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Science Fiction, Space Law, and the Regulatory State

25 November 2016

From Space Lawyer Laura Montgomery:

I read John Varley in my teens. I had a subscription to Analog, or, Galaxy, it might have been; and Varley’s short stories showed up there regularly. He was really close to Heinlein in my pantheon of favorite authors. I read The Ophiuchi Hotline when it came out, and waited eagerly for Titan and its sequels.

I grew up, I went to law school, I worked for a law firm.   I changed jobs and became a space lawyer for the Federal Aviation Administration and worked on commercial space transportation issues under the Commercial Space Launch Act (CSLA). (Of course, none of the views expressed here represent those of my former employer, especially the stuff about John Varley). So, about a decade ago, when I saw Red Thunder, a really fun book about a group of young people with a secret space engine trying to get to Mars before anyone else, I was very happy to pick it up.

Reading it was just heaven, until it got to a certain point: the point where our heroes agreed amongst themselves they didn’t need much in the way of regulatory approvals, aside from getting clearance from the FAA’s Air Traffic (which, if I recall correctly, everything being secret and all, I don’t think they bothered with, but I may be wrong). But, and here’s the sad part, the characters made no mention of FAA launch licensing.

How could John Varley have let me down like this? He could talk about Air Traffic control, but not about the licensing requirements of the Commercial Space Launch Act? What was wrong with him? Did science fiction writers have no regard for the law? Michael Flynn knew about the CSLA, and its administrators showed up as petty bureaucrats in Firestar. That was cool. He was up to snuff. But John Varley?

Link to the rest at Ground Based Space Matters

Fantasy/SciFi

37 Comments to “Science Fiction, Space Law, and the Regulatory State”

  1. Hmmm. Just reread the Varley series not all that long ago. The protagonists were quite aware they were violating the law, and kept everything secret.

    However, I can see them being somewhat more worried about the FAA – I believe that that agency would have had the better likelihood of getting an immediate injunction, based on “public safety” considerations.

    CSLA does have safety regulation provisions – but they are rather more technical (and enforced by DOT, which does not have a reputation for moving all that fast…)

    • Besides which, space law is almost completely untested. It would be perfectly reasonable to question its constitutionality.
      Poster also asks “do science fiction writers have no respect for (space) law”. I feel confident in stating that most in fact do NOT. The desire to go into space is too strong to be hindered by such mundane things.
      Lawyers (understandably) and politicians place much greater value on the law than do ordinary people.
      Tho tempted, this isn’t the place to argue whether or not laws have any affect on human behavior anyway.

      • Plus, we’re talking fiction.

        Unless the legal aspects are central to the story (JAG in Space series by John G. Hemry, LITTLE FUZZY, by H. Beam Piper, MONUMENT, by Lloyd Biggle, etc) or adds to the drama, strict adherence to present day legal reality is as risky as a too strict adherence to present day science: the story risks premature obsolescence.

        Sometimes fudging non-essentials is safer than strict adherence to known facts because those facts may not remain factual for long.

        • Dang it, I can’t remember the name, and the library is a mess… But there was a writer that appeared in Analog several times with his stories of the adventures of a patent lawyer. I think those will be entertaining for a long time, even if the law changes drastically – they were that well written. (It may already have – I have enough trouble trying to keep up with just with the copyright side of IP.)

          • Again, the legal aspect was essential to the story.

            The thing is, while doing your homework is important (always!) there is the ever-present temptation to throw in everything you dug up or let it take over the story. Research is to inform the author’s choice but at the end of the day the narrative wins. A modern day SKYLARK OF SPACE can’t end with Seaton, Crane, et al stuck in orbit waiting on lawyers to decide whether they can land the SKYLARK II. 🙂

  2. This reminds me that I need to go pester my husband about maritime law and see how much good world building material I can get out of it.

    • And find how it differs at different places, the mix can make things rather ‘interesting’. (Like pot smoking and guns here in the states, growing/having/selling/using isn’t the same everywhere.)

  3. The problem with space is that there’s so much of it.

    Here they talk about the ‘Federal Aviation Administration’ and the ‘Commercial Space Launch Act’ as if they cover everything everywhere.

    I have the funny feeling it’s going to be more like the bad old ‘wild wild west’, where people might pretend to behave themselves while in town to not anger the sheriff, but once out of town they do pretty much as the please. Yes, if word gets back to the towns that they’ll doing wrong it could go badly for them, but space is vast and hiding bodies (or dropping their ship into a nearby sun) can make it harder to prove who did what to whom when or if.

    Then we get to those ‘rules’, which may differ from one planet to another much as it does between countries today.

    In space there will be those trying to police things, but they will be greatly outnumbered and spread rather thin. There will be crooks and maybe a privateer or three.

    And plenty of room for stories of all three. (even the silly ones I’m writing. 😉 )

    • Some companies launch out of international waters.
      I wonder who if anybody would go after them.

      • And if you’re not planning on coming back, all you have to do is succeed in getting away. Like I said, welcome back to the wild west — where not every town knows what you’re wanted for elsewhere.

      • If it’s a U.S. entity it needs an FAA license, regardless of where in the world it launches. Originally, Sea Launch was a foreign entity, but the CSLA provides that if a foreign entity is controlled by a U.S. entity (which Sea Launch was)and it’s operating outside of any other country’s jurisdiction then even the foreign entity requires a U.S. launch license.

        The FAA has licensed launches from Spain and Australia because U.S. persons carried them out.

        • Out of curiosity: given a gang running a secret space program, who comes after them? FBI, Air Force, Marines? A lawyer? Process server?
          Is it a civil or criminal violation? Misdemeanor or felony?
          Penalties? A harshly worded email? Fines? Life in prison?

          And what if the launch goes off and they have a graser cannon in orbit? 😉

          • The FAA would. The process is described here: https://www.law.cornell.edu/uscode/text/51/50917 You’ll see that Congress has given the authority to the Secretary of Transportation, but the Secretary delegated the authority to the FAA. The “civil penalties” are fines, not prison. There’s a law that adjusts penalties for inflation, so the FAA could fine someone who launched without a license up to and more than–with the inflation adjustment– $100,000 for each continuing violation.

            Also, please note the ability to seize the offending object. The closest I ever came to worrying about that one, we decided that was what yellow tape was for. Rockets are big.

            • Does the FAA have Special Agents? Armed maybe?
              I’m thinking somebody willfully flaunting regulations isn’t going to be impressed by a threat of fines. So who exactly is going to seize the vehicle?

              As a rule, the authority of governments derive from their monopoly on legal use of force. But as we’ve seen through the decades, from the Whisky Rebellion through Prohibition and into current times, not everybody rolls over when bureaucrats issue pronouncement. Oftentimes the government has to actually use that force. So, again, who bells the cat?

              • And if your ‘discovery’ includes something they don’t yet know/understand, you might be leaving in something they never would have expected. Like anti-gravity, making using an old submarine possible. (Nope, we checked twice, Boss. They look to be going under the seas, not into space. Whoosh! 😉 )

                • The guys in thecsub had better beware of the Anime Zone.

                  What if there is no “entity” in a legal sense?
                  Just a couple of tinkerers in a junkyard or a guy who salvaged a UFO?

                  Or a mutant genius who left Earth back in the 50’s to explore the galaxy in his private rocketship?

                  More seriously, anybody can issue regulations and edicts. But unless somebody is willing and able to put force behind them, the edicts and treaties are worthless.

                  Right now I see a good chance that the Outer Space treaty will be tested in the next two decades when the Chinese setup shop on the moon and start exploiting it.

                • Yeah, until we discover a much cheaper way to get things out of our gravity well, the moon looks like the best place to get things into space for use. (No air so a rail-gun launch system is possible for things not easily crushed.)

                  The asteroid belt too, but you’re going to need a very good AI to handle things that far from asking some human what it should do when things don’t go to plan.

                  Either/both routes most likely will be done with smart little robots that will know how to collect the bits needed to make bigger robots to get the work done. Humans would be a bother because of all the life support they’d need. (Now after the bots have the life support and the greenhouses built/aired/tested, then they might invite their makers over to see what they’ve been up to.)

              • There is a difference between whether the legal authority is there and whether someone is willing to use it, and to what extent. I’m figuring the Marshalls because the authority is there for the FAA to request assistance. And: https://www.faa.gov/about/office_org/headquarters_offices/ash/ash_programs/investigations/leap/

                The CSLA applies to persons, which includes both individuals and entities such as corporations.

                If the mutant genius was an American, he’d need a reentry license now to land anywhere on Earth. The one I always wondered about was whether aliens would need a reentry license to come to the U.S. The “re” in “reentry” suggests you have to be coming back, not arriving for the first time.

                • Hmmm, did they forget to cover that part in that movie of where the folks went to Mars and had a kid and he came back? 😉

                • US Marshalls.
                  Okay.

                  Good to know who will get blasted by Marc DuQuesne.
                  Seaton being a goody goody he’ll fill out all the paperwork and waste months befire setting off to rescue Dottie. Might not ever catch up. 🙂

                • U.S. Marshalls? So Raylan Givens in space? Hmm, would he still be fast with a raygun instead of a slug thrower? I think this could work … yes, this needs to happen 🙂

                  Re: re-entry … in a backburner story, I have some colonists whose world has been occupied by hostile aliens, who won a civil war. The losers took refuge on the human colony. A few minor characters who are at least half human are holding out hope they can exercise a “right of return” to Earth. Their thought is that if they can reach Earth they can get aid to the colony.

                  I was operating on the assumption that a “right of return” regulation would exist in the future … but the tricky part is whether it would it apply to say, Mr. Spock? I can’t wait to see if that issue turns up in any law.

  4. Once the tech catches up with our desires, there’ll be no earth-bound set of ‘regulations’ stopping us. I doubt those ‘laws will even stand the test of real life once we get out there.

  5. It ain’t law if you can’t enforce it.

  6. I read the whole thing; Laura has plot-bunny food in that post. Years ago, for a currently-in-the-trunk story, I wondered about mundane details a space ship would deal with about customs and docking rights and whatnot when visiting other planets. I just wanted to know what landmines my teenaged stowaway would have to navigate, especially since the success of her plan hinged on certain regulations for a planet I’ll just call New Las Vegas (not it’s actual name).

    Back then I looked to sources for maritime rules, figuring I’d adopt them for space. I didn’t know that there were already space laws I could look to. Thanks for posting, Laura and PG.

    • Thanks, Jamie! And the customs question is a good one. Arguably, the provision in the CSLA that says that launch is not an export and reentry not an import might create a loophole for anyone wanting to import via suborbital rocket. That notion is one of my unfinished stories. That loophole was not intentional.

    • “teenaged stowaway”s on a space ship?

      Stop stealing my plots!!!! 😛

      Oh, wait, I’m sure I stole it from someone else too … 😉

      And that is an issue with many stops, what’s fine at one might not be at another, so the ‘ship’ stays up and mostly out of bounds for the locals and only the cargo for that stop gets in range of the locals. There is a ‘Star Fleet’ that have some power, think US Marshals rather than state police, but they don’t police things that are legal in some places and not others (slavery and piracy are a couple of their little chores.)

  7. I thought this was a bit of a joke at first. Being upset at a fictional universe for ignoring laws most people don’t even know (or care to know) exist. As an Army vet, I could pull out the UCMJ (Uniformed Code of Military Justice) and criticize every movie and book… EVER. From not saluting properly, to gigs on their uniforms, not having proper haircuts, not speaking correctly, the list goes on, and on. However, as fiction Geoffrey Chaucer says, “I’m a writer, I give the truth scope!”

    • Jeff, as an Air Force vet, I get riled all the time about improper portrayals of anything military. Proper salutes, proper dress code, proper respect (never call an enlisted person sir/ma’am, for all that may be holy), proper routines, proper rituals. It’s not that hard to find someone who will advise you.

      That said, when I’m writing fiction, I reserve the right to change or ignore anything that doesn’t move the story in the right direction. And one day, I’m going to build my own spaceship and I’ll take off if I d*mn well please. And land it, too.

    • I did intend it to be humorous and educational. It’s good to cover the basics regularly, but it’s useful to find different ways to do it.

      I’ve been writing about property rights, authorizations, launch licensing, liability, and space insurance. This is what gets the hits.

      The other thing is that detail creates credibility, so some might like the detail.

  8. “And one day, I’m going to build my own spaceship and I’ll take off if I d*mn well please. And land it, too.”

    Amen to that.

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