Science Fiction, Space Law, and the Regulatory State: Or, How John Varley Broke My Heart but Other Science Fiction Writers Shouldn’t Have To

redthunder-from-amazonI read John Varley in my teens. I had a subscription to Analog, or, Galaxy, it might have been; and Varley’s short stories showed up there regularly. He was really close to Heinlein in my pantheon of favorite authors. I read The Ophiuchi Hotline when it came out, and waited eagerly for Titan and its sequels.

I grew up, I went to law school, I worked for a law firm.   I changed jobs and became a space lawyer for the Federal Aviation Administration and worked on commercial space transportation issues under the Commercial Space Launch Act (CSLA). (Of course, none of the views expressed here represent those of my former employer, especially the stuff about John Varley). So, about a decade ago, when I saw Red Thunder, a really fun book about a group of young people with a secret space engine trying to get to Mars before anyone else, I was very happy to pick it up.

Reading it was just heaven, until it got to a certain point: the point where our heroes agreed amongst themselves they didn’t need much in the way of regulatory approvals, aside from getting clearance from the FAA’s Air Traffic (which, if I recall correctly, everything being secret and all, I don’t think they bothered with). But, and here’s the sad part, the characters made no mention of FAA launch licensing.  They only defied Air Traffic , but they should have also defied the FAA’s Office of Commercial Space Transportation.

How could John Varley have let me down like this? He could talk about Air Traffic control, but not about the licensing requirements of the Commercial Space Launch Act? What was wrong with him? Did science fiction writers have no regard for the law? Michael Flynn knew about the CSLA, and its administrators showed up as petty bureaucrats in Firestar. That was cool. He was up to snuff. But John Varley?

Anyway, I struggled to move on, and mostly did, but years have gone by and I remain troubled and still seek catharsis. My emotional issues might provide a good opportunity to go over the three space regulators in the U.S., so that other science fiction writers don’t cause other space lawyers similar heartache. The regulators are, in alphabetical order, the Federal Aviation Administration, the Federal Communications Commission and the National Oceanic and Atmospheric Administration in the Department of Commerce. The FAA regulates launch and reentry, the FCC transmissions from satellites into the United States, and NOAA remote sensing. If one were writing science fiction (ahem, Mr. Varley), these agencies could serve as obvious obstacles–if not outright villains–when plotting space adventure. Alternatively, they could be good vehicles for keeping everyone in their place.

So what does each agency do? The FAA authorizes and regulates the launch and reentry of launch and reentry vehicles, including reusable launch vehicles, under Title 51, United States Code, (USC) chapter 509 (popularly referred to, by everyone except Mr. Varley, as the Commercial Space Launch Act because that was its original name, but isn’t anymore. See here). Chapter 509, aka CSLA, is a different law than the one applied to aviation. The FAA licenses expendable launch vehicles such as the Atlas and Delta. The FAA licensed the launch and reentry of SpaceShipOne, which won the X Prize. And it licenses SpaceX’s launch and reentry of Dragon, which carries cargo to the International Space Station. The FAA also authorizes and regulates launch and reentry sites, popularly referred to as spaceports–for which phrase Heinlein regularly gets the credit.

You might think that if the FAA regulates launch and reentry, it also regulates transportation on orbit. It does not. When Congress granted the FAA authority over reentry in the late 90’s, Congress was very explicit in the legislative history that it was not granting the FAA authority on orbit. This has led to many interesting discussions about how you know when a launch is over, and whether traveling all the way to Mars constitutes launching, but the latter is a hypothetical matter only, of course. It’s a hypothetical matter that Mr. Varley didn’t even try to address, but let’s put that behind us, shall we?

The FCC regulates transmissions under the Communications Act of 1934, which may be found at 47 USC § 151 et seq. For satellites, the FCC has rules about the satellite’s location, interference with other satellites, and orbital debris. The debris rulemaking is especially interesting

NOAA addresses imaging of the Earth’s surface via remote sensing satellites. Anyone who engages in such activities needs a license. NOAA also addresses issues regarding debris similar to those of the FCC. NOAA gets its authority from the National and Commercial Space Programs Act of 2010, Title 51, USC, Subtitle VI. You can find NOAA’s regulations at Title 15, CFR part 960. See here for both.

Before we leave domestic territory, let’s take a quick look at the administrative state and its utility as a science fiction research tool. When an agency issues its regulations, it first issues a proposal for public comment, which it publishes in the Federal Register. The proposal explains what the agency intends to do and why, and is a good source of interesting detail on issues. When the regulations become effective, the agency again issues a notice, this time explaining how it responds to the comments it received from the regulated industry and the rest of the public.

Regulations are useful for a writer because you can mine them for any number of things: technical details; tortured bureaucratic language ripe for lending verisimilitude to a character; or the penalty processes for when your main character gets in trouble or is, alternatively, enforcing the law against miscreants or other malefactors. Me, I used a provision in 14 CFR part 417, which applies to the destruct system on a rocket, as the basis for a scene about check tones on a solar power satellite in The Sky Suspended. I was a philosophy major: I need all the help I can get.

Finally, the Outer Space Treaties. The biggie is the Outer Space Treaty itself, where a U.S. president asked a Supreme Court Justice to go negotiate it for him. And quickly. It was ratified in 1967 and almost exclusively concerns itself with the activities of governments in outer space. There are, however, provisions that may be of interest to anyone writing about the activities of commercial people.

If a science fiction writer wanted barriers to homesteading, many argue that the Outer Space Treaty bars private appropriation of extraterrestrial territory. Article II says that “Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” I know of no court that has adjudicated the meaning of this language. You can find a very interesting discussion of the topic here. The Guano Island Act may also offer a source of amusement, as well as some rather strange arguments. Finally, after a Chinese landing of a rover, Professor Glenn Reynolds offered some interesting observations.

Article VI of the Outer Space Treaty says that the countries signing the treaties “shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the [Outer Space Treaty].” Certain folks have taken this to mean that because a country can’t appropriate extraterrestrial territory none of its citizens can either. I don’t agree, but that’s a topic for another day.

Happy Thanksgiving!

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26 thoughts on “Science Fiction, Space Law, and the Regulatory State: Or, How John Varley Broke My Heart but Other Science Fiction Writers Shouldn’t Have To

  1. Pingback: Science Fiction, Space Law, and the Regulatory State | The Passive Voice | A Lawyer's Thoughts on Authors, Self-Publishing and Traditional Publishing

  2. The Outer Space Treaty will last right up to the point some settlement declares independence.

    “Treaty? What treaty? We haven’t signed any treaty. ”

    Bang. No more treaty.

    • That’s why the debate over Article VI (the one requiring supervision and authorization of space activities) of the Outer Space Treaty is so important.

      • Important as in establishing realistic limits to the Treaty? Who’s charged with enforcement if someone (Musk?) decides to claim his 160 acres on the slopes of Olympus Mons?

        • The options under consideration are 1. to not implement Article VI to any more activities than those already covered (launch, reentry, satellite transmissions, remote sensing); 2. to require authorization of everything in outer space; or 3. to clarify that Article VI doesn’t apply to everything until Congress says so. I favor the first or third option. The second option has Constitutional problems in this country.

          If you are interested in the legal arguments, check out the Article VI post, which I’ve bumped to the top in honor of the instalanche (welcome, everyone!), or the post on why planetary protection should not be assumed to apply to the private sector as a matter of law.

        • Under current law, I’d say no one is charged with enforcement if someone tries to claim property on Mars. There are lots of scholars who would disagree with me. As long as Congress doesn’t try to codify Article VI in U.S. law, you could have self-enforcement of property rights. When I say self enforcement, I mean it more in terms of Alex Salter’s notions of market and reputational forces than physical force.

        • If Musk can credibly defend his claim on Olympus, then Musk is Zeus there and Musk is charged with enforcement. By G-d, Himself, if you’re a monotheist.

          That’s how sovereignty works.

          As for who tells Musk to quit encroaching on Mars’ other volcanoes, that’s where treaties come in…

      • Hi Laura,
        I will admit that I didn’t research space law when writing the book. In my defense, I’m sure that the attitude of Travis, the cantankerous former spaceship pilot and and current pilot of the RED THUNDER, would be “Treaty? We don’t need no steenkin’ treaty!” This may be deplorable, but there it is. And upon getting back, and being very, very rich, I doubt anyone would want to take him to task for it. As Chris Harper says above, a treaty is only good until someone violates it, as the American Indian tribes learned to their sorrow. I hope you enjoyed the rest of the book, though.

        • I loved the book! I do think Travis would have at least received a letter from the FAA requesting that he obtain a license for his future launches. A little exercise of prosecutorial discretion, and that could have been it.

          I’m having kind of a fan girl moment here. If one of your stories was in Analog, it was the first one I read. I’ve bought almost all your books. Loved Titan so very much. Thank you for stopping by, and please know 1) the post was intended as humor, and 2) my heart is now mended.

  3. All I could think of as this bureaucrat virtually stomps his feet and wails about how he and his colleagues are in charge here is think of Eric Cartman in a cop uniform on his Big Wheel kitted out with police lights shouting “You will respect my authoriteh”

  4. And if you choose Project Orion technology, you can add the whole national security apparatus and the Atomic Energy Comission. Remember, US persons can’t play with nuke tech anywhere in the Universe without permission.

  5. Thanks, NASA! Because of your meddling, we haven’t been to the moon in 40 years and rely on WWII technology to launch anything.

    GREAT JOB!

  6. Comments, so far seem to revolve around property claims to hunks of dirt still on another body. However, one law the author did *not* address is the 2015 S.P.A.C.E. Act

    https://en.wikipedia.org/wiki/SPACE_Act_of_2015

    It allows value-added property to define who has what, just like fishermen do at sea. 1,000 kilometers West of Portland I can dip nets into the North Pacific, and take home and sell any fish I catch. What I cannot do is to claim the patch of Ocen I took the fish from, to exclude anyone else fishing there.

    The 2015 SPACE Act does the same with all resources in Space. Use electrostatic force to transport the regolith fines off the surface of an asteroid, and haul them back to Earth/Moon Libration Point #1 (EML-1) to a processing plant that turns those fines into spacecraft, and I can sell them under US law.

    Some people oppose this because they are not ready to exploit asteroids, and want no one else to do so until they can get their cut of it. So, there is some opposition, but already other countries are lining up behind the US viewpoint, with Luxembourg changing its laws in similar fashion. The space manufacturing technology now in development will benefit massively from such resources.

    Speaking of space manufacturing, there is another point not addressed, yet, about who is responsible for what in Space. The day is coming when a US space factory at EML-1 sells a large factory they’ve built from asteroidal materials to citizens of another country, without either the US or the other country launching any component of the new factory. Then, who is responsible for the actions of the factory owners, especially if they live in a hab at the new factory???? Under OST, a country is responsible only for what is launched from its territory, or launched containing launchers and components from its territory.

    Worse, what if that second generation factory makes a factory from asteroidal materials, and sells it to yet a third country’s citizens? I think you can see the legal vacuum developing through the generations of factories that makes the vacuum of Space look mild and pleasant by comparison. As it proceeds, at *some*point* in this chain the link back to Earth breaks down, certainly defacto, if not dejure.

    The OST needs to be modified to take both of these into account. Even if Trump’s friendship with Putin cannot restart the GPALS Treaty for BMD 23 years after Clinton cancelled the negotiations for it, perhaps they can get OST updates underway.

    • The 2015 recognition of ownership rights in extracted resources is indeed worth mentioning. The new law did not, however, create a regulatory regime.

      As for who is responsible for what in outer space under the scenario you posit, I think it’s important to distinguish between at least two different meanings of “responsibility” in this context. In one, we are talking about financial liability. If a country is a launching state it faces liability, and courts can often figure out who is liable even without a treaty. In the other context, responsibility can mean responsible for supervising or authorizing the activity under Article VI of the OST.
      -Laura

      • Yes. I meant responsibility for supervising or authorizing activity. I should have put in a sentence about that, but it was already getting longish. When one gets to 3rd, 4th, or 5th generation of facilities, which could come about all too quickly if the market is robust, and technical development rapid, then the means of using the site of the originating launch for the first factory to designate responsibility for, “authorization to do ‘X’ “, gets pretty well moot, even without bringing together portions of a 3rd generation facility from facilities descended from other launches from other sites in other nations.

        It may be politically useful for politicians down here to actually cut these people loose at a given point in this chain, to avoid being responsible, internationally, for everything done by everyone in Space, just because someone sold a component built with a factory launched from your own soil years before.

  7. 1. Heinlein isn’t responsible for “space port”. See:
    http://www.jessesword.com/sf/view/300

    2. Could the assumed authority of NOAA to regulate remote sensing withstand a 1st amendment challenge? If I launch an orbiting satellite, can the government exercise prior restraint on my ability to photograph the earth?

    • As for spaceport, there goes another myth. Sigh.

      I’m not an expert on remote sensing, but it does look like the statute passed by Congress and NOAA’s regulations take First Amendment considerations into account. See here: http://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law-fall-2000/noaa-sets-new-space-sensing-r It looks like the press raised the issue during the notice and comment period of a rulemaking. The law does envision a limited prior restraint in that if you launch something capable of remotely sensing the Earth, including a camera, you need a license. As I remember from law school, even parades, marches, assemblies may require a permit in advance, as long as the permit requirements are narrowly tailored.

  8. I have to say I enjoy the education provided by this thread.

    On the other hand, I think it’s worth asking whether we really want our exciting space westerns served up with a heaping helping of legalistic and wonkish bureaucratic discussions of red tape?

    Don’t get me wrong. I love the law and was once a bureaucrat in good standing. But I do not expect fiction, especially sci-fi, to provide a booster (pardon) injection.

    • On the substantive front, I used Mr. Varley’s neglect of a little known law as a springboard for reviewing regulatory basics, because this is mostly a blog about space law and policy.

      On the more frivolous front, you might wish to avoid my books Manx Prize and The Sky Suspended because they are full of bureaucratic pitfalls even as they address orbital debris and the discovery of an Earth-like world, respectively. I do figure that just as one doesn’t want pages and pages of how the starship works in one’s milSF, one doesn’t want too much about the legal perils confronting one’s space activities in a novel. You only want to know what you need for purposes of the plot. And a little detail can lend credibility to the narrative. For my most recent novel I watched a lot of YouTube about wild pigs, just to see how they move.

      • Having set your hook, I’m stuck with the image of space pigs undulating in 1/2 G for some reason.

        Don’t get me wrong, I think there’s a place for insider baseball, though as you say it can’t be overdone. And I don’t have any problem allowing the legal profession to populate good science fiction.

        After all, it opens the way for jokes like this: “What do you call a thousand lawyers at the bottom of a gravity well?”

          • Too few.*

            *Based on a combined mass, m, less than the mass, M, where R = 2GM/c^2 and R equals their Schwarzschild radius.

            I know it doesn’t have the ring of Tom Hanks quote from Philadelphia (“A good start”), but it’s the best I can do when constrained by science (fiction).

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