceX has fewer than 500 employees at this point, so it falls in the small business category. Agreements authorized by NASA’s “other transaction authority” like the Space Act Agreements are really important for us. They serve to eliminate a number of clauses that would be associated with a Federal Acquisition Regulation (FAR) based contract. For instance, they are not contracts; they are not procurement contracts; or cooperative basis contracts; thus, they are exempt from the FARs. They are exempt from government cost accounting standards and various Federal statutes. Because they do not have the requirements associated with the FAR costs and standards, they are more flexible and more cost effective. Therefore, they better suit an emerging company like ours.
Res Communis: Is there a disadvantage to an emerging company?
Hughes: They don’t offer the same protection in terms of protests or challenges, so we are certainly glad to have our COTS agreement. Had we not secured a COTS agreement, I think the avenues are rather small for those who would protest the award of a Space Act Agreement. That might be a disadvantage for another party, but it certainly wasn’t for SpaceX in the context of COTS.
Res Communis: Would you consider yourself to be a space lawyer?
Hughes: I consider myself to be a business lawyer.
Res Communis: When you were working in Congress how would you characterize yourself as a lawyer at that point?
Res Communis: Ok, would it be a frazzled space lawyer or a frazzled staff attorney? Or something else?
Hughes: I worked with the full committee but focused on the space subcommittee. To put a finer point on it, I started exclusively with the space subcommittee and then I moved to the full committee. I had the portfolio for the entire science committee, so I had much broader experience than space. In terms of characterizing myself, I was a majority counsel so the work that I did there was subject-matter specific as to space and public policy. Majority counsel work also had broader Congressional reach: into parliamentarian activities; moving bills through the committee whether they were space-related or related to other issues within the committee’s jurisdiction; moving bills through the committee starting with the subcommittee, up through the committee, up through to the House floor, and then, ideally, moving them through Conference. So it was a mix of public policy related to space and broader work related to the mechanics of legislating.
Res Communis: When you were an attorney in the House, you worked with legislation that was designed to encourage commercial space. Now that you are actually working with a company do you see other legislation that may be needed that you didn’t see when you were in the House?
Hughes: Well, obviously the key legislation that is needed for broader civil and military space activities is, of course, the annual appropriations bill. On the appropriations front, I see a need for more money; certainly for NASA to achieve the objectives set out by Congress in the 2005 Authorization Bill. That was rather an ambitious task list that Congress voted into law. Absent the influx of additional moneys to the space budget and, candidly—it appears that this is unlikely to occur—but absent additional moneys, NASA would be very hard pressed to achieve the objectives that Congress has laid out for it. There will probably be a significant gap between the retirement of the Shuttle and the arrival of the Orion vehicle. Obviously, this is where SpaceX comes in.
Res Communis: As you know, there are a number of individual states in the U.S. that are getting more active in establishing spaceports and encouraging space activities. They include Florida, Virginia, California, New Mexico, and a few others. What do you see as the role of states as they try to pass state space laws and how should these laws fit in with the Federal law?
Hughes: I am quite aware of the Virginia legislation that would create a liability waiver for entities launching from the state of Virginia, or rather, launching human passengers from the state of Virginia. I know that Florida is also considering legislation. I think the efforts in other states are likely in the earliest stages. The role that they should play, I think, is consistent with what Virginia is doing. It is taking the right approach. I think the actual wording of the legislation they passed might have been different if we had had our preferences, but SpaceX wasn’t active in that process. I think the idea is that the states should conform their legislation to the Federal legislation; signing on to it by saying that in the context of a Federally licensed launch of a vehicle carrying a human passenger, the state wants to encourage emerging companies to operate from the state. Therefore, the state needs to create, at least in the short term, some protection that will enable companies to operate and develop their vehicles and that also recognizes the dangers associated with these vehicles and carrying humans. I think it is important for the states that might have viable launch sites for the very few companies that are likely to do this, to pass this type of legislation within the next few years.
Res Communis: At some point, these state laws may trigger the U.S. Federal Constitutional doctrine of preemption. The U.S. Federal Government has the responsibility to implement a licensing regime, in part, because of international space treaty obligations. If there are a number of states trying to get into an activity for which the Federal Government is internationally responsible, do you think preemption might happen one day? Should individual U.S. states be writing their laws with an eye toward preemption? Or does the doctrine not play in the equation at all?
Hughes: To be quite honest, I don’t think we really know at this point. I think states should be writing laws with an eye toward preemption. But this [industry] has such a “wild west” atmosphere in so many ways that we do not know when these launches will take place. We do not know what vehicles are going to be successful in terms of taking humans into space. SpaceX certainly thinks it has a viable plan and it has a time frame laid out for it, but there are other companies that are operating on their own or in secret. Blue Origin comes to mind. In some ways, I think that the legislation that was passed, even when I was in Congress, might have been a bit premature in so far as we have not seen any Federally licensed human space flight attempts since that legislation was passed in 2004. [Editor’s note: The Space Launch Amendments Act of 2004.] But at the time it passed, we thought we would see these launches in the very near term. I think that the one reality is that rocket science is hard; it is harder than it looks; and, it has taken longer than people thought it would. So there is no rush at this point for states to lock in legislation immediately, in my opinion. I think as companies continue to mature and their technologies become more robust the need for state legislation will become more profound. But as of December 2007, is it critical for any state to take action on this front at this point? Probably not.
Res Communis: Speaking of the 2004 legislation, one of the forces at play in that legislative process was the action of space advocacy groups. These are not the people that have companies or who are putting up capital, rather they are the people who philosophically believe that the private sector should be commercially active in space. If the law was a bit premature, was it in response to advocate action?
Hughes: To a large measure, I think the law was in response to the success of SpaceShipOne. Let me put a finer point on the notion of prematurity. I think that the law served a critical purpose at the time and that was to create an atmosphere and a concept by which industries could grow the personal space flight industry. The atmosphere and concept that I am talking about are a “hands off” approach, to the extent that third parties are not adversely affected by the actions of these companies as they pursue their broader goals. Although I say the legislation was premature, the concepts are valid and the concepts have given greater inertia to the whole forward movement. The finer points of how to regulate and what state level activity should be undertaken are probably a bit premature, given where technology has turned out to be.
Res Communis: So would you identify a next step or would it be appropriate to wait and see how things unfold for a while?
Hughes: I think we need to wait and see how things unfold.
Res Communis: At the international level, there is a lot of debate about personal commercial space flight and it revolves around a number of issues. One issue is that the U.S. legislation only addresses suborbital flight, which, the argument goes, is not by definition, spaceflight—even with the statutory distinction between “lift” and “thrust”. Some argue that because the flights are suborbital, they are more akin to aviation and therefore the International Civil Aviation Organization would be an appropriate venue in which to be address what is called personal commercial space flight at the international level. Do you have any response to that?
Hughes: I really don’t. SpaceX doesn’t focus on suborbital flight so this is not an area that I have put a lot of thought into since leaving Congress. However, the debate over aviation regulation versus space launch regulation was one that was vigorously undertaken when I was in Congress. The definitions of “suborbital flight” as they appeared in various drafts of legislation, I think H.R. 3752 and H.R. 5382, are quite different. Some definitions that were not made public were significantly different. In the end, the decision was made to regulate for the most part from the perspective of a launch vehicle as opposed to aviation. Domestically, I think that decision has been largely made. Internationally, I am sure that debate will be engaged.
Res Communis: What is the focus of SpaceX?
Hughes: Space X’s primary objective is to reduce the cost of access to space. We hope to do so by creating at least two lines of highly reliable launch vehicles, the Falcon 1 and the Falcon 9 and offering them at a price point that is certainly competitive in the international market but also significantly less expensive than U.S. domestic competitors. So far we have had two launches of the Falcon 1. The first was terminated after 29 seconds because of a leak in the first stage engine. The second launch made it to space but it fell short of the velocity needed to make the intended orbit. So SpaceX has had good progress with the Falcon 1. We hope to have continued full success with the Falcon 1 in 2008. We are proceeding with our Falcon 9 which is SpaceX’s significantly larger, I’d say intermediate, lift vehicle carrying about 9300 kilograms to about 3400 kilograms to geosynchronous transfer orbit. That will be our work horse for the broader mission and certainly for the COTs mission. When SpaceX talks about reducing the cost of access to space, for us that means we are also taking steps that will eventually allow SpaceX to safely carry human beings into orbit. The COTS program that we are working on with NASA has obviously been a real financial boost to the company, but more importantly it has also been a real opportunity to have a successful demonstration of the Falcon 9 vehicle and now the Dragon capsule — even more rapidly than we originally thought we would. So when asked about what SpaceX is and where it is going, I’d say that it is a company that is focused on reducing the cost of access to space and with the longer term aspirations of carrying passengers into space as well. The intermediate steps will be to demonstrate the COTS capabilities to NASA and to service the international space station market, which is a great market for SpaceX. SpaceX will also service other markets, for instance, the Bigelow market that looks to exist and continue to evolve the SpaceX capsule. Hopefully, in the near term if NASA exercises the options under our contract to begin ferrying astronauts to and from the International Space Station. And then beyond that, if you’ll excuse the pun, “the sky is the limit” for SpaceX.
Res Communis: You have a career that many of my students say they want to have.
What would you tell a law student that aspires to have a career similar to yours? What kinds of things should she study? What should she do?
Hughes: I think finding an area of specialty in space law would be the most helpful avenue to pursue. Developing an expertise in contracts, both commercial or government, would be very helpful. An expertise in export control law would be incredibly helpful. SpaceX spends a lot of its time, energy, and resources on ITAR related work. So ITAR expertise—especially as it relates to satellites or launch vehicles—would be a real benefit. Beyond that I think legislative work is certainly very helpful. Frankly, my career path was not one that I plotted out. I know some folks that do that in advance, 10 years before they make their assault on the world. This is certainly not what I did. I started off in the United States Secret Service at the Office of General Counsel and had some great experiences. I happened to be there when the [President Clinton and Monica] Lewinsky matter was being dealt with by the Secret Service in the White House.
Res Communis: Do you still have your sunglasses and ear wire?
Hughes: I was the opposite of that. They keep the attorneys locked up in a room. We didn’t get any of the paraphernalia. We were the nerds of the Secret Service. Moving from the Secret Service to a big law firm was the next step and obviously none of that had space related focus. However, I focused on telecommunications. Telecom law and my exposure to the gamut of telecom law: wire, line, wireless, and satellite has served me well. I not only developed somewhat of an expertise in that area but I also learned the administrative law process and that applies to so much of what I do at SpaceX. Then moving to Capital Hill from there was something I had always dreamed of doing. When that opportunity arose, I snapped it up and encountered Elon Musk and SpaceX while there. I was actually going to return back to my law firm and try to make a run at making partner. Instead, the SpaceX opportunity was presented to me and I took it. It was always my intention to develop subject matter expertise where I could and pursue my passion. My passion was not so much space, but legislative political work. It just so happened that space peaked my interest and has now become my passion. It has allowed me to take the administrative and political leanings that I have and integrate them into one job here at SpaceX. It has been a real dream come true for me.
Res Communis: What do you think is the most important issue for space law today?
Hughes: This will sound rather trite because it is an idea that I hear regularly. The biggest impediment in space law and business is export control. I think it is critical certainly on the satellite side of things, as well as on the launch vehicle side of things. I think the International Traffic in Arms Regulations (ITAR) reform is less likely to occur but I do think there are ways that ITAR can be reformed to encourage and enable emerging launch vehicle companies to succeed. ITAR reform is something that needs to be addressed and I am clearly not saying anything new here. There is an article in Space News this week calling for the very same thing. I have yet to see any serious, reform-minded approach. I have yet to hear of any political figure in the House, the Senate, or in the [Bush] Administration who is willing to take on this issue. There seems to be a lot of talk right now but very little apparent traction to reform ITAR.
Res Communis: If you talk to some people in the big aerospace companies they say that the ITAR is with us; it will never go away; all that can be done is learn how to live with them. Is that true for small companies?
Hughes: Well again, I work for a launch services company. I think there needs to be a distinction made between launch services and satellite manufacturing. With satellite manufacturing, I would be surprised if any large company would say, “Well this makes sense from our perspective” because the domestic satellite industry is hemorrhaging under ITAR, or at least that is what reports indicate. On the launch services side, I think ITAR is something that we have to live with. That notion is probably valid and accurate. I think working within the ITAR requires advanced planning, significant attention to details, and the outlay of significant personnel and financial resources. Invariably ITAR requires a small business like SpaceX to engage outside counsel for assistance. I think that one way that ITAR could be reformed to help emerging businesses like ours—and again I am speaking in the context of launch services companies—would be to eliminate some of the fees associated with ITAR. For instance, whenever SpaceX executes a technical assistance agreement, it almost invariably it requires a Directorate of Defense Trade Controls monitor to be present when we interact with a foreign entity. When those monitors come to SpaceX, or wherever else the meeting might be held, SpaceX, as every other company has to do, foots the bill for their time. That starts to add up. It has always surprised me that these individuals are being paid for the work they are doing not only by the taxpayer but also by individual companies like ours. A way to lighten the burden of ITAR compliance on small companies would be to wipe out some of these fees for small businesses. It wouldn’t reduce the time associated with ITAR compliance or the paperwork burden, but it would reduce the financial burden. I think this makes good policy sense.
Res Communis: Is there anything you want to add?
Hughes: I appreciate your wanting to chat with me. This is going to be a big year for SpaceX. We are anticipating having a few Falcon 1 launches and making progress on our Falcon 9 vehicle. From our perspective, 2008 and 2009 will be very telling years. As we look forward, we see an imminent gap in cargo in human space flight. SpaceX is hoping to close that gap for the Nation. We see ourselves as the company that will do that, so we are looking forward to the next few years because that means exciting times. As SpaceX continues to develop it is also so exciting to see other new aerospace companies pursue their goals. We are looking forward to seeing Virgin Galactic’s suborbital vehicles fly within the next two years. I believe Blue Origin is making tremendous progress, and the folks at Bigelow have had probably among the greatest successes so far with their inflatable habitats. So there is traction in this area. Sometimes I feel that we are on the cusp of an absolute explosion of growth. Then some days there is the realization that rocket science is indeed described as one of the most difficult things to do: it is awfully hard and it does take time. So time will tell and these are exciting times.
Res Communis: Thank you.