Space: The Legal Frontier

Cyber-attacks on satellites and dangerous space debris have prompted negotiations on new laws for outer space. Photo by Byron Burke

People who probe outer space are used to amazing things up there, but the sound of Brazilians cheering a soccer goal isn’t typically one of them. Yet that’s what U.S. naval authorities heard coming from one of their satellites in 2009, leading Brazilian police to bust 39 people, from professors to farmers, for commandeering the satellite’s UHF frequency—with homemade equipment—to tune into a game.

This is just one skirmish in a real-life Star Wars that’s been under way for more than a dozen years. Among other incidents, unidentified parties hacked into the control systems of two U.S. government satellites in 2007 and 2008, in one case gaining (although not exercising) command capability. In 2010, Iran admitted jamming the satellites of countries broadcasting Persian-language programming that the regime deemed unflattering. Partly in response to these and other potential threats, the United States and Europe are now working on an outer space code of conduct to bring some law and order to galactic Dodge City, updating regulations passed in the heyday of the 1960s space race.

These matters are the focus of space law, taught in a new School of Law course by adjunct lecturer Matthew Kleiman. It’s such a specialized field, he says, that when he was invited to teach it at BU, he researched other Boston-area law schools to see how they taught it. They don’t (although a handful of universities elsewhere do, he says). In fact, this is such a niche field that LAW offers Kleiman’s course only every other year. Inaugurated last fall, the class will be offered again in fall 2013.

Teaching is a new gig for this political science major and self-described “lifelong space nut” who spent his youth in New Jersey savoring space camp and the original Star Wars movies. His day job is at nonprofit Draper Laboratory in Cambridge, a spin-off of an MIT lab, which develops technology for uses that include classified military programs. (Visiting Kleiman at work requires a photo ID and a computerized check to make sure you’re not on a government do-not-admit list.) Kleiman himself devotes no more than 15 percent of his time to space law issues. Most of his work as a corporate attorney involves more down-to-earth fare: patents, intellectual property, environmental law, and real estate transactions.

His course grew out of a talk he gave at LAW about two years ago. When administrators subsequently sounded out students on possible additions to the curriculum, space law was among the top requests, and Kleiman was invited to design it. The course filled its 16-student allotment last fall, and “every one of the students who took the class described it as excellent,” says Ward Farnsworth, LAW associate dean of academic affairs.

While most graduates aren’t likely to encounter this specialized area in their legal careers, Kleiman’s class includes broader instruction in environmental and intellectual property law that affects technology development across the board, according to Farnsworth. “Our goal is to make every class here a great experience for the students. You need great teachers to make that happen,” he says. “Matt did a terrific job.”

When he first enrolled in the class, Matt  Martinez (LAW’12) expected futuristic musings better suited to a philosophy class. But as the semester unfurled, news stories about space illustrated its here-and-now relevance, Martinez says. Just as important, the course work touched on other areas of the law, “providing knowledge that students could take with them.…Students are exposed to various elements of international law, government contracting/export control, and telecommunications law.”

While cyber-meddling is new, space law is not: the 1967 Outer Space Treaty allowed an unfettered right to roam around space, Kleiman says, with countries forswearing the sovereignty they enjoy over their earthbound air space. But 1967 was before “internet” and “hacking” entered the vocabulary. “You can hack a satellite from your laptop” now, he says.

There’s another modern issue requiring legal redress: the neighborhood’s gotten crowded up there, as nations and private entities race into space. And where humans go, litter follows. Earth’s orbit is strewn with debris from rockets and other vehicles, some posing potential hazards should they plummet back home; in the five months ending in January, four satellites—two from Russia and one each from the United States and Germany—fell to Earth.

The United States has currently identified some 20,000 pieces of orbiting space junk, Kleiman says, “from a whole discarded satellite to discarded boosters, or pieces of boosters.” It can be deadly: if a metal piece the size of a bottle cap is “going through space at 18,000 miles an hour, and it hits something”—like one of our satellites, or the International Space Station—“it could cause catastrophic damage.” In 2009, a defunct Russian satellite and a privately owned American communications satellite collided, destroying the latter.

The European Union’s proposed code of space conduct would require space-farers to clean up after themselves, Kleiman says, either by designing objects that fall back to Earth intact within 25 years, or else by parking them in little-used spots in orbit, things that the United States, Europe, and Russia do now. The Obama administration has said it will voluntarily follow most of the code, but has announced it will work with the Europeans on the code to better protect U.S. national security. For that reason, Kleiman dismisses a recent New York Times op-ed by conservative critics John Bolton and John Yoo, who fret that the European code jeopardizes American security. But Kleiman did cowrite an article for the online Space Review urging international negotiators to better spell out what would legally constitute “harmful interference” with one another’s space operations, with firm “red lines” that cannot legally be crossed (for example, antisatellite missile attacks and destroying one’s own obsolete satellites in ways that litter orbit with debris).

Current law allows a response only after physical damage has been done. “You basically have to wait for the threat to have already hit you before you’re able to respond,” Kleiman says.

In an age of Star Wars, that’s so 20th century.