Informed Consent v. ITAR: Regulatory Conflicts that Could Constrain Commercial Human Spaceflight P.J. Blount IAA 1 st Symposium on Private Human Access to Space Arcachon, France May 29, 2008 © 2008

National Center for Remote Sensing, Air and Space Law 1 International Traffic in Arms Regulations Covers defense items and technical data about these items Spacecraft, satellites, launch vehicles, and component parts are all considered defense item An export license is required in order to transfer these technologies outside the United States

National Center for Remote Sensing, Air and Space Law 2 Deemed Export Rule An export can occur via visual inspection or oral description of an item If such a transfer is made to a foreign individual within the United States an export deemed to have occurred Any such export would require an export license

National Center for Remote Sensing, Air and Space Law 3 Technical Data information... which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense items. all technical data, without exception, for all launch support activities. form, fit, function, mass, electrical, mechanical, dynamic, environmental, telemetry, safety, facility, launch pad access, and launch parameters.

National Center for Remote Sensing, Air and Space Law 4 Human Space Flight Requirements Promulgated in late 2006 Meant to foster the fledgling commercial space transportation industry Risk Shifting from Operator to the Participant

National Center for Remote Sensing, Air and Space Law 5 Informed Consent Keystone to risk shifting Space flight participant is to be informed of all the risk and consent in writing This results in the assumption of risk by the space flight participant Space Flight Participant also assumes possible third party liability

National Center for Remote Sensing, Air and Space Law 6 Informed Consent Unclear exactly what a space flight participant must be told a duty to disclose risks and dangers material to a reasonable person in deciding upon a course of action. – Hughes & Rosenberg everything - Knutson Concept is complicated by the possibility of third party liability, which may mean the participant needs even more information

National Center for Remote Sensing, Air and Space Law 7 Space Tourism Most likely to occur in the United States first Virgin Galactic is actively marketing worldwide Very likely if not certain that there will be foreign participants

National Center for Remote Sensing, Air and Space Law 8 Conflicts – Training Operator must give safety training to the participants Participants take part in flight Different from passengers Safety information about a launch is included without exception under ITAR

National Center for Remote Sensing, Air and Space Law 9 Conflicts – Oral Questions Operator required to have question and answer session Could be considered a technical discussion under ITAR – ITAR Monitor Third party liability could mean that the space flight participant could need very specific information about the craft to fully assume this risk

National Center for Remote Sensing, Air and Space Law 10 Conflicts - Monitors DDTC Monitors are required whenever there is the possibility of the transfer of space technologies Cost is born by the exporter What if a monitor is required to participate in the flight?

National Center for Remote Sensing, Air and Space Law 11 The Operators Conundrum Full disclosure is required for informed consent, But full disclosure might bring sanctions under ITAR, But an incomplete disclosure risks litigation in case of an accident. What if information is given to a U.S. citizen but denied to a foreign person? Informed consent?

National Center for Remote Sensing, Air and Space Law 12 What to do? Commodity Jurisdiction Requests Administrative appeals only No judicial review Compliance Officer Costs will shift to the participants

National Center for Remote Sensing, Air and Space Law 13 Thanks A blog dedicated to the legal aspects of human uses of aerospace technologies. © P.J. Blount 2008