Achieving Clear and Reliable Legal Norms in Space to Encourage Commercial Transactions

Picture1By Rob Philbrick

SpaceX just successfully completed tests on the main core of the Falcon Heavy this week in Texas. The Falcon Heavy is a reusable super heavy lift space launch vehicle. By the end of the summer, Elon Musk projects his team will conduct a complete test launch of the Falcon Heavy. Even considering the requisite Musk Timeline Factor Adjustment, most private companies are preparing for commercial spaceflight to occur within 30 months.

How have we arrived here, and what extant law governs the expanse today?

The current international law governing outer space emerged in the late 1950s, and remains largely unchanged. The Soviet Union had just launched the first artificial satellite, Sputnik, and ushered in the Space Age, leading two professors to publish Perspectives for a Law of Outer Space in the American Journal of International Law. A key takeaway from this article was that the establishment of legal standards in this field would be a slow and deliberative process. True to that view, the Outer Space Treaty came into effect a full ten years later in October 1967.

The Outer Space Treaty, formally known as the Treaty on Principles Governing the Activities of States in the Exploration and Use of Out Space, including the Moon and Other Celestial Bodies, is the core of international space law. As the formal title acknowledges, this treaty is focused on the actions and responsibilities of states – not private actors. Article VI does touch on this topic, however, in requiring that “non-governmental entities in outer space . . . require authorization and continuing supervision by the appropriate State Party to the Treaty.” But with unpredictable government space program budgets and industry knowledge condensed in the private sector, are states truly in the best position to authorize and supervise non-governmental entity activities in outer space? Looking forward, what should be our goal when crafting laws for this rapidly changing and increasingly privatized field?

According to Sergio Marchisio, Chairman of the European Centre for Space Law and Professor of International Law at University La Sapienza of Rome, the primary goal of space law is to “ensure a rational and responsible approach to the exploration and use of outer space for the benefit and in the interest of humankind.” “The function of space law,” he continues, “is to maintain order and coordinate behavior and relations among [public and private subjects] involved in space activities.”

Have these stated goals and functions of space law remained effective through the budding commercial space industry?

President Obama defines “commercial space activities” in the National Space Policy issued June 2010 as “space goods, services, or activities provided by private sector enterprises that bear a reasonable portion of the investment risk and responsibility for the activity, operate in accordance with typical market-based incentives for controlling cost and optimizing return on investment, and have the legal capacity to offer these goods or services to existing or potential nongovernmental customers.” This definition follows the commonly-held notion that goods or services provided primarily to other private sector enterprises or consumers (e.g., DirecTV satellite television and Sirius XM satellite radio) are markedly distinct from goods or services provided primarily to government customers when the government shoulders most of the risk because it requires the services (e.g., remote sensing satellite company DigitalGlobe, Boeing-Lockheed Martin United Launch Alliance).

Under these definitions and understandings, the global space economy has doubled to $330 billion in the last 10 years. Revenue related strictly to commercial space activities doubled to $250 billion in that same period. Commercial space products, services, infrastructure, and support from private enterprises comprise over 75% of the space economy. The United States government space budget makes up less than 15%, and in combination with all other government space budgets makes up less than 25%.

What have years of growth in this industry given us? Well, massive investment activity has benefitted our lives in quite a few ways. Researchers can more capably track climate change, telecommunications have advanced at astounding rates, we can observe and warn communities of incoming natural disasters, and navigation tools through GPS is a luxury that has quickly been adopted as a necessity by much of the world.

Today, private companies such as SpaceX and Blue Origin have innovative and flexible organizations that are ready to take risks. There is even an air of one-upmanship between their sparring billionaire owners, Musk and Bezos. Fortunately, this one-upmanship has the effect of bringing down the cost of access to space as a commercial market. According to The Economist, the first stage booster section of the Falcon 9 rocket accounts for about $42 million of the $60 million total cost. Even though Musk and Bezos occasionally bicker on twitter, the reality is that their work to reuse these significant rocket cost drains – even though done separately and in competition with one another – will in turn bring about entirely new blue ocean industries: space tourism and planetary colonization.

It remains unclear whether space law, as it has been drafted and consolidated so far, can aptly face the many challenges ahead in the space economy. UN treaties dealing with space activities were born in a time when today’s expansive commercial space industry could hardly be imaged, let alone property regulated. Several commentators suggest that “these treaties no longer seem to provide for an adequate framework to address the complex relations that have resulted from the rapid growth of commercial activities in outer space.” Ultimately, we have inherited a thoughtful and well-meaning institutional framework that simply cannot satisfactorily resolve today’s substantive concerns around commercial space transactions.

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The Other Type of Robot Battery

Picture1By Daniel Healow

While the words “robot” and “battery” are commonly used in the same sentence, these phrases are usually referring to electricity, not assault. Unfortunately, use of the latter definition is increasing in frequency due to an uptick in malicious human actions taken against intelligent robots undergoing real-world testing. As the number of independently-operating robots have multiplied in humans’ daily lives, so have instances of violence against them. Continue reading “The Other Type of Robot Battery”

Reasonably Expecting to Change the World: The CRISPR-Cas9 Patent Battle

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By Michael Rebagliati

In addition to the cited sources, the author would like to thank a family member with far more scientific knowledge, Michael R. Rebagliati, Ph.D., for his essential scientific edits, commentary and analysis.

Right now, a new gene-editing technology called CRISPR-Cas9 is spreading throughout the scientific and business communities and into the public consciousness. The scientific implications are vast because CRISPR (Clustered Regularly Interspaced Short Palindromic Repeats) is not just one scientific invention with one purpose. Rather, it is a natural process that has been harnessed and redirected into a gene-editing technique that is (relatively) easy to use. Moreover, its high efficiency means that scientists can use it to edit the genetic code of any gene in many kinds of organisms. Think Industrial Revolution for genetic engineering. Continue reading “Reasonably Expecting to Change the World: The CRISPR-Cas9 Patent Battle”

How to Fight Fake News in a World Spewing Alternative Facts

Picture1By Mackenzie Olson

Before you re-share an online article, before you give weight to its assertions—before you even begin to read the first line—ask yourself one question: “Does this look like a credible source?”

At a young age, I learned that I must first ask this question before citing to any given resource in a research paper or project. Accordingly, I learned where to look for reputable sources, how to determine which of these sources were credible, and the ways in which to best use these sources to locate further acceptable resources.

I was surprised when I learned just how frequently Internet users are duped into reading, believing, and ultimately re-sharing fake news stories. In the months immediately prior to the 2016 U.S. presidential election, the top performing fake news stories generated more engagement than the top performing real stories published by major news outlets. These leading fake stories generated over 8.7 million shares, reactions, and comments on social media, while the leading stories published by major news outlets generated about 7.3 million similar reactions. Continue reading “How to Fight Fake News in a World Spewing Alternative Facts”

Let’s Fight Nazis

Picture1By Jessy R. Nations

Dear Internet, I hope you’re happy. Just look what you did. You went and made Nazis again. Seriously, what were you thinking? It’s 2017 for crying out loud. I thought we all decided Nazis were bad like 50 years ago. But no, you just had to keep pushing that envelope. Now we have to do this for the next few years.

Under the guise of “free speech,” open racism and white supremacy have been on the rise. Whether they call themselves “Identarians,” “racial realists,” or the “Alt-Right,” these groups are everywhere. They’ve cleaned up their image and streamlined their rhetoric, but their core principle is the same: White people are better than everyone else, and are under attack from all the various minorities who should be removed by any means necessary. And it’s far more than just talk these days. To make matters worse, they’re recruiting. I vaguely recall a time when being openly racist would make you a social pariah. Now this behavior can land you a book deal, get you invited to talk shows, and give you a tour for you to speak at college campuses where you can threaten trans and immigrant students while your fans shoot protesters. In the interest of combating racism, this blog post offers a brief guide on how to spot these lunatics as well as some thoughts on what the law can do before they starting shooting up schools. Continue reading “Let’s Fight Nazis”

Virtual Shareholders’ Meetings: Yay or Nay?

Picture1By Alex Bullock

Next month, Berkshire Hathaway Inc. will hold their annual shareholders’ meeting in Omaha, Nebraska. Berkshire Hathaway’s annual shareholders’ meeting is a spectacle unlike any other, bringing investors from around the country (if not the world) to middle America for a weekend of free swag and corporate governance. Along with a 5k run, a movie screening, and endless corporate partner booths, the shareholders will take formal corporate action to vote to elect directors, to give an advisory vote on executive compensation plans, and to act on shareholder proposals, among other things. Berkshire Hathaway’s annual shareholders’ meeting is a significant event; indeed, I myself have thought about buying stock in the company just to see what their shareholder meeting is like in person. Continue reading “Virtual Shareholders’ Meetings: Yay or Nay?”

Twitter Fights Back in the ‘Trump Era’ to Protect ‘Rogue’ Government Accounts

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By Jeff Bess

During the early days of Donald Trump’s presidency, Twitter accounts purporting to represent unofficial “resistance” factions of federal agencies emerged and proliferated alternative perspectives on the inner workings of the Trump administration and its policies. These accounts claim to represent holdover factions from the Obama administration and career officials in agencies and government organizations such as the National Parks Service and the Federal Bureau of Investigation. The accounts issued frequent tweets critiquing the Trump administration’s policies across a variety of issues. Agencies “represented” by “alternative” Twitter accounts run the gamut from the Department of Justice to NASA to the National Weather Service.

Continue reading “Twitter Fights Back in the ‘Trump Era’ to Protect ‘Rogue’ Government Accounts”

Snap, Crackle, and Stop? No Voting Rights for Snap’s Public Shares

By Beth St. ClairSNAP IPO

Overheard: “I deleted all my social media accounts. But I kept my Snapchat account. That’s why it’s worth buying.” – As spoken by a millennial.

But what exactly are Snap’s investors, like this one, getting?

Continue reading “Snap, Crackle, and Stop? No Voting Rights for Snap’s Public Shares”

The Immigration Non-Cooperative?

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By Ari Mead

Local governments across the country fought federal immigration policy under Obama. Under Trump the fight continues. Specifically, the President has directed federal immigration agencies to more aggressively enforce current immigration laws and prevent residents with legal documentation from entering the United States based on country of origin.

But, for the first time, states are adopting state-wide policies that attempt to prevent cooperation with federal immigration policies.

The following is an overview of what’s happening:

CALIFORNIA

Several members of California’s legislature have responded with two proposed bills, which aim to protect immigration status, national origin, and religious belief from getting into the hands of federal officials.

Current California law requires that when state or local law enforcement arrest someone they believe is not a citizen, they must report that individual to the federal government. SB 54 would repeal that provision. In addition, the bill prohibits state and local law enforcement agencies, along with other state agencies – including schools – from using any local resources for immigration enforcement purposes. Sb 54 also directs state agencies to adopt the confidentiality policies that the Attorney General defines.

Another proposed bill in California, SB 31, requires state agencies to secure databases containing names, places of birth, addresses and nation of origin. Additionally, the bill disallows California from creating any databases that compile personal information.

WASHINGTON

On February 23rd, Washington State beat California lawmakers to the punch, as Washington’s Governor Jay Inslee signed an executive order blocking state officials and agencies from cooperating with federal immigration raids, sharing private information in agency databases or creating any religious based databases. Although city level non-cooperation policies have existed for decades, these state-wide non-cooperation policies are the first of their kind.

FEDERALISM CHALLENGES

Meanwhile, city non-cooperation policies have been around and have been tested in court, shedding light on some of the legal issues they pose. City of New York v. United States, from the United States Court of Appeals of the Second Circuit, concerned a provision in The Welfare Reform Act that prevented localities from prohibiting their local law enforcement and other agencies from sharing information with the federal government. The City of New York challenged the provision as violating the Tenth Amendment, and argued that the federal government could not interfere with how it instructed their local employees outside of a federal agency. Ultimately, the Tenth Amendment prevents congress from passing laws requiring states to administer civil immigration law. The Second Circuit decided that in the face of federal policy requesting cooperation, a city policy cannot prevent an official from voluntarily sharing immigration information. At the same time the ruling from the Second Circuit does not discuss whether a federal policy could require a state agency or city official to obtain information to report to the federal government.

Another case that considered the legal issues imbedded in non-cooperation policies was Sturgeon v Bratton. Sturgeon, a Ninth Circuit Court of Appeals case, involved an LAPD policy called S.O. 40, which stated that obtaining immigration information was not a matter for local authorities. A group of citizens challenged the policy as unconstitutional, arguing that that federal immigration law preempted the city policy. The Court of Appeals disagreed and said that the Tenth Amendment “shields state and local governments from the federal government requiring them to administer federal civil immigration law.”

In the months and years to come, more courts will likely have plenty of opportunities to decide whether state non-cooperation policies are also shielded by federalism. Whether states themselves are shielded by federalism depends on the federal government’s actions moving forward. The federal government could limit funds tied to immigration, or test the Tenth Amendment in this area again, challenging state laws that prevent local authorities from acting to enforce immigration laws.

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Man or Machine? EU Considering “Rights for Robots”

robotBy Grady Hepworth

Isaac Asimov’s 1942 short story “Runaround” is credited for creating the famous “Three Laws of Robotics.” Asimov’s Laws, although theoretically fictional (and most recently featured in the 2004 motion picture I, Robot), require robots to i) not hurt humans, to ii) obey humans, and to iii) only protect themselves when doing so wouldn’t conflict with the first two rules. However, the European Union (“EU”) made headlines this month when it took steps toward making Asimov’s Laws a reality.
Continue reading “Man or Machine? EU Considering “Rights for Robots””