There’s a long piece on the the current state of space law over at the ABA Journal. I only have a couple issues with it. First, I don’t know what they mean by this:
Even though the United States eventually outpaced the Soviet Union by putting men on the moon in 1969, the space race continued until the early 1990s.
No, the space race was essentially over by 1968 or so, once the Russians realized that they weren’t going to beat us to the moon, and instead rewrote history to pretend that they’d never even been trying. There was no urgency or racing after that–had there been, NASA budgets would have been higher, and schedules faster. So I don’t know what this sentence means, unless it just a vague reference to the fact that progress, such as it was, continue on both the US and Soviet side, until the fall of the Soviet Union.
On ITAR, I strongly disagree with Pam Meridith:
“I think the hysteria over ITARs is out of proportion,” says Pamela L. Meredith, who co-chairs the space law practice group at Zuckert, Scoutt & Rasenberger in Washington, D.C. “They’ve been around for a long time now, so people have had time to adjust.”
No matter how much “time people have to adjust,” it still adds time and cost to projects, and prevents many from happening altogether. And it has a disproportionate effect–like most regulations, big space businesses (who despite leftist mythology, are no fans of capitalism or free enterprise) don’t necessarily dislike ITAR, because they can afford to meet the requirements, and they represent a barrier to entry to smaller businesses and newcomers, who generally can’t. (Though there’s also no question that it’s cost Boeing a lot of satellite business.) And as a perfect case in point, consider Mike Gold at Bigelow (in a long, but quite interesting interview):
Res Communis: Can you comment on a company’s cost of implementing ITAR?
Gold: Yes, absolutely. Paying so much for export control is a bit like being asked not just to dig your own grave, but to jump in it as well. Our best estimates are that we pay roughly $130.00 per hour, per person, for every hour that a government official monitors us or reviews our documentation during the day, plus overtime, which can add up on overseas trips. What amazes me is that when we travel to Russia for meetings, we sometimes travel with not one, but two government officials, monitoring every word we say. Then, across the table from us are the Russians, all great folks, who came out of a Communist system, and they have no explicit monitors. If we were to have brought someone down from Mars to attend our meetings, and asked them which of these two nations represented the free country, the Martian would point to the Russians. The U.S. holds itself out as the bastion of freedom. But when I am sitting there at those meetings I have to wonder: which is the free country? Now again, this is a problem of policy not personnel. The monitors we get are often good, smart people, who can even be quite helpful at times. However, what I want is for these monitors to be able to spend their limited time and resources focusing on military sensitive technologies that really matter rather than wasting their efforts on us. The Russians basically do this. They have the unique policy of protecting information that is actually sensitive. They don’t care about metal coffee tables. It makes a lot more sense. And, in regard to the financial costs, you know, the KGB may have spied on you back in the Soviet days, but at least they had the courtesy to do it for free. It is unfathomable to me what we have to pay for export control review and monitoring.
Res Communis: You do cover their travel expenses also?
Gold: Absolutely, including airfare and hotel. Specifically, in 2006, the year of the Genesis I campaign, we paid over $160,000 in monitoring fees alone. In 2007, when the Genesis II launch campaign took place, we paid the government nearly $150,000 for monitoring and reviews. Thanks to Mr. Bigelow’s generosity and commitment, we’re able to afford such fees, but there are a lot of small companies that can’t. This is why the ITAR has stifled innovation and stunted development in the American aerospace sector. The ITAR should be re-named “The Full Employment for European and Foreign Aerospace Workers Act.”
Res Communis: As between a new space company like Bigelow and the big aerospace corporations, is the ITAR burden disproportionate for the new companies?
Gold: Everyone has problems with it, but a large, well established company is better able to absorb the expenses and can pass the cost on to their customers relatively easily. Anecdotally, I have spoken to a number of friends and colleagues at small aerospace businesses and start-ups. They tell me that they don’t even look at international collaboration because they know they can’t afford to work through the export control problems without a hoard of attorneys. Frankly, it took a lot of work and diligence and a little bit of luck on our own part to have been able to survive the ITAR gauntlet with just myself, my deputy, and some limited support from outside counsel.
And because Bigelow is wealthy, and willing to foot the bill, he can afford it. Most startups aren’t in this position. This is just one of the many ways that federal policy has been disastrous, and continues to help bind us to the planet.
