Caveat 1.18.24
Ep 202 | 1.18.24

Exploring the cosmic frontier: Unveiling the future of space law.


Bryce Kennedy: 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.

Dave Bittner: 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 Yelin, from the University of Maryland's Center for Health and Homeland Security. Hello, Ben.

Ben Yelin: Hello, Dave.

Dave Bittner: 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. [ Music ] 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.

Bryce Kennedy: Thank you so much, it's really great to be here.

Dave Bittner: 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?

Bryce Kennedy: So I run the Association of Commercial Space Professionals. I'm president of that. And ACSP, we work to democratize access to space. And right now our focus is on regulatory training and education, advocacy, and community building.

Dave Bittner: Got'cha. 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 of 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 like who's in charge and who has responsibility? Is that an accurate perception on my part?

Bryce Kennedy: 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, so.

Dave Bittner: What sort of changes are we seeing here? What areas are they focused on?

Bryce Kennedy: 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, there's 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 is 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, you know, 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 it's the opposite effect. Without that regulatory framework, their tech actually oftentimes will not be approved for the license that they're seeking. And so they're now looking, you know, at the discretion of the FAA, FCC, NOAA, Department of State, all the 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.

Ben Yelin: So we've got through quite a transformation in terms of who goes into space, right? So, 30 years ago, this was a public domain, more or less. And 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?

Bryce Kennedy: Yeah. I wish there was a major change in that reflection. There obviously have been some changes and every agency's trying to keep up. But you know, if you look at the FAA, at the original licensing for launch and re-entry, but they did a sweeping overhaul and they did the part, they mapped 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 the -- 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, you know, a major satellite infrastructure as, say, like I said, that would fall under Part 25. So we're seeing costs reduced for the reduced -- for the licensing. As well as some of the timeframes as well. NOAA had actually 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.

Dave Bittner: When it comes to the various players in the aerospace industry, I'm thinking of all these upstarts that we've had. You know, as Ben mentioned, you know, SpaceX, companies like that. How are the established players in terms of welcoming them or perhaps, you know, using their position as an established player to do some gatekeeping?

Bryce Kennedy: 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. Essentially with companies that are trying to do X, Y, Z and the big behemoths would often try to use, you know, quote-on-quote "precedent" or all these 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 for Proposed Rulemaking. A lot of companies, 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.

Ben Yelin: Can I ask a bunch of dumb questions about space law?

Bryce Kennedy: Yeah, please.

Ben Yelin: Okay. Dave, is that okay?

Dave Bittner: Please, it's what you do best.

Ben Yelin: Alright, yeah, 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?

Bryce Kennedy: China. No. Not yet. Fingers crossed. We -- 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 probably a lot of people kind of preclude the Outer Space Treaty, they think it's just old UN treaty talk that is, you know, 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. You can't own a celestial body. Which means any planet, asteroid, that's 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 like kind of the ocean and the open sea. So that is the 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.

Ben Yelin: So what happens when Elon Musk decides he wants to colonize Mars? Like what governing processes come into place here? And what could we do about it?

Bryce Kennedy: 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 US to either stop that, to you know, carve out another rule that says, you know, colonization isn't claiming any property, all we're doing is we're landing 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? You know, 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, you know, we had the Liability Convention that the Outer Space Treaty references as the body that you can start bringing those things. You know, we've seen a few accidents that almost happened the 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, the UN can't really agree on too much.

Ben Yelin: Yeah. By the way, I don't think Elon Musk will actually ever colonize Mars. He's totally full of it. But it is an interesting hypothetical. I mean, you could see something that's not literally that that still creates those sorts of territorial issues.

Bryce Kennedy: 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 is re-energized the entire industry in a way that, you know, 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, I'm paraphrasing, 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 relandable 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 land the first time from 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, you know, traditionally get them laughed out of the building.

Dave Bittner: We're going to take a quick break. And we will have more from our guest, Bryce Kennedy, after this message. [ Music ] 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 you know, send you are 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 that I'm curious how much of the goings-on in space relies on those sorts of norms? And politeness? And you know, that it's still a domain, or is it still a domain where those sorts of things that are considered quaint in a lot of other domains now, do they still hold there?

Bryce Kennedy: 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 US satellites. I think once you have one player that is actively trying to, you know, disengage other country's satellites, then that gentlemanliness starts to potentially move out of the way. I -- because you can only stay in that for so long. And then, you know, we're seeing that what China's doing, they have robotic arms coming out of the satellites as well where they could start to reposition other countries' satellites. We have the scrub attacks from the ground. There's a bunch of stuff that we're starting to see where, you know, I would hate for us to try to counter those or become like them, but after a certain point, once national security's at risk, you know, I think a lot of those rules go out the window.

Dave Bittner: Yeah. Ben?

Ben Yelin: 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 US take to counteract that if we even do want to counteract that?

Bryce Kennedy: According to what I read and understand, the way China is approaching this, which I think is really smart, if I were an entity in the US, I would not do the hand-to-hand combat. Not do anything visible that the US citizens could see. Because you know, US 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 tap or satellite attacks or all these different things, the US 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, 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 US can start thinking more in terms of cyber hygiene and cybersecurity 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 US just put out there. It's not leading, we're just, you know, we're kind of holding the container. But anyone can grow the way they like. I think the Artemis Accords is probably one of the best mechanisms for thwarting any kind of entity like that.

Dave Bittner: Where do we stand in terms of legislation, you know? I know on the cyber realm, Ben and I always talk about how it seems like 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?

Bryce Kennedy: 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 it's going to take? And every time I've ever seen really massive change, it's always been a disaster, a war, you know, something that has, again, allowed the US to react in a way that kind of woke them up. And moved quickly. For better or for worse. So, that is -- yeah. That's kind of where I think we're heading.

Dave Bittner: Yeah. Ben, last question?

Ben Yelin: 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? [ Laughter ]

Bryce Kennedy: Let me say this. I'll say this. I'll say that 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 -- I mean no idea. Like 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.

Dave Bittner: Yeah. 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.

Bryce Kennedy: Yeah. Thank you for having me. [ Music ]

Dave Bittner: That is our show. We want to thank all of you for listening. A reminder that N2K's 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 Our executive producer is Jennifer Eiben. This show is edited by Tre Hester. Our executive editor is Peter Kilpe. I'm Dave Bittner.

Ben Yelin: And I'm Ben Yelin.

Dave Bittner: Thanks for listening. [ Music ]