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Restricting satellite data access

A proposal to restrict access to high-resolution remote-sensing data has led to a bit of confusion. In an effort to control satellite data with quarter-meter resolution — commercial technology that does not even exist yet — the Department of Defense (DOD) wrote into its draft 2005 defense authorization bill a seemingly broad rule intended to deny public access to certain satellite-gathered data.

Satellite data purchased by the government is currently managed by DOD, with an interagency licensing system overseen by the National Oceanic and Atmospheric Administration. According to current practice, companies that gather the data and sell it to the government are licensed on a two-tier system. The government restricts access through companies’ operating licenses to higher tier data, which is generally the highest quality and considered sensitive to national security.

The proposed new rule is an effort to avoid making that data available through Freedom of Information Act (FOIA) requests without having to classify the materials, says a DOD consultant on legislative and regulatory matters, who wrote the original text of the legislation and asked not to be named for this story. “The only effect of the legislation is on data and imagery that’s bought by the government — you don’t have to release it under FOIA,” he says.

Initial changes to the text by the Senate made the original proposal unclear, the consultant says. DOD asked the Senate to change the language in conference, to “clarify that it only applies to future ‘upper-tier’ products, [and] that it will not prohibit discretionary releases of information by government agencies.” The legislation should also ensure availability of “derived products from this data that don’t raise national security concerns.” For remote-sensing products used for agricultural purposes or to chart disease or environmental pollution, and where the data itself is not directly sold, “we’d have no concern with that” being available by FOIA, he says.

DOD intended the rule to apply only to future technology, according to the DOD consultant, such as quarter-meter-resolution satellite systems that don’t yet exist. Space Imaging, a company headquartered in Denver, Colo., has already received a federal license to own and operate a hypothetical quarter-meter-resolution system, says Mark Brender, the company’s vice president of corporate communications. So far, the only restrictions for half-meter-resolution data, Brender says, are that “from the time of collection, you have to wait a 24-hour period before making the imagery available for sale to customers.” This delay might be damaging for relief efforts after a hurricane, for example, but would be necessary to mask troop movements in a war zone.

Some changes have been made to the original language, and the wording Congress passed in October is less vague with regard to the data to be restricted. However, the definition still remains unclear, and decision-makers will have to judge data access during licensing procedures, according to a House staffer.

In the meantime, news media have protested the proposed rule on the grounds that the current language is too broad, potentially restricting access to imagery important for news organizations (such as storm images) and possibly opening the door to further restrictions to other data. The American Library Association argues that adequate protection already exists under FOIA and current laws for sensitive data.

Jim Plasker, executive director of the American Society for Photogrammetry and Remote Sensing, says that “unless there is more to it than we have been fully able to understand, it would appear that the issue is more of an academic FOIA discussion or debate than one with serious impact on the [geospatial] community.”

The effort to keep data unclassified is important, Plasker says, while still maintaining protection for data of national security importance. “We’ll have much better access to this material in the long run” if it is not classified, he says.

Not so, the Association of American Geographers argues, in a letter to the chair of the U.S. Senate Committee on Armed Services: As written, the proposed rule’s broad language could exempt not only satellite data, but also any government analyses, maps, reports or other unclassified products from FOIA.

Naomi Lubick

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