Two weeks ago, I sat on a panel on radio frequency interference with satellite services and its impact on space sustainability at the 30th Annual National Space Symposium in Colorado Springs.  The panel was hosted by the Secure World Foundation and moderated by their President Mike Simpson.  Satellite operators are frustrated by the lack of “concrete tools” or enforcement mechanisms available to stop episodes of intentional harmful interference and ensure that International Telecommunications Union (ITU) Constitution Art. 45 (prohibiting all stations from causing harmful interference) and the ITU radio regulation No. 15.1 (prohibiting unnecessary and superfluous transmissions and false and misleading signals) are complied with.  Keep in mind that jamming of signals often has unintended consequences and causes wide-ranging effects in some cases.

The ITU made public appeals to a government to stop intentional RFI with satellite signals for the first time in 2010, however, the success of this “name and shame” approach has been limited.  In 2012, modest changes were made to ITU’s radio regulations seeking to emphasize the need for national administrations to take action to stop RFI when presented with evidence.  Radio Regulation 15.21 now reads: ” If an administration has information of an infringement of the Constitution, the Convention or the Radio Regulations (in particular Article 45 of the Constitution and No. 15.1 of the Radio Regulations) committed by a station under its jurisdiction, the administration shall ascertain the facts and the necessary actions.”  However, there are still no teeth behind the obligation to ensure its enforcement.  The ITU Radio Communication Bureau and the Radio Regulations Board can seek to assist and issue recommendations but these are not binding.  It is unlikely the ITU will be granted enforcement powers.  Similarly, the major space treaties, such as the Outer Space Treaty, fail to contain enforcement mechanisms. (For a good background read on RFI and also ITU and space treaty weaknesses in addressing RFI, see Sarah Mountin, The Legality and Implications of Intentional Interference with Commercial Communications Satellites, Vol. 90 International Law Studies (of the US Naval War College), available at https://www.usnwc.edu/ils).

However, there exist some options for “concrete tools” or enforcement mechanisms as I mentioned during my talk at the National Space Symposium.

Those concerned with intentional RFI with satellites can take some loose inspiration from the intellectual property community who grew frustrated with IPR treaties lacking enforcement teeth, and subsequently worked beginning in the late 1980′s to have IP obligations engrafted into US trade preference programs, free trade agreements, and even the World Trade Organization – using those as concrete tools to enhance enforcement of IP obligations.  (Those mechanisms to be sure are not perfect, and indeed RFI solutions lie primarily with the engineers and techs but law can buttress and provide a backstop in egregious cases).

Option #1: The US and EU can make compliance with ITU Constitution Art. 45, Radio Regulation No. 15, and full cooperation with ITU or other processes to stop RFI an eligibility criteria for the Generalize System of Preferences (GSP) and other trade preference programs for developing countries.  In fact, it will be important for the EU to act in tandem with the US because several countries alleged to be engaged in intentional RFI benefit from EU trade preferences but not US trade preferences.  The benefits of this approach are numerous: 1) it provides enforcement teeth to the ITU obligations on harmful interference; 2) it will not cause any concerns or diplomatic issues with the vast majority of GSP beneficiary countries who do not engage in intentional RFI and who are already accustomed to eligibility criteria requiring effective IPR protection, compliance with international labor standards, reducing of foreign investment barriers, and others; 3) the eligibility criteria can be reviewed in manner that are mindful of the ITU Constitution’s exception for security and public order (Art. 34) and for military stations (Art. 48) and other exceptions; 4) it is a pro-democracy measure as many major incidents of intentional RFI in the past-five years have been undertaken in efforts to stop information flows to citizenry and  (potential) democratic uprisings; 5) it is a pro-human rights measure given the International Covenant on Civil and Political Rights Art. 19(2) provides: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” – although there is a public orders exception here too; and 6) because the obligation is one-way it will in no way impede US military operations which in any event are covered by the aforementioned exemption in ITU Constitution Art. 48 – and for that reason the US should take care before placing such obligations in free trade agreements that have two-way flowing obligations.

Of course, this solution is an enforcement mechanism only for those countries that benefit from trade preferences from the EU or US – but that is over 140 countries.

Stay tuned to this blog for a couple more new, “out-of-the box” ideas on concrete enforcement tools for the ITU’s harmful interference obligations – one of which I mentioned in Colorado Springs and one additional one.  I have an article coming out on all of these possible enforcement tools in the near future too.

(c) Copyright: Matthew Schaefer.  All rights reserved.