Current Legal Issues for Satellite Earth Observation
Current Legal Issues for Satellite Earth Observation
Treaty Verification and Law Enforcement through Satellite Earth Observation
Privacy Conflicts from High Resolution Imaging
Report 25 August 2010
Edited by Matxalen Sánchez Aranzamendi Rainer Sandau Kai-Uwe Schrogl
Short title: ESPI Report 25 ISSN: 2076-6688 Published in August 2010 Price: €11
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ESPI Report 25 2 August 2010 Current Legal Issues for Satellite Earth Observation
Table of Contents
Foreword 5
1. The State of the Art in Earth Observation, by Rainer Sandau 6
2. Treaty Verification and Law Enforcement Through Satellite Earth Observation 9 2.1 Emerging Legal Issues with Satellite Earth Observation, by Ray Purdy 9 2.1.1 Technical Background 9 2.1.2 Monitoring and Enforcement Potential 9 2.1.3 Privacy Issues with the Use of Earth Observation 11 2.1.4 Future Initiatives in Satellite Earth Observation 12 2.2 What‘s in GMES for Treaty Monitoring and Law Enforcement, by Gunter Schreier 13 2.2.1 The European GMES Scenario 13 2.2.2 German Space Segment Contributions to GMES 15 2.2.3 Treaty Monitoring & Law Enforcement in GMES. Past and Ongoing Projects 16 2.2.4 Data Policies for German National Missions 19 2.2.5 Some Technical Considerations on EO Data for Treaty Monitoring and Law Enforcement – Global Presence 20 2.3 The Disaster Charter and Highlighting Issues of Haiti Earthquake, by Atsuyo Ito 22 2.3.1 Introduction 22 2.3.2 The Background of the Disaster Charter 22 2.3.3 The Scope of the Disaster Charter 23 2.3.4 The Mechanism of the Disaster Charter 23 2.3.5 The Legal Environment of the Disaster Charter Regarding the Principle of Sovereignty 24 2.3.6 The Impact of Charter Operations from the Standpoint of Disaster Response 24 2.3.7 Politics Involved in Disaster Response 25 2.3.8 Slow Response Experienced in the Haiti Earthquake 25 2.3.9 The Issues Raised by from Haiti Case with Respect to the Charter 25 2.3.10 Conclusion and Recommendation 26 2.4 Use of Satellite Data for Treaty Monitoring, by Jana Jentzsch 27 2.4.1 Definition: What Is Verification? 27 2.4.2 Verification and Monitoring 27 2.4.3 Disarmament and Arms Control Treaties 28 2.4.4 Environmental Protection 28 2.4.5 International Conflicts, Peace Missions & Agreements 29 2.4.6 Human Rights 29 2.4.7 Conclusion 29 2.5 Satellite Data and Applications for Law Enforcement Purpose, by Jean-François Mayence 30 2.5.1 Satellite Applications 30 2.5.2 Use of Satellite Data and Applications for Law Enforcement Purpose: Non-Judicial Procedure 31 2.5.3 Use of Satellite Data and Applications for Law Enforcement Purpose: Judicial Procedure 32 2.5.4 U.S. Law 33 2.5.5 Conclusion 35
ESPI Report 25 3 August 2010
3. Privacy Conflicts from High Resolution Imaging 36 3.1 Overview on Legal Issues, by George Cho 36 3.1.1 Introduction 36 3.1.2 Some Questions 36 3.1.3 Historical Background to Space Law 36 3.1.4 Privacy as a Legal Matter 38 3.1.5 Legal Frameworks and Legal Theories 42 3.1.6 Addressing Privacy Issues 48 3.1.7 Conclusion 49 3.2 What Is Privacy?, by Catherine Doldirina 50 3.2.1 Introduction 50 3.2.2 Approaches to Definition 50 3.2.3 The Changing Concept 51 3.2.4 Why Protect? 52 3.2.5 What to Protect? 52 3.2.6 Protect – to What Extent? 53 3.2.7 Impact of New Technologies 54 3.2.8 Conclusion 54 3.3 The European Convention on Human Rights and EU Law – Two European Legal Approaches to Privacy, as Relevant to High-Resolution Imaging, by Frans von der Dunk 55 3.3.1 Introduction 55 3.3.2 The Council of Europe, the European Convention on Human Rights and Privacy 56 3.3.3 The European Union, EU Law and Privacy 58 3.3.4 Concluding Remarks 60
4. Roundtable Discussion and General Conclusions 61 by Matxalen Sánchez Aranzamendi, Rainer Sandau, and Kai-Uwe Schrogl
List of Acronyms 64
Workshop Programme 66
About the Contributors 67
ESPI Report 25 4 August 2010 Current Legal Issues for Satellite Earth Observation
Foreword
Satellite Earth Observation applications are tute of Space Law (IISL) in this exercise, almost without limits. More and more policy which led to a conference on 8/9 April 2010 and economic areas as well as social life rely at ESPI in Vienna. This international confer- on them as tools for achieving benefits for ence, with speakers from Europe, the U.S., prosperity worldwide. Technology is progress- Canada, Japan and Australia, focused on ing fast and methods for applications are treaty verification and law enforcement continuingly extended and also drive technol- through satellite Earth Observation and on ogy development. At the same time, satellite privacy conflicts from high resolution imag- Earth Observation has to respect existing ing. Its results are contained in this publica- legal frameworks. Where these do not exist, tion, encompassing the elaborated presenta- it can even create the need for establishing tions together with conclusions and recom- regulations. New satellite technologies to- mendations emanating from the discussions. gether with broadening applications stimulate This first cooperation between the four insti- this need. tutions was conducted in an extremely fruitful In this context, the International Society for way bringing together the various communi- Photogrammetry and Remote Sensing ties involved in order to reach joint under- (ISPRS), the largest professional association standings and discussing joint approaches. It in the field of Earth Observation applications, happened at a time when ISPRS is celebrat- took the initiative through its International ing its 100th, and IAA and IISL are celebrat- Policy Advisory Committee (IPAC) to bring ing their 50th, anniversaries. The conference together the leading associations in the space hosted by ESPI and the publication of its pro- field to investigate specific topical questions ceedings are intended to provide to the mem- related to the regulation of satellite Earth bers of the involved institutions and all those Observation. ISPRS teamed with the Euro- interested in the field a reference publication pean Space Policy Institute (ESPI) and was for the topics discussed and a source of in- joined by the International Academy of As- formation as well as a manual for action for tronautics (IAA) and the International Insti- decision-makers.
Orhan Altan President ISPRS Rainer Sandau Chairman ISPRS-IPAC Kai-Uwe Schrogl Director ESPI Jean-Michel Contant Secretary General IAA Tanja Masson-Zwaan President IISL
ESPI Report 25 5 August 2010
1. The State of the Art in Earth Observation by Rainer Sandau
There is an increasing need for Earth Obser- work Programme on Research and Develop- vation (EO) missions to meet the information ment. The contributions from the ESA mem- requirements in connection with for instance ber states support the majority of the GMES global change studies or disaster detection Space Component (GSC) programme, with and mitigation. This is perhaps most clearly Germany being the biggest contributor to the seen in the many current moves for interna- GSC programme. tional co-operation in the field of environment Due to the immense improvements in such where measurements from Earth Observation divers fields of technology as optics, mechan- satellites are an essential element. This is ics and materials, electronics, pattern recog- especially so where we need to acquire, ana- nition, signal processing, computer technol- lyse and use data documenting the condition ogy, communications and navigation, the of the Earth’s resources and environment on space borne Earth Observation is improving a long-term (permanent) basis. in all fields of resolution: spatial, spectral and For instance, in 2008 the Group on Earth temporal. Observations, which currently numbers some Let’s first have a look on the developments in 74 countries, the European Commission and connection with spatial resolution. The first 51 participating organisations, has concrete civil space-borne Earth surface imager was plans for its Global Earth Observation System flown in 1972 on the ERTS (Earth Resources of Systems. In 2008 the European Union’s Technology Satellite) spacecraft, later re- Space Council continued to advance Europe’s named to Landsat-1. The MMS (Multispectral Space Policy, reaffirming the need for rapid Scanner System) instrument provided a spa- implementation of the Global Monitoring for tial resolution of 80 m and a swath width of Environment and Security (GMES) program. 185 km. Space-borne systems reach now On the European Commission side, GMES is ground sample distances (GSD) of 0.5 meter. currently implemented with the 7th Frame-
100 Landsat-1
Resurs-O1-1
IRS-1A Landsat-4 Landsat-7
10 ADEOS SPOT-1 EO-1 GSD [m]
IRS-1C
SPOT-5 EROS-A1
IKONOS 1
QuickBird WorldView-1 0.5 1970 1975 1980 1985 1990 1995 2000 2005 2010
Year of Launch
Figure 1.1: Some civil Earth surface Imagers to show the trend of ground resolution (GSD)
ESPI Report 25 6 August 2010 Current Legal Issues for Satellite Earth Observation
Optical Small Satellites
Spatial Resolution Spectral Resolution Temporal Resolution
Increasing Increasing Unique opportunity for affordable Constellation Example: Eros-B/PIC-2 Example: Proba/CHRIS Launch 25.04.2006 Lauch 22.10.2001 Examples: DMC Mass 290 kg Mass 95 kg RapidEye GSD 0.82 m Hyperspectral Imager
Figure 1.2: Status of spatial, spectral and temporal resolutions in the small satellite mission domain
Figure 1.1 shows the trend of spatial resolu- Let’s now have a look on the other resolution tion improvement (decrease of GSD) of civil areas. Figure 1.2 demonstrates that even space-borne mapping systems which took small satellites are able to provide high reso- place since Landsat-1 in 1972. The number of lution data. space-borne mapping systems displayed in Fig. 1.1 indicates the need of high resolution Spatial Resolution maps using the best technologies available. But besides the imaging systems shown in The spatial resolution is steadily increasing, Fig. 1.1, there have also been developed, i.e., the GSD is decreasing. For example: the launched and operated many more imaging camera PIC-2 on the small satellite EROS-B systems coming from many countries, like for from Israel provides a GSD of 0.70 m. EROS- instance Brazil, China, Argentina, France, B with a mass of 290 kg was already India, Thailand, South Africa, Korea, UK, launched on 25 April 2006 with a Russian Germany. START-1 launcher into 500 km sun synchro- nous orbit (SSO). The vertical axis of Fig. 1.1 is in logarithmic scale. If we first concentrate on the GSD, this Spectral Resolution value is halved in less than 5 years with re- spect to the horizontal axis ranging from Also the spectral resolution is steadily in- 1972 to 2007 and the decrease from 80m of creasing. As an example may serve the hy- Landsat-1 to 0.5m of WorldView-1. In terms perspectral imager CHRIS on the ESA funded of ground pixel size in m², the gradient is PROBA satellite. CHRIS, the 14 kg/9 W hy- much steeper. We observe a decrease from perspectral imager, has a GSD of 18 m and 80m x 80m to 0.5m x 0.5m, halving in a bit provides up to 19 out of a total of 62 spectral more than 2 years time in average. This is bands in the VIS/NIR spectral range (400 – close to the numbers of Moore’s law in mi- 1000 nm). PROBA with a mass below 100 kg croelectronics stating that the number of (so it is a micro satellite) was launched into a transistors on a chip is doubling every two 600 km sun synchronous orbit (SSO) on 2 years. Please note also, the spatial resolution October 2001 together with the progress was handicapped because of regula- DLR/Germany micro satellite BIRD for forest tory restrictions applied to civil imaging sys- fire detection and fire parameter assessment, tems. and the main payload TES (India) with the PSLV-C3 launcher from India.
ESPI Report 25 7 August 2010
Temporal Resolution non-European, in order to fill gaps in the data supply and provide information for high reso- Small satellites provide the unique opportu- lution mapping and security tasks. nity for affordable constellations. In this re- spect, small satellites can do things that are It is obvious: For EO purposes space-borne not practical to do with large satellites. At systems are important system components. this point, DMC may serve as the example for The progress resulting from satellite EO al- a constellation of five small satellites. Small lows expanding the application fields but also satellite constellations are so appealing in brings to light new problems to be discussed terms of potential temporal resolution and in a broader public debate. In this context, every day’s ground coverage that even the there are many different aspects to be inves- commercial sector was triggered to launch a tigated, two of them being: Is the existing constellation of five satellites in August 2008, and planned fleet of EO satellites able to sup- the RapidEye constellation. port treaty monitoring and law enforcement and is it already used for these purposes? The advances in the mentioned divers fields And, since the resolutions, especially in the of technology support of course also the pro- spatial domain, are coming close to the fea- gress in EO using active sensor systems like tures of ground based systems, what are the RADAR. consequences in terms of privacy conflicts We can clearly see, the already mentioned (individual and collective) resulting from European GMES activities are based on solid space-borne systems. ground. The GMES geo-information services Consequently, the conference dealt with two will be supplied with EO data coming from a important and topical aspects of satellite ob- fleet of five SENTINELs implemented under servation: the responsibility of ESA, including: • Treaty monitoring and law enforcement SENTINEL-1: A C-band interferometric radar through satellite observation, and mission. It provides higher spatial resolution in comparison to its forerunners ERS and • Privacy conflicts from high resolution im- ENVISAT. agery. SENTINEL-2: A multispectral optical imaging The conference brought together experts mission in continuation of SPOT and Landsat from the remote sensing and in the legal data provision at an improved level. fields. It i.a aims at decision makers in the field of treaty monitoring and international SENTINEL-3: A misson making use of an law enforcement (foreign and environment optical OLCI (Ocean Land Color Instrument), ministries, international organisations). This a visible/infrared radiomenter for land and provides the unique opportunity to discuss sea surface temperature and a dual ban mi- the different implications stemming from the crowave altimeter. technology developments and applications as SENTINEL-4 and 5: Two atmospheric chemis- well as from legal and regulatory perspec- try monitoring missions, developed in coop- tives. eration with EUMETSAT, operated as pay- The focus of the discussions at this Confer- loads on EUMETSAT geostationary and polar ence is to optimize the regulatory framework orbiting satellites. for satellite Earth observation thus supporting The SENTINELS will be complemented by the full implementation of its potentials. additional satellites, European national and
ESPI Report 25 8 August 2010 Current Legal Issues for Satellite Earth Observation
2. Treaty Verification and Law Enforcement Through Satellite Earth Observation
2.1 Emerging Legal Issues and consistent method of monitoring, allow- ing farmers to operate on a more fair and with Satellite Earth Obser- equal basis. 1 vation However, the most important driver in terms by Ray Purdy of legal applicability is that in the last few years there has been a major step change in the spatial resolution capabilities on satel- 2.1.1 Technical Background lites. In the 1990s most satellites operated at resolution levels of around 30m and could There have been a number of key reasons only observe large land-use changes at dis- why satellite earth observation could now be crete time intervals. The resolution on some more important in a legal context. Firstly, we satellites in 2010 is now as low as 0.50m. now have many high-resolution satellites, These dramatic resolution changes mean that already in orbit, with further predictions of in the last decade or so, high resolution satel- dramatic increasing numbers, including a lites can now produce pictures of near photo- major growth in nano/micro/mini satellites. graphic quality with roughly about 70 times Any increase in the numbers of satellites in more visibility than before. There are obvi- orbit, might suggest that in the future we ously still limits as to what we can, and can’t could have access to timelier data and there see, and do, with current satellite data in a will be greater coverage. This could also legal context, but what is clear is that what mean that there is increasingly better access we can now observe from space has changed to archived data for sale as time passes, as dramatically. Because of the recent advances an increase in the numbers of images stored in the technology, particularly increased in archives would allow greater opportunities availability of data at useable scales, there for looking back to see what has happened in could now be more opportunities for the legal the past. Having more operational earth ob- sector to use satellite data. servation satellites could also mean that data might be more cost-effective, as there would be more competition. 2.1.2 Monitoring and Enforcement Potential A further important advance is that, world- Although these technological developments wide, we are seeing greater public access too will increasingly make informed lawyers take and awareness of satellite Earth Observation. more of an interest in satellite Earth Observa- Google Earth is being used by members of tion, if it is to be actually utilised in dedicated the public not just to examine the areas that monitoring programmes under international they live in, but also as a legal tool, with or domestic laws, by governments, regulatory some even actively using it as legal evidence bodies or judges, then, realistically, more in planning cases. Another potential devel- information as to its suitability will be re- opment that is also both surprising and rele- quired. At the very least clear, sensible ad- vant, is that it appears from my research that vice, which does not over-sell the technology, large numbers of people in farming communi- will be required; especially as to whether ties, surveyed in the UK and Australia, actu- satellite monitoring would work in monitoring ally expressed a preference to be monitored specific types of laws, whether it offers any- by satellite Earth Observation, rather than thing different to conventional approaches, physical ground inspections. The majority, and finally, and maybe most importantly, who liked satellite monitoring, in general how much it will cost. If there is no informa- terms believed it would be a more thorough tion showing one, or maybe even all of these, it is unlikely that it will be incorporated in any 1 Purdy, R “Using Earth Observation Technologies for major monitoring strategies. Better Regulatory Compliance and Enforcement of Envi- ronmental Laws.” Journal of Environmental Law 22:1 (2010): 59-87. What Laws Can It Monitor? Purdy, R. “The Impact of Satellite Technologies in the Generally, satellite Earth Observation is very International Legal Sector: The Story So Far and Implica- tions For the Future”. Derecho Espacial: Vol. XVII. Ed. rarely used in a sustained legal context for Maureen Williams (Plus Ultra Press, Argentina 2010 [forth- monitoring laws, in the EU or internationally. coming]).
ESPI Report 25 9 August 2010
At the current time very few laws expressly that, generally, there is a broad range of allow for the use of satellite data in a moni- opportunities that the imagery offered and toring context under legislation. Legislation in three specific uses in particular could be the European Union (EU) and United States highlighted. The first of these is that they can (US) allows for satellite monitoring in some be utilised by regulators as part of a targeted instances in the agricultural and fisheries enforcement strategy. A core example in sectors, but there are very few instances of it using satellite Earth Observation data in this being employed in the environmental sector. way is again from Australia, where it has One rare international example where it has been used in an attempt to curb illegal defor- been used to monitor an environmental law is estation and vegetation clearance associated its utilisation to spot illegal vegetation clear- with farming and development activities. ance in Australia. There have also not been A second area where satellite Earth Observa- many examples, worldwide, where satellite tion might have a strong value to lawyers is data had been used as direct evidence in a monitoring individual sites or areas where court. There again appears to only be a hand- environmental offences have been known to ful of examples of its use as evidence in occur historically. To demonstrate this, my courtrooms in the EU and US. Rather research identified a UK court case, where a uniquely satellite data has been used and defendant was convicted of storing large tested as direct evidence in courts in Austra- numbers of scrap vehicles on a site without a lia, under the vegetation clearance legislation waste management licence and was ordered in each State, many more times than any to remove them by a court order. Satellite other country. imagery obtained several months after the Because so few legal applications for satellite court decision, showed that the defendant Earth Observation exist in practice, with the had not complied with the timing of the court aid of satellite technical experts, my research order to remove the illegal vehicles from this has examined approximately one hundred site. and fifty EU and international environmental A third potential area of legal interest for laws, to consider possibilities for new applica- satellite Earth Observation is its use as a tions. This research found that many envi- form of historical evidence. Systematic ar- ronmental laws could actually be monitored chiving of satellite images could in theory to some degree by satellite earth observa- provide regulators or a court with a relatively tion. Environmental laws in sectors including impartial snapshot of any location at any waste, water, dangerous substances, air pol- given time, providing accurate evidence that lution and climate change, and land and na- would be otherwise unavailable. To test this, ture protection could in some circumstances my research identified a UK court case where be monitored this way. However, its potential a defendant was convicted of running an ille- as a monitoring tool should not be over- gal waste disposal operation. The defendant stated. Satellites could not monitor every in this case was financially profiting from the environmental law as they can not see inside burning of hazardous wastes on his land be- buildings. For some other laws, such as those tween May 2005 and January 2006. Satellite governing air pollution they can be unsuitable images which I obtained during this period because they are not always capable of the clearly showed the burnt area of land where temporal sampling and averaging necessary this took place. Satellite images which were to determine exposure over short timescales, taken a year before the regulator believed or satellite-based sensors can not always the offence was committed appeared to show measure some constituents of a polluted at- a large burned area on the land in June 2004 mosphere. Some further forms of monitoring and might have been used as evidence that were achievable but were incompatible with the illegal activity has been ongoing for a the law itself; e.g. air pollution monitoring longer period of time than the investigators has to be monitored at ground level in some thought. This highlights the practical function EU legislation. However, this does not mean of historical archives of satellite images for of course that current laws cannot be prosecuting authorities. changed, or future laws developed with the use of satellite data in mind. Although there are extensive archives and catalogues of satellite images, like the ones I To test the value of satellite Earth Observa- used in my research above, it is still not pos- tion as a tool for legal monitoring, archived sible to have access to all historical satellite imagery was also obtained during the course data. Whilst satellites are constantly collect- of my research, which corresponded to actual ing data, this information is not always kept prosecutions that had already taken place, long-term, primarily because of the massive providing the basis for original analysis of computer data storage space requirements. where satellite data could be used to detect Because of storage difficulties, some archives breaches of environmental laws. This found only contain data that distributors think peo-
ESPI Report 25 10 August 2010 Current Legal Issues for Satellite Earth Observation
ple will buy, so there is far greater chance of Conversely, farmers in Australia actually un- finding archived images of cities and indus- der-estimated the true extent of how often trial areas than rural ones. If information they were monitoring. Significantly, how- about an activity that had taken place in the ever, over half of all the UK and Australian past, on a particular day was required, in farmers surveyed agreed that satellite moni- most cases it would be unlikely that imagery toring was acting as an increased deterrent. would be available. So monitoring polluting The potential of Earth Observation satellite activities where the temporal dimension is monitoring to act as a smart deterrent tight, such as oil pollution discharges from method might progressively catch the atten- tankers at sea, could therefore be difficult tion of regulators seeking new enforcement using orbiting satellites. If one only required strategies. a snapshot of an activity taking place over a longer period of time, like the waste burning More Cost Effective example above, it would be easier to find relevant imagery. Regulatory bodies increasingly have to cope with funding constraints that require them to Advantages over Conventional Approaches? reconsider their conventional ways of moni- toring and enforcing laws. The volume of laws Satellites appear to have some advantages has increased but the numbers of staff over other similar forms of monitoring, such charged with monitoring and enforcement as aerial photography, by having greater has in many countries remained static or coverage – both in terms of area and revisits. often decreased. This is even truer at the Whether this form of monitoring is more re- moment, when parts of the world are strug- source efficient in practice obviously depends gling with economic recession. Such bodies on the actual law being monitored, but in are, therefore, in the difficult position of find- some instances there is a strong case that it ing the regulatory ‘holy grail’ of effective would be. Each year in Europe, over 5 million monitoring with ever more constrained re- farming businesses declare more than 50 sources. million agricultural parcels when claiming EU When compared with some forms of ground- subsidies. That is a lot of farms to check in based monitoring, it is conceivable that in every EU Member State country. With satel- certain circumstances, monitoring using sat- lites, regulators can do this much more ellite Earth Observation could offer financial quickly and easily than by sending in inspec- savings. There is little hard data available as tors on the ground. Similarly, in Australia to the cost effectiveness of satellite monitor- there is no way that inspectors could monitor ing over field inspection based monitoring. vegetation clearing laws by ground-based However, the purchase of satellite data from monitoring alone, as some of the distances commercial providers to check the minimum between cities and farms are enormous. It levels of claims in all European Member might take an inspector a whole day just to States, for agricultural subsidy payments, drive to the farm under investigation, and costs the EU approximately 5 million Euros many more hours or days to map the land. each year. For subsidy monitoring this ap- Satellite imagery can obviously give regula- pears to be a more cost-effective method of tors a ‘first-look’, before deciding whether to monitoring because it has resulted in signifi- send an inspector to the farm itself. This cant financial savings at national level com- method can enable them to look at a lot more pared to the cost of ground inspections, and farms than ground monitoring alone, and the EU stands to save money if the subsidy target those inspections that they do under- fraud levels go down, which they also appear take more effectively. to have done. Satellite Earth Observation is different to other forms of surveillance because those being monitored in this way can be informed 2.1.3 Privacy Issues with the Use of Earth Obser- that they might be monitored, but they can’t vation tell when or whether they are being watched. Whatever the potential of Earth Observation This appears to have had a strong influence data as legal evidence, it is clear that its use on the compliance behaviour of those subject in court raises a number of important issues to regulation. Research that I have under- in respect to its admissibility under existing taken, surveying United Kingdom and Austra- evidential rules. Obviously different countries lian farmers, found that the majority of those and even types of court will be subject to questioned did not know how regularly they different evidential rules, but generally it were monitored by satellites. UK farmers seems quite unlikely that rules of admissibil- greatly overestimated both the percentages ity will prohibit the use of satellite data per of farmers monitored this way annually, and se. However, many countries have national the number of checks made by the satellite. legislation that protects privacy and it is pos-
ESPI Report 25 11 August 2010
sible that some courts could exercise their that they were treated at guilty until proven discretion to exclude evidence on the basis of innocent. privacy rights. Issues of privacy may prove more problem- It is a moot point whether the current resolu- atic as the technology develops. It is unclear tion of satellite imagery is sufficiently intru- where we are heading with resolution levels sive to interfere with a person’s private life, on satellites and whether we have reached a as protected under some countries legal sys- plateau, or if the technology will continue to tems. However, what seems to mark satellite develop to as low as a few centimetres in the Earth Observation out from other similar future. Whilst this could enable great moni- forms of surveillance is the fact that it is cov- toring opportunities, suitable safeguards will ert; it can be more intensive and extensive; have to be developed to balance the compet- and it can potentially monitor everyone - as it ing interests involved. There needs to be does not distinguish between public and pri- greater consideration of and public debate vate property. Surveillance which has the over what we find to be acceptable or intru- capacity to be intrusive is usually controlled sive monitoring, now, rather than as a knee- by Government, but satellites are not cur- jerk reaction later to future step changes. rently subject to any controls and we have In the surveys I undertook, attitudes towards the unusual position where often fully com- satellite monitoring, in the context of privacy, mercial companies are controlling a poten- softened if those monitored this way were tially invasive technology. told of the monitoring, if they could have In Europe it is normally for the person com- access to the data, if they were given assur- plaining to prove how an activity has affected ances with regard to data information secu- his rights; the court then considers whether it rity, and if there was adequate protection in was an interference or not and then the aim the courts in case there was abuse of this of the activity. It is unlikely that much of the data. However, different perspectives on pri- current satellite data which is commercially or vacy rights could mean that what might be freely available could be successfully argued acceptable in one country might not be in to be intrusive, particularly if what could be another. At the very least governments wish- seen on the image could be seen from, for ing to use satellite monitoring might have to example, any public road. The question of justify to their citizens why it should be used how much privacy people are entitled to in and to also undertake some form of privacy relation to satellite monitoring, however, impact assessment, to make sure it does not remains untested in the courts. But as the have any detrimental impact to privacy – resolution improves and the frequency of the either of the targeted group or from collateral data being used in the courts increases, it is viewing. Such things exist for CCTV, and only a matter of time before a well informed whilst its international impact makes this lawyer will seek to raise this as an argument form of regulation more complex, there is still for the defence. potential for similar schemes to operate in relation to satellite monitoring too in relation Connected to privacy rights in a legal con- to legal enforcement. text, is also public acceptability. There are wider, more fundamental questions about monitoring people in this way. Those wishing 2.1.4 Future Initiatives in Satellite Earth Observa- to use satellites in a legal context might also tion need to secure public acceptance of and con- fidence in the technology. Even applications If satellite Earth Observation is to be used like Google Earth might be less acceptable to more in legal strategies in the future, then some people or groups if more advanced the technology itself needs a significant user resolution imagery is placed free online. push. Companies that design, launch and sell There has been very little effort to try and the data should be targeting the legal com- conceptualise how a regulated community munity as a potentially significant market for feels about satellite surveillance. Surveys I satellite data. Clearly, Earth Observation data have undertaken in both the United Kingdom could be a valuable source of evidence to and Australia appear to show that the major- regulatory bodies and police, as well as the ity of those monitored this way by regulators estimated eleven million lawyers practising consider it to be an invasion of privacy. In world-wide. To successfully reach these both countries over half of the farmers felt groups, and implement Earth Observation that this method of monitoring was invasive. into legal strategies, there will be a need for Respondents who were against satellite moni- strong advocates and effective champions for toring indicated their dislike at being watched these technologies who can persuade others in a covert ‘big brother’ fashion. Many specifi- of the utility of Earth Observation. Under cally related satellite monitoring to George GEOSS and GMES, foundations have been Orwell’s novel 1984. Some also perceived built for future progress, but it is unclear
ESPI Report 25 12 August 2010 Current Legal Issues for Satellite Earth Observation
whether these initiatives could themselves cable as templates in designing such rules or oversee or take direct responsibility for the standards as to its use as evidence. We are coordination of legal opportunities and the also seeing specific Earth Observation focus- implementation of high-profile pilot demon- sed national schemes being developed in a stration studies. There is now a need for a couple of countries across the world, in direct body to show dynamic leadership and play a response to this issue. Although there is a coordination role, identifying strategies for creep of developments at national level it enhanced profile building to legal audiences. seems that there should be the introduction of an international best practice scheme and Closely connected to the above point, is that someone should take ownership of this. there is currently little interaction between There are arguments both for and against lawyers and technical specialists in the satel- this being overseen under the banner of GEO lite Earth Observation field. In practice the or GMES, a body like International Standards development of Earth Observation has been Organisation, or another legal group, but almost exclusively technology-led to date and someone needs to take responsibility for this a major long term obstacle to having more issue in the next few years. legal applications in this area is this lack of communication between disciplines. The mainstream development of Earth Observa- tion in the legal sector might not be stimu- 2.2 What‘s in GMES for lated until greater joined-up thinking and Treaty Monitoring and Law cross-disciplinary cooperation occurs; allow- 2 ing for future technologies to meet legal us- Enforcement ers’ needs by being bespoke commissioned by Gunter Schreier for specific purposes and applications. The groups charged with leadership should con- sider new innovative approaches to overcom- 2.2.1 The European GMES Scenario ing this barrier, and introduce imaginative and attractive new methods for fostering The EU Member States have strengthened interdisciplinary cooperation. their common policies in the treaty of Lisbon, which entered into force on 1 December Although Google Earth has had an impact in 2009. The treaty sets the common under- raising awareness of Earth Observation, it is standing of the EU Member States to work highly likely that most of the legal sector together on issues of environmental protec- would have never seen a satellite image in a tion and civil security on a legal binding ba- legal context. For example, I came across a sis. Article 189 of this treaty also calls for a judge in Europe who, when presented with a European Space Policy and to take the “nec- satellite image, queried how long a man essary measures” to implement it. needed to spend in the satellite taking pic- tures. Clearly, very little effort has been made to educate the legal sector to date, with very few bodies taking institutional or 2 Treaty of Lisbon, English Edition, Official Journal of the leadership responsibility for raising aware- European Union, C306, Vol 50. 17. Dec 2007 ness of the advantages and limitations of TanDEM-X, Die Erde in drei Dimensionen, DLR Folder; using satellite data. It would be a frustration Cologne, November 2009. if the profile raising and cooperation dis- Zink, M.; Fiedler, H.; Hajnsek, I.; Krieger, G.; Moreira, A.; Werner, M. “The TanDEM-X Mission Concept.” IEEE cussed above were to succeed, only for prob- Geoscience and Remote Sensing Symposium, 2006. lems of understanding or acceptance within IGARSS., July 31- Aug 4, 2006. the courtroom to occur. There is therefore a Duformont, H. “The INSPIRE (2007/2/EC) data policy.” pressing need for knowledge transfer, capac- GENESI-DR workshop presentation Ispra, Italy, 26. ity building and training in the legal sector, January 2009 02 July 2010
ESPI Report 25 13 August 2010
Figure 2.1: GMES Services Core projects and Primes of pan-European Teams
Apart from European autonomy in satellite The successful implementation of this ESA based navigation (i.e. the Galileo Program), programme was highlighted at the ESA Minis- EU Member States recognized the suitability terial in The Hague in November 25–26, of space technology – including Earth Obser- 2008, with Germany being the biggest con- vation from orbiting satellites - to help to tributor to the GSC programme. preserve the environment, to protect the The GMES geo-information services will be climate and to safeguard the security of its supplied with Earth Observation data from a inhabitants. GMES fleet of satellites. The first component European plans and capabilities to meet this of this fleet will consist of five series of GMES challenge are being brought together in the SENTINELs, implemented under the ESA GSC GMES program (Global Monitoring for Envi- programme: ronment and Security). Its purpose is to es- Sentinel-1: a C-band interferometric radar tablish satellite systems and related ground mission, providing continuity to the ERS and infrastructure in Europe for Earth Observation ENVISAT Satellites, but with higher ground and to provide geo-information services for resolution and more capacity per orbit. citizens of Europe and of other countries. Sentinel-2: a multispectral optical imaging The GMES program was first initiated in a mission, providing improved continuity for European conference in Baveno, Italy, in SPOT and Landsat kind of multispectral opti- 1998. Since then it got momentum and was cal data. officially agreed to be implemented as a joint activity under the leadership of the European Sentinel-3: a mission with a dual band (Ku Commission, wherein ESA (supplemented by and C) microwave altimeter, a wide-swath contributions from EUMETSAT) is taking care optical imager (OLCI = Ocean Land Color of the management of the space segment Instrument) with 21 channels and a visi- and the Commission is responsible – apart ble/infrared radiometer for sea/land surface from the overall management – for the de- temperature observation. velopment and the sustainability of the geo- information services. On the Commission Sentinel-4, -5: two families of atmospheric side, GMES – and specifically the five se- chemistry monitoring missions, developed in lected geo-information services (Figure 2.1) – close cooperation with EUMETSAT and oper- is currently implemented with the 7th ated as a dedicated payload on EUMETSAT Framework Programme on Research and geostationary (Sentinel-4) and polar orbiting Development, whereas ESA member states (Sentinel-5) satellites. contributions support the majority of the These SENTINELS will be complemented by GMES Space Component (GSC) programme. additional European national and non-
ESPI Report 25 14 August 2010 Current Legal Issues for Satellite Earth Observation
Figure 2.2: GMES SENTINEL and European contributing Missions
European (3rd party) satellites to fill gaps in object detection and repeat pass SAR inter- the data supply and to deliver information for ferometry. high resolution mapping and security- TanDEM-X: launched on June 21st, 2010, relevant tasks (Figure 2.2). TanDEM-X is the twin brother of TerraSAR-X. Baseline for the access to the orbiting satel- Manoeuvred in a unique helical orbit with lites will be multi-mission ground segment, TerraSAR-X, this TanDEM-X satellite will circle based on national facilities, data centres and around TerraSAR-X just a few hundred me- near-polar acquisition stations. These stations ters away and will form the first bi-static SAR are complemented by (at least two) geosta- interferometer in space in order to generate tionary European Data Relay Satellites the most precise global Digital Elevation (EDRS), allowing real time programming and Model (DEM). (DLR, 2009; Zink 2006). data transfer to those SENTINELS (currently RapidEye: The constellation of 5 small satel- 1 & 2) and national missions (currently Ter- lites was successfully launched in August raSAR-X and post-TerraSAR-X missions) 2008 from Baikonur. Each of the five satel- equipped with appropriate Laser Communica- lites carries a 5 band push broom scanner at tion Terminals (LCT). 6,5 m GSD. The constellation enables a daily coverage of all land masses of the earth. 2.2.2 German Space Segment Contributions to RapidEye is owned and operated by RapidEye GMES AG of Brandenburg, Germany (www.rapideye.de). Apart from its financial contribution to ESA and EU GMES programs, Germany contrib- EnMAP: A DLR owned and operated hyper- utes several Earth Observation systems – spectral imaging mission with >200 spectral already in space or to be launched – to the channels at 30m ground resolution and 30km GMES programme. swath. EnMAP is scheduled to be launched around 2013 and will primarily serve science TerraSAR-X: launched in June 2007, this very needs, whilst operational applications should high resolution multi-mode X-Band SAR sat- be demonstrated. ellite is operated as a Public Private Partner- ship (PPP) between DLR and the company ResourceSat and CartoSat: The company ASTRIUM/InfoTerra. Its phased array X-Band EuroMap; Neustrelitz, Germany, holds the SAR antenna and the precision of the geolo- exclusive European acquisition and marketing cation of SAR pixels are already now subject rights for the Indian Remote Sensing (IRS) to innovative applications such as moving satellites (www.euromap.de). The IRS-P6 (ResourceSat) is the current working horse
ESPI Report 25 15 August 2010
for European land coverage. The IRS-P5 GMES projects are briefly depicted below. (CartoSat-1) with its 2.5 m in track stereo b/w capability is a unique source of Digital 2.2.3.1 Global Monitoring for Security and Stabil- Elevation Model (DEM) information. EuroMap ity (GMOSS) and DLR are teaming to downlink and process the data at the DLR facility in Neustrelitz. GMOSS was implemented as a late FP6 call and lasted from March 2004 to February IKONOS and WorldView-1/2: After having 2008. The 22 partners were coordinated by access to the IKONOS satellite, the company DLR. GMOSS was an action, where the EC European Space Imaging (EUSI), Munich is contributed to the exchange between scien- now teaming with DigitalGlobe to have direct tists and users and paid for workshops and access to the WorldView-1 and -2 satellites meetings. Hence, rather than new develop- (www.euspaceimaging.com). The latter has ments, existing expertise in using Earth Ob- 0.5 m resolution and is tasked from and ac- servation data for civil security in Europe has quired by a station at DLR, Oberpfaffenhofen. been gathered and perspectives for future All these very agile and responsive submetric applications have been given. satellites form the basis for many GMES ap- plications such as emergency mapping and Specifically, an analysis of the potential of civil security. remote sensing for the following applications was performed: 2.2.3 Treaty Monitoring & Law Enforcement in • Monitoring of international treaties pro- GMES. Past and Ongoing Projects tecting against the proliferation of weap- ons of mass destruction As mentioned above, the demand of GMES • Monitoring of critical infrastructure for geoinformation services and hence the need for satellite data, is governed by core • Monitoring of borders application projects. These projects are im- plemented in the framework of FP7 as large • Threat analysis and early warning pan-European pre-operational implementa- The analysis was accompanied by practical tion tasks, directing the way for an initial full test cases and intensive dialog with the users GMES operations from 2014 onwards. These of the derived information, such as the Inter- core projects had precursors and accompany- national Atomic Energy Agency (IAEA) in ing other projects of similar topics both in the Vienna. An example for monitoring interna- European Commission framework research tional treaties is given below. Earth Observa- programmes as well as in ESA projects. For tion data has been used since the very be- the specific case of civil security (and focus- ginning of this technology to monitor critical sing on those with DLR involvement), these developments with regard to the proliferation
Figure 2.3: Subsurface construction monitoring using QuickBird satellite data at the Esfahan, Iran, nuclear facility, Analysis performed by DLR in GMOSS project
ESPI Report 25 16 August 2010 Current Legal Issues for Satellite Earth Observation
of weapons of mass destruction. Whilst dur- pean area and a close liaison with European ing the cold war classified military reconnais- national users. For example, in the frame- sance primarily targeted the areas of influ- work of LIMES, DLR initiated an R&D partner- ence of the nuclear super-powers, nowadays ship with the German Federal Police (BKA). areas of interest are emerging nuclear pow- A series of international workshops high- ers. As far as seen from space, such devel- lighted European capacities but also clarified opments can now be monitored by using the limitations of Earth Observation technolo- unclassified commercial satellite data (figure gies in civil security applications. Though 2.3). some of the users were at first disappointed GMOSS laid the way for the implementation to notice that an omnipresent observation of “Civil Security” as one GMES core service. from space with life images in the range of GMOSS has clarified the capacity of European cm resolution (as seen in some Hollywood technology and know how in this domain, movies) is not possible, most of them recog- identified the needs for European and inter- nized the unique capabilities of Earth Obser- national organisations and discussed issues vation in some domains of civil security and such as the politically sensitive cases and the law enforcement. confidential treatment of some of the infor- LIMES was then continued by the implemen- mation derived. tation project of the theme “civil security” in 2.2.3.2 Land and Sea Integrated Monitoring for GMES: G-MOSAIC. European Security (LIMES) 2.2.3.3 GMES Services for Management of Op- LIMES was also implemented as a late FP6 erations, Situation Awareness and Intelli- project and lasted from December 2006 until gence for regional Crises (G-MOSAIC) May 2010. 46 European partners were coor- dinated by e-GEOS, Italy (the former Earth G-MOSAIC – the implementation of a pre- Observation branch of Telespazio). LIMES operational GMES core service - primarily continued with the topics of GMOSS, but aims at EU security related to „out of EU area added research and development in image crises“, for inter alia peacekeeping and analysis and GIS technologies. Applications peace-building. G-MOSAIC has 36 partners focussed on: and started in January 2009 with an expected duration of 36 months. It focuses on three • Treaty Monitoring, land & critical infra- main themes: structure monitoring • Monitoring of treaties for non prolifera- • Surveillance of EU borders (land and sea) tion • Supporting non-proliferation treaty moni- • Monitoring of illegal activities toring • Monitoring of routes and borders Focus was given on applications in the Euro-
Figure 2.4: Areas of interest and services of the G-MOSAIC GMES project
ESPI Report 25 17 August 2010
The security aspects of GMES are carefully 2.2.3.4 European Maritime Security Services addressed not to interfere with military inter- (MARISS) ests or domain. A clear need for comprehen- sive non-military situational awareness was Synthetic Aperture Radar (SAR) technology stated in the projects so far. However, com- has the unique capability to actively work day plex international situations may not be able and night and to penetrate clouds. Metallic to distinguish both domains. Military forces of objects on an otherwise flat environment can European countries are now involved with easily be distinguished in space borne SAR military and civil personnel in regional crisis images, even if the resolution of the SAR may situations around the globe. The European be not sufficient to identify details of the ob- Common Foreign and Security Policy (CFSP) ject. Hence, ships on water bodies can be and the Lisbon Treaty defined a clear role and identified at every time of the day. A broad responsibility of the European players in this image “swath” (i.e. size of the image) and domain. frequent revisit of the orbiting spacecraft
Figure 2.5: Space based technologies for maritime security (as used in the MARISS project)
Figure 2.6: Detecting the high jacked Sirius Star by TerraSAR-X SAR near the coast of Somalia. Analysis performed by DLR
ESPI Report 25 18 August 2010 Current Legal Issues for Satellite Earth Observation
would allow monitoring all European coastal waters. On top, ships larger than 300 tons need to identify themselves with an electronic identification signal (AIS: Automated Identifi- cation System), carrying the name, location and further information. Meant to work only in coastal areas, AIS signals can now be picked up by space based receivers. The veri- fication of both technologies – SAR based ship detection and space based AIS reception – is performed in the ESA GMES project MARISS (European Maritime Security Ser- vices) (figure 2.5). MARISS is now extended to a “Scaling-Up” Phase (MARISS-SUP) last- ing to about 2012. Eight partners set-up a coordinated Service Network to provide mari- time European user organisations with inte- grated ship detection services. Key for ship detection is the fast access to and the fast Figure 2.7: Areas of interest and services of the G-MOSAIC processing of the data. Therefore, most GMES project MARISS partners own and operate a radar satellite receiving station (figure 2.7). DLR contributes to MARISS-SUP with its station in 2.2.4 Data Policies for German National Missions Neustrelitz, Germany (acquiring ERS-2, Germany has launched two very high resolu- ENVISAT and TerraSAR-X data) and a station, tion SAR missions in Public Private Partner- which DLR is operating in cooperation with ship (PPP). After the launch and operations of Mexican authorities in Chetumal, Mexico (ac- TerraSAR-X in 2007, the twin brother of Ter- quiring ERS-2 and TerraSAR-X). raSAR-X, TanDEM-X was successfully The maritime security application of MARISS launched on June 21st, 2010. is a special case for GMES, insofar dedicated The availability and distribution of sub- European organisations have expressed a metric, high quality SAR data over global clear need and already use SAR data for terrain required a clear regulation on how the maritime applications; namely the European national security interests of Germany and its Maritime Safety Agency (EMSA) in Lisbon, partners are not affected by SAR based intel- Portugal. EMSA was created in 2002 after a ligence availability over critical areas. Consid- series of disastrous tanker accidents with ering the international regulations and the subsequent oil spills, spoiling European objective to develop the commercialisation coasts. In its CleanSeaNet programme, EMSA with clear supporting guidelines rather than a is already using satellite SAR to monitor restrictive case-by-case basis process, and European coastal waters. The CleanSeaNet2 taking a general approach beyond SAR ob- programme, starting end of 2010, now also servation technology, Germany developed adds the demand to detect ships and to use the Satellite Data Security Act (SatDSiG) AIS information for ship identification. EMSAs which entered into force December 1st, 2007 motivation here is to possibly also identify (German Federal Gazette, 2007). the source of oil slicks found in SAR images. But EMSA (in cooperation with FRONTEX and The Act addresses only German satellites, national maritime organisations) also investi- operated by German citizens. Hence the ac- gates SAR ship identification capabilities to quisition and distribution of Indian and US support the international forces in securing satellite data by German companies/ entities the East African waterways against piracy is not affected and assumed to be regulated (figure 2.6). under corresponding Indian and US law. Fur- ther on, the Act does not concern govern- SAR and AIS based ship detection for security mental satellite systems, which work for mili- applications is part of the core GMES project tary/intelligence services. G-MOSAIC. However, operational use of this application is already implemented by EMSA The regulations of the Act only apply to “high and other organisations. These organisations grade” Earth Observation systems. The defi- adapt to the mechanisms ESA and data sup- nition of “high grade” is described in the Act pliers have implemented for Earth Observa- and consists of defined limits of geometric tion data access. and spectral resolution, amongst others. Whereas, TerraSAR-X is regulated under the Act, the optical resolution of RapidEye and EnMAP is regarded as uncritical under the Act.
ESPI Report 25 19 August 2010
The Act requires an operator license for the data taken over the event or area in ques- operation of a high-grade Earth remote sens- tion. ing system (Part 2, Section 3) and a dissemi- Detecting oil spills and in the same image, nation license for the dissemination of data of detecting the ship which might have caused such a high-grade system ( Part 3, Chapter the spill, asks for only about 15 minutes be- 1, Section 11). In practice the Act is clearly tween the image data take and the detection focussed on a clear and transparent proce- of the spill. When significant more time has dure for the first time dissemination (both passed, there is often no change to catch the science and commercial) of Earth Observation violator in action. This “near real time” (NRT) data. “First time” here means that all data demand is shared by most law enforcement use/dissemination beyond the initial data actions and the use of Earth Observation data distributors, directly responsible to German monitoring the extent of disasters. For the law under the Act, shall not be directly af- latter it is critical that external support and fected. For TerraSAR-X, two German entities humanitarian aid is brought to the place of have got appropriate governmental licences: destruction as fast as possible. DLR for the mission operations and distribu- tion of data to science users and Infoterra for Nowadays polar orbiting Earth Observation the data distribution under the commercial systems can often not meet these NRT re- scheme. quirements. Firstly, the orbiting satellites only scan a certain area every other day or This license is only granted to entities, which so (means: a continuous or several-time-per- demonstrate a significant degree of liability day monitoring is hardly possible). Second, and have technical means to protect the ac- remote areas can be monitored, but the data cess to the data. The latter includes that all need to be recorded on board and can - only commands to the satellite are generated in after minutes or hours – be down linked to Germany and are encrypted by an admitted the next operating ground stations. encryption scheme. A secure encryption mechanism applies also to the down linked Therefore, GMES has included in its space data, as well as further secured archiving and assets European Data Relay Satellites distribution mechanisms. Commercial part- (EDRS), which reside as communication tow- ners need also to show protection for foreign ers in geostationary orbit positions and can business takeovers. communicate with appropriately equipped Earth Observation satellites at virtually any The distribution of the data outside this se- position on the globe. Starting by 2012, ESA cure perimeter to national and international plans to deploy at least three of these com- users is governed by a “sensitivity check” in a munication satellites. The fastest communica- decision tree (figure 2.8). Therein, the cate- tion link will be a Laser Communication Ter- gory of users, a positive and negative list of minal (LCT) with up to 5.6 Gbit/sec transfer target areas, the geometric resolution and rate. In parallel, at least Sentinel 1a and Sen- the timeliness from data sensing to product tinel 2a will be equipped with an LCT. It is delivers (i.e. near real time applications), planned to also mount such communication determine whether a product can directly be means to the TerraSAR-X follow-on satellites. delivered to international users or the deliv- ery needs a permission by the governmental Geostationary relay satellites and communi- authority in charge (here: Federal Office of cation terminals would allow global and in- Economics and Export Control, BAFA). The stantaneous access to the imaging satellites, sensitivity check is under the full responsibil- but would not solve the problem of the time it ity of the licensee. Demands from “critical takes for an imaging satellite to pass over a customers” can be evaluated by BAFA in ad- region of interest. Two principal solutions are vance to allow transparent business cases. currently under investigation (and partly un- der implementation) to address this chal- 2.2.5 Some Technical Considerations on EO lenge. Data for Treaty Monitoring and Law En- Constellations of Earth imaging satellites just forcement – Global Presence put more satellites in orbit to lower the time it takes to revisit a certain area. Existing ex- Many applications in treaty monitoring do not amples are the Cosmo-Skymed satellites (4 demand very fast access to Earth Observa- SAR satellites in full deployment) or the tion data (e.g. the monitoring of nuclear fa- RapidEye constellation (5 optical satellites, cilities), but the creation of long or seasonal allowing daily revisit in 6.5 m resolution). The time series to monitor change, which might use of many satellites of the same kind but indicate the violation of treaties. However, from many nations and operators, is a stra- especially law enforcement demands very tegic approach in GMES to reach for global fast presence and very fast access to the and frequent coverage of hot spots on Earth.
ESPI Report 25 20 August 2010 Current Legal Issues for Satellite Earth Observation
A more visionary proposal in this domain was sphere. This approach is used already in geo- made by the satellite communication com- stationary weather satellites (with several of pany IRIDIUM, which offered to deploy Earth these in operations). Though, imagers on Observation payload on each of its 66 NEXT geostationary weather satellites capture the generation LEO communication satellites. entire globe with up to 15 minutes revisit/re- Whilst high resolution imagers seem not pos- imaging time, their geometric resolution is sible under current technical and financial technically limited (both by e.g. optics and limitations, proposals are under investigation data rates) to about one kilometer per pixel. to put some Earth science payload at least on Not enough to use the data for treaty moni- some of the NEXT satellites. toring and law enforcement applications. Therefore, new concepts have been studied Another technical solution for global and im- to increase the resolution of geostationary mediate presence is to use the geostationary imagers, mapping only parts of the globe and orbit to have visibility of an entire Earth
Figure 2.8: Decision tree for German Satellite Data Security Act
ESPI Report 25 21 August 2010
not the entire sphere. Studies, such as the information to respond to disaster ( e.g. map GEOHR study by ESA, looked for 100m – of affected areas, and damage assessments 10m geometric resolution with about 1h to 5 of infrastructure including governmental min revisit capability. Very advanced technol- buildings, hospitals, roads and bridges). De- ogy also looked into Synthetic Aperture Op- spite such useful knowledge, the victims out- tics, i.e. to deploy a constellation of imaging numbered the aid provided. The Haiti earth- satellites with a small aperture, but electroni- quake shows how massive disasters could cally linking them together to create a virtual devastate and paralyse the central govern- large telescope (as already done by astrono- ment of afflicted states to respond to disas- mers with ground based telescopes). ters, and require further assistance and in- tervention by external parties. Whilst the For the time being global and immediate sovereignty of afflicted states should be re- presence with very high resolution satellites spected, actions beyond the sovereignty may seems technically and financially not feasible. be necessary to maximize the rescue and Earth Observation based law enforcement relief efforts under the extreme circum- (and many other applications) has to live stances. This paper undertakes the case with the current snapshots taken by satel- study of the Haiti earthquake, highlights the lites. A kind “GoogleEarth Live” – and with it issues of disaster response associated with all the legal implications – seems currently the Haiti earthquake, and discusses possible out of reach. However, applications such as improvements that can be brought by the GoogleEarth have shown, that it might need Disaster Charter. the right “application” or “business case” to possibly make this a reality in future. 2.3.2 The Background of the Disaster Charter The Disaster Charter was initiated by Euro- 2.3 The Disaster Charter and pean Space Agency (ESA) and Centre Na- Highlighting Issues of Haiti tional d’Etudes Spatiales (CNES) following the Third United Nations Conference on the Ex- Earthquake ploration and Peaceful Use of Outer Space by Atsuyo Ito (UNISPACE) III conference in 1999.4 It was signed on October 20, 2000 and has been operational since November 2000. The Char- 2.3.1 Introduction ter now embraces six member space agen- cies, namely, CNES, ESA, Canadian Space The massive earthquake that struck Haiti on Agency (CSA), National Oceanic and Atmos- 12 January 2010 shook the whole world. The pheric Administration (NOAA), Indian Space scale and impact of the disaster, coupled with Research Organisation (ISRO), Comisión Na- the vulnerability of the nation, which is said cional de Actvidades Espaciales (CONAE), the to be the poorest nation of the Western United States Geological Survey(USGS) on hemisphere, was appalling. The affected behalf of US partners, namely, Digital Globe population is said to be over 3 million and the and GeoEye, the British National Space Cen- estimated death toll is over 230,000. Many tre (BNSC/UKSA) acting on behalf of the in- governmental and public buildings were se- ternational Disaster Monitoring Constellation, verely damaged or destroyed – including the and the China National Space Administration Palace of Justice, the National Assembly, the (CNSA). There also other non-partner organi- Supreme Court, Port-au-Prince Cathedral, sations serving as intermediaries. In re- and National palace. Vital infrastructure nec- sponse to authorized requests, the Charter essary to respond to the disaster was se- partners provide data from their satellites verely damaged, such as the collapse of UN free-of-charge to the states affected by natu- peacekeeping in Haiti, and the serious dam- ral or man-made disasters. age to the control tower at the international airport and to the sea port. A number of sat- The Disaster Charter provides a mechanism ellite data and derived products have been to make critical space assets available to provided free of charge to afflicted states communities affected by disasters. In re- under the framework of the International sponse to authorized requests, the Charter Charter on Space and Major Disaster (hereaf- partners provide data from their satellites ter: the Disaster Charter).3 Having been suc- free of charge to the states affected by natu- cessfully operating for a decade, and this time following the Haiti earthquake, the part- ners of the Charter provided Haiti critical 4 UNISPACE is a UN organised international meeting where UN members and space agencies gather. At UNISPACE III the use of space technology for solving 3 “Charter on Cooperation to Achieve the Coordinated Use regional and world problems was discussed along with the of Space Facilities in The Event Of Natural or Technologi- need for international cooperation and use of space appli- cal Disasters.”Rev.3 (25/4/2000). cations among developing countries.
ESPI Report 25 22 August 2010 Current Legal Issues for Satellite Earth Observation
ral or man-made disasters3. The afflicted 2.3.4 The Mechanism of the Disaster Charter states can use the data to monitor their dis- asters, assess the course of the disasters, The unique feature of the Disaster Charter is and then respond to the aftermath of these that the Charter partners – providers of data disasters. The Disaster Charter is innovative - cannot initiate the process. It is the Author- in that it has established a mechanism of ized Users that can request the activation of cooperation amongst the disaster community the Charter. Authorized Users, after the re- worldwide as well as to provide the service quest for the Charter activation is processed, completely free-of-charge to all the afflicted hand over the operation to a project manager States. who becomes responsible for the whole course of operation: tasking of satellites, acquiring and delivery of data. The whole 2.3.3 The Scope of the Disaster Charter operational cost of Charter activities in ac- quiring the satellite image, processing the Amongst the different stages of disaster data and even producing derived products is management - ranging from mitigation, pre- 5 to be covered by the partner space agencies. paredness, response and recovery , the Article 3.1 of the Charter stipulates that “the Charter is dedicated for a response phase. parties shall develop their cooperation on a However, looking closely at the scope of the voluntary basis, no funds being exchanged Charter, the operations to prepare for disas- between them”.7 Thus, the Charter service is ter are not expected of the partners. Article I provided voluntarily. Its concept is based on of the Charter stipulates “ The term ‘crisis’ goodwill and best endeavours. The Charter is means the period immediately before, during not a binding instrument embodying parties or immediately after a natural or technologi- with full legal duties and obligations. Rather it cal disaster, in the course of which warning, 6 incorporates agreements expressing the in- emergency or rescue operations take place” tention of cooperation between the space It is clear that early warning or risk assess- agencies to assist the afflicted states. ment to mitigate the disaster falls outside the scope of the Charter. Although the definition The process of the Charter activation is com- ‘period immediately before’ does not exclude plex. There are several ways to activate the the possibility of the Charter activation for Charter: 1) direct activation; 2) activation via the purpose of pre-disaster warning, in reality an Authorized User on behalf of a user from a the Charter has never been activated in such non-member country (activation via spon- a way prior to a disaster. Hence, the Charter sored AU); 3) activation via the UN for the takes a post-disaster approach: it does not UN users; 4) activation for Asia pacific users prevent certain (preventable) disasters from via Sentinel Asia’s partner, the Asian Disaster happening but it mitigates the impact of the Reduction Centre. Now the channels for Char- disaster once it has occurred. ter activation have broadened compared to the early operational periods. Combined with Not all the disasters are subject for activation the similar disaster response mechanism, of the Disaster Charter. Disasters excluded such as Sentinel Asia, the Charter increas- from the scope of the Charter are: war, ingly serves more areas around the globe. A armed conflicts, humanitarian actions not brief explanation for each is provided below. linked to a specific disaster, droughts, and routine epidemiological outbreaks. Further- Direct activation is the activation by Author- more, it cannot be activated for non- ized Users such as the civil protection and the emergency situations such as oil spill, and ice relief agencies of the countries whose juris- monitoring except for specific events. It diction cover the member space agencies. needs to be stressed that generally calls be- Authorized users are the only bodies author- yond the emergency period, a Charter activa- ised to request the services of the Charter for tion occurring more than 10 days after the a disaster occurring in their country or terri- actual crisis start should be rejected. One can tory. conclude that the Disaster Charter is limited Whilst most cases an Authorised User request to the urgent disaster situation that benefits the Charter activation to help its own coun- from the monitoring from the satellite. try, activation to may request the Charter to assist a disaster management user from an- other country in response to a major emer- gency. For example, activation requests from users in Latin American countries are often 5 Holloway R., “Is Space global disaster warning and moni- toring now nearing reality?” 17 Space Policy (2001): 128. 6 “Charter on Cooperation to Achieve the Coordinated Use 7 Art. 3.1, “Charter on Cooperation to Achieve the Coordi- of Space Facilities In The Event Of Natural or Technologi- nated Use of Space Facilities In The Event Of Natural or cal Disasters.” Rev. 3 (25/4/2000). Art. 1. Last visited: 23 Technological Disasters.” Rev. 3 (25/4/2000). 24 June June 2010 2010
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submitted via the Argentinean Authorised Principles.9 Principle IV of the UN Remote User. This is referred as activation by a spon- Sensing Principles stipulates that “Remote sor Authorised User. sensing activities shall be conducted in ac- cordance with Article I of the Outer Space The third one is activation by the UN. The Treaty”10, which establishes the free use of Charter has an agreement with UN OOSA outer space. Therefore, the UN Remote Sens- (Vienna) and UNITAR/UNOSAT (Geneva) to ing Principles establish the right of observing provide support to UN agencies. UN OOSA the entire globe from outer space. Whilst the and UNITAR/UNOSAT may submit requests Disaster Charter is activated following the on behalf of users from the United Nations. request by the afflicted states if disasters hit Since the UN has a global presence, it is par- the countries of the Charter partners, in case ticularly useful to activate the Charter for disasters that hit countries other than the countries that are not familiar with the Char- Charter partners, activation is most likely to ter operation – for example, the Charter acti- take place by a sponsored authorized user, vation by the UN is taking place in several the UN, that is parties other than the afflicted African countries. states. An option for the Charter activation is now open to Asia Pacific users via Sentinel Asia's partner, the Asian Disaster Reduction Centre. 2.3.6 The Impact of Charter Operations from the Sentinel Asia is a disaster response mecha- Standpoint of Disaster Response nism similar to the Disaster Charter based on Due to the legality of satellite remote sensing regional collaboration for Earth Observation based on the Outer Space Treaty and UN based emergency response in 31 Asia Pacific Remote Sensing Principles, the Disaster countries. Since 2009 the Charter has Charter allows the provision of data to any granted the Asian Disaster Reduction Centre afflicted State providing any of the above the right to request for the Charter activation designated process to request the Charter on behalf of Sentinel Asia users. Thanks to service is followed. This has a significant im- this established link, Asian countries have pact on the effectiveness of disaster re- improved access to space assets. sponse, which fundamentally follows the hu- It is worth noting furthermore that coordina- manitarian principle, that is, aid is provided tion is under way with Group on Earth Obser- upon the request of the afflicted state. A brief vation (GEO). In response to a request from analysis of a nature of disaster response war- the GEO to improve access to the Charter rants a discussion here. during emergencies, collaboration has started Disaster response is governed by the princi- with primary focus on users from African ple of sovereignty. Article 2.7 of the UN Char- countries that do not have a direct access to ter state that “Nothing contained in the pre- the Charter. sent Charter shall authorize the United Na- In these ways, the target for imaging is the tions to intervene in matters which are es- whole globe and the parties concerned in the sentially within the domestic jurisdiction of operations Charter is taking steps toward the any state or shall require the Members to covering different regions of the world submit such matters to settlement under the 11 through different channels. present Charter...”. The principle of territo- rial sovereignty also applies to disaster situa- tions such as international aid from abroad. 2.3.5 The Legal Environment of the Disaster The fundamental principle for disaster re- Charter Regarding the Principle of Sover- sponse is that it is for afflicted states to de- eignty cide whether to request and accept interna- tional assistance in case of a disaster.12 The Disaster Charter based on the remote Hence, it will not be considered unlawful if sensing from space allows that observation of the afflicted State do not request for assis- the afflicted state could take place without the request by the afflicted states. Sensing from space is completely permissible under 9 United Nations General Assembly. Principles relating to the international space law as imaging the remote sensing of the Earth from space. GA 41/65 of 3 afflicted state is based on the freedom of December 1986. (Hereafter: the UN Remote Sensing Principles) outer space established by the 1967 Outer 10 Space Treaty8 and 1986 UN Remote Sensing Ibid. Art. IV. 11 Art. 2.7, United Nations Charter. Entered into force 26 June 1945, in San Francisco. 8 Treaty on Principles Governing the Activities of States in 12 United Nations General Assembly. Strengthening of the the Exploration and Use of Outer Space, including the coordination of humanitarian emergency assistance of the Moon and Other Celestial Bodies, Lon- United Nations. Annex I.3. “humanitarian assistance don/Moscow/Washington, done 27 January 1967. Entered should be provided with the consent of the affected country into force on 10 October 1967, 610 UNTS 205, 6 ILM 386 and in principle on the basis of an appeal by the affected (1967) Hereafter: the Outer Space Treaty) country.” GA 46/182 of 19 December 1991.
ESPI Report 25 24 August 2010 Current Legal Issues for Satellite Earth Observation
tance or even refuse to accept international were severely affected. For instance, despite assistance. This allows for a high degree of of the 9,000 peacekeepers stationed at UN discretion by governments in disaster re- Stabilisation Mission Haiti (Hereaf- sponse, despite the imminent needs. ter:MINUSTAH), initially none of them ap- peared to be involved in hands-on humanitar- ian relief in what emergency medical experts 2.3.7 Politics Involved in Disaster Response describe as the critical first 72 hours after the 14 There are occasions when, strictly for political disaster as they were affected themselves . reasons, affected states have actually refused Instead of helping the Haitian affected com- the aid offered from foreign governments. munities, they were involved in the search for Major example includes the Indian Ocean survivors at the collapsed headquarter of Tsunami in 2005 and Cyclone Nargis that MINUSTAH. struck Myanmar in 2008. Following the Indian Completely overwhelmed by the scale and Ocean Tsunami, India refused to accept any extent of disaster, Haiti was compelled to rely foreign aid denying the access of NGOs to the largely on aid from abroad. Donations were Andaman Islands, partly because of the pres- made from many states abroad. Around 26 ence of a key military base on Car Nicobar international search and rescue teams arrived 13 Island. Likewise, following the Nargis Cy- to Haiti.15 A major leadership was displayed clone, the military government of Myanmar by the US - since the control tower of the refused international aid for weeks, resulting International airport of Port-au-Prince has in unnecessary loss of life. In these ways, collapsed, the Haitian government formally politics can have a disproportionately nega- put the airport’s operation in US hands and tive impact on disaster response and relief Washington has established a temporary air operations. traffic management system for flights16. The fact that Charter can be activated with- However, the impact of the disaster resulted out the consent of the afflicted states has an in the situation that absence of effective ‘con- important implication for disaster response. It trol tower’ for the disaster response at large means that affected areas of the territory of – uncoordinated actions and efforts were afflicted State can still be imaged regardless taken at least by Haitian, aid groups and the of the state of the affected State - even the US. government takes the reluctant stance to call Haiti President Rene Preval criticised the lack for humanitarian assistance outside that of coordination amongst the countries that State or the government is incapacitated to have come forward to assist victims17. A respond. The Charter operations based on problem of coordination already started at satellite remote sensing partly overcomes the the airport. A cargo plane by aid group, initial stage of a hurdle of the principle of Médecins sans Frontières, which carries State sovereignty governing disaster re- medical equipments were turned away from sponse as it would permit getting the over- landing at Port-au-Prince airport by the US18. view of the afflicted State without their con- Relief operations were chaotic as there was sent. The further stage, that is, when the confusion as to who were in charge. The territorial sovereignty comes to the issue, situation resulted in the delay in providing would involve the domestic response to actu- the relief and caused the angry appeals from ally rescue survivors and provide relief. The the survivors and looting on the street. next part discusses how response to the Haiti Earthquake was slow and how improvements can be brought by the Disaster Charter. 2.3.9 The Issues Raised by from Haiti Case with Respect to the Charter 2.3.8 Slow Response Experienced in the Haiti The parties concerned in the operations of Earthquake Disaster Charter were quick to respond to The striking feature of the Haiti earthquake is that it struck the capital and devastated the 14 Brown, T. “Haiti aid effort marred by the slow UN re- major functions of the government. Histori- sponse.” Reuters Alertnet, 26 Feb. 2010.
ESPI Report 25 25 August 2010
Haiti earthquake. The Charter activation was of severity of damage, and finding passable requested by French Civil Protection, routes to reach the affected sites. The ex- UNOOSA on behalf of UN Stabilisation Mission tended role that can be played by the parties in Haiti (MINUSTAH), Public Safety of Can- engaged in the operations of the Disaster ada, American Earthquake Hazards Pro- Charter is considered highly beneficial. gramme of USGS. Under the framework of the Disaster Charter, satellite imagery was provided on 14, which is 2days after the ca- 2.3.10 Conclusion and Recommendation tastrophe. A number of products such as a The Charter operation is working so success- map of affected areas with different magni- fully and has the potential to contribute even tude of damage, and damage assessment of more to the exceptionally devastating disas- different infrastructure, were provided to end ter situations. Haiti experienced the extreme users. On the other hand, it needs to be level of chaos and devastation that actions stressed that the Charter operation is primar- beyond simply delivery of satellite products ily designed for national experts to plan relief to end users deemed necessary. There is a operations and to give the direction of aid. need for external intervention in case the The essential purpose of disaster response is government affected by the disaster is unable of course, rescue and relief of survivors, and to respond properly. Options need to be con- therefore, the key to the success of Disaster sidered for the parties engaged in the Charter Charter ultimately hinges on how much the operations to take further steps to intervene satellite data provided can be utilized effec- and organize the relief efforts. The Charter tively to facilitate relief efforts. If the gov- partners and associated bodies could serve as ernment is not in a state to respond, supply a decision making body in place of a severely of satellite images would not lead to en- affected government and should be given a hanced relief efforts. Even if the users exter- mandate of coordinating the relief efforts so nal to the afflicted state receive products, it that they can actually send personnel and needs to be used to implement the relief op- providing aid supplies to the sites. erations inside the territory of an afflicted state. The first step is of course that affected However, this is only possible with the will areas are imaged and obtained data are pro- and consent of the afflicted states. A mecha- vided to afflicted states, however, under the nism should be available for all states to ac- exceptional circumstances as the Haiti Earth- cept the good will intervention for disaster quake, victims would have benefited from response at a domestic level under the ex- further steps. Further steps would involve treme circumstances. It is recommended for decision making for disaster response - plan- afflicted sates to relax the application of terri- ning relief operations and to give the direc- torial sovereignty to promptly allow relief. It tion of aid, and of sending relief workers on is recommended that there should be a prior behalf of the government. arrangement amongst the states to authorize the Charter partners or other authorized It is not desirable that such decision and di- agencies to direct, and send aid and rescue rection of aid be taken by all of the aid personnel to the affected population. Such an groups and countries that have come for help arrangement could be realized by the sign-up at their discretion. Such a situation would by the willing states - states would sign up in generate even further chaos. A similar situa- times of peace assuming for such extreme tion was just as experienced by the Haiti circumstances. If the states that have signed Earthquake. The domestic ‘command centre’ up are struck by deadly disasters, afflicted for disaster response was seriously impaired states could benefit from the hands on opera- if not absent, and coordination lacked tions by international or foreign rescue teams amongst the operations undertaken by vari- without their request at the immediate af- ous actors involved. The linkage between ‘on termath. It is proposed that direction of coor- the site operation’ and knowledge on the dination such as assigning roles/tasks to dif- affected areas is essential to avoid overlap- ferent aid groups should be undertaken by ping operations and cover all the areas in the project manager of the Disaster Charter need. The parties engaged in the Charter or others who are best familiar with the state operations have the good knowledge for the of the aftermath. aftermath of the disaster, both the overview and site specific details. They are most likely Whilst statistically, the possibility that a dis- to be more familiar with the overview than aster strikes the capital and incapacitates an the workers on site and decision makers in infrastructure to respond is not high, one can Haiti. Hence, the parties engaged in the never predict where the disaster strikes. It is Charter operations are in a highly suited posi- hence necessary to envisage all conceivable tion to coordinate and give direction of aid. scenarios and prepare for them. Scenarios They would be competent to prioritize the cannot completely rule out the risks of the areas to serve in accordance with the degree deadly disasters hitting the capital of any
ESPI Report 25 26 August 2010 Current Legal Issues for Satellite Earth Observation
state and then destroying the significant in- According to a wider understanding, verifica- frastructure for disaster response. In such tion also comprises the ascertainment of facts circumstances, arrangements to facilitate that are otherwise important in the relation- international assistance inside the territories ship between certain states. An ascertain- would contribute to minimize victims of disas- ment of facts as a dispute settlement proce- ters. dure can become important in the context of peace missions, during treaty negotiations and in the context of international judicial proceedings. Peace missions need to be 2.4 Use of Satellite Data for based on a specific authorisation. However, Treaty Monitoring this is often not a multilateral treaty, but by Jana Jentzsch rather a mandate by the United Nations or other international organisations like NATO or Verification provisions in international agree- OSCE. Such mandates do not necessarily ments have strongly influenced the develop- constitute binding international treaty law. ment of international law through the last decades. Important disarmament negotia- 2.4.2 Verification and Monitoring tions have failed because there was no con- sensus on the verification regime. Other trea- Verification permits the parties to an agree- ties gained international acceptance only ment or mission to determine whether they because its verification provisions were are complying with their obligations. This if strong and fostered international collabora- often confused with the term “monitoring”. tion and understanding, such as the bilateral However, the latter refers merely to the SALT agreements between the USA and the technical process of information gathering for former USSR. The 1993 Chemical Weapons a concrete purpose, while it does not relate Convention (CWC) comprises the most elabo- to the compliance judgment. Monitoring re- rated verification regime ever agreed upon fers to efforts of detecting, identifying, and and it is the first treaty that aims at the en- measuring developments and activities of tire destruction of one type of weapons of interest. Therefore, “treaty monitoring” refers mass destruction. to the technical process of information collec- tion whereas “verification of treaties” refers to the legal process of both the observance 2.4.1 Definition: What Is Verification? process and deciding about its results. Before considering the role of satellite im- The process of verification can be divided into agery in treaty verification, It needs to be three major (and chronological) steps: clarified what exactly the term verification means, in which context it is used and which • Collection of relevant information (“moni- types of connotations it may imply. toring”), Verification can be defined as the process by • Information assessment which is sup- which compliance or non-compliance with an posed to end with a verification judg- agreement is determined. Verification can ment, and detect non-compliance, deter parties which • In case of a detected violation: adequate may be unable or unwilling to comply and reactions. provide compliant parties with the opportu- nity to demonstrate explicitly their compli- Satellite remote sensing is only one specific ance (so-called confidence-building meas- tool of verification capabilities. The advan- ures). Verification also provides reassurance tages of this means of verification become to all parties that the overall implementation quite evident if one looks at the results of of an agreement is proceeding effectively and present technological and economic develop- efficiently. Although there can never be a ments. total assurance that all parties to an agree- In the past, verification was associated ment are complying with all of its obligations, mainly with arms control and disarmament verification supports a reasonable level of but in the course of the years it has been certainty that cheating can and will be de- practiced in other areas as well, for instance tected. Early detection is essential so that in the framework of monitoring peace agree- other parties can take suitable action, rang- ments and environmental treaties, and also ing from simply asking the suspected party in watching human rights. In each of those for clarification to the imposition of some sort areas, the importance and role of verification of sanction or even treaty withdrawal. Sanc- is different. tions according to Chapter VII of the UN Charter may consist of diplomatic measures, economic penalties and military action.
ESPI Report 25 27 August 2010
2.4.3 Disarmament and Arms Control Treaties the framework of its well elaborated system of international verification. Also, commercial Maybe nowhere else verification is as crucial satellite data may be used as a supportive as in international disarmament and arms tool in the verification process. For instance, control –but also most difficult. In no other while the CTBT and its international monitor- area states are as concerned about their sov- ing system exclusively rely on “post test” ereignty as in this field where national secu- technologies to reveal nuclear test explosions rity and sensitive information are at stake. that already occurred, commercial satellite The history of satellite data in the verification imagery may be used to detect “pre-test” as process of disarmament and arms control well as “post-test” activities. Watching sites treaties is long. Here is a short overview of for potential nuclear test preparations –which the most important treaties: are not covered by the CTBT-, is significant as the threshold from allowed to illicit activity • bilateral arms control and disarmament is small and difficult to determine. Satellite treaties of the cold war (SALT I, SALT II, imagery may give rise to start directing the ABM Treaty); work of the CTBT to a certain site. • multilateral nuclear test ban verification Also, nuclear facilities in suspected proliferant (Limited Test Ban Treaty LTBT, Compre- states have frequently been identified by hensive Nuclear Test Ban Treaty CTBT satellite imagery, including high-resolution (not yet in force)); commercial satellite imagery, although the • multilateral nuclear non-proliferation analysis often includes information from other verification (Nuclear Non-Proliferation intelligence sources or the IAEA directly. Sat- Treaty NPT); ellite imagery is able to identify a nuclear weapon production facility. Multiple images • anti-chemical weapons verification may prove progress in the construction of a (Chemical Weapons Convention CWC); facility and increase in the number of build- • anti-landmines verification (Ottawa Con- ings at a site. Annotated images may monitor vention). the intrusive verification requirements of the NPT. Furthermore satellite data can contrib- The bilateral SALT agreements between the ute to historical assessments of nuclear pro- USA and the former USSR of the 1970s were grams in proliferant states. Unfortunately, the first treaties that introduced rules which the recent NPT review conference in May were verified with remote sensing satellites. 2010 did not bring concrete results with re- The verification missions during the cold war gard to the further development of satellite- era were conducted merely by strictly na- based treaty verification. tional technical means. The satellites were operated unilaterally by one party and no international control took place. The national 2.4.4 Environmental Protection satellite capabilities were capable to detect In the course of the last 50 years there has missile launchers, but in the early years de- been a striking multiplication in the number livery systems were often impossible to dis- of multilateral environmental treaties. More cover. As a consequence, satellites used as than 210 environmental agreements are National Technical Means (NTM) helped freez- listed by the United Nations Environment ing the number of strategic missile launchers, Programme (UNEP); more than 200 of those but not of delivery systems. were adopted after 1951 and approximately The subsequent multilateral disarmament 75 % of these were agreed upon after the treaties of the 1980s and 1990s also do not 1972 UN Conference on the Human Environ- contain explicit provisions to use satellite ment in Stockholm. Though, when environ- data as international technical means of veri- mental protection is at stake, binding treaties fication. However, these treaty regimes, es- and strong verification provisions are still pecially the CTBT, the NPT and the CWC, relatively rare. Most environmental agree- provide for stronger general verification pro- ments do not contain any specific reference visions and states parties may use gathered to verification. However, some of the very satellite data as evidence in evaluation proc- new accords do provide for some necessary esses of the international treaty organisa- elements: instead of developing a specific set tions, such as the OPCW (Organisation for the of rules in an annex or the accord itself, veri- Prohibition of Chemical Weapons) for the fication is implicitly contained in a wider sys- CWC or the IAEA (International Atomic En- tem for implementation review. For example, ergy Agency) for the NPT. In fact, the use of the Kyoto Protocol to the United Nations satellite-based monitoring technologies is Framework Convention on Climate Change widely accepted and applied. In particular, attaches great relevance to research and the OPCW in The Hague uses satellite data in development and the establishment of obser-
ESPI Report 25 28 August 2010 Current Legal Issues for Satellite Earth Observation
vation systems. Article 10 (d) of the Protocol keeping forces. The European Galileo system stipulates: will presumably provide similar services.
All Parties […] shall co-operate in scien- » tific and technical research and promote 2.4.6 Human Rights the maintenance and development of systematic observation systems and de- Contemplating international and regional velopment of data archives […]. human rights instruments, one can easily discover specified rights, but rarely provisions Respective obligations for the need of obser- specifically designed for an organized control, vation of greenhouse gases and the review of for a verification of the rights. This task is the implementation of the Kyoto Protocol are generally upon the various UN human rights also mentioned in its Articles 7, 8 and 13. offices, above all the UN Human Rights Still, satellites used for assessing climate Commission and the High Commissioner for change often suffer from insufficient reliabil- Human Rights but also on many specialized ity. Some of it concerns the calibration of bodies, and regional institutions, especially hyper-spectral sensors mounted on the satel- courts. The General Assembly is empowered lites, which measure various parameters from under Article 13 of the UN Charter to initiate average global temperature to aerosol pres- studies and make recommendations regard- ence in the troposphere. In particular, the ing inter alia human rights. Such studies fre- calibration of sensors is very sensitive and quently deal with alleged violations of certain can easily be damaged during the launch states. process. Apart from the UN and regional courts, it is mainly non-governmental human rights or- 2.4.5 International Conflicts, Peace Missions & ganisations which autonomously try to verify Agreements human rights with their best efforts. They issue reports on topics such as torture, rape, Space-based assets should be used to en- racial discrimination, attacks against minori- hance international security in an ongoing ties, labour rights or women’s and children’s way, regardless of any treaty establishing rights. The civil efforts of NGOs such as Hu- concrete obligations to be monitored or if man Rights Watch, Amnesty International, or other events threaten international peace and Landmine Monitor, are a precious tool for security. International peacekeeping opera- verification, as they raise public awareness tions, most prominently conducted by the and may even initiate actions from govern- UN, but also by other organisations such as ments or international organisations. Satellite NATO, have taken place in various states in data will increasingly support such efforts, as the past decade. These were mostly civil wars the available resolution is continually increas- or the existence of inhuman dictatorships ing, and certain types of abuse (e.g. the which urged the international community to burning of villages) have already become intervene. detectable. In the future remote sensing techniques with its highly capable 24-hours means of obser- 2.4.7 Conclusion vation may make it possible to support or even replace the military human observer. Although often not sufficient by itself, satel- The progress in aerial and space observation lite imagery already constitutes a major tool may allow the development of more capable for the verification of international obligations and less intrusive means of mechanical moni- and the strengthening of international secu- toring. For example, satellites monitoring rity. The fact how international obligations dangerous frontiers, cease-fires, or weapon can be verified also determines the credibility storage sites could replace human presence. and effectiveness of the respective agree- An important role for satellites in interna- ment or obligation. Through the adoption of tional conflicts may also be the combat of intrusive verification provisions, which e.g. piracy and protection of maritime security. also provide for challenge inspections in cases of serious suspicions, the motivation In addition to remote sensing satellites, ac- and ratio of member states to adhere to the cess to the navigation system GPS has been agreement can be increased. Satellite im- made widely available for peacekeeping mis- agery should be explicitly mentioned in the sions. With the help of GPS, peacekeepers respective treaties, agreements and man- can determine the precise location of cease- dates, as international verification institutions fires and territorial frontiers, as well as their should not have any doubt that they can de- own exact positions when on patrol or based cide about ordering imagery from commercial in abandoned areas. With GPS, the users are sources. also able to easily communicate this informa- tion with their headquarters or other peace-
ESPI Report 25 29 August 2010
Yet, the negotiation of international treaties and our technical means modify our basic in general and verification regimes in particu- values, those which are supposed to be pro- lar strongly depend on political will and in- tected by the rules that our society adopts tent. International law always is codified in- and implements? ternational policy and when drafting new rules legal scholars need to consider the re- alities of international relations. Although, in 2.5.1 Satellite Applications the past decade, international lawyers From an user’s point of view, technical means needed to recognize that organized treaty do not really matter as long as the informa- verification cannot be considered as an ongo- tion remains accurate and reliable. All he ing success story anymore. After September eventually gets are the elements of informa- 11, 2001, in particular the United States ad- tion on which he will be able to base his ac- ministration has pursued a policy of strong tion. Therefore, even if we know that each suspicion against binding international domain of satellite applications (telecom, agreements. In consequence, the further positioning / navigation, observation) is sub- strengthening and development of interna- ject to its own rules, the origin of the infor- tional verification provisions did not take mation is not necessarily relevant in defining place. Still, the international legal community the legal regime applicable to its use. should continue to promote the need for clear verification provisions and the integration of Law enforcement, in the broadest meaning of satellite imagery into the respective verifica- the term, is aiming at making law a reality tion regimes. wherever and whenever a legal settlement is required in order to solve a conflictive situa- tion. It is based, first on the establishment of facts, in order to allow an appropriate re- 2.5 Satellite Data and Appli- sponse from any party affected by the situa- cations for Law Enforce- tion, then on the provision of legal evidences, possibly based on the said facts, to allow an ment Purpose authoritative ruling. This second phase (the by Jean-François Mayence provision of evidence) is certainly the most interesting from a legal point of view since The idea of collecting information about oth- the admissibility of the evidence requires the ers is certainly not new. It is likely that, in satisfaction of several criteria, among which every organized society in every civilisation the compliance with the rule of law. It is a of the human history, human leaders have general principle commonly recognised that been aware of the need to manage such in- no evidence can be brought on the basis of a formation in order to establish their sustain- breach of law19. In certain cases, the law able power. The content of the information itself imposes a certain form of evidence ex- itself has not changed much through the cen- clusive of any other (contractual law, real turies: answers to basic questions such as estate law, etc.) where is he/she? where is he/she heading? The whole reflection on the legal aspects on what is he/she doing? who is he/sheet meet- the use of satellite applications and data ing? etc., were the keys for natural deduc- should therefore concentrate on securing the tions and further, the elaboration of an ap- legal validity and the compliance of such a propriate (counter-)strategy. use with respect to the applicable rules (no- The technological possibilities provided by the tably the protection of privacy, the protection satellite systems have just dramatically mul- of sensitive information, the non- tiplied the scope, the accuracy, the amount discrimination principle), but also, in a more and the availability of information we might positive way, help satellite service providers need in order to deal with a specific situation. with adjusting their products in order to meet With satellites in orbit collecting information the potential demand of law enforcement on any place, at any time, we start dreaming authority and to convince them to consider about omniscience. But this dream is also a satellite applications as a tool in the imple- nightmare: the idea of being watched, of mentation of their mission. being searched without even realizing it, is a deep cut in our privacy. At this stage of the development of the so- called “Information Society”, a sound reflec- tion seems necessary about the thin line be- tween the reality and the phantasms, be- 19 This statement must of course be nuanced with regard tween the wishes and the fears, and most of to particular applicable rules according which, in certain all, about the place of law in such a develop- cases, the irregular origin of the evidence doesn’t affect its ment. Can the expansion of our knowledge validity.
ESPI Report 25 30 August 2010 Current Legal Issues for Satellite Earth Observation
2.5.2 Use of Satellite Data and Applications for The whole economy of maritime freight Law Enforcement Purpose: Non-Judicial Pro- transport and, by extension, of combined cedure transport, is based on the idea that it is al- most impossible to know, at a given moment A large number of legal instruments (laws, in time, where the transported goods are regulations, conventions, agreements, con- exactly located and in which condition they tracts) requires the continuous, periodic or are. Furthermore, maritime transport has casual monitoring of particular situations. In always been subject to particular risks and this case, no judge is involved: it remains this uncertainty on the good delivery of the between a public authority and the persons freight has become a part of its value. Finally, subject to it, or between two or more con- considering the time taken by long-distance tractors. In this context, it is up to each in- shipping (even though considerably reduced strument to determine, explicitly or implicitly, by modern transport means), traders have the value that can be recognised to the use invented new form of trading based on of a particular method of monitoring. Here, documents representing the goods during the admissibility of the information brought their transport. In close connection with the by the satellite is in principle not to be ques- sale itself, other operations have become tioned. This issue is rather focusing on its usual and part of the business: credit, insur- accuracy and its technical reliability. ance, etc. An excellent example is the inte- Environment law is certainly a domain where gration of the maritime alea in the specific satellite applications are recognised as impor- insurance contracts. Contrary to general in- surance law, maritime insurance covers, in tant monitoring tools. It is the case whenever 23 the surveillance of a particularly wide or re- certain conditions, the potential risk, mote area is at stake: agriculture law, Ant- namely the risk that would have already oc- arctic law, maritime law20, etc. curred at the time of the conclusion of the insurance contract, if it is demonstrated that Contractual law is characterized by its flexi- none of the parties would have known about bility which allows parties to provide for the this occurrence. It is obvious that such provi- use of the means of their choice for the moni- sions would be deemed obsolete with the use toring of their respective obligations. Never- of satellite tracking allowing a quasi-real time theless, the recourse to new technologies has information on the freight, on its location and often a deep and broad impact on the whole its status. With the panoply of sensors nowa- economical sector. days, any relevant information needed for the Another area of law which might be heavily trading of the freight can theoretically be impacted by the use of satellite applications available in real time. By embarking optical is the transport sector. In particular, mari- camera or sensors able to determine the time law is based on rules inherited from very chemical composition of the air onboard a ancient legal institutions which have survived container, or the shocks that the goods have until today. But the satellite era might cause undergone, and by transmitting this informa- a revolution which would put an end to them, tion to the charterer or to any other inter- notably through the notion of Embedded ested user, the value of the freight can be Eye21, as highlighted by Prof. Dr. Jacques updated on demand, taking into account of Libouton at the occasion of the Belgian Sen- its actual position on the route. ate’s Colloquium on Legal Aspects of Space We will not extend our study of the use of Activities and Space Applications, held in satellite data for surveillance and treaty 22 Brussels on April 26, 2006 . monitoring since this topic is widely reviewed by other articles in this publication. But we can nevertheless point out the main other domains of application of satellite surveil- 20 Apart from the Song San Ship case which led to a judi- lance: cial procedure and which therefore will be reviewed in the next section, another incident was observed by satellite in • disarmament and weapons control (see October 1997 in Singapore. A very large crude carrier and notably the use of satellite data ex- an oil tanker collided and spilled about 28,000 tonnes of pressly mentioned in the framework of oil, comparable to the amount in the Exxon Valdez spill, 24 into the sea. Clean-up operations were very successfully the CTBT/CTBTO) ; carried out, with nearly all the spill enclosed and cleaned up within a few days. ERS and RADARSAT images ac- quired 5 days and 10 days after the collision showed some 23 Art. L172-4, Code des Assurances. France; Art.6.1, residual oil slicks drifting north-westward along the Ma- Maritime Insurance Act Art. 219, Code de Commerce. lacca Straits. It is likely that such observation contributed Belgium. Livre II, Titre VI, Section 2. to mitigate the damage. 24 Art. IV, A, par. 11, Comprehensive Nuclear-Test-Ban 21 Libouton, Jacques. “Space Applications and Transports.” Treaty. Done on 24 September 1996. New York (not yet European Transport Law. 2006. 479. entered into force as on June 1, 2010 but actually imple- 22 Belgian Senate’s document. Session 2005-2006, 3- mented through the CTBTO, its International Monitoring 1785/1
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• fisheries activities management25; dation on the construction of the Belgian Princess Elisabeth Antarctic Polar Station: the • agriculture regulations enforcement26; progression of the work and the functioning • real estate. of devices such as wind turbines were moni- tored by satellite (high-resolution pictures Beside of surveillance purposes, the satellite from military satellites). Even though no judi- may also be used for global management. cial settlement was ever necessary in this This is the case, for instance in the following case, it is likely that satellite observations areas: could have served as elements of evidence • health monitoring at global scale, epide- for the enforcement of the agreement. 27 miology , health insurance statistics; Another illustration is provided by Employ- • food security28; ment Law. The use of a positioning system seems to expand as a new trend in order to • land management. locate workers and to subject them to a con- tinuous surveillance. The legal response may 2.5.3 Use of Satellite Data and Applications for of course be different from one country to Law Enforcement Purpose: Judicial Proce- another: the United States have already de- veloped some case law about this issue. In dure 29 People v. Weaver , the administrative law In the context of a judicial procedure, things are a little bit different. In addition to the 29 State of New York, Supreme Court, Appellate Division, technical reliability requirements, specific 3rd Judicial Department, June 5, 2008 (12 NY3d 433) - cf. legal rules need to be taken into account. The notably “Adjunct Law Professor Blog”, report by Mitchell H. admissibility of the data as a legal evidence RUBINSTEIN: or an element of legal evidence will be sub- Facts: A police officer, in the course of investigating a series of burglaries and acting without a warrant, attached ject to the applicable law governing the pro- a battery operated global positioning system (hereinafter cedure: civil, commercial, criminal... People GPS) device under the bumper of defendant's van while it in charge of enforcing the law are themselves was parked on a public street. The device remained in subject to the law and their compliance to the place for 65 days. Based upon the data retrieved from this rules will be a condition of the admissibility of device and other evidence, defendant and a co-defendant were arrested and charged with burglary in the third de- the data by the judge. gree and grand larceny in the second degree in relation to In a contractual relationship, the parties are a theft from a K-Mart Store, as well as burglary in the third degree and petit larceny in relation to a theft from a meat free, to a certain extent, to determine the market six months earlier. means of evidence applicable to the supervi- 1st degree: No warrant needed: The Administrative Law sion of the execution of their commitments. Judge said that the State of New York Public Employees Even when no specific technical means is Relations Board (PERB) has long held that the determina- mentioned in the contract, satellite observa- tion of the type of equipment to be utilized by an employer does not give rise to a bargaining obligation and, accord- tion might provide a legitimate source of ingly, a balancing of interests test was not appropriate. information on the execution of each parties’ Further, the Administrative Law Judge found that CSEA’s commitment. This was for instance the case arguments that employees' privacy rights were affected, with the agreement signed between the Bel- that they had to participate in record keeping, and that gian State and the International Polar Foun- there was an interference with off duty time were either inapplicable or had no factual basis. 2nd degree: Ultimately the issue of the installation of a GPS device without a warrant was addressed by the Court of 25 Molenaar, Erik Jaap, Tsamenyi, Martin. “Satellite-Based Appeal. In a four to three ruling, the court ruled that such Vessel Monitoring Systems (VMSs) for Fisheries Man- an action, in this instance, was barred by New York State’s agement. International Legal Aspects and Development in Constitution. The Court of Appeals ruled that: State Practice”. FAO Legal Papers Online 7 Apr. 2000. 1. The residual privacy expectation Weaver retained in his
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judge denied the necessity to perform a bal- of America32 having established the Frye ance of interests test considering that it was Test. The Frye case dealt with the use of the the sole decision of the employer and that polygraph and the admissibility of this lie privacy of the worker was not at stake con- detection method as an evidence at court. As sidering the surveillance was performed in a result of the combination of the jurispru- connection with the professional duties. This dence and the law, such a use of a technical was overruled by the Court of Appeal of New device was considered by the judge under York which considered that the “residual ex- two distinct aspects: pectation of privacy” by the worker even during the execution of its professional tasks a) the reliability of the method and of its was sufficient to justify the claim and that results; such a surveillance should proportioned with b) the relevance of the collected informa- regard to the several interests at stake. tion with regard to the case. In France, the same issue has been dealt The reliability of the method is demonstrated 30 with under the provisions of the 1978 Law by its general acceptance by the scientific which establishes the “CNIL” (National Com- community and the fact that it is regarded as mission for Informatics and Freedoms). Any scientifically valid by most experts, as provid- use of GNSS device in order to monitor the ing exact and sufficiently accurate results. activities of workers in the framework of their 33 professional duties is subject to four condi- The relevance of the method can be ex- tions: plained as the recognition of the fact that the method establishes facts in relation with the a) declaration by the employer to CNIL on case, which could not be established with the the use of a GNSS device; same degree of certainty by other technical b) information of the worker; or natural means. c) proportionality between the purpose of A third aspect could be seen apart from the the surveillance and its impact on the reliability: the assurance that the results of worker’s interests; the method cannot be falsified. This certifi- ability of the results must be distinguished d) deletion of the data at short term (rec- from the reliability to the extent that it ommendation: 2 months max.). doesn’t question the general acceptance of It is certainly in Criminal Law that the criteria the method, but only the specific results on a for the use and the admissibility of data col- case by case basis. The issue of certification lected through high-tech devices have been of data is certainly one of the core issues of developed31. Those criteria are remarkable the use of satellite technologies for law en- and may be considered as an excellent basis forcement purpose. Digital images are con- of reflection as they provide solutions appli- sidered today as a purely virtual product cable to various kinds of technologies, from which is susceptible of manipulation at sev- sound capture or sensor-camera’s to satellite eral stages of its fabrication. Software allows observation. replacing easily one pixel by another and, apart from contractual commitments nothing really exists today in Europe to guarantee the 2.5.4 U.S. Law authenticity of satellite data. In the United States, some systems of certification already The use of ‘scientific evidences’ or ‘technical exists, such as those delivered by the Na- evidence’ is regulated in the U.S. law at sev- tional Climatic Data Centre on weather re- eral levels: the U.S. Constitution (IVth ports. The need of such certification goes far Amendment), the Federal Rules of Evidence beyond criminal procedure: actually, any kind (‘FRE’) and the jurisprudence. This latter of use of satellite data for public or private source is based on a 1923 Supreme Court of purpose might require their certification by the United States case: Frye v. United States an independent authority. In Europe, services based on GMES could include the certification oversight, the use of these powerful devices presents a of the data provided by a body on a non- significant and, to our minds, unacceptable risk of abuse. contractual basis. Such a reflection has been Under our State Constitution, in the absence of exigent led in the United States34. circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause. 30 Loi n°78-17, relative à l'informatique, aux fichiers et aux 32 Frye v. United States of America, 293 F. 1013 (D.C. Cir. libertés, 6 Jan. 1978. 1923). 31 Markowitz, Kenneth J. “Legal Challenges and Market 33 The relevance is determined according to FRE 402 and Rewards to the Use and Acceptance of Remote Sensing 403. and Digital Information as Evidence.” Proceedings of Duke 34 Rychlak, Ronald J., Gabrynowicz Joanne Irene, Environmental Law & Policy Forum, Vol. 12 219, Spring Crowsey Rick. “Legal Certification of Digital Data: The 2002. 219-263. Earth Resources Observation and Science Data Center
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Among the strict limits within which the associations, and to hear their conversa- prosecutor has to establish the evidence of tions, without being in physical proximity. the facts, the respect of privacy certainly Moreover, the capability now exists for constitutes a major requirement. police to conduct intrusive surveillance without any physical penetration of the Observing human activities using sophisti- walls of homes or other structures that cated technical devices, be they satellites or citizens may believe shelters their pri- other optical or detection techniques might vacy. cause, at certain conditions, a violation of 37 citizens’ fundamental rights. The notion of The Kyllo Case ‘search’, as provided for by the IV Amend- In this apparently similar case fifteen years ment of the U.S. Constitution, had to be later, the police investigators had used a clearly defined with regard to the new possi- thermal sensor to observe individuals inside a bilities offered by technology to observe, house. Here, the words of Justice Powell most of the time from a very remote position, sound quite relevant: the intrusive character the details of someone’s private life. Today, of the thermal sensing allows observing ac- most of the national legislations provide for a tivities and behaviours that would not be dedicated set of rules applicable to the use of seen by any natural means, or by any per- specific methods of investigation, including sons not using the same device. Further- the conditions at which a warrant has to be more, this type of observation is particularly issued by the judge prior to any observation. insidious to the extent that it reveals facts Once again, the development by the U.S. belonging to privacy and not supposed to be jurisprudence of the notion of ‘search’ under exposed to the general public. In this case, U.S. constitutional law brings interesting con- the Supreme Court ruled that the observation siderations with regard to the acceptance by was a ‘search’ as under the IV Amendment, judicial bodies of new technologies’ products. which required a warrant. Two cases illustrate this development. Transposed to satellite technologies, those
35 two decisions seem quite relevant: satellites The Ciraolo Case are indeed capable of detecting various ac- tivities and situations: some of them can be The police had used an aircraft to take pic- observed by natural means by any witness, ture of a garden where cannabis plants were others require the use of specific detection cultivated. The plantation was surrounded by means (radar, thermal sensor, etc.). With the flexible walls but not concealed by any roof, current resolution, it is obvious that satellites leaving the sight from above totally open. can be seen as a potential threat for privacy, The Court of Appeal of California had rejected especially considering that there is no means the pictures as admissible evidence ruling for the common people to be aware of the that such picture were the result of a search fact of the observation at any time. under the IV Amendment, thus requiring a warrant. Now, another question is the admissibility of a satellite observation revealing the fact of a This decision was overruled by the Supreme criminal activity while the observation has Court considering that there couldn’t have been made for a totally different purpose. For been any reasonable expectation of privacy instance, in the framework of a project of since any people onboard an aircraft flying pollution monitoring of the land area, a set of over the garden would have had the possibil- satellite observations is realized on a portion ity to see the plantation. But this case was of the territory with the purpose of enhancing also the opportunity for the Court, in a dis- spots where pollution by chemical substances senting opinion of Justice Powell36, to assess is beyond the average level. While identifying the notion of ‘privacy’ with regard to the de- those concentrations, scientists identify a velopment of new means of observation: portion of the territory corresponding to a [A] standard that defines a Fourth private real property where chemical sub- » Amendment ‘search’ by reference to stances used for the production of synthetic whether police have physically invaded a drugs are abnormally present. Could the "constitutionally protected area" provides judge accept such observations as evidence no real protection against surveillance of a crime? Would the answer be different if techniques made possible through tech- the police had directly ordered those obser- nology. Technological advances have en- vations? abled police to see people's activities and Finally, two elements should also be taken into account when assessing the suitability of Project.” Journal of Space Law, Volume 33, nr 1, Univer- sity of Mississippi, School of Law, 2007. 35 California v. Ciraolo, 476 US 207 (1986). 36 Ibid. 37 Kyllo v. United States, 533 US 27 (2001).
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satellite data for the purpose of establishing The European Union INSPIRE Directive39 il- evidence at court. lustrates the bargain between on the hand the willingness to take profit from technologi- The first one is the technical character of cal upgrades (in constituting a global data- satellite observations. Contrary to aerial pic- base with metadata at the European level) tures, satellite data often need interpretation, and on the other hand the need to protect notably through the use of dedicated soft- the rights and interests of citizens. This ex- ware. Such an interpretation might require plains the derogations to the principle of free the intervention of an expert which consti- access to geospatial data)40. tutes an additional intermediary between the judge and the facts. The concept of personal data is certainly a key-concept in adapting to the new possibili- The second one is the availability of the data ties offered by the satellite. How could some- for all parties. It is true that with new multi- one think, twenty-five years ago, that photo- media services, access to satellite data has graphs taken from outer space could fall un- been considerably facilitated for the general der the category of personal data? The pro- public. Nevertheless, this concerns only a tection of privacy is not so much about small part of the archives and doesn’t apply censorship, but rather about the control of to programmed observation which can be the way information is used. requested by authorities or companies. In the case of Hurricane Katrina disaster, it is not A coherent legal response must be applied to sure that all parties were on an equal foot the technical chain of production of a satellite when it comes to the actual access to the data, from the very moment it is acquired by relevant data. Here again, the issue of certifi- the onboard instrument to the moment it is cation surfaces: through a dedicated author- downloaded by an internet user. This is cer- ity, both parties could have access to certified tainly not an easy challenge: from the State data which could be used at court in a con- of registry which exercises control and juris- tradictory procedure. diction on and onboard the satellite producing the data to the State where the derived Apart from Contractual Law, Employment products are used, a large variety of legal Law or Criminal Law, the use of satellite data regimes is applicable. And it is only by work- in the framework of judicial procedures has ing at the harmonisation of all those regimes also been illustrated by International Public that we may hope ending up with an effective Law. For instance, in several cases of border and rational solution. dispute settlements, the International Court of Justice has relied on the data provided by the satellite to solve the issue38.
2.5.5 Conclusion There might be a paradox in considering that the more accurate the satellite is, the more reliable it is but the more intrusive it be- comes. Technical limits might be pushed fur- ther everyday, but the protective reaction is to legally limit this new capability.
39 Art. 13, Directive 2007/2/EC of the European Parliament and the European Council, establishing an Infrastructure for Spatial Information in the European Community (INSPIRE) of 14 March 2007;OJ L 108 40 Art. 13, Directive 2007/2/EC of the European Parliament and the European Council, establishing an Infrastructure 38 Burkina Faso v. Republic of Mali of 22 Dec. 1986, CIJ for Spatial Information in the European Community and Namibia v. Botswana of 13 Dec. 1999, CIJ. (INSPIRE) of 14 March 2007; OJ 2007 L 108.
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3. Privacy Conflicts from High Resolution Imaging
tackling the questions of privacy in general and more specifically the conflicts that may 3.1 Overview on Legal Issues arise from using high resolution satellite im- by George Cho ages. The feeling that technology may have eroded our personal privacy is a real one. But here there is a need to try and strike a bal- 3.1.1 Introduction ance between what is private to an individual as against what is in the public arena and to This paper presents an overview of some of be shared by all. Privacy violations both ad- the legal issues pertaining to privacy in rela- vertent and inadvertent are difficult to pro- tion to high resolution imaging obtained from tect and to police. remote sensing platforms. The technology has given rise to conflicts and uncertainty in In this paper it is proposed to look at four many spheres not least being those relating aspects of the privacy question and then to to the identification of individuals and raising propose a framework for addressing privacy privacy concerns. The legal implications of conflicts. However, before addressing these such conflicts and uncertainty can be severe issues there is a preliminary matter of outlin- and wide-ranging. ing the historical background to space law and to sketch the present legal framework. Experts in remote sensing by necessity are From that background it could be surmised responsive and attentive to the rapid pro- that the privacy question is but yet just an- gress in technology. Legal practice and the other spoke to the umbrella of legal issues. law on the other hand are by design both The first aspect of the privacy question is to reactive and slow to evolve. The half century consider privacy as a legal matter. This is of the so-called Space Age of space explora- followed by a second section that summarizes tions has been accompanied by developments the legal framework and outlines the various in international law and cooperation. This is legal theories that may be used to discover evidenced by the five multilateral treaties and infringements of privacy rights and relevant five resolutions and declarations that have remedies. The third section addresses privacy been sponsored by the United Nations (UN) concerns emanating from the use of high and more particularly the UN Committee on resolution remotely sensed images. the Peaceful Uses of Outer Space (COPUOS). No other dimension of human activity has been so well shadowed by international coop- 3.1.3 Historical Background to Space Law eration and legal development (see Historical Background below). As intimated in the preliminary paragraphs there are to date five multilateral treaties and further five declarations and resolutions. Most 3.1.2 Some Questions of these treaties and declarations come within the purview of the UN Committee on In thinking about issues of privacy arising the Peaceful Uses of Outer Space (COPUOS). from the use of high resolution imaging, The main themes of each of these in chrono- there are a number of fundamental questions logical order may be paraphrased as follows: that one might ask so that later discussions may be framed within such a context. The questions are: Treaties • What is it that you want to keep private? 1966 Treaty governing activities of states in the exploration and use of Outer Space • Why do you want to keep it private? 1967 Agreement on the rescue of astronauts • What are your rights to privacy? 1971 Convention on international liability for • What are your responsibilities that go damage caused by space objects with such rights – to yourself, to your family and to society at large? 1974 Convention on registration of objects launched into Outer Space It is believed that answers to these questions might be fundamental building blocks for
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1979 Agreement governing activities of territories, to certain forms of activities and states on the Moon and other celestial to certain types of natural or legal persons. bodies In some others, there have been no specific application rules or principles. Declarations Professor von der Dunk (2005) concedes that 1962 Declaration of legal principles govern- the 1967 Outer Space Treaty does provide a ing activities of states in exploration basic legal framework for all activities in and use of Outer Space space from the freedom of exploration, the principle of non-appropriation by any single 1982 Principles governing use by states of state of Outer Space to the application of artificial Earth satellites for TV broad- general international law to Outer Space in casting terms of the gathering information freely. 1986 Principles relating to remote sensing of More importantly the 1986 UN Resolution Earth from Outer Space 41/65 outlined the legal principles pertinent to remote sensing. While not a precise legal 1992 Principles relevant to the use of nuclear document, the Resolution has been adopted power sources in Outer Space by consensus and has become part of inter- 1996 Declaration on international coopera- national customary law and hence is binding tion in exploration and use of Outer on states. Of the dozen or so principles the Space one that is presently most relevant relates to Principle XII that provides a right of access Professor Frans von der Dunk has published by sensed State to data concerning its terri- two very important papers in regards to tory on a ‘non-discriminatory’ basis. This is in space law. The first is his seminal paper on addition to the absence of rights to preclude ‘Sovereignty versus space – Public law and its territory from being sensed nor any right private launch in the Asian context’ published to an exclusive and priority access to such in 2001.41 In the paper he observed that data. there has been an almost complete silence in international space law on private entities Resolution 41/65 provides very general and private activities. The absence of atten- guidelines in regards to intellectual property tion on private enterprises may be because rights (IPR) to the data and the potential space law was conceived as public interna- liability and compensation where such data tional law and that states were the only legal were erroneously used and interpreted; and personae at that time undertaking space ex- the potential value of the data as evidence in ploration. It also may be because at the start a court of law. In practical terms, there is of the Space Age there were no private ‘play- uncertainty as to the application of these ers’ on the scene given that space explora- guidelines at an international level. Also there tion was by and large an activity funded by are issues of liability where there may be the state. Perhaps only in the last decade has intergovernmental partnerships and transna- there been privately funded space activity tional and private entities involved. In the mainly in telecommunications. That paper case of liability, Professor von der Dunk also raised important issues of territorial ju- points to partial solutions embedded in the risdiction and space activities, space law re- 1972 Liability Convention and the 1975 Reg- sponsibility and state liability and several istration Convention. But these still require looming practical problems. the need to promulgate national legislation to implement domestic law to control and moni- The second important paper that Professor tor private activities in space. The Resolution von der Dunk published was on ‘The Legal does not directly address issues of privacy or Aspects of Geospatial Data Gathering in data misuse at the level of the person. There Space’ (2005). 42 In this paper he noted the is yet more work to be done before the legal lack of focus on legal regulation. The paper is environment becomes more certain. more critical of recent developments because the international legal environment was Professor Ito (2008) echoes similar observa- fragmentary where the extant rules and prin- tions when she laments an urgent need for clarification in the use of geospatial data and ciples at the international level were often ill- 43 defined and open to legal interpretation. The a more comprehensive legal regime. In her regulations have been confined to certain paper Ito examines the current legal frame- work, the shortcomings of the current regime and the associated legal issues and proposes 41 von der Dunk, F. “Sovereignty versus space : public law and private launch in the Asian Context”. Singapore Jour- nal of International and Comparative Law 5 (2001): 22-47. 43 Ito, A. “Improvement to the Legal Regime for the Effec- 42 von der Dunk, F. “Legal aspects of geospatial data tive use of Satellite Remote Sensing Data for Disaster gathering in space.” GIM, International. Vol. 19 8 (2005): Management and Protection of the Environment”. Journal 69-71. of Space Law. Vol. 34 (2008): 45 – 65.
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improvements to the system. The inadequa- space industry” – one which is also privatised cies of the existing regime include divergent and commercially intense.45 data policies among states, the ambiguity The issue of privacy, as is presently under- over responsibility and liability arising from stood, has only recently surfaced to com- suppliers and/or the misuse of the data, re- mand the attention of regulators and the strictive access and pricing policies and third international citizenry. It seems that it is now party risks and damages arising from the use timely that the topic of privacy and all its of incorrect data. Further uncertainty is en- implications should be fully debated and gendered where IPR are undefined and other some framework for its regulation devised. liability risks from the use of the data are Privacy may seem to be the ‘final frontier’ unidentified. In discussing the above issues, given its intense gaze with the use of high Professor Ito also refers to the Disaster Char- resolution remotely sensed imagery that ter (2000) where signatories assist each when combined with other data give rise to other and other states in the event of natural powerful tools that may be employed for or technological disasters.44 Such an organic good and for evil. development demonstrates the felt need among signatories and necessity for a coop- erative agreement in times of crisis. Professor 3.1.4 Privacy as a Legal Matter Ito offers several suggestions to address is- sues of data policies and liability and how Privacy is a fundamental human right and is disputes may be resolved either under con- the very basis of human dignity and values. tract or tort liability. The plea from this paper Privacy also ensures that there is a freedom is the increasingly important role that the of association and freedom of speech. Such a legal framework could play if remotely sensed right is protected by the Universal Declaration data are to be exploited to its ultimate capa- of Human Rights (UDHR) adopted in 1948 bilities. and the International Covenant on Civil and Political Rights (ICCPR) 1976.46 Nearly every In the brief survey of the literature above one country has a right of privacy in its Constitu- may note the legal issues identified include: tion with protections against intrusions of issues of liability and damage, the regulation one’s home, the confidentiality of communi- of private entities, international regulation cations and specific rights to access and con- embedded as national customary law, IPR trol of one’s personal information. Where and jurisdiction. Together these issues either such rights are not provided for in the Consti- singly or in concert can be complex and diffi- tution, courts have found other means of cult to resolve without some international giving protection. The same words are found regulation and without an overarching legal in the Declaration and Covenant as follows: framework. Indeed the Third UN Conference on the Exploration and Peaceful Uses of Outer No one shall be subject to arbitrary inter- Space (UNISPACE III) held in Vienna in July » ference with his privacy, family, home or 1999 identified some challenges to space law. correspondence, nor to attacks upon his These challenges include space launch ser- honour and reputation. Everyone has the vices, space traffic, tort liability in regards to right to the protection of the law against such interference or attack.47 financing and insurance, IPR and other emerging legal issues such as space debris, Article 8 of the European Convention for the unforeseen activities and the space environ- Protection of Human Rights and Fundamental ment. Among these one unforeseen activity is Freedoms 1950 (ECHR) is in a similar form. the rapid development of global positioning Article 8 guarantees a right to respect of a system (GPS) technology that has blossomed person’s private and family life, home and to become a leading instrument that per- correspondence and that no public authority versely creates potential privacy issues. Pro- has the right to interfere with this right ex- fessor Jasentuliyana (2001) asks the question cept in accordance with the law and as nec- as to whether there is a public international essary in a democratic society in the interests space law framework that can cope with these new developments and the need for “more clarification and precision for address- ing an extremely sophisticated and diverse
45 Jasentuliyana, N. “International Space Law Challenges in the Twenty-first Century.” Singapore Journal of Interna- tional and Comparative Law, 5 (2001):10-21. 46 Art. 12, Universal Declaration of Human Rights, Paris, 44Art. 3.1, “Charter on Cooperation to Achieve the Coordi- UN GA Res. 217 A (III) of 10 December 1948. A/RES/217; nated Use of Space Facilities in The Event Of Natural or Art. 17 International Covenant on Civil and Political Rights, Technological Disasters.” Rev. 3 (25/4/2000). 24 June New York, done 19 December 1966, entered into force 23 2010. March 1976.
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of national security, public safety or economic Given these erosions to privacy, there are well-being of the country.48 some who believe that governments have a civic responsibility to their citizens to ensure Delving back in history there are also deep that the infrastructure that they deploy con- roots to the recognition of a right to privacy tain privacy protections (Blumberg & Ecker- in the Qur’an to the sayings of Mohammad, sley 2009).52 However, Westin (1967) in the to references in the Bible and to Jewish alternate has suggested that the ‘invisible law.49 However, there is no universal defini- economic hand’ would ensure that informa- tion for privacy and varies according to the tion technology (IT) did not result in exces- context and usage. The concept of privacy sive privacy invasion and therefore any form may also differ between cultures and legal of privacy regulation was unnecessary. To the traditions. At times privacy is also fused with extent that any regulation was imposed, it the management of personal information. was important that there were minimal im- Hence, the protection of one’s privacy is seen pacts on business and government activi- as a means of delineating the permissible ties.53 But as will be observed from the dis- degree of intrusion to a person’s life and the cussion to follow, there is a need to regulate rights of a person to be left alone. such activities precisely to protect privacy To reiterate, privacy has emerged as a topic interests. demanding attention and this no more so In terms of the concept of privacy, tidy minds than in the application of geospatial tech- might wish a strict dividing line between what nologies. Slonecker et al. (1998) believe that is private and what is public, but in reality the combined effects of new generation high there seems to be a continuum of sorts. This resolution imagery, the privatisation of the ‘continuum’ delineates those parts of our remote sensing industry and the develop- lives that relate to personal information about ment of the global information infrastructure ourselves, our financial status, health, and (GII) have inadvertently conspired to produce education. At times some of the personal significant legal and ethical consequences for information about us may meld into what the remote sensing community.50 The detail, might be considered in the public domain resolution and scale of modern remote sens- where there may be no privacy. ing bring into sharp focus the various issues of personal privacy.51 There may be advert- Professor Arthur Miller of the Beckman Center ent or inadvertent violations of privacy in for Internet and Society, Harvard Law School some applications. Technological develop- has described privacy as an intensely, per- ments have gone hand in glove with others haps, uniquely, personal value. The word such as facial recognition, biometrics, the ‘privacy’ stems from a Latin root privare digital revolution and powerful sensor devices which means ‘to separate’. To want privacy is that may seem to exhaust all rights to pri- to want to be separate, to be an individual. vacy of the individual. Ironically, some of Privare also means to deprive, to take, to rob these may be officially sanctioned as in the or to leave something behind.54 So as indi- case of closed-circuit television (CCTV) in viduals we may have interests to sustain our Britain. CCTV poses both ethical and legal ‘personal space’ free from interference by questions and may be the price one pay’s for other people and organisations.55 living in a digital age where a snail trail of One way of conceptualising privacy is to con- data is left behind everywhere we go. sider its multidimensionality. A typology to describe the various facets of the concept 48 Convention for the Protection of Human Rights and seemingly falls into four interlocking Fundamental Freedoms, (ETS No. 005), entered into force themes.56 3 September 1950. Rome, 4.XI.1950. Council of Europe. 49 an-Noor 24:27-28 (Yusufali); al-Hujraat 49:11-12 (Yusu- fali) for Koranic references; Volume 1 Book 10 Number 509 (Sahih Bukhari); Book 20 Number 4727 (Sahih Mus- 52 Blumberg, A and Eckersley, P. “On Locational Privacy lim); Book 31, Number 4003 (Sunan Abu Dawud) for the and Hot to Avoid Losing it Forever.” Electronic Frontier sayings of Mumammad; Hixson, RF (1987) Privacy in a Foundation 24 June 2010
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Total Privacy Umbra Personal space
Expectation of Privacy Penumbra Social space
Public space
Figure 3.1: Zones of Privacy: Umbra and Penumbra
• Bodily privacy which relates to the pro- and placement of the demarcation line could tection of a person against invasive pro- be weighted in terms of political interests, cedures such as genetic tests, drug tests economic interests as well as other interests and body searches as well as other forms including religious and cultural ones. From of covert checking of the person. such a conceptualisation we may have a core part that gives total privacy to a person – the • Information privacy also known as data umbra (similar to the dark central part of a protection relates to the rules governing sunspot). Then there is the penumbra – the the collection and handling of personal partially shaded region around the umbra (of data such as medical and Government the person) where there may be lesser de- records, financial records. grees of privacy. Finally, outside these two • Privacy of communication that gives se- areas is the public area where there may be curity and privacy of mail, telephones, no privacy at all.58 electronic mail and other forms of com- But note also that personal ‘spaces’ may be munication. culturally defined. In some cultures there can • Locational privacy sets limits on intrusion be very close contact between and within into domestic and other places such as at genders in public whilst in other cultures it work or in public spaces – this includes might be taboo to be either seen holding searches, video surveillance and identity hands or simply seeing the face of the per- checks as well as one’s geographical lo- son. The linear-continuum treatment of the cation and position in space. privacy question can also have a third dimen- sion in the vertical space above. In the Eng- This typology may be summarised as: who lish common law tradition much use has been we are, what we know, what we say and made of the Latin maxim cujus est solum where we are. ejus est usque ad coelum et ad inferos (he The typology above suggests a continuum of who owns the surface of land also owns the privacy interests, of ‘zones’ of privacy, and of sky stretching to the limits of the atmosphere 59 personal, private and public space.57 It may and all the soil to the centre of the earth). further suggest that such ‘spaces’ may be Applying this idea by analogy to the privacy thought of as both ‘vertical’ and ‘horizontal’. of a person, it is suggested that a person The continuum of what is in the private do- may have a right to privacy in the ‘space’ main and what is in the public domain may above. Any intrusion of this space – the verti- be visualised as being laid out horizontally in cal zone – is an intrusion of privacy. Some a linear fashion that portray varying degrees may consider this suggestion to be absurd of privacy. The boundary demarcating one and fanciful and totally inapplicable under the from the other is ‘fuzzy’ at best given that there may be various parameters that are at play from the totally selfish one to the totally 58 The penumbra argument has been put previously by selfless one – in the public interest. The width Scoglio, S. “Transforming Privacy: A Transpersonal Phi- losophy of Rights.”, Westport: Praeger, 1998: 226. 59 Coined by Accursius in Bologna in the 13th C. See cases ”Overview of Privacy.” Privacy overview 2007. 24 June on ownership of airspace in Re Lehrer and the Real Prop- 2010 erty Act [1960] NSWR 570; (1960) 61 SR (NSW) 365
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circumstances. But, be that as it may, the Since the majority decision in Victoria Park62 central theme is to try to view the privacy it has generally been accepted that a cause of question in all its facets so that the informa- action for the breach of privacy does not exist tional privacy including relationships, prop- in the common law of Australia any more erty ownership, temporal and other activities than it existed in the common law of Eng- of an individual is coupled with the spatial land.63 The issue of a right to privacy was re- aspects of privacy. The idea is even more visited in Australia recently in a High Court apposite when dealing with remotely sensed case.64 In the U.K. the right of privacy of a images that include the possible identification corporation has been held to exist.65 Also of persons on the ground. It is an important more recently privacy rights have also been question because of what society constitutes extended to individuals drawn from the fun- to be basic personal privacy and what is re- damental value of personal autonomy.66 garded as potential invasions to privacy. This Courts in several other jurisdictions have also is no more so because of the difficulties in addressed the availability under common law grappling with the very concept of privacy. of an actionable wrong of invasion of privacy 67 Another idea that may have currency in this – Canada, India, and New Zealand. One discussion of privacy is the saying that one Canadian court has recognised a general right to privacy and to protect privacy inter- man’s home is his castle. This idea has been 68 encapsulated in the English Common Law ests under the rubric of nuisance law. In tradition of protecting the home against gov- New Zealand the tort of invasion of privacy ernment intrusion.60 This principle has devel- has been recognised in s 14 of the New Zea- oped to take the form of the U.S. legal doc- land Bill of Rights Act 1990 (NZ) but while it does not confer a right to privacy it ensures trine known as ‘Castle law’ or ‘Defense of 69 Habitation law’ that designates one’s place of the freedom of expression (Tobin 2000). residence as a place in which one enjoys pro- In the U.S. the origins of the privacy right tection from illegal trespassing and violent may be traced to a law review article by War- attack and this includes the curtilage – the ren and Brandeis (1890).70 In a famous dis- enclosed area of land around a dwelling. Both senting opinion, Judge Louis Brandeis in 1928 the home and the curtilage provide a reason- reiterated the right to be left alone as “the 61 able expectation of privacy. most comprehensive of rights and the right most cherished by civilised men”.71 Based on Common Law Privacy Rights and Protections the principle of the right to be left alone, U.S. law has developed along the lines of a com- In the common law world the claim to privacy mon law right and those rights found under as a right is a relatively recent phenomenon the various Amendments to the U.S. Consti- because of the ad hoc nature of the protec- tution. A right to privacy is absent in the U.S. tion of privacy in the past. The Australian Constitution and is not found in the Bill of Constitution, for example, has no vested Rights. However, the U.S. Supreme Court has powers over privacy protection while the interpreted a right to individual privacy under common law protects privacy rights indi- the First, Fourth, Fifth, Ninth, and Fourteenth rectly. For example, the law of defamation, Amendments. Many privacy decisions in the negligence, and passing off give a semblance U.S. federal courts are based on the Fourth of protection of privacy as do contract law Amendment, which generally provides for the and the duty of confidence. However, the right of people to be secure in their persons, Australian Parliament has been obligated to protect personal privacy stemming from vari- ous international covenants, agreements and 62 Victoria Park Racing and Recreation Grounds Co Ltd v treaties to which Australia is a signatory, for Taylor [1937] 58 CLR 479; 43 ALR 597 (HCA). 63 R v Khan [1997] AC 558 at p. 582-3. example, UDHR and ICCPR. 64 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63, 15 November, 2001. 65 R v Broadcasting Standards Commission; ex parte 60 William Pitt’s address in 1763 to the House of Commons British Broadcasting Corporation; (2000) 3 WLR 1327; where he said “The poorest man may in his cottage bid (2000)3 All ER 989. defiance to all the forces of the Crown. It may be frail; its 66 Douglas v Hello! Ltd [2001] 2 WLR 992; (2001) 2 All ER roof may shake; the wind may blow through it; the storms 289 per Sedley LJ: 120. may enter; the rain may enter – but the King of England 67 Aubrey v …ditions Vice-Versa Inc. [1998] 1 SCR 591; cannot enter – all his force dares not cross the threshold of Govind v State of Madhya Pradesh [1975] 62 AIR (SC) the ruined tenement”. Speech on Exercise Bill, 1763. 1378; P v D [2000] 2 NZLR 591. 61 The term “Make my day law” has been used to describe 68 Canadian Tort Law, 6th ed. [1997] at 56; Aubry v Duclos this law and comes from the landmark 1985 Colorado [1996] 41 DLR (4th) 683. statute that protects people from any criminal charge or 69 Tobin “Invasion of privacy”. New Zealand Law Journal civil suit if they use force – including deadly force – against 216 (2000). an invader of the home. The law’s nickname is a reference 70 Warren, S., Brandeis, L. “The Right to Privacy.” Harvard to the famous words uttered by Clint Eastwood’s character Law Review 4 (1890):193. Harry Callahan in the 1983 film Sudden Impact … “go 71 Olmstead v. U.S. [1928] 277 U.S. 438. ahead, make my day”.
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houses, papers, and effects against unrea- oped by industry as well as the clients sonable searches and seizures. who use the technology.72 4. Technologies of privacy. Clarke (1999) 3.1.5 Legal Frameworks and Legal Theories has identified three types of technolo- gies.73 First, there are privacy-invasive 3.1.5.1 Legal Frameworks technologies (PIT) including ‘data-trail generation through the denial of ano- There are possibly four different legal frame- nymity, data-trail intensification as in works that have been devised for privacy identified phones, stored value cards protection in various parts of the world. Some (SVCs), intelligent transport systems frameworks are prescriptive whilst others are (ITS), data warehousing and data min- options to be exercised by individuals. Be- ing, stored biometrics, and imposed cause there is a spectrum for these, the biometrics’. Second, there are privacy- frameworks can be complementary and con- enhancing technologies (PET) that have tradictory. In practice the use of all four been developed in the last decade as a within the same jurisdiction can be effective. reaction to and as an attempt to reverse trends identified in PIT above. Examples 1. Comprehensive laws. The E.U., for ex- include the Electronic Privacy Informa- ample, uses a data protection regime in tion Centre’s (EPIC) list of enhancing- the form of a Directive, whereas else- tools where privacy practices may be re- where in Australia, New Zealand and trieved by user agents (or ‘bots’ – ro- Canada a co-regulatory model is used. bots).74 Third, privacy-sympathetic tools In the latter cases the laws are devel- (PST) deliver genuine anonymity such oped by industry groups but overseen as various pseudo-identifiers and digital by a public officer or agency. Such laws persona together with pure data protec- are presumptive of powers that enable tion. legislation on the subject matter. The voluntary standards and codes of prac- 2. Sectoral laws. This is the hallmark of tice may work well in Australasia, Canada privacy protection laws in the US and and the U.S. while civil law countries like in stems from its federal and state struc- the E.U. appear to favour legislation and ture with certain sectors of the economy mandatory standards. Whatever framework is being governed federally. Hence there used the message is that the laws and regu- are legislation protecting the privacy of lations specifying how privacy protection is to communications – electronic or other- be achieved must be clear, consistent and wise, credit reporting, debt collection, technology-neutral. financial, protection of children, driver licences, video rentals, health insurance, education rights and one’s location. 3.1.5.2 Legal Theories There may be parallel state legislation In seeking to apply legal theory to the analy- which sometimes might run counter to sis of the protection of privacy it may be the intent at the federal level and vice relevant to suggest that in the main that versa. The major drawback with this there are two traditions of law that are extant model is that there is a need to promul- around the world – the common law based on gate new laws when mass use new the English legal tradition and civil law of the technologies emerge. It is possibly here Roman and Continental tradition. However, it that there is a ‘lag’ in that technological may be said that whether it is by precedent developments might gallop ahead of the or by codified law, the legal theories used are law which has not kept pace. Also there similar. Here while the focus is on the legal may be the need for an oversight issues that are brought up by geospatial Agency to ensure consistency, compati- technologies an in-depth discussion on the bility and currency with such laws and to technicalities of the law is avoided. provide the strategic vision. In some countries such sectoral laws are used in conjunction with the comprehensive laws. 72 E.g. the Australian National Privacy Principles for Han- 3. Self-regulation. Self-regulation is an- dling Personal Data promulgated in the Privacy Act 1988 other means for the protection of pri- (Cwlth) Schedule 3. vacy and comes in the form of a na- 73 Clarke, R. “The legal context of privacy-enhancing and tional privacy principles, ‘soft-touch’ privacy-sympathetic technologies”, 1999. 24 June 2010
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From this writer’s viewpoint there appear to above the land is taking high resolution im- be four major legal theories that will be agery. touched upon by geospatial technology and Trespass is a wrong or tort where a tres- these are property law, confidentiality, envi- passer ‘broke the close’ or entered the land ronmental law and tort liability and nuisance. of another without lawful authority. So, what Property law is included because geospatial is the position of imagery taken of the land technologies in the form of satellite imagery by remote sensing satellites? The imaging will capture any geographical space on Earth. does not need any form of physical incursion Confidentiality of communication is included onto the land or territory owned by the per- from the point of view of data protection es- son. pecially as it relates to information about a person, the reputation of that person and the There has been some U.S. litigation involving protection of privacy generally as a result of geospatial technologies on the basis of ‘tres- data integration with high resolution imagery. pass’ to land. The grounds on which these Environmental law is another theory that is cases have been argued include either the included especially in regard to ownership of idea of an ‘objective’ expectation to privacy the airspace above the land parcel. Finally, found in the Fourth Amendment to the U.S. tort specifically in terms of liability, damage Constitution or a ‘subjective’ expectation as and personal injury arising from integrating provided under case law interpretations as data with high resolution imagery is pertinent the following cases demonstrate.76 to this discussion. In Dow Chemical v United States (1986) at The proposal here is to investigate each of first instance a District Court held that the these theories separately and provide case aerial photography was a “violation of Dow’s materials where relevant from litigation re- reasonable expectation of privacy and an ported from selected jurisdictions. Examples unreasonable search in violation of the Fourth are drawn from the U.S. Canada, U.K., Aus- Amendment”. 77 On appeal, the U.S. Su- tralia, New Zealand and the common law preme Court held that the “open field” doc- world generally. These examples will provide trine applied to the case, and therefore there the facts of the case and the legal principle at was no invasion of privacy – the open field as issue. The major challenge is that of the pro- a term of art referring to the public spaces tection of privacy and while there is little around the Dow property. legal guidance with geospatial data, there is a 78 lot of legal precedence with other types of Similarly in California v Ciraolo the Su- personal data. The lessons from similar cases preme Court found that it was acceptable for and legal applications may be salutary. the police to fly over a fenced-in backyard at an altitude of 1,000 feet (305 m) to under- Trespass to Land – Property Law take monitoring. Also in Florida v Riley79 a court approved the use of a helicopter, hov- Reference is made to an earlier reference to ering at 400 feet(122 m), to observe mari- the Latin maxim cujus est solum ejus est juana plants through a hole in the roof of a usque ad coelum et ad inferos. The owner- defendant’s greenhouse. ship of land is said to give proprietary rights to the airspace above the land and the earth The remit to observe from the air has also below. However, these two ‘rights’ have now extended to monitoring emissions. In United 80 been circumscribed given that the airspace States v Penny-Feeny a Hawaii District far above the practical space has been sur- Court endorsed the police use in a helicopter rendered for public use of airplanes and other of a forward looking infrared (FLIR) device to vehicles.75 Similarly the space below the use- discern heat emissions from a garage to able land, where it contains mineral wealth, is gather information on illegal activities. Beep- ‘owned’ by the Crown as of right. In regard to ers and identity tags have also been en- real property ownership, the two causes of dorsed to track the location of individuals in action that may lie are either in terms of trespass of the land or nuisance. The ques- tion that arises is whether there is any tres- pass of the land when a satellite circling 76 The Fourth Amendment of the U.S. Constitution, guaran- tees freedom from unreasonable search and seizure, including (in some cases) electronic, aural, visual and other types of surveillance. 75 “… restricting the rights of an owner in the airspace 77 Dow Chemical v United States(1986) 106 S.Ct. 1819, 90 above his land to such height as is necessary for the Led 2d 226. ordinary use and enjoyment of his land … above that 78 California v Ciraolo (1986) 106 S.Ct. 1809; (1986) 476 height he has no greater rights in the airspace than any U.S. 207. other member of the public” per Griffith, J. Bernstein of 79 Florida v Riley (1988) 488 U.S. 445. Leigh (Baron) v Skyviews and General Ltd [1978] 1 QB 80 United States v Penny-Feeny v 773 F.Supp. 220 (D. 479. Haw. 1991).
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motor vehicles and then use GIS to map and feet (1.5 m) of the surface of unoccupied trace routes.81 waste land. The decision denies any 82 ownership of the unused airspace, and In United States v Smith a U.S. Court of limits the owner’s rights to his actual use Appeals for the Fifth Circuit has ruled that of it. The rule that has evolved is that technological advances may be capable of there is no tort unless there is interfer- expanding the legally protected range of pri- ence with the present enjoyment of the vacy that individuals enjoy. In United States property.86 v Causby83 the U.S. Supreme Court held that continued low-altitude flights by military air- • Restatement of Torts §194 has been craft which ruined the plaintiff’s poultry busi- taken over by the Uniform State Law for ness constituted a wrongful ‘taking’ of private Aeronautics and enacted in one form or property and under the Fifth Amendment another in some 22 states. This section required compensation. recognizes unlimited ownership of up- ward space, subject to a privilege of U.S. property law has been described as both flight similar to the public right to make exceptionally simple and exceptionally rigor- use of a navigable stream – a view now ous and makes distinctions between the per- possibly discredited with the advent of 84 son and the property. Of particular interest space voyages. is the vertical extent of the property. Any physical entry upon the surface of the land • Finally ‘nuisance theory’ ignores argu- without permission is a trespass, whether it ments about ownership of the air and be by walking upon it, flooding it with water, gives a remedy in the form of an action casting objects upon it, or otherwise. One for nuisance or negligence. Such a rem- may commit a trespass upon the vertical edy is available where the flight results in surface of another’s premises, as well as the actual interference with the use of the horizontal. There is thus a property right in land and is unavailable without such in- 87 the airspace above land, which may be in- terference. vaded by overhanging structures or tele- In a further case where trespass, nuisance phone wires, by thrusting an arm across the and privacy have come together is that of the boundary line, or by shooting across the land, California Coastal Records Project. This pro- even though the bullets do not fall upon it. ject maintains a website that provides an Four distinct legal theories of trespass have aerial photographic survey of the California been evolved to help analyse the conflicting coast for scientific and other researchers. The interests of the surface owner and the avia- entire California coastline has been photo- tor. graphed from a small helicopter—one picture every 500 feet (152 m)—from the Golden • One is the ‘zone’ theory which divides Gate Bridge to the Hearst Castle. The objec- the airspace into two strata, with the tive of the project is to provide a baseline for landowner owning that contained in the conservation and other land use researchers. lower zone, but not that in the upper. The line is drawn at the limit of the The Hollywood actress Barbara Streisand owner’s ‘effective possession’, or in other sued the photographer and two other defen- words, at so much of the space above dants for US$10 million in May 2003, claim- him as is essential to complete use and ing that the pictures they provided to others enjoyment of his land. The height of the of her Malibu home and estate violated her zone of ownership must vary according right to privacy and violated the California’s to the facts of each case. This rule was Anti-Paparazzi Act. A Los Angeles Superior applied in Smith v New England Aircraft Court decision in December reaffirmed the Co.85 where flights at the level of 100 public’s First Amendment right to participate feet (31 m) were held to be trespasses, in matters of public significance as well as the since the land was used for the cultiva- freedom of expression. In addition the court tion of trees which reached that height. rejected her claims to privacy and violations of the Anti-Paparazzi Act and further held • A second view is where a court refused that Ms Streisand had abused the judicial to find a trespass in flights even within 5 process by filing the lawsuit. The court also rejected her request for an injunction to re- 81 United States v Knotts (1983) 460 U.S. 276 United move the panoramic photographic frame of States v Karo (1984) 468 U.S. 705. 82 United States v Smith (1992) No. 91-5077 5th Cir. Nov, 12. 83 United States v Causby(1946) 328 U.S. 256. 84 Prosser, WL. 1971 “Handbook of the Law of Torts” (4th 86 Hinman v Pacific Air Transport (1936) 9th Cir.; 84 F.2d edition). St. Paul. West Publishing Co.: 63. 755, cert. denied 300 U.S. 654. 85 Hinman v Pacific Air Transport (1930) 270 Mass. 511, 87 Delta Air Corp. v Kersey (1942) 193 Ga. 862; 20 S.E.2d 170 N.E. 385. 245.
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her bluff-top home and property from the Lord hope of Craighead said that ‘[d]espite Coastal Records Project.88 the weight that must be given to the right to the freedom of expression that the Press These cases demonstrate attempts to balance needs if it is to play its role effectively, I the rights of property interests of the land- would hold that there was here an infringe- owner and the demands of the growing geo- ment of Miss Campbell’s right to privacy that spatial industry that has become highly im- cannot be justified’. portant to the public. While some of the dis- tinctions can be highly artificial, a majority of But the above case may be contrasted to that the decisions rest upon the key ingredient of of Douglas v Hello! Ltd.91 In April 2003 the an unreasonable interference and particular High Court decided that there was no free- 89 facts. standing right to privacy in the U.K. The well- known actors Catherine Zeta-Jones and Mi- Confidentiality and Data Protection chael Douglas had sued Hello Magazine for the unauthorised publication of their wedding A legal duty of confidentiality may arise in photographs. The court held that the law of equity, at common law or under contract. In confidence was sufficient to protect people in the main we are dealing with confidential Douglas’s position. The court used the anal- information that may not be disclosed to a ogy of people who traded on their image third party without consent. Normally trade rights with that of manufacturers trying to secrets are in this genre and the parties may protect confidential trade secrets. be in a contractual relationship. However, at times there may be information of a sensitive In the U.K. the law is uncertain as to when nature that may need protection. Sensitive confidentiality is breached and when rights to personal information includes health matters, privacy may be asserted. The uncertainty is political beliefs, religious affiliation, sexual because of particular fact situations so that in preferences, membership of political parties the Campbell case it was at a specific location and the like. In the case of geospatial infor- whereas in the Douglas case it was a matter mation one may ask whether the image of of a contractual relationship because the ac- one’s home is considered personal informa- tors had long-standing arrangements with tion. If it is not, then there are no privacy another magazine publisher. issues arising from it. If it is personal infor- The legal protection of privacy can also be mation then there are privacy implications made using trespass, defamation and racial because at a minimum people need to know vilification laws. Legislation in Australia offers what other people know about them. protection from surveillance of any kind. For An example is the following case of Naomi example, it is impermissible to undertake Campbell v Daily Mirror.90 Here The Daily surveillance or interfere with one’s home or Mirror newspaper published a photograph of family, or uncover sensitive facts relating to the supermodel’s attendance at a narcotics an individual’s private life. While technology support group. Ms Campbell sued for breach today ensures that we have become less able of confidence. Morland J. at first instance in to do things invisibly one must be mindful of the High Court ruled in favour of the super- the opposite case of sousveillance – covert or model. On appeal, the Court of Appeal found otherwise – also described as the inverse of that the disclosure was not in breach of an surveillance. Sousveillance is ‘watchful vigi- obligation of confidentiality. The Appeal Court lance from underneath’ and is possibly de- found that Ms Campbell’s Art. 8 rights under rived from the French sous – meaning below the UK’s Human Rights Act 1998 were over- as opposed to sur – from above. This method ridden by the newspaper’s Art. 10 right, since has been used in the Cambridge MESSAGE disclosure of her drug abuse problem was in Study in 2008 where data collectors were the public interest. However, the House of sent out to gather air pollution data on mo- Lords overturned the Court of Appeal judge- bile devices which tracked their every move- ment by 3:2 and ruled that the Daily Mirror ment and location.92 had violated Ms Campbell’s right to privacy. Some jurisdictions have resorted to full-scale legislation that is harmonised and imple- 88 Streisand v Adelman Case No. SC 077 257 Cal. W.D. mented across all states. An example is the 31 December 2003. 24 June 2010 E.U. Data Directive entitled The Directive on
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effective on 25 October, 1998. Article 25 of questions may be far more complex as the this comprehensive legislation requires that following cases will demonstrate. transfer of personal data take place only to In Re Lehrer and the Real Property Act four those non-E.U. countries that have an ‘ade- leases were lodged for registration under the quate’ level of privacy protection.93 This arti- Torrens legislation in New South Wales cle is designed so as to prevent the circum- 99 vention of the Directive and the creation of (NSW). Two of the leases were for upstairs ‘data havens’ outside the E.U. rooms. Jacobs J held that the airspace could be conveyed separately from the soil on Before entering into an agreement with a which the building was located.100 foreign country to allow free circulation of personal data outside the E.U., an evaluation A similar result was reached in the High Court of the adequacy of data and privacy protec- in Bursill Enterprises Pty Ltd v Berger Bros tion in that country has to be undertaken. Trading Co Pty Ltd where it was held that the grant (which was described as an easement) Several countries have already done this 101 including Australia,94 Switzerland, Hungary, was in fact a transference of the airspace. the U.S.95 96 and Canada. In the case of the In Kelsen v Imperial Tobacco Co (of Great U.S. it has taken a long time to reach an Britain and Ireland) Ltd the plaintiff was a agreement since it relates to a specific sys- lessee of a tobacco shop. 102 The defendant tem applied in that country known as the owned the adjoining building. The defendant ‘safe harbour’ principle.97The safe harbour attached an advertising sign on the adjoining principle permits U.S. companies to satisfy land, but the sign projected out from the wall the European ‘adequacy’ standard while by 8 inches (204 mm). The projection re- maintaining their traditional self-regulatory sulted in the sign being directly above the approach to data protection. In July 2000 the roof of the plaintiff’s shop. Initially the plain- European Commission approved the safe tiff did not object. However, after a commer- harbour framework as meeting the ‘ade- cial disagreement, the plaintiff claimed a quacy’ standard.98 trespass and sought a mandatory injunction for the removal of the sign. The issue before Environmental Law the Court was as follows: Was the invasion of As we are dealing with property ownership the airspace a trespass, or was the plaintiff and the vertical column of airspace above the limited to an action in nuisance? Decision: A land, the question may be asked: Can air- trespass was committed. The judge was par- space be owned? Does the person with the ticularly influenced by the presence of legisla- title to the land have a proprietary interest in tion which expressly provided that the flight the airspace? If so, will ownership of the land of aircraft over one’s land would not consti- be sufficient to maintain an action in tort? tute a trespass. Such legislation would be The answer to the first may seem to be yes unnecessary if an action in trespass did not whereas an answer to the second and third lie. In the case of Bernstein of Leigh (Baron) v Skyviews and General Ltd the defendant car- 93 Directive 95/46/CE on the Protection of Individuals with regard to the Processing of Personal Data and on the Free ried on the business of taking aerial photo- Movement of such Data, of 24 October 1995, OJ 1995 L graphs of properties and then offering them 281/31. for sale to the owners of those properties.103 94 Australia, Privacy Amendment Act 2000 (Cwlth) ,22 Berstein’s property was photographed. He December 2000; 24 June 2010
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and enjoyment of his land and the structures persons, as well as celebrities, such as in upon it. Above that height, the landowner has California, while New York laws focus on mis- no rights in the airspace greater than any appropriation of name or likeness. other member of the public. In his Honour’s In the Australian context a new tort for the opinion, if the Latin maxim were applied liter- invasion of privacy has also arisen. In Grosse ally, a trespass would be committed every v Purvis a District Court judge recognised a time a satellite passed over the land of a common law right to privacy for the first time suburban garden. The cujus principle was not in the particular circumstances of a person to be taken so literally. The Latin maxim sug- stalking another.109 In awarding damages, gests that a person who owns the surface of Skoien J. found that the essential elements of land also owns the sky stretching to the limits the emerging tort of the invasion of privacy of the atmosphere and all the soil to the cen- were present. These were that the willed act tre of the Earth.104 of the defendant intruded upon the plaintiff’s In LJP Investments Pty Ltd v Howard Chia privacy in a manner which would be highly Investments Pty Ltd105 the defendant was an offensive to a reasonable person of ordinary owner of property. The defendant was under- sensibilities; and which caused the plaintiff taking renovations. Scaffolding extended detriment or distress. across to the plaintiff’s property. The plaintiff An important Australian decision is the pro- owner seeks a mandatory injunction for the tection of privacy under general law.110 Le- removal of the scaffolding. At issue is this: in nah Game Meats Pty Ltd (Lenah) operated a applying the Kelsen decision, the scaffolding possum meat processing plant located in was a trespass, the defendant had acted with Tasmania. An unknown person, or people, callous disregard of the plaintiff’s rights, and unlawfully entered the premises and installed accordingly it would not be oppressive to video cameras. The video cameras were sub- grant the injunction. Decision: The Court held sequently retrieved. Video taken of the that the test is whether the incursion is of slaughter and processing of brush tail pos- such a nature and height as to interfere with sums was passed to an animal rights group, the ordinary uses of the land, which an occu- Animal Liberation Ltd. The group supplied a pier may see fit to undertake. However, the copy of the video to the Australian Broadcast- defendant should not use the land of another ing Corporation (ABC) current affairs pro- for their own commercial purposes. A manda- 106 gram, The 7.30 Report. The ABC indicated to tory injunction was granted. Lenah that it intended to broadcast the video material. Lenah, concerned with the possible Tort Liability and Nuisance negative impact of the video on its business, In the U.S. the tort based upon the right to sought, an interlocutory injunction to restrain privacy has been evolving in response to the the broadcast. While the ABC was not impli- encroachments upon privacy by the media cated in the unlawful entry, it was clearly and others. The U.S. common law of tort has aware that the video had been obtained identified four activities that give rise to li- unlawfully, at least following the application ability for the invasion of privacy. These are: for interlocutory relief. • intrusion upon seclusion; The majority of the Full Court of the Tasma- nian Supreme Court extended the principles • appropriation of name or likeness; applied in the previous cases to hold that, absent an enforceable cause of action, an • publicity given to private life; and, interlocutory injunction could be awarded to • publicity placing a person in a false restrain publication where it would be uncon- light.107 scionable to use the ‘fruits’ of an act of tres- pass. The central legal issue on appeal to the Some states do not, however, recognise such High Court concerned the conditions for claims; for example, New York does not have awarding an interlocutory injunction. The a false light claim provision.108 Other states majority of the High Court rejected Lenah’s protect a larger class of persons and private arguments and held that, in the circum- stances, interlocutory relief was unavailable. 104 Morrison WL, Sappideen C. “Torts. Commentary and Materials.” North Ryde: The Law Book Co. Ltd (1993): 92- A public or common nuisance is an act which 94. interferes with the enjoyment of a right which 105 LJP Investments Pty Ltd v Howard Chia Investments all members of the community are entitled Pty Ltd (1989) 24 NSWLR 490. 106 to, such as a right to fresh air, to travel on However, the law remains unsettled. See Price, R., highways and so on. A private nuisance is a Griggs, L. “Property Law Principle” (2nd ed.) Pyrmont, NSW (2008): Lawbook Co. 107 Restatement of the Law (Second) Torts § 652A. 109 Grosse v Purvis [2003] QDC 151, 16 June 2003. 108 Howell v New York Post Co., 596 N.Y.S.2d 350; 612 110 Australian Broadcasting Corporation v Lenah Game N.E.2d 699 (Ct. App.) (1993). Meats Pty Ltd [2001] HCA 63, 15 Nov. 2001.
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tort that is either any wrongful disturbance or more clarity and precision in defining the interference with a person’s use or enjoyment issues – something that has not been of land or an act wrongfully causing or allow- achieved in the area of privacy protection. ing the escape of deleterious things into an- The multidimensional nature of the protection other person’s land. Nuisance is commonly a of privacy perhaps has prevented the devel- continuing injury.111 opment of appropriate and holistic privacy protection programme. In the consumer pri- 3.1.5.3 Discussion vacy protection arena al-Shakhouri & Mah- The Digital Age including the array of social mood (2009) have suggested that the network sites and mobile phones have framework may lie in a regulatory approach changed the very notion of privacy. English at both a national and international level as 114 and E.U. courts seem now more willing to well as a technical approach. Governmen- treat as private those activities carried out in tal and national efforts in setting up legisla- public as the Naomi Campbell and Catherine- tion and regulations may help while interna- Zeta Jones and Douglas cases have demon- tional efforts are directed towards guidelines 115 strated. Such cases are examples of a statu- such as the 1980 OECD Privacy Guidelines. tory tort for the breach of privacy. New Technical solutions go to the very technology causes of action have arisen such as in Aus- itself such as ‘shutter control’ where data tralia for an invasion of privacy as shown in collection by satellites might be required to the Grosse v Purvis and Lenah Game Meats be stopped because of national security, for- 116 cases. These cases have given rise to a rea- eign policy and international obligations. In sonable expectation of privacy. However, the these a balance is required to weight up the advent of CCTV coverage in many modern economic, social and political payoffs and cities and our movement through public whether the imposition of conditions and space, while technologically transformative, barriers might be disproportionate relative to unfortunately pose a grave threat to personal the low risk of privacy violations. privacy – variously labelled as locational pri- Slonecker et al. (1998) have suggested that vacy. Clarke (2008) in advocating Privacy there is a dire need for ethical guidelines to Impact Assessments has observed that de- provide the moral philosophy to privacy pro- ployment of such infrastructure puts the onus tection in the absence of a global comprehen- back on governments to inform the citizenry sive legal and policy framework.117 On the of such devices and a failure to do so is a 112 other hand, von der Dunk (2005) believes serious shortfall to privacy protection. that there exists a rudimentary legal frame- work at an international level mainly in the 3.1.6 Addressing Privacy Issues form of U.N. Conventions, Agreements and Treaties as well as transnational Directives It has been asked whether there exists a and industry codes of practice.118 However, legal framework in public international law at a national level any form of privacy protec- that can cope with the new developments in the Space Age. What might be needed in “… 114 Al-Shakhouri, NS, Mahmood, A. “Privacy in the Digital resolving these many challenging legal ques- World: Towards International Legislation”, First Monday, tions will require creative and flexible solu- vol. 14 no. 4, 6 April 2009. tions as soon as possible” (Jasentuliyana,
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tion pertaining to geospatial activities ‘barely enacts clear legislation that implements Fair exists’. This lack of an international frame- Information Practices. Its Legislative Recom- work may be because the basic spatial legal mendations Primer sets out what is required system has been built on the rights and obli- in regard to protecting individuals, sensitive gations of the States and not the individual. information, behavioural and personal data, As expressed in the 1986 UN Resolution Prin- and security safeguards amongst others.122 ciple IV remote sensing activities from space In 2009 the European Space Agency (ESA) is not to be conducted to the detriment of the member states approved the Sentinel data legitimate rights and interests of the sensed policy principles that among others estab- state. Hence in international space law, the lished full and open access to data acquisition individual has yet to be accorded any by Sentinel satellite missions. The Sentinel rights.119 This so-called active personal juris- missions were deployed specifically for the diction is a long way off from an international operational needs of the Global Monitoring for personality since it is nascent in its develop- Environmental and Security (GMES) pro- ment and is more disputed (von der Dunk gramme. One of the key challenges is the 2001).120 But this may no longer be the case legal framework relating to copyright and since this very debate on privacy has been protection of data, privacy issues and liability narrowed down to its impact on the individ- for GMES services. A major difficulty is to ual. The commercialisation of remote sensing identify whether GMES services contain or activities where corporations and private relate to personal data. It has become clear entities have taken over as majority players that the GMES programme underlies a very in deploying satellites and the advent of the complex legal framework that requires de- Internet now demand that individuals be tailed legal analyses, and the establishment considered in the equation. Perhaps, as sug- of guidelines and models for the legal issues gested by Ito (2008) it may be time to revisit identified above. In addition these legal is- the UN Principles to put a heavier emphasis sues need to be dealt with urgently while not on the regulation of remote sensing activities dictating or precluding any particular govern- that will remove uncertainties, address the ance structure.123 urgent needs for clarification and to establish a more comprehensive regime.121 Even ex- One wonders now whether geospatial tech- tant Treaties and Resolutions have shown nologies have exposed privacy and whether inadequacies in terms of data policies, liabil- this exposure has given rise to an unrealistic ity issues, access to data and third party expectation of privacy protection. Perhaps damage. The principles are also silent on the also privacy has been poorly understood – rights of data generators as well as the rights verging on emotional and mass fear and un- to intellectual property. Here we may add certainty so that calm reflection and contem- privacy protection to the list because remote plation has not taken place. For example, sensing technology is so advanced that indi- geospatial technology may expose slivers and viduals may be recognised from high resolu- overlaps in property maps but does not cre- tion images. ate them. So Eutchev (2005) has suggested that the ‘privacy quotient’ for GIS is often measured against the user’s perception of 3.1.7 Conclusion privacy.124 In the U.S. privacy is a fundamental right. A cynical view is that perhaps the right to be Protection of this right in the last half century left alone has been steamrolled by the rush or so has been based on Fair Information of the digital revolution. In so doing privacy Practices (FIP): collection limitation, data may only be available to those who can af- quality, purpose specification, use limitation, ford to pay for it.125 Similarly it has been said security safeguards, openness, individual participation, and accountability. A coalition of ten partners from consumer groups and 122 Center for Digital Democracy, Consumer Federation of privacy rights has advocated that privacy America, Consumers Union, Consumer Watchdog, Elec- protection can be achieved when Congress tronic Frontier Foundation, Privacy Lives, Privacy Rights Clearninghouse, Privacy times, U.S. Public Interest Re- search Group, and The World Privacy Forum. Legislative 119 Huikang, H “Space Law and the Expanding Role of Primer, September 2009. Private Enterprises with particular Attnetion to Launching
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that privacy is not a right but a privilege, a ellite, the more information can be extracted luxury afforded by wealth and enforced by from the data it generates. This means that if custom. Most are prepared to trade a bit of not already, then very soon, remote sensing privacy for convenience – to save time and activities may start impinging on privacy money – to divulge personal information in rights. return for discounts, ease of future access In order to decide whether a certain activity and to save time. It may be that the advance may compromise privacy as protected in a of technology and demands of modern busi- certain society it is necessary to determine ness and government have made the tradi- what privacy is. This issue is the focus of this tional ideas of privacy anachronistic.126 paper. Its aim is to show how multifaceted, In discussing legislation for the protection of diverse and ever-changing privacy is, de- personal privacy it has been suggested that pending on the structure of society, the time “… self-regulation is central to maintaining in history or even groups within a given soci- the rights of individuals, the trust of the pub- ety. It does not attempt to define privacy for lic, and the economic vitality of the profes- regulatory purposes, but calls for taking into sion and nation as a whole” (Slonecker et al. account its complexity when regulating any 1998: 594).127 The problem is to balance the activities that may compromise it. For this rights of individuals against the rights of the purpose the paper explores approaches to general public to the advantage of all that defining privacy, as well as the evolution of science now offers in the use of airspace. the concept and its contents over the centu- Hopefully in the discussions above we are ries of human history. Taking from there, it working towards a truly corpus juris spatialis addresses the issues of what the subject internationalis (von der Dunk 2001).128 To matter of protection is and to what extent it have found this we can truly say that we is protected. It concludes with some remarks have indeed arrived. But, there is more to be as to the impact of the development of tech- done. nologies on the concept of privacy and the necessity to address privacy in a regulatory regime. 3.2 What Is Privacy? by Catherine Doldirina 3.2.2 Approaches to Definition One of the most characteristic and striking 3.2.1 Introduction facts about privacy is that it is a concept that easily escapes any precise definition. Privacy Development of surveillance technologies is considered to encompass such notions as remains a discussion item in democratic so- freedom of thought, control over one’s body cieties and includes issues such as to what and personal information, solitude at home, extent surveillance can be carried out, what freedom from surveillance, protection of purposes it should serve to be justifiable, and one’s reputation, as well as protection from others. These and other issues seem to be searches and interrogations.129 Taking into secondary to the resolution of the question: account the multiplicity of interests that pri- What is the meaning of the concept of pri- vacy is designed to protect, as well as its vacy? Protection of privacy is indispensible in contribution to sustaining democracy through any society that respects human rights. Re- allowing and fostering development of indi- mote sensing activities have seen enormous viduality and creativity, it has been aptly progress in the past 10 years, and today’s called “the most comprehensive of rights and satellites can generate data with a resolution the right most valued by civilised men.”130 of 50 cm. These are data available on the commercial market: one can only wonder In today’s societies, privacy is indeed recog- what resolution military remote sensing satel- nised as a fundamental human right. The lites have. The better the resolution of a sat- United Nations’ Universal Declaration on Hu- man Rights (1948) proclaims that: “no one shall be subjected to arbitrary interference 126 Philipson, G. “Privacy the price of super communica- with his privacy, family, home or correspon- tion. If you want instant movies, music and phone calls you dence, nor to attacks upon his honour and have no privacy. Get over it”. Sydney Morning Herald reputation”. This definition allows interpreta- Next, July 15 (2008): 29. tion of the concept of privacy as a negative 127 Slonecker, E.M., Shaw, D.M. and Lillesand, T.M. “Emerging Legal and Ethical Issues in Advanced Remote Sensing Technology.” Photogrammetry Engineering and Remote Sensing. Vol. 64 no. 6 (1998): 589-595. 128 von der Dunk, F. “ Legal aspects of geospatial data gathering in space”. GIM International. 19 8 (2005): 69- 129 Solove, D.J. “Understanding Privacy.” Cambridge: 71. Harvard University Press, 2008. 130 US Supreme Court Justice Brandeis.
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right,131 although it should be balanced lates that privacy is essential for human rela- against other negative rights, as well as rec- tionships.139 ognised freedoms. Any precise definition of what privacy is or The definition of privacy, the approach to the can be also depends on the differentiation legal regime and the focus of the protection it between public and private, based on the establishes differ and usually depend on the legal determination of public and private geo- emphasis or the subject-matter of protection graphical places, as well as of public and pri- that is put forward by the relevant theory. vate information; on customary expectations This results in a number of categories of how and cultural understanding and social percep- privacy is defined that are necessary for a tion of public and private; on the accessibility better understanding of the range of issues of information to the unenhanced senses; that the concept of privacy encompasses. The and the actual state of the knowledge. first one can be called the right to be left alone or the right of personality: it implies the ability of an individual to determine the 3.2.3 The Changing Concept extent of the communication of his thoughts, The definitional discussion of the concept of 132 sentiments and emotions to others. The privacy in the previous section showed how next category focuses on the limitation of different the approaches to defining it and access to oneself through the recognition of determining its focus can be. Social context is the value of solitude and of the desire or another aspect that plays a crucial role in need to conceal certain things from others: it shaping the concept of privacy, since privacy implies, with slight differences in comparison “obtains its true meaning within social rela- to the first category, “the right of every man tionships”.140 This is due to the fact that the to keep his affairs to himself, and to decide understanding of both public and private life for himself to what extent they shall be sub- differs according to particular interpretations 133 ject of public observation and discussion” - both public and private spheres of life are that “entitles one to exclude others from “fluid and situational or conceptual”141 A very watching, utilising, invading his private brief look at the historical facts142 supports 134 realm.” The third category can be called the notion that every era attempts to balance ‘secrecy’ as it primarily focuses on the avail- private and public life and determines, ac- 135 ability of selective disclosure as to infor- cording to its dominant values, the amount of mation regarding privacy issues. Another private information that can be accessed by category brings forward the ability of active the authorities or the society at large. Para- 136 control over personal information. The two doxically, the dichotomy between the desire last categories focus on the one hand on per- to reveal information and the countervailing sonhood, according to which privacy protects wish to keep things private remains through 137 irreducible attributes of an individual and, time.143 on the other, on intimacy (intimate matters or acts draw “their value and meaning from In Ancient Greece privacy was not regarded the agent’s love, care or liking”138) that stipu- as something worth protecting: “an entirely private life means above all to be deprived of things essential to a truly human life: to be deprived of the reality that comes from being seen and heard by others, ... or to be de- prived of the possibility of achieving some- 131 Sofsky, W. “Privacy: A Manifesto.” Rendall. S transl. thing more permanent than life itself.”144 In (Princeton University Press: Princeton & Oxford, Ancient Rome, meanwhile, there was a clear (2008):30. distinction between public (publicus) and 132 Warren, S., Brandeis, L. “The Right to Privacy.” Harvard Law Review, 4 (1890): 193. private (privates), and the private sphere 133 Godkin, E.L. “Libel and Its Legal Remedy.” Journal of Social Science 12 (1880): 69-80. 134 Van Den Haag, E. “On Privacy, in Nomos XIII: Privacy “J. Roland Penncock & J.W Chapman eds., 1971. 149. 139 With the problem that some private things, like bank 135 Karst, K.L.. “Legal Controls over the Accuracy and account information, are private but not intimate. Accessibility of Stored Personal Data. 31 Law and Con- 140 Gutwirth, S. “Privacy and the Information Age”. Casert, temporary Problems .”(1966):342, 344. R. trans. (Lanham/Boulder/New York/Oxford: Rowman & 136 Fried. Charles. "Privacy".Law, Reason, and Justice: Littlefield Publ. 2002) at 34. Essays in Legal Philosophy .Graham B. J. Hughes ed., 141 Marx, G. Murky Conceptual Waters: The Public and the New York: New York University Press, 1969. Note that the Private. 3 Ethics and Information Technology 157 (2001). major problem with this category is that privacy is not 142 For more details see Sofsky, W. Privacy: A Manifesto at simply a subjective matter of individual prerogative, but 25-29. For a very extensive overview see Veyne, P. His- also an issue of what society deems appropriate to protect tory of Private Life in 5 volumes. Belknap Press, 1992. 137 Freund, P. Address at the American Law Institute 52nd 143 Keeler, M.R. “Nothing to Hide: Privacy in the 21st Cen- Annual Meeting 42-43 (1975). tury.” Lincoln: Universe, 2006. 138 Inness, J. “Privacy, Intimacy and Isolation”. New York: 144 Arendt, H. “The Human Condition.” Chicago: University Oxford University Press (1992):73. of Chicago Press, 1958. 58.
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was outside the scope of any regulations.145 Privacy is also important because of security At the same time the life of political figures issues, as it prevents unnecessary exposure. was very open and every step they made, Promoters of a wider availability of private including marriage or a will, was evaluated by information argue, to the contrary, that pri- public opinion. In Europe, the Renaissance vacy lessens society’s ability to detect and and Christianity had a different – more intru- punish disobedience, which complicates the sive – attitude towards privacy, which was law enforcement process.149 They believe manifested in e.g. regulations regarding the that privacy can also impede commercial construction of private houses, declarations efficiency and profitability in that it will be of wealth, rules of marriage and even obliga- more difficult for companies to collect, store tions as to dress code. The French Revolution and use information upon which they base reduced the private domain even more, but business decisions.150 Importantly, privacy not through the Church and religion as be- may conflict with the free flow of information fore, but through municipal institutions. and other societal values and goals, like pre- Today, although privacy and its protection vention and detection of crime and national are considered to be essential to normal life, security. From this perspective, even if pri- modern technologies and, for instance, the vacy is seen as a negative right, it needs to development of social networks provide for a be assessed together with other rights and great exposure of information that one would freedoms, and to be reconciled with other think is absolutely private. In addition, even individual rights.151 in the same time period different societies may understand and value privacy differ- ently, as for example with the issues of the 3.2.5 What to Protect? boundaries of personal space - the concept of The aspects of our private life that a privacy personal space varies across nations, yet regime protects can be classified content- members of a particular culture have a pre- and subject-wise. In terms of content, pri- 146 cise sense of over-familiarity. vacy protects family, body, sex, home, and communications. With regard to the specific 3.2.4 Why Protect? activity, privacy protects the content of pri- vate life from actions such as invasion into Several arguments come to support the pro- the private realm, as well as the collection, tection of privacy. In today’s reality probably processing, and dissemination of informa- one of the most important is the essentiality tion.152 One of the major challenges that of privacy for democracy, as it fosters and policy-makers and regulators face is to de- encourages the central requirement of cur- termine whether and what information is rent regimes, “the moral autonomy of the private or public. The decision should take citizen”147, and influences social structures, into account the purposes for which people power, and freedom. Furthermore, the con- want to conceal certain data and the uses cept of privacy is based on and recognises that others might make of them in case ac- the moral duty to respect an individual’s dig- cess is granted. Another important issue that nity and autonomy. It reflects the importance has to be assessed is the fact that people of autonomous life and personal integrity. often may trade privacy “for convenience or Privacy prevents establishment of too much to bargain the release of personal information social control that can negatively impact in exchange for relatively small rewards”.153 freedom, creativity and self-development. In Imposition of such choices on them through the long run, privacy emphasises and rein- regulations should not be allowed. forces trust within a society148 in that it The understanding of privacy often deter- teaches its members to interact without hav- mines the subject-matter of the regulations ing all possible information about each other. that build the relevant legal framework. The Privacy protects aspects of individuality that most vivid examples of the differences in have a high social value; it not only protects individuals but also fosters social interests. 149 Rule, J.B. “Private Lives and Public Surveillance: Social Control in Computer Age.” 1974. 21-22. 145 It was manifested in the absence of state religion, free 150 Cate, F.H. “Privacy in the Information Age.” Washing- transfer of property and in availability of divorce to both ton, D.C.: Brookings Institution Press, 1997. 28-29. sexes. 151 Etzioni, A. “Limits of Privacy.” New York: Basic Books, 146 Supra 129, 40. 1999. 147 Gavison, R. “Privacy and the Law.” Yale Law Journal 152 Baase, S. A. “Gift of Fire: Social, Legal, and Ethical 89, Vol.3 (1980): 455. Issues for Computing and Internet.“ 3rd ed. Upper Saddle 148 For the opposing view that privacy can impede estab- River, New Jersey: Pearson Education, 2008. lishment of truth, and therefore trust to each other and 153 Acquisti, A., Grossklags, J. “Privacy and Rationality in judgement of people’s reputations, in Walker, K. “The Strandburg.”, K. & Raicu, D.S. eds. Privacy and Technolo- Costs of Privacy.“ Harvard Journal of Law and Public gies of Identity: A Cross-Disciplinary Conversation New Policy 25 87 (2002): 91. York: 2006. 15-16.
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approaches to privacy, both theoretical and can be used only for the purposes laid down practical, can be illustrated by comparing as acceptable by relevant regulations. In the those in Europe and the US. In the US pri- light of European practices, the situation in vacy is seen as a part of liberty and the main the US is quite the opposite, since making focus of privacy protection is from or against compilations of an accessible record of any governmental encroachment into the private individual's credit history is allowed.160 realm. In Europe, by contrast, the regulations are based on the recognition of privacy as a human right and are therefore much more 3.2.6 Protect – to What Extent? concerned with protecting individuals from The degree of necessity of protecting certain 154 undesired exposure rather than from the aspects of the private lives of citizens 155 government that enjoys more trust than in changes, and another example from Ancient the US. These foundations have quite far- Greece illustrates this perfectly: for the reaching implications both on the level of Greeks, the naked body was an attribute of a 156 law-making and law-enforcement: some of civilised person, as public nudity “affirmed them are highlighted in this section. one’s dignity as a citizen”.161 It therefore Privacy protection regarding consumer data is needed no protection whatsoever, which is one example of the impact of different ap- unthinkable today. In general, even in socie- proaches to regulating privacy issues, which ties that exist at the same time, practices is increasingly gaining attention particularly regarding any privacy sphere have numerous with the development of internet technolo- variations depending on such factors as ur- gies. Allegedly, consumer “data stalking and banisation, class and social status, ethnicity information trafficking” are considered as and religious beliefs. Without doubt, what is part of normal business activities in the public and private is shaped by culture and US.157 The reasoning in favour of allowing history. In this context, the question as to these practices is that they lower the costs how flexible the relevant regulations have to for buyers and sellers to find each other, be becomes relevant. If the extent of protec- which in the long run enhances market effi- tion of privacy is a variable, then we need ciency. On the contrary, this approach is pre- some principles that remain relatively con- cluded in Europe where free-market argu- stant and are used to determine the shape of ments are not dominant when adopting legal the variable – the available protection. norms regarding privacy protection. In this The most widely used assessment criteria to regard, the purchase of consumer prefer- determine what information should be denied ences data by marketers is not allowed as it access to by the public at large and to guide may seriously violate the privacy rights of the activities of both legislators and law- 158 consumers. This clash of approaches led in enforcing institutions can be categorised in the 1990s to a conflict between the two juris- two groups. The first category encompasses dictions that was resolved only in 2000 criteria referred to as ‘private’ and signifies through the so-called ‘safe harbour’ agree- individual choice of what to “withdraw from ment that aimed at reconciliation of the two public view”.162 This approach is problematic approaches and provision of more protection in application as it is virtually impossible to 159 to European consumers. adopt a workable system of protection Another example of the difference in focus as around such a conception of privacy: it varies to what privacy should protect is the gather- with each individual’s idiosyncrasies. The ing and availability of financial information. In second category brings forward the notion of Europe it is not easily available, apart from ‘reasonable expectation of privacy’ in order to information about insolvents and bankrupts. determine the amount of protection granted Moreover, it is usually gathered either by by the regime. Its advantage over the first public bodies (as in France) or specially des- category lies in the fact that its assessment ignated organisations (like in Germany) and criteria are not linked solely to the individ- ual’s particular expectations, but incorporates those that a society considers appropriate. 154 Whitman. Ford Foundation Professor of Comparative This concept is very often applied by courts and Foreign Law, Yale. across the globe, including the European 155 Reidenberg, Joel R. “E-Commerce and Trans-Atlantic Court of Human Rights (ECHR). Privacy.” (2001) 38 Hous. L. Rev. 717-731. 156 In the U|S, unlike Europe, there is no ‘constitutional’ law that lays down general principles of the protection of pri- vacy. 157 Joel R. Reidenberg Professor of Law. Fordham Univer- 160 Ibid. sity School of Law. 161 Sennett, R. “Flesh and Stone: The Body and the City in 158 Supra 154. Western Civilisation.” W.W New York: Norton & Company 159 Whitman, J.Q. “The two Western cultures of privacy: Inc, 1994. 33. dignity versus liberty.” Yale Law Journal 6, Vol. 113, April 162 Young, I.M. “Justice and the Politics of Difference.” 2004. 1151. Princeton: Princeton University Press, 1990. 119-120;
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As highlighted in the previous sections, the such as, for instance, in the case of consumer determination of privacy depends on many protection: consumers from countries with factors. In Europe, for instance, unlike in the some government regulation of information US,163 the law offers protection to privacy in privacy desire even stronger regulation of various realms of life, whether the issue is data collection,171 unlike consumers from consumer data,164 credit reporting,165 work- countries where no or very little protection is place privacy,166 discovery in civil litigation, available. or protection of criminal offenders from public At the same time, technology may play a role exposure.167 Similarly, in many countries the in shaping people’s expectations as to what laws and regulations do not protect privacy behaviour is appropriate in society. For in- once a person leaves his own house168 and stance, services like Google maps and street enters public spaces such as streets.169 These view may, due to their ability to unexpectedly differences are sometimes explained through expose persons on a global scale, in the long the concepts of ‘data protection’, which is run force good behaviour. Such practices may narrower and is used in the USA, and ‘protec- further contribute to the stronger realisation tion of information privacy’, which is broader of the necessity of distance among members and serves as a basis for regulations in the of a society and as a result protect them from EU.170 false intimacy and false community.172 The major danger the technological develop- 3.2.7 Impact of New Technologies ment has brought is reduction of the costs of The development of (surveillance) technolo- data collection, which has led to a situation of gies has a twofold effect on the treatment of accumulation of too much (sometimes un- 173 privacy issues. On the one hand, it enables necessary) data. In addition, the modes of some researchers to argue that interests data storage and accessibility have changed such as freedom from police ‘coercion’ or use dramatically and may affect the ways of pro- of force should be specifically preserved tecting privacy as well. For instance, interac- rather than a broad concept of privacy as tive maps available for a range of uses that such. On the other hand, others propose that integrate remote sensing satellite data into privacy concepts should be narrowed down to geographic information systems (GIS) may only the most offensive governmental inva- reduce the private realm available to us to- sions. Changes in the regulations can also day. GIS technology enables users to link arise from the expectations of individuals limitless types of data (ranging from census data to crime statistics) on a certain activity to mapping software.174 The implication of Whitman, J.Q. “The two Western cultures of privacy: dig- this is that zooming in a particular image nity versus liberty.” Yale Law Journal 6, Vol. 113, April within a GIS may reveal all personal or other 2004. 1151 information that is linked to this geographic 164 Council Directive 95/46 of 24 October 1995 on the location.175 Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, 1995 O.J. (L 281) 31;Scheer, D. “Europe's New High-Tech Role: Playing Privacy Cop to the World.” Wall Street. 3.2.8 Conclusion Journal 10 October 2003: A1. This sketch on privacy has hopefully high- 165 Wuermeling, U. “Scoring von Kreditrisken.” N.J.W. 55 (2002): 3508. Noting that credit scoring is provided only lighted several issues. First of all, privacy is a through statistical aggregation of anonymized data, in complex, definition-escaping concept that is order to prevent violations of the privacy rights of individual very much shaped by the habits and the cul- consumers. 166 ture in a given society and may change over For an analysis of the differences between German and time and even within different social layers of the US approach to the issue, see Finkin, M.W. Men- schenbild. “The Conception of the Employee as a Person the same society. Secondly, different socie- in Western Law.” 23 Comp. Lab. L. & Pol'y J. (2002): 577. ties may and do adopt varying approaches to 167 Whitman, J.Q. “Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe.” New York: Oxford University Press, 2003. 84-92. 171 Bellman, S. “International differences in Information 168 Although this is the focal point of protection in the US – Privacy Concerns: A Global Survey of Consumers.” The privacy in one’s house. See Boyd v. United States, 116 Information Society 20 (2004): 313-324 U.S. 616, 630 (1886). 172 Supra 131, 45. 169 Taslitz, A.E. “The fourth Amendment in the Twenty-First 173 “Privacy International Responds to European Commis- Century: Technology, Privacy and Human Emotions.” Law sion Consultation on the Privacy Directive of 31 Dec. and Contemporary Problems 65.2 (2002): 125-187. 2009.” 170 Bellman, S. “International differences in Information
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defining and protecting privacy, which in the mote sensing data providers, is one of the contemporary globalising world leads to regions where legal issues pertaining to such clashes of both a regulatory and an enforce- a potential interference with privacy will have ment nature. In addition, often the theory to be dealt with. Thus, the question has often chosen to govern the legal framework of pri- been broached which this paper briefly tries vacy protection influences its subject matter, to survey: what, if any, would be the ‘Euro- focus and the extent of the protections pean approach’ to these issues?178 granted. Lastly, the rapid technological de- It may be pointed out at the outset, that in velopment of today may pose new and unex- the four UN treaties widely considered the pected issues that have to be tackled or ad- core of the corpus juris spatialis internation- dressed in order to maintain the desired level alis,179 the issue of privacy as such was not of privacy protection. at all dealt with. In consequence, the issue This said, it is necessary to point out that can only be approached from the point of despite all the differences in approaches to departure of the law on privacy. However, define privacy and establish a regime for its before moving to the substance of mapping protection, a lot of things discussed and how in Europe the issue of protecting privacy brought up in this paper and in the research as it is relevant in the context of space-based that serves as its basis are neither universal VHR remote sensing data has been dealt nor ‘hopelessly’176 variable. Most of the is- with, with respect to any possible ‘European sues, principles and rules lie in between the approach’ beyond the level of individual na- two and have many shared attitudes towards tional jurisdictions, it should be noted that them across jurisdictions. The similarities in more than one intergovernmental European treating issues regarding privacy across ju- entity plays a key role in this context.180 risdictions should be used as the basic princi- From a strictly space-based perspective, per- ples on which to build effective regulations. haps analysis should first address the Euro- pean Space Agency (ESA),181 Europe’s stan- dard-bearer in space in general terms and/or 3.3 The European Convention EUMETSAT,182 Europe’s standard-bearer in
on Human Rights and EU 178 For those interested in the full details of the analysis, Law – Two European Legal reference may be had to the author’s Europe and the ‘Resolution Revolution’: ‘European’ Legal Approaches to Approaches to Privacy, as Privacy and their Relevance for Space Remote Sensing Activities, 34 Annals of Air and Space Law (2009) : 809- Relevant to High- 844. 179 This concerns the Treaty on Principles Governing the Resolution Imaging Activities of States in the Exploration and Use of Outer by Frans von der Dunk Space, including the Moon and Other Celestial Bodies, London/Moscow/Washington, done 27 January 1967, entered into force 10 October 1967; 610 UNTS 205; TIAS 3.3.1 Introduction 6347; 18 UST 2410; UKTS 1968 No. 10; Cmnd. 3198; ATS 1967 No. 24; 6 ILM 386 (1967); the Agreement on the The recent, sometimes major strides in the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, Lon- development of Very-High Resolution (VHR) don/Moscow/Washington, done 22 April 1968, entered into remote sensing satellites have led to remote force 3 December 1968; 672 UNTS 119; TIAS 6599; 19 sensing products of sub-meter resolution UST 7570; UKTS 1969 No. 56; Cmnd. 3786; ATS 1986 being commercially available, and the expec- No. 8; 7 ILM 151 (1968); the Convention on International tation that this resolution will continue to Liability for Damage Caused by Space Objects, Lon- become better over the next few years. This don/Moscow/Washington, done 29 March 1972, entered into force 1 September 1972; 961 UNTS 187; TIAS 7762; development, it seems, may soon start inter- 24 UST 2389; UKTS 1974 No. 16; Cmnd. 5068; ATS 1975 fering with the privacy of individuals and No. 5; 10 ILM 965 (1971); and the Convention on Registra- individual entities, not just with the ‘privacy’ tion of Objects Launched into Outer Space, New York, of states.177 done 14 January 1975, entered into force 15 September 1976; 1023 UNTS 15; TIAS 8480; 28 UST 695; UKTS Europe, with major governmental and inter- 1978 No. 70; Cmnd. 6256; ATS 1986 No. 5; 14 ILM 43 (1975). governmental players in the remote sensing 180 area as well as a few renowned private re- R. Harris, “Earth Observation and Principles on Data.” Law and Geography – Current Legal Issues 5 (2002), 544-546 176 Supra 129. 181 ESA was established by the Convention for the Estab- 177 Gaudrat, P., Tuinder, P.H., “The Legal Status of Re- lishment of a European Space Agency, Paris, done 30 mote Sensing Data: Issues of Access and Distribution”. May 1975, entered into force 30 October 1980; 14 ILM 864 Lafferranderie, G., Crowther (Eds.). Outlook on Space Law (1975); Space Law – Basic Legal Documents, C.I.1. over the Next 30 Years (1997), 353-6; Jackson, S.M. 182 EUMETSAT was established by the Convention for the “Cultural Lag and the International Law of Remote Sens- Establishment of a European Organization for the Exploita- ing”. 23 Brooklyn Journal of International Law (1998):856- tion of Meteorological Satellites (EUMETSAT), Geneva, 860. done 24 May 1983, entered into force 19 June 1986; as
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space-based meteorological remote sens- The European Convention followed on the ing.183 Both, however, are intergovernmental heels of the United Nations-developed Uni- organisations, not regulatory but operational versal Declaration on Human Rights of 1948, in nature, and therefore involved in dealing which represented the first official global with privacy issues in a legal sense only catalogue of modern-day human rights. The through contracts concluded with down- Declaration thus already provided for a pro- stream data collecting and distributing enti- hibition on arbitrary interference with privacy ties – in other words: very much an ad hoc and the basic requirement of establishing approach. adequate protective legal instruments in the national context to underpin that prohibi- From a legal and regulatory perspective, tion.188 On the international level, the Decla- therefore, of much greater importance for ration was followed up by the International analysing the European ‘spacescape’, would Covenant Civil and Political Rights, which be the two approaches taken by two interna- similarly – this time in legally binding fashion tional entities which do focus on regulation, and underpinned by a dispute settlement even legislation in a proper sense – even if system – provided for the prohibition of arbi- hardly focusing on regulating or legislating trary interference with privacy and the enti- space activities. This concerns on the one tlement of individuals to protection by law hand the Council of Europe, not to be con- against such interference.189 fused with the Council of Ministers or Euro- pean Council (both institutions of the Euro- Yet, the European Convention on Human pean Union), and on the other hand the Rights was first in achieving that same level European Union, especially now that the of legislative institutionalisation on the inter- Treaty of Lisbon184 has provided the latter national level, as applicable ipso facto to all with a first comprehensive measure of com- member states of the Council of Europe. The petence in the space area.185 key article in the Convention dealing with privacy is Article 8, which reads in full:
3.3.2 The Council of Europe, the European Con- (1) Everyone has the right to respect for vention on Human Rights and Privacy » his private and family life, his home and his correspondence. (2) There shall be no The Council of Europe was established as interference by a public authority with early as 1949, in an effort essentially to pro- the exercise of this right except such as vide legal instruments to try and prevent the is in accordance with the law and is nec- atrocities against civilians in general perpe- essary in a democratic society in the in- trated by the Nazis and their allies from re- terests of national security, public safety or the economic well-being of the coun- curring again.186 Consequently, its major try, for the prevention of disorder or achievement was and is the European Con- crime, for the protection of health or 187 vention on Human Rights. morals, or for the protection of the rights and freedoms of others.
amended 14 July 1994, entered into force 27 July 1994; Thus, essentially only the cumulative fulfil- Cmnd. 9483; Space Law – Basic Legal Documents, C.III.1; ment of two conditions could justify interfer- 44 ZLW 68 (1995). ence with privacy: (1) such interference 183 Note that, while ESA and EUMETSAT are related in should be appropriate and proportional, justi- practical terms in many ways, their membership substan- fied by overriding concerns of a public nature tially differs: ESA currently counts 18 member states, of sufficiently important nature, and (2) such EUMETSAT 26 member states. 184 Treaty of Lisbon amending the Treaty on European interference should also be specifically al- Union and the Treaty establishing the European Commu- lowed by law, so as to allow sufficient legal nity (hereafter Treaty of Lisbon), Lisbon, done 13 Decem- certainty and preclude any use of the argu- ber 2007, entered into force 1 December 2009; OJ C 306/1 ment of ‘appropriateness’ to ad hoc circum- (2007). vent privacy protection rules. 185 Art. 189, Treaty establishing the European Community as amended by the Treaty of Lisbon amending the Treaty A number of key cases since 1953, the year on European Union and the Treaty establishing the Euro- of the entry into force of the Convention, pean Community, Lisbon, done 13 December 2007, en- tered into force 1 December 2009; OJ C 115/47 (2009). further elaborated and deepened the specific Further already e.g. S. Hobe et al., “A New Chapter for understanding and application of this clause. Europe in Space.“ Zeitschrift für Luft- und Weltraumrecht Two cases, both of 2002, are most important 54 (2005): 346. with a view to impact on the use of satellite 186 Statute of the Council of Europe, London, done 5 May 1949, entered into force 3 August 1949; ETS No. 001. The Council of Europe currently counts 47 member states, covering more or less all of the geographical continent of 188Art. 12, Universal Declaration of Human Rights, Paris, Europe. UN GA Res. 217 A (III) of 10 December. A/RES/217. 187 Convention for the Protection of Human Rights and 189 Art. 17, International Covenant on Civil and Political Fundamental Freedoms, Rome, done 4 November 1950, Rights, New York, done 19 December 1966, entered into entered into force 3 September 1953; ETS No. 005. force 23 March 1976; 6 ILM 368 (1967).
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remote sensing data resulting in potential ple would not only be available to individuals, interference with privacy. but also to juridical persons such as private companies. This conclusion is especially im- The first of these concerns the Pretty case,190 portant in the light of increasing discussion which actually elaborated on two key issues. of, or even implementation of, the use of VHR Firstly, Article 8 (in contrast to, for example, remote sensing data for example for detec- the applicable provisions of the International tion of violation of laws on environmental Covenant on Civil and Political Rights) as pollution or the growing of certain crops, both such only referred to obligations resting upon on a national level and on an EU level.195 governmental authorities to desist from inter- ference with privacy. This raised the so-called Further potential relevance of this particular ‘paparazzi-problem’, where in Europe threats European regime dealing with privacy for to privacy are often considered to be more remote sensing would stem from concerns in likely and/or a nuisance when stemming from the context of the Convention’s regime and private sources, read the media, than from its application with registration of personal the government. In the Pretty case, the data, as a vital issue for privacy concerns in European Court of Human Rights (the ulti- view of the quasi-omnipresence of electronic mate court to adjudicate on those issues storing devices and the Internet.196 Once re- under the Convention) made it clear however mote sensing data would become sufficiently that Article 8 should be read as also including detailed to present a threat to interfering with a ‘positive obligation’ of public authorities to privacy (if not, indeed, they sometimes al- ensure adherence to privacy protection by ready are) such issues may crucially interfere other individuals or private entities within with the interest of remote sensing data pro- their respective jurisdictions. viders to share their data as widely as possi- ble – whether against a fee, as with commer- The other issue for which the Pretty case is cial providers, or as an element of public particularly known concerned the protracted information or general benefit, as with the debate on the precise definition and scope of GMES programme being developed by the the concept of ‘privacy’ under the Conven- European Union and ESA.197 It may be tion. Though the Court, further to earlier, not entirely successful efforts by others,191 did not exhaustively define ‘privacy’, it noted that 195 Ginzky, H. “Satellite images as evidence in legal pro- this was to be considered a very broad con- ceedings relating to the Environment. A US perspective.” cept, covering at the least such aspects as Droit et Ville 51 (2001): 44.; Macrory, R. Purdy, R. 73 ff.; personal autonomy, physical and psychologi- Molteni, F. “Use of Earth Observation Data as Evidence in Judicial Proceedings Concerning Environmental Infrac- cal integrity, and often extending to physical tions: The moot Court Test.” Droit et Ville 51 (2001): 192 and social identity questions. Any intrusion, 115+.; Levanthis, E.N. “Forest Protection and Illegal De- whether actual and physical or virtual and velopment of Settlements in Forests and Forest Areas.” psychological, in the personal domain could Droit et Ville 51 (2001): 131+. Cf. also on international thus, in principle, be assessed to constitute a environmental treaties e.g. N. Peter, “The Use of Remote 193 Sensing to Support the Application of Environmental Trea- violation of Article 8. The broadness of the ties”. Proceedings of the Forty-Sixth Colloquium on the definition also certainly allows, in principle, Law of Outer Space, 29 Sep. – 3 Oct. 2003, Bremen, the inclusion of certain remote sensing activi- Germany. 74-80. Relevant European legislation includes ties as intruding upon such autonomy or Council Regulation establishing an integrated administra- identity. tion and control system for certain Community aid schemes, (EEC) No 3508/92, of 27 November 1992; OJ L The other case of concern here was the Colas 355/1 (1992); and Commission Regulation laying down Est case.194 In this case, it was confirmed by detailed rules for applying the integrated administration and control system for certain Community aid schemes, the European Court of Human Rights that the (EEC) No 3887/92, of 23 December 1992; OJ L 391/36 right of ‘privacy’, however defined, in princi- (1992). 196 Tahu, G.J., Baker, J.C. and. O’Connell, K.M., “Expand- ing global access to civilian and commercial remote sens- 190 Pretty v. The United Kingdom (Application no. 2346/02, ing data: implications and policy issues.” Space Policy 14 Judgment of 29 April 2002); see further P. van Dijk et al (1998): 184. (Eds.), “Theory and Practice of the European Convention 197 European Council Resolution on the launch of the initial on Human Rights” 4th ed., (2006): 664-665. period of global monitoring for environment and security 191 e.g. J. Velu. “The European Convention on Human (GMES), of 13 November 2001; OJ C 350/4 (2001); Com- Rights and the Right to Respect for Private Life, the Home munication from the Commission to the European Parlia- and Communications.” Privacy and Human Right. Ed A.H. ment and the Council – Global Monitoring for Environment Robertson. 1973. 32-33. and Security (GMES): Establishing a GMES capacity by 192 Pretty case, at § 61. 2008, COM (2004) 65 final, of 3 February 2004; Communi- 193 Purdy, R. “Legal and Privacy Implications of Spy In The cation from the Commission to the Council and the Euro- Sky Satellites.” Mountbatten Journal of Legal Studies 3 pean Parliament – Global Monitoring for Environment and (1999): 65-75; Macrory R. and Purdy, R. “The use of satel- Security (GMES): From Concept to Reality, COM(2005) lite images as evidence in environmental actions in Great 565 final, of 10 November 2005; Harris, Further R., Brown- Britain.” Droit et Ville 51 (2001): 84-7. ing, R. “Global Monitoring for Environment and Security: 194Colas Est v. France (Application nr. 37971/97, Judg- data policy considerations.” Space Policy 19 (2003): 265- ment of 16 April 2002). 276; Muñoz Rodriguez, M.C & J.M., de Faramiñán, Gilbert.
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pointed out, for example, that under the Thus, it was essentially the ever increasing INSPIRE Directive198 EU member states are trans-border flow of personal data as a main specifically obliged to guarantee that elec- element of the modern European economy tronic networks are available for the purpose and based on electronic services or services of sharing certain types of geographic infor- using electronic means, which raised the is- mation as widely as possible. sue – and in principle did not exclude data generated by satellites from their scope: to Also, the question of whether respect for the what extent should increased risks of inter- home and protection against nuisance in the ference with privacy as a consequence of enjoyment of one’s home would be at stake such data streams lead to limitations to the in case of ‘intrusion’ by satellite, in particular generation, distribution and/or use of such when taking place the context of private data, inevitably limiting economic opportuni- companies and their ‘homes’, may have to be ties available to entrepreneurs in this con- addressed sooner rather than later – with text? obvious reference to a body of case law exist- ing already on such forms of intrusion by As a point of departure, it should be noted aerial photography or other non-physical that also the European Union is bound by means of intrusion.199 international human rights law, including notably the European Convention on Human It should be added, finally, that under the Rights – from the outset already because all European Convention on Human Rights in its member states, all also parties to the certain circumstances applicable rights, in- Convention, could not dodge their obligations cluding those concerning privacy, may be under it by transferring any relevant legal temporarily suspended by proper legislative authority to the Community/Union organs, means – notably, these concern cases of war, then because the Union as such became a public emergencies, national security and party to the Convention.201 public safety. This in particular may be an area worthy of further study with a view to Still, for the Union that did not take away the GMES, as focusing on a whole range of public need to try and establish a proper balance security applications. between privacy concerns and free-trade- related concerns, leading – within a few years after the fundamental establishment of the 3.3.3 The European Union, EU Law and Privacy Internal Market by the Treaty on European 202 203 Whilst for the European Convention on Hu- Union – to the Data Protection Directive man Rights, as developed in the context of being enunciated in 1995. the Council of Europe, privacy was exclu- The Directive confirms the basic dichotomy of sively addressed as a matter of human rights, the EU approach: that on the one hand EU the other legal regime to be scrutinised here member states shall protect human rights to becomes involved in privacy not from a hu- privacy however defined and delineated by man rights but from an economic perspec- other applicable legal regimes, but on the tive. In other words, true to its original mis- other hand shall – at least in principle – nei- sion to establish a free trade area and a level ther restrict nor prohibit the free flow of per- playing field for private commercial and eco- sonal data if that unduly interferes with the nomic activities, the European Community, Internal Market and free and open competi- then Union, started to involve itself with pri- tion. From this, an approach results which vacy issues once these were seen to start to has as its overarching aim to provide equiva- interfere with developments towards the In- lent protection, rather than, as such, a high ternal Market, and the free and open compe- or low level of protection – since widely dif- tition envisaged therein.200
December 2009; OJ C 115/1 (2009), providing that “[t]he “The Cooperation Between ESA and EU Regarding the Union shall establish an internal market” as one of its key Earth Observation.” Proceedings of the Forty-Ninth Collo- aims. quium on the Law of Outer Space, 2-6 Oct. 201 Consequently, Art. 2, Treaty on European Union as 2006,Valencia, Spain. 198-201. amended by the Treaty of Lisbon amending the Treaty on 198Directive 2007/2/EC on establishing an Infrastructure for European Union and the Treaty establishing the European Spatial Information in the European Community (INSPIRE) Community, provides that “the Union is founded on the of 14 March 2007. OJ L 108/1 (2007); further e.g. L.J. values of respect for human dignity, freedom, democracy, Smith, C. Doldirina. “The EU INSPIRE Directive: a Suitable equality, the rule of law and respect for human rights”. Cf. Mechanism to Make Spatial Data.” Proceedings of the also Art. 3(2). Fiftieth Colloquium on the Law of Outer Space, 24-28 202 Treaty on European Union, Maastricht, done 7 February Sept. 2007 Hyderabad, India.109-18. 1992, entered into force 1 November 1993; 31 ILM 247 199 See already Purdy, esp. 76-77. (1992); OJ C 191/1 (1992). 200Art. 3 (3) of Treaty on European Union as amended by 203 Directive 95/46/EC on the protection of individuals with the Treaty of Lisbon amending the Treaty on European regard to the processing of personal data and on the free Union and the Treaty establishing the European Commu- movement of such data of 24 October 1995; OJ L 281/31 nity, Lisbon, done 13 December 2007, entered into force 1 (1995).
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fering levels of protection of privacy within allowed by law in clear and unequivocal the various member states would ‘unlevel’ terms. the playing field and distort competition Article 8 of the Directive in any event prohib- within the Union as a whole. its the processing of data if these would be The Data Protection Directive addresses the revealing racial or ethnic origins, political issue through the key concept of ‘personal opinions, personal beliefs, trade-union mem- data’, reshaping the privacy concept to a set berships, personal health or sex life of an of items the handling of which may interfere identified or identifiable individual and so on. therewith. ‘Personal data’, then, are defined By contrast, the aforementioned limitations by the Directive as:204 to the use of personal data do not apply if they are to be used for statistical, historical » [A]ny information relating to an identified and scientific purposes – as long as no indi- or identifiable natural person hereinafter vidual persons could be identified as a conse- referred to as ‘data subject’; an identifi- quence of that use.207 able person is one who can be identified, directly or indirectly, in particular by ref- Another set of exceptions from the applica- erence to an identification number or to tion of the EU-wide system of protection of one or more factors specific to his or her privacy is provided by Article 3: no prohibi- physical, physiological, mental, eco- nomic, cultural or social identity. tions to use under the Directive apply if such use is for purposes of public or state security, The essence of the legal regime then applied defence, or state activities in areas of crimi- to such personal data under the Directive nal law. This, however, essentially means provides that they may be collected, proc- that national restrictions may – and would essed and distributed or allowed to be ac- rather likely – still apply; state security and cessed if they were processed fairly and law- criminal law still form part of national mem- fully, if they were collected for specified, ex- ber state’s sovereign domains outside the plicit and legitimate purposes (and only used scope of EU law. for those), if they are accurate, and if either Further to the Data Protection Directive, a the so-called ‘data subject’ has unambigu- few EU law documents have addressed sub- ously consented or processing would be nec- sets of privacy-related issues. Thus, Regula- essary for purposes specified by law (respec- tion 45/2001208 applied the Data Protection tively as a consequence of legal obligations Directive specifically to the European Union 205 resting upon the data subject itself). itself and its institutions – which in view of The above clauses are applicable to cases the possible role of the Union itself or an EU where the data subject itself provides the agency in GMES may have special relevance data; if data are however somehow not so also for the European remote sensing 209 obtained, in addition the data subject has to ‘spacescape’. Directives 97/66 and 210 be informed of the processing of data and the 2002/58, the later amending the former so substance thereof, as well as of the identity as to take account of the convergence of of the ‘data controller’ and the rights of ac- information and computer technology, deal cess and rectification accruing to the data with privacy issues specifically in the context subject, in order for data collection, process- of telecommunication services and the role of ing and distribution to be allowed.206 the publicly available and accessible tele- communications infrastructure in such ser- Though phrased differently from the Euro- vices, for example by elaborating on wiretap- pean Convention on Human Rights’ Article 8 ping prohibitions. Finally, Decisions on privacy and thus potentially still giving rise 497/2001211 and 16/2002212 deal with the to conflicting interpretations and implementa- tion in specific cases, this provision largely reflects the basic twofold requirement for 207 Ibid. Art. 11. allowing interference with privacy, as sum- 208 Regulation 45/2001/EC on the protection of individuals marised before: (1) such interference should with regard to the processing of personal data by the be appropriate and proportional, justified only Community institutions and bodies and on the free move- ment of such data of 18 December 2000; OJ L 8/1 (2001). by overriding concerns of a public nature of 209 Directive 97/66/EC on the processing of personal data sufficiently important nature, and (2) such and the protection of privacy in the telecommunications interference should also be specifically be sector of 15 December 1997; OJ L 24/1 (1998). 210 Directive 2002/58/EC on the processing of personal data and the protection of privacy in the electronic com- munications sector of 12 July 2002; OJ L 201/37 (2002). 204Art. 2(a), Directive 95/46/EC on the Protection of Indi- 211Commission Decision 497/2001/EC on standard con- viduals with regard to the Processing of Personal Data and tractual clauses for the transfer of personal data to third on the Free Movement of such Data, 24 October 1995; OJ countries, under Directive 95/46/EC, of 15 June 2001; OJ L 281/31 (1995). L 181/19 (2001). 205 Ibid. Artt. 6-7. 212 Commission. Decision 16/2002/EC on standard con- 206 Ibid. Art. 11. tractual clauses for the transfer of personal data to proces-
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application of the EU regime outside of the have addressed the issue of privacy, it is Union itself, that is essentially as applicable clear that there is no single, unified European to activities of EU companies and other enti- approach on handling such privacy questions ties (GMES operators, for example) outside in the context of VHR satellite data. the Union’s territory. The approaches under either legal framework From the perspective of VHR remote sensing, are already different in territorial scope, with it is noteworthy firstly that in the case of the partisanship to the European Convention satellite data generation and procession of on Human Rights extending considerable such data the data subjects usually are not beyond the member states of the European involved, or even aware, which means the Union. Then, all member states of the latter requirements regarding their awareness and may also be amongst the former and also the consent would be at issue.213 This might of European Union itself and its individual insti- course result in major obstacles for these tutions as such are bound by the European operations if it would mean the satellite op- Convention, but this does not preclude diver- erators and data providers and distributors gent implementation and findings in equiva- would be obliged to consult with particular lent cases. In the one case the European data subjects identifiable on their satellite Convention would be applied and in another data, and obtain their consent to whatever the Data Protection Directive; or the Euro- use of such data would be made. pean Convention would be applied in the one case by the European Court of Human Rights So far, perhaps commercially available satel- (in Strasbourg) and in another by the Court lite data may not likely be able to provide of the European Union (in Luxembourg) – not ‘pictures’ allowing for the individual identifica- to mention the possible involvement of vari- tion of particular data subjects as such, but ous national courts; the result is legal and the scope of the protection concerns any procedural complexity and uncertainty. information directly referring to an individu- ally identified or identifiable person – so this With a view to such possible divergences, the may include homes and backyards of people, different phrasings of ‘privacy’ and ‘personal or company compounds wherever the appli- data’ as the respective key concepts already cability of privacy regulation under the Euro- reflect a fundamental difference in approach. pean Convention on Human Rights is taken As said, the Data Protection Directive and into consideration. follow-on EU law is essentially interested in equivalent levels of protection of personal The precise extent and implementation in data as a key item in economic activities, not practice of applicable exceptions such as re- necessarily as such in a high or low level of garding public and state security, defence, protection, following a desire to achieve a and state activities in areas of criminal law balance of any level of protection with free may thus become crucially relevant regarding trade concerns, whereas the European Con- the viability of such activities in the European vention and follow-on jurisprudence take the context214, where it is again to be noted that human rights aspect of any interference with so far little if any EU-wide harmonisation privacy as the supreme yardstick against exists – simply because it so far fall outside which to measure any discussions on protec- the scope of competences of the Union, and tion thereof. under the principle of ‘subsidiarity’215 requires a distinct transfer of the competences to leg- Certainly, GMES will spur further discussions on islate on these issues from the sovereign whether these divergences (not to mention the member states to the Union. contractual arrangements of ESA and EUMETSAT as relevant, once added to that discussion) may require a more specific and 3.3.4 Concluding Remarks dedicated regime to deal with potential inter- Even if limiting the analysis, as is the case ference of privacy by VHR satellite data at least here, to the two contexts of the European within the European Union, in particular where Convention on Human Rights and EU law, downstream involvement of the private sector and foregoing discussion of the extent to in data distribution and usage of GMES data which ESA and EUMETSAT in their contractual would become reality. Certainly from a Euro- dealings with data users and consumers may pean perspective, achieving a larger measure of clarity and harmonisation would greatly con- tribute both to the benefits VHR remote sensing sors established in third countries, under Directive 95/46/EC, of 27 December 2001; OJ L 6/52 (2002). data and such programmes as GMES may bring 213 Gaudrat, Tuinder, 354; Macrory, Purdy: 84-86. and to the preclusion of unwanted and unnec- 214 Purdy, 71-74. essary interference of privacy as a fundamental 215Art. 5, Treaty on European Union as amended by the human right by such activities – thus further Treaty of Lisbon amending the Treaty on European Union legitimising European VHR remote sensing op- and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007; OJ C 306/1 erations and GMES.
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4. Roundtable Discussion and General Conclusions
The following is a summary of the roundtable faces on the one hand, the lack of knowledge discussions that followed the presentations of of the potential uses of EO data and on the the invited experts. The conference was other hand, the lack of training for the cor- closed by a roundtable discussion moderated rect interpretation and use of such data. In by Rainer Sandau and Kai-Uwe Schrogl where this sense, it was pointed out that EO data participants, George Cho, Tanja Masson- can be used by the most commonly known Zwaan, Ray Purdy and Gunter Schreier elabo- law enforcement authorities such as judges rated further on key issues raised during the and police but also by other actors in charge presentations of the previous sessions. On of implementing the law, such as attorneys, that basis a chart was presented to the local administrators in charge of the imple- speakers and the audience as guidance for mentation of local rules or insurers. Law en- the discussions marking five main areas for forcement may also be distorted by the mis- discussion: use or discarding of EO data when the law enforcer is not able to identify the value of The discussion ran along five main themes: the EO data. It was argued that action is • The efficient use of EO data for treaty needed at two levels for ensuring the effec- verification tive use of EO data. On the one hand, aware- ness raising activities are needed in order to • The improved use of EO data for law en- broaden the use of EO data for the maximum forcement benefit of law enforcement activities and, on • The effective use of EO data in disaster the other, capacity building activities must be management promoted in order to ensure that EO data is used properly. • Maintenance of privacy in using EO data The question of privacy and open access to • The European dimension and the need EO data was also discussed together with the for action open access to data for law enforcement pur- The debate kicked off with discussion of the poses. It is widely accepted that public au- use of EO data for treaty verification. During thorities must be able to access EO data on the presentations in the previous sessions it an open basis for the development of public had been observed that the use of appropri- services. In this regard the role of the GMES ate data, as well as the avoidance of misuse open services was highlighted for the support of that data, are essential to reliable treaty of law enforcement activities. However, it verification. Given the reliability of EO data, was also stated that national security and its value for treaty verification is uncon- sovereignty matters still remain a concern tested, however, the use of this kind of data that limits access to data, including by public for treaty verification is not compulsory and it authorities. In the case of GMES, data pro- is not incorporated in treaties. The incorpora- vided by the GMES open service will be avail- tion of this kind of data in the wording of able for use in law enforcement in the area of international treaties is part of current dis- environment, whereas restrictions will be cussions. During the conference discussions it applicable to security in the GMES security was argued that the incorporation of the use core service. of EO data as a measure for treaty verifica- The use of the EO data for disaster manage- tion would contribute to reinforce the binding ment is dominated by the application of the nature of treaties. However, it was also Disasters Charter, which is based on the pointed out that the use of EO data for treaty agreement between different space agencies verification already occurs on a voluntary to share EO data for supporting aid and res- basis and without freezing the use of this cue management in the event of natural dis- type of data by incorporating this practice in asters. Although the Charter is not an inter- treaties. national treaty, it is designed for space agen- Moving on to law enforcement, the challenges cies to share EO data to assist affected coun- found in this area are also related to the ap- tries. In view of the obstacles deriving from propriateness of data and the correct use of the lack of capacity of such countries to man- it. The use of EO data for law enforcement age EO data in crisis situations, or even their
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unwillingness to use the provided data or siderations of open access as well as interop- have them openly available, the possibility of erability with other types of data pose certain converting the Charter into a treaty was challenges regarding the ownership of and raised as a measure to oblige the use of EO responsibility for such data. Technical charac- data in the aftermath of natural disasters. teristics also need to accommodate those However, this position did not find much challenges. Therefore it was considered that backing among the participants as the Char- the creation of regulatory instruments con- ter is already working satisfactorily; in addi- taining privacy related safeguards would be tion, the possibility of a treaty seemed very useful for the avoidance of privacy issues unlikely. connected to technical specificities. Privacy issues were also considered during The debate ended with a discussion of poten- the debate. If during the presentations it was tial European action. Leaving aside considera- made clear that there is no unique conception tions on the concept of privacy, the attention of privacy but different ways of interpreting it of the discussion focused on the convenience according to the social community and the of a European quality seal for EO data. It was moment in history, the debate tried to shed agreed that a European quality seal for EO some light on how to attain a minimum data would ensure the reliability of geospatial common denominator for privacy while mak- data for verification and law enforcement. For ing it compatible with geospatial data. The the sake of efficiency, certification should be specificity of space was also considered for flexible, based on simple procedures that can the elaboration of a concept of privacy suit- easily be transferred from case to case, and able to the utilisation of EO data. Finally, the higher regulatory levels such as EU secon- common understanding was that privacy dary legislation should be avoided. issues arising from the use of data are com- All in all, the roundtable highlighted the main mon to all areas regardless of the specificities concerns related to the topics that had been of any area. It was also argued that space discussed during the sessions, bringing to- law is a grouping of different disciplines of gether the views of experts from the legal law. As a consequence, general legislation on and engineering fields, while providing ideas the preservation of privacy applies to geospa- and views on how to address them. tial data as it does to other areas such as telecommunications. It was felt that there is no need to bring privacy considerations ex- plicitly into space law. However, market con-
Matxalen Sánchez Aranzamendi ESPI Resident Fellow Rainer Sandau Chairman ISPRS-IPAC Kai-Uwe Schrogl Director ESPI
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List of Acronyms
A ABC Australian Broadcasting Corporation ADRC Asian Disaster Reduction Centre AU Authorized User
B BNSC British National Space Centre
C CCTV Case of Closed-Circuit Television CNES Centre National d’Etudes Spatiales CNIL National Commission for Infromatics and Freedoms CNSA China National Space Administration CONAE Comisión Nacional de Actividades Espaciales CSA Canadian Space Agency CTBT Comprehensive Nuclear-Test-Ban Treaty CWC Chemical Weapons Convention
D DMC Disaster Monitoring Constellation DEM Digital Elevation Model
E EC European Community ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms EO Earth Observation ESA European Space Agency ERTS Earth Resources Technology Satellite ESPI European Space Policy Institute EU European Union EMSA European Maritime Safety Agency
F FRE Federal Rules of Evidence FP7 7th Framework Program
G GEO Group on Earth Observation GEOSS Group on Earth Observation System of Systems GII Global Information Infrastructure GIS Geographic Information Systems GMES Global Monitoring for Environment and Security GNSS Global Navigation Satellites System GPS Global Positioning System GSC GMES Space Component GSD Ground Sample Distances
I IAEA International Atomic Energy Agency ICCPR International Covenant on Civil and Political Rights ISRO Indian Space Research Organisation IT Information Technology
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ITS Intelligence transport system
L LIMES Land and Sea Integrated Monitoring for European Security LCT Laser Communication Terminal LTBT Limited Test Ban Treaty
M MINUSTAH United Nations Stabilisation Mission in Haiti
N NOAA National Oceanic and Atmospheric Administration NTM National Technical Means NZ New Zealand Bill of Rights Act
O OLCI Ocean Land Color Instruments
P PIT Privacy-Invasive Technologies PPP Public Private Partnership PRS Public Regulated Service PST Privacy-Sympathetic Tools
S SVCs Stored Value Cards SSO Sun Synchronus Orbit
U UNDHR Universal Declaration of Human Rights UNCOPUOS United Nations Committee on Peaceful Uses of Outer Space UNEP United Nations Environment Program UNISPACE United Nations Conference on the Exploration and Peaceful uses of outer space UNITAR United Nations Institute for Training and Research UNOOSA United Nations Office for Outer Space Affairs UNOSAT UNITAR Operational Satellite Applications Programme USGS United States Geological Survey
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Workshop Programme
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About the Contributors
Orhan Altan Catherine Doldirina Catherine Doldirina is a PhD candidate at the Orhan Altan is ISPRS President. He graduated Institute of Air and Space Law, McGill Univer- in Civil Engineering at Istanbul Technical Uni- sity. She has been conducting legal research versity. In 1970 he joined the Chair of Photo- relating to space activities since 2005. Her grammetry, where he finished his PhD in expertise lies in the field of intellectual prop- 1974. In 1989 he became full Professor at erty law and her current research relates to the University.Since 1989 He is the Head of the legal status of remote sensing data. She the Division of Photogrammetry at the Tech- has lectured on European competition law, nical University of Istanbul. He is member of European copyright law and space law at the many national and international organisations University of Bremen and at the European and acted since 2004 as the Secretary Gen- Humanities University (Lithuania). She has eral of ISPRS. also tutored at the European Centre for Space Law summer school on space law and George Cho policy. Her professional experience was George Cho is Chair of Academic Board and gained as legal assistant to specialist copy- Professor of Geoinformatics and the Law at right lawyers (Bremen). She successfully the University of Canberra, Australia. He is a completed an internship at the European research scientist with the Institute for Ap- Space Policy Institute, Vienna, drafting the plied Ecology and is the Head of School, Re- study “Case for Space” during this time. She source, Environmental and Heritage Sciences. authors work on other aspects of space law, His research focuses on the study of the legal is engaged in the research activities at the and policy issues affecting geographic infor- Institute of Air and Space Law, as for exam- mation science and the practical problems in ple Space Security Index, and is a member of the application of technology in the creation, the International Institute of Space Law. In use and impact of digital spatial information. 2009 she was awarded the Diderick Ver- He teaches courses in geographic information schoor award and prize for the best paper by systems, environmental law, electronic law a young author for the Colloquium on Space for business and government especially e- Law of the International Institute of Space business and e-commerce and international Law. trade, intellectual property law and the law of cyberspace. Frans G. von der Dunk Dr. Cho has held academic teaching and re- Frans G. von de Dunk holds the Harvey and search appointments at various universities Susan Perlman Alumni / Othmer Chair of including as Research Scholar at the Austra- Space Law at the University of Nebraska- lian National University, Canberra; Tutor and Lincoln’s LL.M. Programme on Space and Lecturer at the University of Malaya, Kuala Telecommunication Law (for more informa- Lumpur; Teaching Assistant at the University tion on the programme: see of British Columbia, and Visiting Lecturer at http://law.unl.edu/spacelaw) since January Liverpool, England, Maynooth College, Na- 2008. He also is Director of Black Holes BV, tional University of Ireland, University of Ha- Consultancy in space law and policy, based in noi, Keele University, England and the Uni- Leiden (for more information: see versity of Canterbury, NZ. http://www.black-holes.eu). Previously, he was Co-Director, then Director of Space Law Prof. Cho has published numerous books and Research at the International Institute of Air journal articles on law and geography topics, and Space Law at Leiden University since including Contracts: Australia. International 1990. Encyclopaedia of Laws (with E Clark, Griggs, L and A Hoyle), The Hague: Kluwer Law In- Prof. Von der Dunk was awarded the Distin- ternational 2010; Geographic Information guished Service Award of the International Science: Managing the Legal Issues (London: Institute of Space Law (IISL) of the Interna- John Wiley & Sons, 2005); Cyber Law: Aus- tional Astronautical Federation (IAF) in Van- tralia. International Encyclopaedia couver, in October 2004, and the Social Sci-
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ence Award of the International Academy of He is Director Public Relations of the Interna- Astronautics (IAA) in Valencia, in October tional Institute of Space Law (IISL), Member 2006. In the summer of 2008, he was nomi- of the Board of the European Centre for nated, as the first lawyer ever, Member of Space Law (ECSL), and Member for the Neth- the European Space Sciences Committee erlands in the International Law Association’s (ESSC) of the European Space Foundation (ILA) Committee on Space Law. He is also (ESF). Also, he was the sole lawyer on the Member of the International Editorial Board Panel on Asteroid Threat Mitigation estab- of ‘Space Policy’. Further memberships in- lished by the Association of Space Explorers clude: International Academy of Astronautics (ASE) in 2007. (IAA), American Branch of the International Law Association (ABILA), International Bar He defended his dissertation on “Private En- Association’s (IBA) Section on Business Law terprise and Public Interest in the European (SBL), Committee Z on Outer Space Law, ‘Spacescape’” in 1998. He has written well International Policy Advisory Committee over 120 articles and published papers, has (IPAC) of the International Society of Photo- given more than 100 presentations at inter- grammetry and Remote Sensing (ISPRS), national meetings and was visiting professor American Institute of Aeronautics and Astro- at some 25 foreign universities across the nautics (AIAA; Senior Member), and Centro world on subjects of international and na- de Investigacion y Difusion Aeronautico- tional space law and policy, international air Espacial (CIDA-E; Corresponding Member). law and public international law. He has (co- )organised some 20 international symposia, workshops and other events, and has been Atsuyo Ito (co-)editor of a number of publications and Atsuyo Ito is a research fellow at Social Sci- proceedings. As of 2006, he is the Series ence Research Institute, International Chris- Editor of ‘Studies in Space Law’, published by tian University, Tokyo, Japan. She holds a Brill. In addition, he has given a range of Ph.D degree in law from University of Paris interviews to the international media on is- XI, and LL.M in international air and space sues of space law and policy. law from Leiden University, the Nether- Prof. Von der Dunk has served as adviser to lands. Dr Ito has worked for the Remote the Dutch Government, several foreign Gov- Sensing Unit, Science Sector of UNESCO and ernments, the European Commission, the has recently undertaken a research project European Space Agency (ESA), the United for the Ministry of Economy, Trade and In- Nations (UN), the Organisation for Economic dustry (METI) of the Japanese Govern- Co-operation and Development (OECD), the ment. In 2004, she received the Prof. Dr Dutch National Aerospace Agency (NIVR), the I.H.Ph. Diederiks-Verschoor Award and has Japanese Space Exploration Agency (JAXA), written numerous articles and papers in the the German Space Agency (DLR), the Brazil- field of space law, satellite remote sensing, ian Space Agency (AEB), the Swedish Space as well as disaster management. Corporation (SSC) and the Centre for Strate- gic and International Studies (CSIS), as well Tanja Masson-Zwaan as a number of companies. Such advisory Tanja Masson-Zwaan is Deputy Director, In- work dealt with a broad area of issues related ternational Institute of Air and Space Law, to space activities, such as space policy, in- Leiden University, The Netherlands and the ternational cooperation in space, national President of the International Institute for space law, privatisation of space activities, Space Law. Global Navigation Satellite Systems (GNSS) (in particular Galileo), satellite communica- She has specialised in the field of air and tions, radio astronomy, and earth observa- space law since 25 years. She currently tion. Also, he has acted as the Legal Task teaches air and space law in the advanced Manager in a number of studies undertaken Masters programme (LLM) in air and space in particular within the context of leading law of Leiden University, and carries out vari- European Commission projects, such as on ous research activities. She is the President European space policy, Galileo and GNSS, of the International Institute of Space Law satellite communications, the Global Monitor- and has published papers on a variety of ing for the Environment and Security (GMES) topics over the years. She lectures on space project and earth observation. Much of his law all over the world, advises the Dutch recent work furthermore focused on such government and other national and interna- topical issues as space tourism, the legal tional bodies on matters relating to space status of the Moon and other celestial bodies law, and attends the sessions of the United and the ‘sale-of- lunar-estate hoax’, and Nations Committee on the Peaceful Uses of planetary protection. Outer Space as an observer.
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Before returning to Leiden where she gradu- Matxalen Sánchez Aranzamendi ated in international law, she set up and taught courses in air and space law at the Matxalen Sánchez Aranzamendi is Resident National University of Singapore, worked as a Fellow at the European Space Policy Institute consultant in France and the Netherlands for (ESPI) in Vienna, Austria since 2008. She has industrial and institutional clients, and served specialised in European Integration and owns many years as Executive Secretary of the an Advanced LLM in European Business Law. IISL. Before joining ESPI she had dealt with EC Space Policy and GMES issues during her Tanja is a recipient of several awards and is a internship at the European Commission and member of various professional organisations previously she had been a Junior Policy Advi- such as the International Astronautical Acad- sor for the Delegation of the Basque Country emy (IAA), the Académie de l’air et de in Brussels where she dealt with EC Transport l’espace (ANAE, France), the International Policy and Galileo affairs. Currently she fo- Law Association (ILA), the European Centre cuses on national space legislations and for Space Law (ECSL), the International Avia- space related regulations. tion Women’s Association (IAWA), and a Board member of Women in Aerospace- Rainer Sandau Europe and the Netherlands Society for Aero- space (NVR). Rainer Sandau is retired from the German Aerospace Center (DLR) after over 30 years Jean-François Mayence of experience in space activities. He was in- volved in instrumentations of space missions Jean-François Mayence is the Head of the to Venus, Mars and Earth, and also in numer- Legal Unit "International Relations" at the ous concepts for instruments and small satel- Belgian Federal Office for Science Policy. He lites for or with different countries and space is in charge of legal aspects of international agencies, e.g. Argentina, UK, Russia, Taiwan, cooperation programme in various fields, Tunisia, CNES, ESA, NASA, ranging from the including space research & applications, but concept of a German stereo camera on-board also Antarctica, generic sciences, human sci- the French SPOT 5 mission to a lander con- ences, etc. In that capacity, he was member cept jointly done with NASA/JPL for ESA’s of the Belgian Delegation to ESA during 9 cometary mission ROSETTA. During his ca- years and I'm member of the Belgian Delega- reer he held different positions, including tion to UNCOPUOS since 1999. I'm also lector Deputy Director of the Institute of Space at University of Leuven, teaching legal as- Research in East-Berlin after the wall came pects of space activities. down, and Director R&D of the Swiss/US company LH Systems based in Switzerland Ray Purdy (Leica Company). He is member of various national and international associations, for Ray Purdy joined the law faculty in 2000 and instance member of the International Acad- is a senior research fellow and deputy direc- emy of Astronautics (IAA) where he serves as tor of the University College London Law fac- Technical Director Satellites and Space Appli- ulty’s centre for law and the environment. He cations, and chair of the International Policy had previously held academic positions as a Advisory Committee (IPAC) of the Interna- researcher at Imperial College and the Uni- tional Society of Photogrammetry and Re- versity of Oxford, as well as a visiting lec- mote Sensing (ISPRS). As IPAC chair, he is tureship at City University. the ISPRS representative to the Committee His most recent research has focused on the on Peaceful Uses of Outer Space within the use of satellite remote sensing to monitor United Nations' General Assembly (UN and enforce laws. Ray is particularly inter- COPUOS). He authored or co-authored over ested in environmental law applications for 250 publications, holds over 30 patents, is satellites, how they might influence regula- member of the Editorial Advisory Boards of tory compliance, and evidential and privacy the ISPRS Journal of Photogrammetry and implications. Between October 2005 and De- Remote Sensing, and is editor or co-editor of cember 2008 he was funded on a 3.25 year 19 books or conference proceedings, all deal- contract as project manager and lead re- ing with the topics small satellite missions, searcher on an Arts and Humanities Research remote sensing and photogrammetry. Council funded programme on satellite moni- toring as a legal compliance tool in the envi- Gunter Schreier ronmental sector. From April 2009, Ray is PI Gunter Schreier is working as Head of Busi- on an 18-month ESRC Research Grant enti- ness Development at the German Remote tled 'Smart Enforcement in Environmental Sensing Data Center of DLR (DLR-DFD) and Legal Systems: A Socio-Legal Analysis of is the coordinator for GMES related projects. Regulatory Satellite Monitoring in Australia'.
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He has served at DLR in several functions numerous international forums and recently since 1985, among others as Head of the served as the chairman of various European Technology Transfer unit and team leader for and global committees (ESA International establishing the ESA-ERS „Processing and Relations Committee, UNCOPUOS working Archiving Center“. He has business experi- groups). Kai-Uwe Schrogl has published nine ence as founding Vice President Geomatics books and more than 100 articles, reports for Definiens and has worked as national and papers in the fields of space policy and expert at the Joint Research Center of the law as well as telecommunications policy. He European Commission. He has contributed to is editor of the “Yearbook on Space Policy” Earth Observation standards and data policy and the book series “Studies in Space Policy” in several international groups such as CEOS, both published at SpringerWienNewYork as IGBP-DIS, UNEP and ISPRS and is member of well as member in editorial boards of interna- the ISPRS International Policy Advisory Group tional journals in the field of space policy and and the IAF Earth Observation Committee. law (Acta Astronautica, Space Policy, Gunter Schreier has a diploma in Geophysics Zeitschrift für Luft- und Weltraumrecht, Stud- from University of Munich. ies in Space Law/Nijhoff). Kai-Uwe Schrogl is Member of the Board of Directors of the In- Kai-Uwe Schrogl ternational Institute of Space Law, Member of the International Academy of Astronautics Kai-Uwe Schrogl is the Director of the Euro- (chairing its Commission on policy, economics pean Space Policy Institute (ESPI) in Vienna, and law) and the Russian Academy for Cos- Austria since 2007. Before, he was Head of monautics. He holds a doctorate degree in Corporate Development and External Rela- political science, lectures international rela- tions Department in the German Aerospace tions at Tübingen University, Germany (as a Center (DLR). In his previous career he Honorarprofessor) and has been a regular worked with the German Ministry for Post and guest lecturer i.a. at the International Space Telecommunications and the German Space University and the Summer Courses of the Agency (DARA). He has been delegate to European Centre for Space Law.
Speakers at the conference (from left): Kai-Uwe Schrogl (ESPI), Ray Purdy (Faculty of Laws, University College London Ben- tham House), Catherine Doldirina (McGill University, Montreal), Jean-Michel Contant (IAA), Matxalen Sánchez Aranzamendi (ESPI), Gunter Schreier (DLR), Ed Parsons (Google Earth), Herbert Allgeier (Chairman of the ESPI Advisory Council), George Cho (Law Faculty of Applied Science, University of Canberra), Frans G. von der Dunk (Space and Telecommunications Law Program, University of Nebraska), Sai'd Mosteshar (London Institute for Space Policy and Law), Atsuyo Ito (Researcher, Tokyo), Rainer Sandau (ISPRS-IPAC), Jean-Francois Mayence (Belgian Federal Office for Science Policy), Tanja Masson-Zwaan (IISL), Jana Jentzsch (Attorney-at -law, Hamburg)
ESPI Report 25 70 August 2010
Mission Statement of ESPI
The mission of the European Space Policy Institute (ESPI) is to provide decision-makers with an independent view and analysis on mid- to long-term issues relevant to the use of space.
Through its activities, ESPI contributes to facilitate the decision-making process, in- creases awareness of space technologies and applications with the user communities, opinion leaders and the public at large, and supports researchers and students in their space-related work.
To fulfil these objectives, the Institute supports a network of experts and centres of ex- cellence working with ESPI in-house analysts.
www.espi.or.at