The war in Ukraine has brought with it a plethora of new experiences: from soldiers posting their experiences on social media, to world leaders communicating publicly via twitter: we are, to some extent, in one of the first conflicts driven by satellite technologies and open-source intelligence.
However, while the benefit of such information is so critical to governments, organisations, and civilians alike, it is accompanied by a range of issues. Does open-source intelligence threaten the safety of civilians? If a
British satellite provides images to Ukraine, does that make Britain a party of the conflict? In peacetime would such images otherwise constitute a violation of privacy? Would Russian interference with a Ukrainian satellite constitute an act of war? In such a rapidly developing area of the law many of these question
s are unanswerable, or provoke ambiguous answers, but nonetheless they are essential.
Open-source intelligence and Earth Observation: A blessing or a curse?
Commercial earth observation technologies have been playing and will continue to play an increasingly integral role in human security and safety, as space launch services continue to become more cost effective and as artificial intelligence/machine learning based imagery and processing technology continues to advance. Earth observation (EO) has had a range of successes from monitoring the effects of climate change and creating future predictions, to discovering human rights abuses, such as locating China’s Muslim Uyghurs and other ethnic minorities in so-called “re-education” camps and further provided the ability to track developments, by comparing images taken over time.
Yet more than their use in peacetime, as Muggah, principal of satellite and mapping firm SecDev Group, suggests “publicly available satellite images are a defining feature of 21st century warfare".
When brought into the context of the Ukraine crisis, several risks begin to appear, most notoriously, as Muggah continues, when it comes to military and civilian targets.
While President Zelensky has been urging for western satellite providers to aid Ukraine, recognising openly on Twitter that “This is really the first major war in which commercially available satellite imagery may play a significant role in providing open-source information about troop movements, military build-ups in neighbouring countries, flows of refugees and more”, the threat of such information being made available suddenly becomes obvious if it find itself in the wrong hands.
While intellectual property in the space domain is still under development, one thing has become clear over the past decade: despite privacy being a fundamental human right which is the very basis of human dignity and values, protected almost worldwide, in the Universal Declaration of Human Rights (UDHR), adopted in 1948, and the International Covenant on Civil and Political Rights (ICCPR) 1976, courts remain reluctant to hold that EO imagery constitutes a violation of privacy. For example, even before Google Street View made an effort to blur out faces and personal information, they faced a lawsuit from a couple who claimed Google disregarded their privacy interests by capturing a photo of their home: but the US courts dismissed the case, as they had done previously in 1984 where the US courts held imagery from a helicopter essentially spying on a person’s home did not violate reasonable expectations of privacy. Where Russian or commercial satellites used by Russia fill the sky with decades worth of scientific research, if their satellites satisfy the requirement that they are used for “non-discriminatory purposes”, despite what they might be doing in practice, privacy offers little protection to Ukraine in preventing Russia from looking down on them.
Moreover, looking again at the war from a Russian perspective, open-source satellite imagery can be easily doctored: with deep fakes; or simple photoshopping. This arguably poses one of the largest risks in that this can lead to the spread of geospatial misinformation and disinformation, and has the potential to arguably fuel propaganda campaigns, politicise journalism or mitigate or over-exploit a state’s actions.
However, arguably one of the greatest risks is felt by third party or commercial satellites, especially ones that are providing data to Ukrainian closed-source intelligence. Where reports have emerged of an alleged Russian cyberattack cutting off internet access to users of the US-based internet satellite service provider Viasat in Ukraine and Germany and there have been examples of jamming third-party Ukrainian satellites, it must be considered: to what extent would Russia view a third-party satellite as party to the war, and, what satellite related action would constitute an act of war in Russia’s eyes? The precariousness of the situation unfortunately has limited clear-cut rules and regulations.
When could the use of a satellite constitute an act of war?
Moving away from the direct risks of providing open-source intelligence, a reasonably posed questions is: What happens if a commercial entity from the US for example, provides actionable intelligence – such as images from a Russian Convoy as was recently publishes, to a foreign government, such as Ukraine, who then uses that data to mount an attack? Would Russia be justified in attacking that satellite and if they did how could the US respond. A few issues are raised:
1. Does third-party data, provided to a state directly involved in the conflict, make its country a direct party to the conflict?
2. What constitutes an act of war in Space?
Stripping regulations down to the main legislation governing Outer Space, the Outer Space Treaty 1967, we can begin to address some of these issues in a simplified manner.
Responding to the first issue, as per article VI: all non-governmental entities bear responsibility of the nation they are based in: so SpaceX satellites, in space, act on behalf of the USA. If, for example SpaceX had a satellite focused on gathering EO and it was providing it’s data of Russia, or Russian movements in Ukraine, to Ukraine – SpaceX would be acting on behalf of the USA, and as many academics consider, could allow the commercial satellite, and therefore the jurisdiction in which is based to be party to the conflict, or if not party to the conflict, then a legitimate military target. However, where neutrality is equally such an important component to international space law, where the OST provides space is a domain of ‘co-operation’, many academics have equally held that while breaches of neutrality are an internationally wrongful act, they do not necessarily make the offending state a party to conflict. It therefore becomes clear the ambiguity of Space law and how this could or could not be used to a party’s advantage, and is in dire need of clarification.
However secondly, considering what could constitute an attack, where academics generally do not consider jamming or hacking to be a ‘use of force’ which could violate international law, it is untested whether hitting a commercial satellite rises to the level to justify an armed attack response. Would an attack constitute an act of war? Would a party act on it or remain neutral ‘in the interest of maintaining international peace and security and promoting international co-operation and understanding’ as per article III of the OST 67. Many of these questions remain unanswered, and we are lucky this is the case. Where although Russia, being notoriously driving force in the Space Industry, without doubt has the ability to strike down, interfere with and destroy third-party or Ukrainian satellites, as was demonstrated back in November 2021 where they completed anti-satellite testing, they have in fact kept most of their arsenal out of the conflict. Where recently Russian astronauts landed on the ISS wearing Ukrainian colours, is the militarisation of outer space really such a threat as it is made out to be?
While this article lays out some key issues concerning satellites and data in the Russia-Ukraine war, it purposefully lacks answers. With the invasion of Ukraine came the potential of the first war in which counterspace weapons could play a major role, but more overtly it highlighted the key shortfalls in law governing spatial activities and telecommunication technologies: there is a dire need for clarification to both protect civilians in future conflicts and maintain the peaceful use of outer space.
 Sadat M and Sinclair M, “The Not-So-Secret Value of Sharing Commercial Geospatial and Open-Source Information” (Brookings, March 31, 2021) <https://www.brookings.edu/blog/order-from-chaos/2021/03/31/the-not-so-secret-value-of-sharing-commercial-geospatial-and-open-source-information/> accessed March 25, 2022.  Ibid.  Wakefield J, “Ukraine Crisis: Satellite Data Firm Asks for War Images” (BBC News, March 2, 2022) <https://www.bbc.co.uk/news/technology-60592657>accessed March 25, 2022.  Ibid.  Davenport C, “Commercial Satellites Test the Rules of War in Russia-Ukraine Conflict” (Washington PostMarch 10, 2022) <https://www.washingtonpost.com/technology/2022/03/10/commercial-satellites-ukraine-russia-intelligence/>accessed March 25, 2022.  George Cho, ‘Privacy and EO: An overview of legal issues’ (2013) 259-292. https://www.researchgate.net/publication/301557448_Privacy_and_EO_An_overview_of_legal_issues  Megan M Coffer, “Balancing Privacy Rights and the Production of High-Quality Satellite Imagery”  Environmental Science & Technology.  Goines T, “The Russia-Ukraine War and the Space Domain - Lieber Institute West Point” (Lieber Institute West PointMarch 14, 2022) <https://lieber.westpoint.edu/russia-ukraine-war-space-domain/> accessed March 25, 2022.  Wakefield (n 3)  “Russia Using Fraction of Anti-Satellite Resources in Ukraine Invasion” The Independent (March 4, 2022) <https://www.independent.co.uk/space/russia-ukraine-invasion-counterspace-antisatellite-b2028935.html> accessed March 25, 2022  Davenport (n 5).  Ibid.  Ibid  Goines (n 8)  Davenport (n 5)  Ibid.