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SpaceX plan to put 42,000 satellites in orbit could face a big legal roadblock

Starlink Launch
On February 22, 2018, SpaceX successfully launched the first two Starlink test satellites (named Tintin A and Tintin B) from the Vandenberg Air Force base in California. SpaceX

The number of satellites shot into orbit is about to rocket. And astronomers are none too happy about it. Elon Musk’s SpaceX company has already announced plans to launch a constellation of up to 42,000 Starlink satellites. Other groups such as the UK’s OneWeb have plans for their own smaller scale launches, still numbering in the hundreds. These will add to the approximately 1,500 active satellites that are already in orbit.

The problem is the impact that these launches are likely to have on ground-based astronomical observations. Astrophysicists carrying out long exposures in the order of 15 seconds already have images corrupted by passing satellite trails many times brighter than the faint galaxies they are trying to study. However, the launch of enormous numbers of new satellites will exacerbate this effect; transforming the sky above our collective heads into a seething mass of moving objects that will permanently alter our environment.

Starlink satellites ready to deploy.
Starlink satellites ready to deploy. SpaceX

Unless the space companies are stopped in their tracks, that is. This is what a group of astronomers is calling for with the proposal of possible legal action that could delay these launches until their impact can be properly measured. The group says that it could bring a case to the International Court of Justice, arguing that the night sky is a shared human right.

“This is not a complaint, but an appeal,” Stefano Gallozzi, one of the authors of the appeal from the Astronomical Observatory of Rome in Italy, told Digital Trends. “It is done to raise awareness by the astronomical community about the problem, and commit people to [help fight for it]. This can be done because 1,500 astronomers have already signed the appeal. We can say to institutions that 1,500 [at the time of writing this article] say ‘no’ to SpaceX and other satellite constellations.”

Gallozzi said that the group is currently investigating possible approaches. “There are already few legal initiatives to prevent this in [the] U.S,” he continued. “The most important impact and effective action would be to have a specific entity — a nation or territorially independent agency, state or nation — which had invested public money for ground-based astronomy projects, and [appeal] to the International Court of Justice to prevent the damage. [This would argue for a] lack of legitimacy of the FCC to authorize the displacement of satellites on the airspace of that entity.”

A potential precedent-setting case

Should this appeal proceed down the legal route, it could be a precedent-setting case. While there are laws in place concerning the use of satellites, many people who work in the field have spoken out about a lack of regulation when it comes to issues such as what comprises safety in space. The most significant legislation, the 1967 Outer Space Treaty, was formed more than half a century ago. Although it applies to commercial “NewSpace” startups, it was designed for a very different world to the one that we are currently living in.

Starlink Mission

“The current space law regime is pretty basic, especially compared to other areas which lie outside of state territory,” Chris Johnson, a space law advisor for the Secure World Foundation, a non-governmental organization which focuses on space sustainability, told Digital Trends. “Compared to these relatively robust and well-developed regimes, especially air law and maritime law, newer activities like space … have a less-developed set of rules.”

Johnson, who also serves as an adjunct professor of law at Georgetown University, where he helps teach a seminar on space law, noted that the Outer Space Treaty grants broad freedom to access, use, and explore outer space. This right is subject to the approval of other states, or of the United Nations.

Image used with permission by copyright holder

Anyone who follows the tech industry will be familiar with the “first mover” advantage of whichever company moves into a new market. Being first doesn’t guarantee victory, although it does carve out a lead that others will have to fight uphill to overcome. However, while that may be all well and good when it comes to innovations such as smart speakers (Amazon) or streaming subscription services (Netflix), it’s another thing entirely when tech giants try and move into space domains. With his Starlink program, intended to provide broadband internet to everyone on Earth, SpaceX founder and CEO Elon Musk would dominate certain elevations of orbit in a way that, well, Tesla dominates U.S. electric vehicle sales. But that’s no necessarily something everyone is okay with.

Johnson said that, based on SpaceX’s plans for Starlink, it will have approximarely 10,000 satellites at 1,150km orbit. “This is basically indistinguishable from being the sole possessor and owner of that orbit,” he said. It will also be in command of thinner, but nonetheless significant, satellite orbital shells at both 550km and 240km.

The potential argument against this could be appropriation of outer space as defined by the Outer Space Treaty. This is binding for both states and companies. The same rules state that, as an American company, the U.S. government would be responsible for SpaceX’s activities as a non-governmental space actor in its territory.

How will it play out?

This is all still hypothetical, though. This case hasn’t been tested before, meaning that even experts like Johnson can’t call what will happen.

“How will this play out?” Johnson continued. “I can see that both COPUOS (United Nations Committee on the Peaceful Uses of Outer Space) as well as the ITU World Radio Congress (WRC) will certainly discuss, and hopefully develop, new rules on how the interests of mega-constellation operators should be balanced with the legitimate, peaceful actions of other operators in space, as well as with people on Earth who explore space on the ground through telescopes.”

Any possible court cases challenging the FCC’s license to SpaceX or categorical exemptions permitting them to not conduct environmental impact statements before being licensed will take time to resolve, of course. While that is happening, plans (and actions) for creating mega-constellations of satellites will continue. However, what this astronomical appeal does is to start a debate, and get people talking about a question that, right now, hasn’t been satisfactorily resolved.

“We are aware of this lack of regulations and legal framework, but this is not a reason to give up [at] the beginning,” Gallozzi said. “No precedent actions means that each judgment from the court will show a new legal path to follow up in a boundary of international initiatives to prevent such things from happening in the future. It is a challenge — but the stakes are too high to let things go as they would with no intervention.”

Luke Dormehl
I'm a UK-based tech writer covering Cool Tech at Digital Trends. I've also written for Fast Company, Wired, the Guardian…
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