WASHINGTON D.C. — Yesterday, the Senate approved by unanimous consent H.R. 2262, the U.S. Commercial Space Launch Competitiveness Act — legislation that recognizes property rights in resources “obtained” by U.S. companies in space. The House approved similar legislation in May as part of a much larger commercial space bill — the first comprehensive outer space bill in over a decade. Both the House and Senate rushed their bills through without holding hearings or issuing comprehensive committee reports.

On property rights, the final legislation differs in two key respects from the original House bill: the final version covers all space resources, not merely those found on asteroids, but does not create non-interference rights for ongoing operations. Both also require the President to issue reports on future legislation and, in general, to promote private enterprise in space, consistent with international law, and with a minimum of government barriers.

The goals of the bill are laudable but, despite the Senate’s improvements, the bill remains flawed,” said Berin Szoka, President of TechFreedom. “The fact that both the U.S. and the U.S.S.R. treated their moon rock samples as property set a strong precedent for space property rights. Codifying that will encourage investment in mining technologies. Limiting that protection to asteroid resources would simply have favored some companies over others. And dropping the non-interference language was definitely the right move: Congress will eventually have to create some kind of space tort law, but doing that without violating international law will require a far more careful legislative process than the rushed one that produced this bill. Unfortunately, in its last-minute triage on the House bill, the Senate apparently wasn’t able to close a subtle but critical loophole.”

The essential problem is the word ‘obtained,’” said James Dunstan, TechFreedom Adjunct Fellow and Principal at Mobius Legal Group. The Senate bill creates property in ‘abiotic resources’ that have been ‘obtained’ but doesn’t define either term, except to say that “‘space resource’ includes water and minerals.“ Dunstan explained: “This ambiguity leaves the door open for mining companies to claim a new kind of intellectual property in data about space resources they have merely surveyed from afar. That’s essentially a mining claim — but without any of the use-it-or-lose-it constraints and time limits of traditional mining law. That’s clearly not what Congress intended. But that won’t stop creative lawyers from trying to lock down key resources and charging royalties for them — well before they’ve actually mined anything.”

“Congress will have to legislate again soon anyway, at least on non-interference rights,” Szoka and Dunstan concluded. “But in the meantime, President Obama should issue a simple signing statement: ‘I understand this legislation to confer personal property rights only in resources that have been physically ‘obtained’ by U.S. companies, and not to confer any rights based on remote observation.’ The private companies who pushed for this bill should publicly declare their own understanding and pledge to support future legislation to close this loophole. If they won’t do so, that should set off alarm bells — both in Washington and at the United Nations. In the worst case scenario, this prospect could provoke a backlash by the international community against the fundamental concept of the right to own resources extracted from space objects.”

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Szoka and Dunstan can be reached for comment at media@techfreedom.dreamhosters.com. Both are long-time space lawyers; Dunstan has practiced space law for over thirty years. See more of their work on space property rights, including:

  • “Congress Should Fix Space Property Rights Bill,” a statement from TechFreedom
  • “Space Property Rights, the Next Frontier in Bipartisan Legislation?,” a statement from TechFreedom
  • “Space Property Rights: It’s Time, and Here’s Where to Start,” an op-ed by Berin Szoka in Space News
  • “How the U.S. Can Lead the Way to Extraterrestrial Land Deals,” an op-ed by Berin Szoka and James Dunstan in Wired
  • “Space Law: Is Asteroid Mining Legal?,” an op-ed by Berin Szoka and James Dunstan in Wired

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