CyberWire Daily - Exploring the cosmic frontier: Unveiling the future of space law. [Caveat]

Episode Date: January 18, 2024

Bryce Kennedy, President of the Association of Commercial Space Professionals (ACSP), is sharing what is on horizon in space law. Bryce is also a space lawyer and a regular contributor to our T-Minus daily space podcast right here on the N2K podcast network. You can hear more from the T-Minus space daily show here. While this show covers legal topics, and Ben is a lawyer, the views expressed do not constitute legal advice. For official legal advice on any of the topics we cover, please contact your attorney.  Caveat Briefing A companion weekly newsletter is available CyberWire Pro members on the CyberWire's website. If you are a member, make sure you subscribe to receive our weekly wrap-up of privacy, policy, and research news, focused on incidents, techniques, tips, compliance, rights, trends, threats, policy, and influence ops delivered to you inbox each Thursday. Got a question you'd like us to answer on our show? You can send your audio file to [e-mail]. Hope to hear from you. Learn more about your ad choices. Visit megaphone.fm/adchoices

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I would have to say the biggest changes started under the Trump administration with the setting up of the previous administration's advancement in space and policy, which is really exciting. Hello, everyone, and welcome to Caveat, the CyberWire's privacy, surveillance, law, and policy podcast. I'm Dave Bittner, and joining me is my co-host, Ben Yellen, from the University of Maryland Center for Health and Homeland Security. Hello, Ben. Hello, Dave. On today's show, we have a very special guest. Joining us is Bryce Kennedy, president of the Association of Commercial Space Professionals. Bryce is a space lawyer and a regular contributor to our T-minus daily space podcast right here on the N2K podcast network.

While this show covers legal topics and Ben is a lawyer, the views expressed do not constitute legal advice. For official legal advice on any of the topics we cover, please contact your attorney. And now, a message from Black Cloak. Did you know the easiest way for cyber criminals to bypass your company's defenses is by targeting your executives and their families at home? Black Cloak's award-winning digital executive protection platform secures their personal devices, home networks, and connected lives. Because when executives are compromised at home, your company is at risk.

In fact, over one-third of new members discover they've already been breached. Because when executives are compromised at home, your company is at risk. In fact, over one-third of new members discover they've already been breached. Protect your executives and their families 24-7, 365, with Black Cloak. Learn more at blackcloak.io. Ben, it is my pleasure to welcome to the show Bryce Kennedy. He is the president of the Association of Commercial Space Professionals. He also happens to be a space lawyer. And I know we have lots of questions to ask Mr. Kennedy.

Bryce, welcome. Thank you so much. It's really good to be here. Before we dig into our questions here, and I know we have a lot of them, can you share with our audience what is your day-to-day in terms of your professional job? So I run the Association of Commercial Space Professionals. I'm president of that. to democratize access to space. And right now our focus is on regulatory training and education, advocacy, and community building. Gotcha. Well, I want to start off with sort of some basics here, kind of getting a lay of the land.

I mean, it's my understanding that recently, I guess since the Biden administration, there's been a lot of change and proposals and so on and so forth for space policy in terms of who's in charge and who has responsibility. Is that an accurate perception on my part? Yeah, definitely. I would have to say the biggest changes started under the Trump administration with the setting up of the Space Council as well as the space policy directives. I mean, Obama did a lot as well. But what we're seeing is for the first time in years is three consecutive administrations working to continue the previous administration's advancement in space and policy, which is really exciting. And we haven't seen that in decades. What sort of changes are we seeing here?

What areas are they focused on? Well, with the space policy directives, one of them was the, I can't remember which exactly it was, but they were looking for more agile regulation. And so it was like a two-for-one type of thing where every time, or excuse me, one-for-one, every time you put a new regulation as it pertained to space, you were supposed to remove another one, which I thought was actually a pretty good idea because a lot of the regulatory framework was pretty archaic, where there wasn't actually a lot of commercial space. The other thing that we're starting to see, too, is the request by the government, by the industry at large,

to start to form regulations which include new technologies so these companies don't have to worry about emerging technologies and whether or not the regulations exist. Because a lot of times, it's funny, you would not think that these companies would want a regulatory framework because they think that they might be able to work inside of a vacuum. But it turns out that it's the opposite effect. Without that regulatory framework, their tech actually oftentimes will not be approved for the license that they're seeking. will not be approved for the license that they're seeking.

And so they're now looking at the discretion of the FAA, FCC, NOAA, Department of State, all the different entities that work to help the industry for guidance, where a lot of times there isn't any. And it's becoming a pretty major backlog on that front. So we've gone through quite a transformation in terms of who goes into space, right? So 30 years ago, this was a public domain, more or less. NASA was the major player. But in the last 10 or 15 years,

obviously we have SpaceX and other private enterprises entering the market. How has that changed the regulatory state, and how is that reflected in the new regulations? Yeah, I wish there was a major change in that reflection. There obviously have been some changes, and every agency is trying to keep up. But if you look at the FAA,

I forget the original licensing for launch and reentry, but they did a sweeping overhaul and they now have the Part 450, which was supposed to be an answer to that where private entities could have a little bit easier time to launch in terms of the licensing regime. You see that with the FCC too. There was originally the Part 25,

and then there's a simpler version of that based on the size of the satellite itself. So it was more the new reg was positioned for the new small sats. So you don't want a company that's only putting up small sats to have to go through the burden of a major satellite infrastructure, like I said, that would fall under a Part 25. So we're seeing costs reduced for the licensing, as well as some of the timeframes as well. Noah actually had one of the biggest changes under Kevin O'Connell when he was at Commerce. NOAA actually had one of the biggest changes under Kevin O'Connell when he was at Commerce.

And to me, I wish the other agencies would kind of look at NOAA as the kind of gold standard because they essentially slashed huge portions of the overall mechanisms that would trigger different licensing techniques. And they put them into three tiers. And so if you fall into one of these tiers, your license difficulty is based on that tier, which I think is a really good idea. When it comes to the various players in the aerospace industry, I'm thinking of all these upstarts that we've had. As Ben mentioned, SpaceX, companies like that. How are the established players in terms of welcoming them or perhaps

using their position as an established player to do some gatekeeping? So I worked for a startup law firm, a space startup law firm called Aegis Space Law, before I transitioned to ACSP. And we saw a David and Goliath type thing often with different licensing regimes, essentially with companies that are trying to do XYZ and the big behemoths would often try to use, you know, quote unquote precedent or all these other different mechanisms to block them. And in the past, that has worked. But now we're seeing, again, a lot more companies that are agile, that have really good attorneys.

They're starting to understand not only with their firms themselves, but in their companies, how these regulatory systems work. So we're starting to see some movement back towards the smaller guys being able to, I wouldn't say have as much power, but a lot more say. The other thing too are the NPRMs, the Notice of Proposed Rulemaking. A lot of companies, the smaller companies, don't realize that they have a lot of say in those NPRMs on different topics that I don't think that they realize how powerful they are. So that's an opportunity too that companies can start kind of combating these bigger entities.

Can I ask a bunch of dumb questions about space law? Yeah, please. Okay. Dave, is that okay? Please, it's what you do best. All right, because I want to get really down to basics here. What governs space? Who is the governing authority once we've transcended the surly bonds of Earth and get into the great beyond? China.

No. Not yet. Fingers crossed. It is the Outer Space Treaty. 1967, I think. Most nations have signed and ratified it. But the Outer Space Treaty, you know, it's funny. A lot of people kind of cuckoo the Outer Space Treaty.

They think it's just old UN treaty talk that is not applicable to today's standards. But it still is the governing treaty for all of space. And if you read it, it's really, you know, a lot of scholars have doubled down on the meaning of different aspects and different articles of it. But on the whole, some of the biggest things are that it is meant for exploratory purposes. You can't have nuclear weapons in space. for exploratory purposes. You can't have nuclear weapons in space. You can't own a celestial body, which means any planet, asteroid, this, that, the other thing, even though under the Commercial Space Act with Obama, they opened that up to

you can't own it. You can extract resources from it, but you can't own it, just kind of like the ocean and the open seas. That is the big big major governing thing. And then from there, it also states that any nation that is a participant of the treaty needs to come up with its own governing body or bodies that they are then responsible for overseeing. And so that's where you'll see a lot of the language from the Outer Space Treaty in the different sections of the FAA, FCC, NOAA, which translates to that authority and those overarching themes that are then embedded in our own system. So what happens when Elon Musk decides he wants to colonize Mars? Like, what governing processes come into place here?

And what can we do about it? Yeah. Technically, I think that would still fall under because any company that launches from the United States still under the Outer Space Treaty, it is seen as that country doing the thing. So the Outer Space Treaty doesn't look at the company,

they look at the country. So it would then be on the U.S. to either stop that, to carve out another rule that says, oh, colonization isn't claiming any property, all we're doing is we're laying in there, we're putting these things. You know, what does sovereignty really look like? Is it a time period? Is it a certain breadth of land? What is that? So that is something that it would be under the US. The other thing is,

I don't know if there's really a body that... We have the Liability Convention that the Outer Space Treaty references as the body that you can't start bringing those things. You know, we've seen a few accidents that almost happened that would have fallen under the Liability Convention, but I don't know exactly if we started bringing that territorial suit what that would look like in terms of we would like it to be the UN, but

as we see now, I can't really agree on too much to move anything forward. By the way, I don't think Elon Musk will actually ever colonize Mars. He's totally full of it, but it's an interesting hypothetical. You could see something that's not literally that,

but still creates those sort of territorial issues. The thing is that he's full of it. There's no doubt about it. But like, I hate to say, what he's done with SpaceX has re-energized the entire industry in a way that we've never seen. I was listening to this podcast with this astronaut.

I'm forgetting his name. He was one of the commanders of the International Space Station for a very long time. And he goes, I remember, this is kind of his paraphrasing, and he goes, I remember when we were at NASA, we would laugh Elon out of the building when he said he would have a reusable and landable rockets

onto pads in the ocean. We just laughed him out of the building. And he goes, and I stopped laughing the minute I saw that lamp the first time in the ocean. And that's the surprising thing about space is we see a lot of that still, that mindset, where people are actually doing the things that traditionally get them laughed out of the building. We're going to take a quick break, and we will have more from our guest Bryce Kennedy after this message. Your business needs AI solutions that are not only ambitious, but also practical and adaptable.

That's where Domo's AI and data products platform comes in. With Domo, you can channel AI and data into innovative uses that deliver measurable impact. Secure AI agents connect, prepare, and automate your data workflows, helping you gain insights, receive alerts, and act with ease through guided apps tailored to your role. Act with ease through guided apps tailored to your role. Data is hard. Domo is easy. Learn more at ai.domo.com. That's ai.domo.com. I'm curious, you know, years ago I was in the world of broadcast television and I had befriended a satellite engineer.

And I remember one day he and I were in master control and he was lighting the candle, as they used to say, to send our signal up to a communications satellite. And I asked him, you know, what is keeping you from pointing our transmitter at some other satellite and taking its signal down, just stomping on it? And he kind of looked at me quizzically and almost incredulously and said, we're gentlemen. And I guess the reason I bring up that story is I'm curious, Oh, I love it. where those sorts of things that are considered quaint in a lot of other domains now, do they still hold there?

Right. I don't know. I think it's becoming less and less because what we're seeing, especially from different entities like China and whatnot, I was listening to another person speak from the DoD, and they were saying that, I don't know if it's daily, but they are constantly, constantly thwarting those type of attacks from China and potentially other nations that are making, you know, a business out of bringing down U.S. satellites. I think once you have one player that is actively trying to, actively trying to disengage other country satellites, then that gentlemanliness starts to potentially move out of the way.

Because you can only say that for so long. And then we're seeing what China is doing. They have robotic arms coming out of the satellites as well, where they can start to reposition other country satellites. We have the spoof attacks from the ground. There's a bunch of stuff that we're starting to see where I would hate for us to try to counter those or become like them. But after a certain point, once national security is at risk, I think a lot of those rules go out the window. Yeah. Ben? What do you see in the next 10 to 15 years in terms of confronting China's strength in space

and how we're going to work that out diplomatically? I mean, what active steps can the U.S. take to counteract that if we even do want to counteract that? According to what I read and understand, the way China is approaching this, which I think is really smart, if I were an enemy of the U.S., I would not do the hand-to-hand combat,

not do anything visible that the U.S. citizens could see. Because the U.S. traditionally is, we're reactive in nature. And when we react, we tend to win. Some would disagree with that. But when we react, we go pretty hard at it. And so the way that China focuses on it, my father-in-law is an ex-FBI agent.

He goes, China focuses on the drip while Russia focuses on the smash in terms of stealing. And they're using our own kind of socialization of reactivity against us by having this drip, which means everything that they do, whether it's cybersecurity or IP theft or satellite attacks or all these different things, the U.S. can't see.

And so there's not a whole lot of a strong reaction. There are some people obviously pounding the war drums, but for the most part, we don't see it from the citizens at large, I don't think. And so I think the thing that the US could do to really strengthen this is start to move away from the let's have troops on the ground. I was talking to another crew at Los Alamos

and they're like, oh yeah, we're training for drone warfare on the ground and all this other stuff. Well, the way China's doing it is like, well, we don't even need to worry about drone warfare because we're going to attack your platform that controls the drones. So we're not even going to let your drones get off the ground. So, you know, really good thing. But that's where the if the U.S. can start thinking more in terms of cyber hygiene and security and really leveraging the strength of that and move away from kind of the old military standard, I think we have a really good chance of doing that.

The other thing is I really, really believe in the Artemis Accords. I think having the Artemis Accords, where we have a bunch of nations agree to a set of standards, it's not a treaty, it's not legally binding. But the more and more we start out having countries believe in this overall mission that the U.S. just put out there, it's not leading. We're just, you know, we're kind of holding the container, but anyone can, you know, grow the way that they like. I think the Artemis Accord is probably one of the best mechanisms for thwarting any kind of enemy like that. Where do we stand in terms of legislation? You know, I know on the cyber realm, Ben and I always talk about how much it seems that the

legislation is lagging behind the industry and lagging behind the technology. Is it fair to guess that that's occurring in space as well? It is. It is really fair. We see so many backlogs on... If the US is really doubling down on the commercial side to really differentiate itself from the rest of the world and move mountains, then we need to have that legislation that enables quick commerce to be able to act. And we are not seeing that. We're not seeing that at all. And what scares me, again, is people always ask me, and I'm not a pessimist by nature. I wouldn't be in space if I was.

But I still think it's like, what's it going to take? And anytime I've ever seen really massive change, it's always been a disaster, a war, something that has, again, allowed the U.S. to react in a way that kind of woke them up and moved quickly for better or for worse. So that's kind of where I think we're heading. Yeah. Ben, last question? Let's make the last one a fun one.

We've had a few hearings about UFOs in the United States Congress. The videos are somewhat compelling. Are you a believer? Let me say this. I'll say this. I think based on the

evidence and starting to see, especially with the James Webb telescope, the sheer immensity of vastness of space that we have no idea. I mean, no idea. It's even hard to comprehend that we are the only

organism out there. There is a potential for life out there. It's kind of silly to think that there isn't. For me. Alright, well, Bryce Kennedy is president of the Association of Commercial Space Professionals. Bryce, thank you so much for taking the time for us. We really

appreciate it. Yeah, thank you for having me. Thank you. ThreatLocker is a full suite of solutions designed to give you total control, stopping unauthorized applications, securing sensitive data, and ensuring your organization runs smoothly and securely. Visit ThreatLocker.com today to see how a default-deny approach can keep your company safe and compliant. That is our show. We want to thank all of you for listening. A reminder that N2K Strategic Workforce Intelligence optimizes the value of your biggest investment, your people. We make you smarter about your team while making your team smarter. Learn more at n2k.com. Our executive producer is Jennifer Iben. This show is edited by Trey Hester. Our executive editor is Peter Kilby. I'm Dave Bittner. And I'm Ben Yellen. Thanks for listening.