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Satellite Imagery

Permanent Link: http://ufdc.ufl.edu/UFE0021810/00001

Material Information

Title: Satellite Imagery Friend or Foe?
Physical Description: 1 online resource (97 p.)
Language: english
Creator: Ledesma, Angelique Mrs
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2007

Subjects

Subjects / Keywords: amendment, earth, first, google, military, remote, satellite, sensing
Journalism and Communications -- Dissertations, Academic -- UF
Genre: Mass Communication thesis, M.A.M.C.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation

Notes

Abstract: Google Earth is a virtual globe created by superimposing satellite imagery. The Web site amalgamates the ease of the Google search engine with Google maps. Google Earth has been used to illustrate the path of wild fires, track diseases such as the bird flu, and demonstrate the fighting in foreign wars. There is little question of the usefulness of Google Earth, but it has been criticized for providing information that could potentially harm a nation?s security. Information is a resource that is vital to the success of military missions in the U.S. and abroad. The military has imposed several regulations in order to protect information from the enemy. The military has deemed that certain information that is not classified by Executive Order 12,958 is still considered sensitive but unclassified. The purpose of this thesis is threefold: to determine if information the military has deemed important to the success of a mission can be found on Google Earth, to identify the current regulations governing remote sensing, and to determine if adding additional regulations or provisions on Google Earth would stand constitutional muster. The research will show that Google Earth does display imagery that the military has deemed mission essential vulnerable areas. The current regulations governing Google Earth offer little protection in times of increased threats to national security. The non-binding principles that the U.N. enacted in 1986 are quickly becoming antiquated because of advances in technology. The research will conclude that the government holds a heavy burden of proof in removing imagery based on national security. Similar imagery is available from many different sources outside the U.S., making additional regulations moot.
General Note: In the series University of Florida Digital Collections.
General Note: Includes vita.
Bibliography: Includes bibliographical references.
Source of Description: Description based on online resource; title from PDF title page.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Statement of Responsibility: by Angelique Mrs Ledesma.
Thesis: Thesis (M.A.M.C.)--University of Florida, 2007.
Local: Adviser: Chamberlin, William F.

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2007
System ID: UFE0021810:00001

Permanent Link: http://ufdc.ufl.edu/UFE0021810/00001

Material Information

Title: Satellite Imagery Friend or Foe?
Physical Description: 1 online resource (97 p.)
Language: english
Creator: Ledesma, Angelique Mrs
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2007

Subjects

Subjects / Keywords: amendment, earth, first, google, military, remote, satellite, sensing
Journalism and Communications -- Dissertations, Academic -- UF
Genre: Mass Communication thesis, M.A.M.C.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation

Notes

Abstract: Google Earth is a virtual globe created by superimposing satellite imagery. The Web site amalgamates the ease of the Google search engine with Google maps. Google Earth has been used to illustrate the path of wild fires, track diseases such as the bird flu, and demonstrate the fighting in foreign wars. There is little question of the usefulness of Google Earth, but it has been criticized for providing information that could potentially harm a nation?s security. Information is a resource that is vital to the success of military missions in the U.S. and abroad. The military has imposed several regulations in order to protect information from the enemy. The military has deemed that certain information that is not classified by Executive Order 12,958 is still considered sensitive but unclassified. The purpose of this thesis is threefold: to determine if information the military has deemed important to the success of a mission can be found on Google Earth, to identify the current regulations governing remote sensing, and to determine if adding additional regulations or provisions on Google Earth would stand constitutional muster. The research will show that Google Earth does display imagery that the military has deemed mission essential vulnerable areas. The current regulations governing Google Earth offer little protection in times of increased threats to national security. The non-binding principles that the U.N. enacted in 1986 are quickly becoming antiquated because of advances in technology. The research will conclude that the government holds a heavy burden of proof in removing imagery based on national security. Similar imagery is available from many different sources outside the U.S., making additional regulations moot.
General Note: In the series University of Florida Digital Collections.
General Note: Includes vita.
Bibliography: Includes bibliographical references.
Source of Description: Description based on online resource; title from PDF title page.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Statement of Responsibility: by Angelique Mrs Ledesma.
Thesis: Thesis (M.A.M.C.)--University of Florida, 2007.
Local: Adviser: Chamberlin, William F.

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2007
System ID: UFE0021810:00001


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SATTELITE IMAGERY: FRIEND OR FOE


By

ANGELIQUE LEDESMA













A THESIS PRESENTED TO THE GRADUATE SCHOOL
OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT
OF THE REQUIREMENTS FOR THE DEGREE OF
MASTER OF ARTS IN MASS COMMUNICATION

UNIVERSITY OF FLORIDA

2007

































2007 Angelique Ledesma

































To my Dad, who taught me that hard work comes with reward.









ACKNOWLEDGMENTS

I would like to thank Professor William F. Chamberlin, chairman of my thesis committee,

for his patience and understanding throughout this thesis. Professor Chamberlin's

encouragement led me to explore several areas of remote sensing. Professor Chamberlin's

guidance was instrumental in researching case law. I would like to thank Professor Spiro

Kiousis and Professor Cynthia Morton for their helpful insights throughout this thesis. I would

like to thank the men and women who serve, their courage and dedication in part inspired this

thesis









TABLE OF CONTENTS

page

A C K N O W L E D G M E N T S ..............................................................................................................4

LIST OF FIGURES .................................. .. ..... ..... ................. .7

A B S T R A C T ......... ....................... .................. .......................... ................ .. 8

CHAPTER

1 REMOTE SENSING AND SATELLITE IMAGERY........................................................10

In tro du ctio n ................... .......................................................... ................ 10
L literature R review .................................................. .. .............................. 13
Remote Sensing, National Security and Military Operations ......................................13
Remote Imagery and Mapping Web sites ............................................ ............... 20
R em ote Sensing R regulations ................................................ .................. ............... 21
Shutter Control versus the First Amendment .............. .......................................23
C chapter Sum m ary and M methods ..................................................................... ..................27

2 INFORMATION AND MILITARY OPERATIONS .....................................................30

Introdu action .......................... ......... ................... ................... ................. 30
Arm y D octrine and Freedom of Inform ation.................................... ....................................35
Military Operations and Operational Security..................................................................36
T he M making of G oogle E arth ................................................................................ ...... ...38
Operational Security versus Google Earth ........................................ ........................40
C o n c lu sio n ................... ............................................................. ................4 7

3 REMOTE SENSING IMAGERY REGULATIONS .................................. ...............49

Introdu action ...................................................................................................................... 4 9
International Law s G governing Space........................................................... ............... 51
United States Regulations on Rem ote Sensing.................................... ....................... 55
C o n clu sio n ................... ...................6...................1..........

4 FIRST AMENDMENT AND REMOTE SENSING .................................. ...............63

In tro d u ctio n ................... ...................6...................3..........
T he P ress R eight to A access ......................................................... ................................ 66
Pell v. Procunier, Saxbe v. Washington Post and, Houchins v. KQED ..........................67
The Freedom of Information Act ......................................................................... 69
U.S. v. R eynolds................................................... 70
P rio r R strain t ......................... ...................................
N ear v. M innesota ............................ ........................ .. .... ........ ........ 72
N ew York Tim es v. U.S. ................................................ .. .... ........ ........ 73









U .S. v. P progressive ....................................................... 74
P unishm ent after the F act .............................................................................. .................... 76
Schenck v. U united States................................................................................. ...... 76
D ennis v. U united States ...................................................................................77
Brandenburg v. Ohio ............ ................................... ........... .....78
M orison v. U S ................................................................79
C conclusion ....................... .........................................79

5 C O N C L U SIO N .................................................... 81

In tro d u ctio n .............. ..... .......... ........................................................................... 8 1
Analysis ........................................ 87
L im itatio n s o f S tu d y ............................................................................................................... 8 8
F utu re R research ................................................................89
C on clu sion ........... ... .................................................... ...........................9 0

B IB L IO G R A P H Y .............. ..... ............ ........................................................... 92

P rim ary R eferen ce s............................................................................................................ 9 2
P rin cip al C ases.....................................................93
S eco n d ary R eferen ces........................................................................................................ 9 4

B IO G R A PH IC A L SK E T C H .................................................................................................... 97






























6









LIST OF FIGURES

Figure page

2-1 T aji, Iraq ............... ............................................................43

2-2 B agram A ir B ase, A fghanistan ................................................ .............................. 44

2-3 Balad Airbase, Iraq ............................... .. ....... ... ................. 45

2-4 Signal H ill, B aghdad Iraq ......................................................................... ...................46

2-5 Fort Hood, Texas ................................................. ..... ......... .... 47









Abstract of Thesis Presented to the Graduate School
of the University of Florida in Partial Fulfillment of the
Requirements for the Degree of Master of Arts in Mass Communication

SATELLITE IMAGERY: FRIEND OF FOE


By

Angelique Ledesma

December 2007

Chair: William F. Chamberlin
Major: Mass Communication

Google Earth is a virtual globe created by superimposing satellite imagery. The Web site

amalgamates the ease of the Google search engine with Google maps. Google Earth has been

used to illustrate the path of wild fires, track diseases such as the bird flu, and demonstrate the

fighting in foreign wars. There is little question of the usefulness of Google Earth, but it has

been criticized for providing information that could potentially harm a nation's security.

Information is a resource that is vital to the success of military missions in the U.S. and

abroad. The military has imposed several regulations in order to protect information from the

enemy. The military has deemed that certain information that is not classified by Executive

Order 12,958 is still considered sensitive but unclassified.

The purpose of this thesis is threefold: to determine if information the military has

deemed important to the success of a mission can be found on Google Earth, to identify the

current regulations governing remote sensing, and to determine if adding additional regulations

or provisions on Google Earth would stand constitutional muster.

The research will show that Google Earth does display imagery that the military has

deemed mission essential vulnerable areas. The current regulations governing Google Earth

offer little protection in times of increased threats to national security. The nonbinding









principles that the U.N. enacted in 1986 are quickly becoming antiquated because of advances in

technology. The research will conclude that the government holds a heavy burden of proof in

removing imagery based on national security. Similar imagery is available from many different

sources outside the U.S., making additional regulations moot.









CHAPTER 1
REMOTE SENSING AND SATELLITE IMAGERY

If I could get one message to you it would be this: the future of this country and the
welfare of the free world depends upon our success in space. There is no room in
this country for any but a fully cooperative, urgently motivated all-out effort toward
space leadership. No one person, no one company, no one government agency, has
a monopoly on the competence, the missions, or the requirements for the space
program.


Introduction

The Soviet Union launched the first successful artificial satellite, Sputnik I, in

1957 and started what was soon coined "space race."2 The space race lasted from 1957

until 1975 and was described as a battle between the United States and the Soviet Union

to dominate space.3 The space race played a pivotal role in technological, economical

and political advances of the United States and the Soviet Union during the Cold War.

The United States and the Soviet Union both evolved technologically, paralleling the

space race with the arms race as each country developed weapons, advanced their

military, and used satellites as "eyes in the sky" to spy against one another.4

The space race helped establish among both U.S. and Russian officials the need to

initiate regulations and laws pertaining to space. President Dwight D. Eisenhower and

Soviet Premier Nikita Khrushchev petitioned the United Nations to intervene in disputes

over space and requested legal guidance on issues involving space. In response, the



1 DAVIS ENGLISH, THE AIR UP THERE: MORE GREAT QUOTATIONS ON SPACE (McGraw Hill-Professionals
2003).
2 MATT BILLE & ERIKA LISHOCK, THE FIRST SPACE RACE, 12 (Texas A&M University Press 2004).

3 Id. at 55.

4 Id. at 25.









United Nations commissioned the Committee on the Peaceful Uses of Outer Space

(COPUOS) responsible for the discussions and negotiations as they pertain to space.5

Military and intelligence agencies of dominant world nations were the primary

users of satellite technology prior to the launch of SPOT I by the French government in

1986.6 During the early 1980's, the U.S. tried unsuccessfully to open a market for remote

sensed imagery.7 President Ronald Reagan's administration, in partnership with RCA

Corporation and Hughes Aircraft Company, devised a plan to market imagery from the

satellite Landsat. The imagery had a coarse resolution and the partners discovered there

was little market for it. Because of the low demand for the imagery, and the lack of

funding from the government, the price for customers was very expensive.

Although there was not a high demand for imagery, France launched SPOT I, a

satellite that provided ten-meter resolution, with a shorter time between satellite rotation

than Landsat, and privatized satellite imagery. France was the leading distributor of

satellite imagery by 1989. During the Persian Gulf War, the U.S. spent an estimated $5-6

million on satellite imagery, commonly referred to as remote sensing. The Remote

Sensing Policy Act defines land remote sensing as "the collection of data which can be

processed into imagery of surface features of the Earth from an unclassified satellite or

satellites."" Today more than nine countries have successfully launched satellites for

commercial use, making the commercialization of remote sensing a billion dollar


5 NANDASIRI JASENTULIYANA, INTERNATIONAL SPACE LAW AND THE UNITED NATIONS, 36 (Kluwer Law
International 1999).
6 Jasentuliyana, supra note 5, at 2.

7Ann M. Florini & Yahya Dehqanzada, Commercial Satellite Imagery Comes ofAge, Sci. & TECH., Dec.
1999.

8 Jasentuliyana, supra note 5, at 37.









industry. The technology has advanced the imagery to a .67 meter resolution, clear

enough to read the numbers on a house.9

However, the commercialization and increased technological advances of remote

sensing create several risks to national security and military operations. The capability of

a foreign country to obtain satellite imagery of an object in the United States without

permission or knowledge has invoked concern that the current regulations on land remote

sensing were inadequate. If an insurgent in Iraq wanted to launch a mortar at an airfield

in Iraq, the insurgent would only need a computer and Internet connection to obtain

satellite imagery with grid coordinates of the base within his or her legal rights under

current regulations.

The purpose of this thesis research is to answer: first, whether the advances in

technology associated with satellites and the Internet allow the release of information to

the public that the military has deemed potentially disruptive to military operations;

second, whether current regulations by the United Nations coincide with the United

States' military's safeguards for protection ; and lastly, whether the United States remote

sensing regulations such as "shutter control" are constitutional under the free speech and

free press clause of the First Amendment."

The research will begin with an extensive review of past literature on remote

sensing and will analyze other research on remote sensing and how it applies to this

study. The literature review will consists of four parts. Part one is an overview of what


9 Bille, supra note 2, at 4.
10 The Land Remote Sensing Policy Act, 15 U.S.C. 5601-5672 (1992), defines Shutter Control as
method to interrupt satellite communication during times of increased threat to national security.









effects remote sensing has on national security. Part two will introduce Google Earth and

Terraserver, easily accessible free satellite imagery Web sites, and will review prior

issues that have arisen from remote sensing Web sites available to the public. Part three

is a review of the regulations on remote sensing in relation to protecting the national

security of the nation sensed. Part four is an examination of previous analysis on the

constitutionality of regulations on remote sensing. Following the literature review is an

in-depth description of the methodology used to answer the research question posed by

the thesis.

Literature Review

Remote Sensing, National Security and Military Operations

Since the launch of SPOT I in 1986, several law reviews and journal articles have

been written pertaining to the effect of commercialization of remote sensing on national

security, the effectiveness of current regulations on remote sensing, and whether current

U.S. regulations governing remote sensing are unconstitutional. However, there is very

little analysis post 9/11 and very few studies on the effects of remote sensing on military

operations.

The continued advancements in technology, including the development of the

internet superhighway, sparked concerns by the National Geospatial Intelligence Agency

over the potential risk of commercial satellite imagery on national security. The National

Geospatial Intelligence Agency commissioned the RAND National Defense Research

Institute to investigate publicly available geospatial data on government Web sites,

including remote sensing imagery to determine if they were providing information that

could impact national security. The RAND Institute's primary focus was to determine if

information on government sponsored Web sites could potentially aide terrorists in an









attack against the United States. The research, conducted over a one-year period during

2005 and 2006, evaluated publicly available geospatial data on government Web sites

and assessed if the information could aide terrorist organizations in an attack against the

United States.

The RAND Institute analyzed information publicly available on the Internet and

applied analytical reasoning to determine if the data could assist in planning and

executing an attack on the United States. RAND analyzed the information found on

government Web sites based on three criteria: 1) usefulness, 2) uniqueness, and 3) cost

analysis." More specifically, RAND examined how useful information available on the

government Web sites would be in aiding an attack, whether the information is unique or

can it be found through other public resources, and whether restricting the information

would affect citizen's rights to view the information.

The RAND Institute's research concluded that public geospatial information

provided on the government Web sites is unlikely to aide a terrorist in an attack because

the information is otherwise available.12 Therefore, RAND said removing the

information from government Web sites does not protect national security. One of the

recommendations from the Rand Institute was that the federal government play "a

proactive role in bringing greater coherence and consistence to the public question of

assessing the Homeland Security implications of publicly available geospatial

information."13


"RAND National Defense Research Institute, Mapping the Risks: Assessing the Homeland Security
Implications ofPublicly Available Geospatial Information, 2004 (Washington, DC), XVII.
121d. at 123.
13Id. at 128.










Although the RAND research is an extensive evaluation of publicly accessible

remote sensing data and how that data could assist a terrorist in future attacks against the

U.S., the research was not intended to explore the effects of data on military operations

nor to explore non-government Web sites.

The effects of available remotely sensed data on military security and operations

were addressed by Theresa Hitchens, vice president at the Center for Defense

Information, in a speech to the U.S. Space Operations Conference in February 2004. The

U.S. Space operations conference was sponsored by the U.S. Army's Dwight D.

Eisenhower Institute National Security Series in order to discuss international space

operations. Hitchens stated that although the increased accessibility of high-resolution

remote sensing imagery benefits national security, it also poses a threat. Hitchens stated

the benefits of remote sensing were evident during the Persian Gulf War.14 She said

military intelligence officers were able to determine Iraqi troop placement by analyzing

remote sensed imagery. The intelligence gathered from the images were utilized to plan

the "left hook maneuver" an instrumental maneuver in the success of U.S. troops during

the Persian Gulf War." Hitchens stated military commanders determined that if Saddam

Hussein's Army had the intelligence gathered from the imagery, the left-hook maneuver

would not have been successful.

Hitchens' said the government has implemented three main safeguards to protect

military operations from data collected from remote sensing: 1) shutter control, 2)


14 Theresa Hitchens, Address at the U.S. Space Operations in the International Context Space Conference
(Feb. 24, 2004) (transcript available at the Center for Defense Information).

15 The US military used intelligence to plan an attack from the West (left) while simultaneously setting up a
deceptive frontal attack. Saddam's Army was focused on defending the front making the West a vulnerable
position. See HART LIDELLB.H., STRATEGY 62 (Plume 1991).









buyouts of foreign imagery and 3) embedding media in military units.16 The first of the

three safeguards, shutter control (turning off satellites from taking images) can be

initiated "when national security or international obligations and/or foreign policies may

be compromised, as defined by the secretary of defense" or when the secretary of state

requires the licensee to limit data collection and/or distribution." In essence, the

government now has complete control over access to U.S. private or government-owned

satellites and can impose restraints on data distribution by restricting the selling of

remotely sensed images, shutting off access to satellite and reducing the image resolution

over areas of interest. The second security safeguard "buyouts" refers to the U.S.

government policy of "buying out" satellite images from foreign nations to control

distribution of images.

Hitchens' third effort to safeguard military operations from remote sensing is to

embed media with the forces. Embedded journalists are news reporters attached to a

military unit; the reporters eat, sleep and travel with the unit in order to tell the factual

stories of the unit. Hitchens stated that by providing access to journalists the government

can reduce news agencies from searching for information from outside sources. Hitchens

stated that it is difficult to regulate remote sensing because remote sensing is an open

industry. Several countries have access to imagery from satellites and the U.S. can not

regulate the distribution from foreign countries. Hitchens stated that the only effective

way to regulate remote sensing is to develop a weapon that can be used to destroy

satellites in times of crisis.'8


16 Hitchens, supra note 14.

17 The Land Remote Sensing Policy Act, supra note 10.

18 Hitchens, supra note 14.









Contrary to Hitchens, Captain Michael Hoversten, chief of the Air Space law

branch in the U. S. Air Force Staff Judge Advocate Office, contended in a 2001 law

review article, that regulations initiated by the United States to regulate remote sensing

provide adequate safeguards to protect the security interest of the United States. Captain

Hoversten conducted a legal research analysis of regulations and policies relating to

remote sensing and applied them to issues of national security for the U.S. Airforce. He

determined that remote sensing imagery is a vital tool in protecting national security and

that the U.S. government must strike the right balance between maintaining technological

power and protecting the nation's interest. 19 Captain Hoversten said that an example of

using remote sensing as a tool for protection against foreign nations is the discovery a

North Korea missile site sensed by an IKONOS satellite operated by the U.S. owned

company Space Image Inc. in 2000. The images were used to determine that North

Korean had a missile site that could launch missiles at Japan, and eventually at the United

States.20

Captain Hoversten said that U.S. licensing rules and procedures, shutter control and

audit practices are adequate in ensuring protecting national security from U.S. sensed

imagery.21 The major concern Captain Hoversten mentioned in his paper was the lack of

global policies pertaining to internationally sensed images owned by foreign nations.22

Captain Hoversten said that remote sensing imagery with greater than one meter


19 Michael R. Hoversten, U.S. National Security and Government F. B, i,'lr,. of Commercial Remote
Sensing from Outer Space5 1 A.F. L. Rev. [253] (2001).
20Id. at 271.

21 Auditing refers to the U.S. government's review of current policies on remote sensing to determine if
they are effective.
22 Hoversten, supra note 19, at 272.












resolution is a vital tool for the military, agriculture and the environment. Captain

Hoversten stated that although the imagery is useful to the U.S. it is also a double-edged

sword.23

Captain Hoversten stated images from international satellites could negatively

impact military national security by identifying vulnerabilities in U.S. infrastructure.24

An example used by Captain Hoversten is the public images of Area 51. Area 51 was a

top secret military testing base in Nevada until satellite images sensed by a Russian

satellite were made available to general public.25 Captain Hoversten's report

acknowledges the difficulties in maintaining secret military areas from being identified

by foreign satellites with the current international regulations of remote sensed imagery

in a global market but stated he feels that in order to strike the right balance the

Department of Defense should implement internal regulations in order to prevent a

breach in security. Captain Hoversten stated internal regulations should include

camouflaging and concealing military base layouts that could be of interest to other

countries.26

U.S. Senator Daniel Kahikina Akaka, from Hawaii, shared Hoverston's concerns

but disagreed with his recommendations. Sen. Akaka addressed President William J.

Clinton at the Security and Commercial Satellite Imagery Council Meeting on May 2000.

Sen. Akaka's concern was that the "eye in the sky" had suddenly made previously secret

sites in the United States no longer secret and that if satellites have the capability to


23 Hoversten, supra note 19, at 272.

24 Hoversten, supra note 19, at 265.

25 Hoversten, supra note 19, at 245.

26 Hoversten, supra note 19, at 265.









gather images such as Russia's use of images on Area 51, the host country (Russia) can

sell the images under current regulations.2 Sen. Akaka stated that current restrictions

such as shutter control will be difficult to enforce in a free global market. He expressed

concern over the lack of a unified regulation on the purchasing of commercial imagery.

Sen. Akaka suggested that advancing technology should be coupled with advancing

regulations from the United Nations on a global level.

Research conducted for the Commission to Assess the United States National

Security Space Management and Organization (CAUSNSSMO) confirmed Sen. Akaka's

hypothesis that the increase in technology should run parallel with advances in remote

sensing regulations. The commission said that the continued expansion of the

commercial remote sensing industry increases the risks of foreign nations discovering

vulnerabilities in the U.S.28 The researcher indicated that a greater than one-meter

resolution assists adversaries in precise targeting and bomb damage assessment.29

Lieutenant Colonel George Harris, of the U.S. Army 250th Military Intelligence

Battalion study, agreed with the finding by CAUSNSSO. The empirical study analyzed

SPOT I imagery sensed at three different stages of Operation Desert Storm. The first

series of imagery analyzed was taken five months prior to the start of Operation Desert

Storm, the second set of imagery analyzed was two weeks after the air war and the final

imagery analyzed was imagery sensed four weeks before the ground war. Lieutenant

Colonel Harris studied the imagery to detect if military movement and operations could

27 Senator Daniel Kahikina Akaka, Address at the Security and Commercial Satellite Imagery Council
(May 11, 2000).
28 Haller, Linda and Sakazaki, M. Commercial Space and the United States National Security, (2001),
http://www.globalsecurity.org/space/library/report/2001/nssmo/article06.html (last visited Oct. 5, 2007).
29 Id.












be ascertained by the data collected from the images."30 The study concluded that the use

of remote imagery could be used by the U.S. to detect and predict troop movement even

if the images are months old.31 This study identified remote sensing imagery as a tool

that can be used during the military decision making process, but failed to assess if

foreign adversaries could utilize the technology against United States military troops.

Remote Imagery and Mapping Web sites

Web sites such as www.googleearth.com or www.terraserver.com have

revolutionized who can access remote sensed data. A real estate agent can access images

of a house on the market, a hunter can plan his hunting trip or a student can travel to Paris

without leaving his or her dorm room simply by downloading images from the Internet.

How does this affect national security? Since Google Earth was introduced in 2005,

Australia, the United Kingdom, the Netherlands, various Asian countries, and the United

States have stated that remote sensing imagery does affect national security, and each has

separately petitioned Google to remove images.

A study by the Fleximag, a European Aeronautic Defense and Space Company

(EADS), analyzed threats Google Earth presents to the national defense of all countries.

Results indicated that the information provided by Google Earth is available on several

other media and therefore does not directly impact national security. However, the








30 VIPIN GUPTA & LIEUTENANT COLONIAL GEORGE HARRIS, DETECTING MASSED TROOPS WITH THE FRENCH
SPOT SATELLITES: A FEASIBILITY STUDY FOR COOPERATIVE MONITORING (Sandia National Laboratory
1998).
31 Id.










researchers acknowledged that the information could assist in the early stages of planning

an attack against a nation.32

In a contrasting opinion, Indian President Abdul Kalam stated images of the Indian

Parliament found on Google Earth could aide in a terrorist attack and were damaging to

the security of India.33 In an interview referencing the capabilities of Google Earth by

Elizabeth Svoboda, a reporter for the Christian Science Monitor, President Kalam stated

that images on Google Earth jeopardize the security of foreign nations. Furthermore,

South Korea expressed concern that North Korea could use Google Earth to locate and

target military installations in South Korea.34 Australia petitioned Google Earth to censor

images of a nuclear reactor in Sydney, stating the images inhibit national security.35

The continuous concern of available information provided by remote sensed

images on Web sites such as Google Earth and Terraserver challenge the effectiveness of

international policies and regulations. Are the policies currently utilized by the United

Nations adequately protecting national security from being compromised by terrorist

organizations?

Remote Sensing Regulations

The United Nations has implemented regulations to control the use of remote

sensing imagery, but several researchers suggest that continued advancements in

technology, as well as globalization of commercialized remote sensed imagery, will make

32 Flc\ilnlu European Aeronautic Defense and Space Company, Google Earth: Impacts and Usesfor
Defense and Security (2005), http://www.felximag.fr (last visited Oct 2, 2007). The study is based on the
accuracy of Google Earth, international regulations and how Google Earth can be used to damage national
security.

33 Elizabeth Svoboda, Google's Open Skies Raise Cries, CHRISTIAN Sci. MONITOR, Dec. 1, 2005, at J1.

34 d.

35 Id.










the regulations obsolete and make remote sensing ungovernable. These concerns

prompted a study commissioned by the U.S. National Oceanic and Atmospheric

Administration (NOAA). NOAA evaluated the effectiveness of current regulations on the

commercialization of remote sensing to determine if they were antiquated based on new

technology.36 The research concluded several countries, such as the United States,

Canada, Korea and Russia, have their own regulations to protect national security but an

up to date unified policy by United Nations did not exist. The research concluded that

although the regulations are different from nation to nation, the general trend of each

nation is to protect its own national security by regulating the imagery sensed, licensing

satellites and initiating safeguards such as shutter control.3

In the study mentioned earlier in the paper, Captain Hoversten analyzed the current

regulations on commercial satellite imagery and national security to conclude if the

regulations provided adequate protection to the U.S. national security. Captain Hoversten

concentrated his research on the United Nation's Remote Sensing Act of 1987, and

concluded that commercial satellite imagery is a double-edge sword that was needed to

protect the nation, but, at the same time, could be used to harm the nation. Captain

Hoversten said that the regulations by the United Nations were antiquated when

compared to advancements in technology. He concluded that there are several

vulnerabilities to security that are not protected in the Remote Sensing Principles enacted




36 Joanne Irene Gabrynowicz, The Land Remote Sensing Laws and Policies of National Governments: A
Global Survey, (2007), http://www.spacelaw.olemiss.edu (last visited Oct. 1, 2007). A report prepared for
the U.S. Department of Commerce/NOOA. The study evaluates the "commercialization and privatization"
of remote sensing systems.
37 Id.











in 1987.38 For example, the provisions in the Remote Sensing Principles permit

governments to freely sense and distribute data from other nations without consent.39

Dr. Scott Pace, Associate Administrator for Program Analysis and Evaluation at

NASA and a member of the Critical Technologies Institute, testified before the

Committee on Science, Space and Technology and the Permanent Select Committee on

Intelligence on the U.S. policy and legislation affecting remote sensing and the

challenges for regulating commercial remote sensing.40 Dr. Pace said that if the U.S.

places restrictive regulations on remote sensing, customers will only seek out foreign

sources for the data. Dr. Pace said that the U.S. must remain competitive in commercial

remote sensing with minimal regulations. He said that the most effective way to maintain

competitive and protect national security is to enter government-to-government

agreements on remote sensed data.41 The government-to-government agreements should

include provisions for national security such as when data should be declassified for

public release.

Shutter Control versus the First Amendment

The current regulations on remote sensing have been criticized by many

journalists and law scholars as being too restrictive and unconstitutional. The

government implementation of shutter control and use of licensing to control releasing

data collected from satellite sensing has concerned members of the press.


38 Hoversten, supra note 19, at 266.

39 The Land Remote Sensing Policy Act, supra note 10.
40 The Critical Technologies Institute is a federally funded research and development center which serves
the White House office of science and technology. Their mission is to improve public policy that involves
science and technology.
41 Scott Pace, Testimony Before the Committee on Science, Space and Technology (Feb. 9, 1994).









A case study conducted by Robert P. Merges, an associate professor of law at

Boston University, and Glenn H. Reynolds, an associate professor of law at the

University of Tennessee, concluded that licensing remote sensed imagery is a clear

violation of content-based prior restraint. Merges and Reynolds stated that "regulations

in their current form cannot withstand constitutional scrutiny in light of the principles of

the First Amendment."42 Merges and Reynolds stated that restricting imagery should not

be overseen by the executive branch. Restrictions should come from the judicial branch

based on criteria discussed in the Near v. Minnesota case, meaning that only information

pertaining to "the sailing dates of transports and the number and location of troops" could

be withheld.43

Near v. Minnesota, a Supreme Court decision in 1931, established the press

ordinarily should be free from prior restraints on publication.44 The case made it clear

that prior restraint of press violates the First Amendment, while providing an exception

for national security. The opinion stated:

the protection even as to previous restraint is not absolutely unlimited. But the
limitation has been recognized only in exceptional cases. When a nation is at war
many things that might be said in time of peace are such a hindrance to its error that
their utterance will not be endured so long as men fight and that no Court could
regard them as protected by any constitutional right. No one would question but
that a government might prevent actual obstruction to its recruiting service or the
publication of the sailing dates of transports or the number and location of troops.
On similar grounds, the primary requirements of decency may be enforced against
obscene publications. The security of the community life may be protected against
incitements to acts of violence and the overthrow by force of orderly government.45


42 Robert P. Merges & Glenn H. Reynolds News Media Satellites and the First Amendment: A Case Study
in New Technologies, 3 HIGH TECH. L.J. 2 (1987).
43 Near v. Minnesota, 283 U.S. 697 (1931).

44 Id.

45 Merges, supra note 42.










Merges' and Reynolds' study focused on whether regulations relating to remote sensing

are unconstitutional based on the First Amendment. The case study concluded that

regulations such as shutter control are unconstitutional because they leave too much

discretion to the government and are based on restricting information based on content.

Merges and Reynolds stated that past precedent has dictated the government holds the

burden of proof when restricting publication based on national security.

Merges and Reynolds said the U.S. Supreme Court opinion in New York v. United

States set the precedent for burden of proof in censoring the press.46 The court's opinion

in New York Times v. United States (1971) declared the New York Times and Washington

Post could publish the so-called Pentagon Papers, discussing the history of Vietnam War.

Merges and Reynolds stated that shutter control presents a "classic prior restraint on

dissemination of expression" because the government can deny a license prior to an

image being sensed.4

Similar to the Mergers' and Reynolds' work, a paper by George E. Seay, a third-

year law student at Southern Methodist University, agreed the regulations on remote

sensing violate the First Amendment. Seay stated there is a definitive struggle between

the U.S. government and the media over the First Amendment right for media to use

remote sensed imagery. Seay stated that the government and the media must find a

middle ground when restricting remote sensing imagery. Seay recommended that the

government and the media come to a consensus as to what should be considered a threat



46 New York Times v. United States, 403 U.S. 719 (1971). The court reasoned in 6-3 decision that the
government bore the burden of proof in justifying censoring the press. The court stated based on the
evidence that burden had not been met.
47 Merges, supra note 42.









to national security. Seay suggested that this could be accomplished by a better

government-media relationship.

Pamela Hess, a Pentagon correspondent for United Press International, wrote an

article discussing the U.S. government's decision to buy exclusive rights to the imagery

over Afghanistan following 9/11 from Space Imaging Inc. Hess' article stated that the

government's purchase of imagery stopped potential lawsuits from the media for

violations of the First Amendment. Hess interviewed Mike Bender, director of

Washington operations at Space Imaging Inc., who opposed the media's opinion that the

U.S. government bought the imagery to censor the press. Bender stated it was just a

business transaction and nothing more.48

Ann M. Florini, in Science and Technology magazine, discussed the remote sensing

industry and the claims that current regulations on remote sensing have been argued to be

unconstitutional. Florini stated that the Radio-Television News Directors Association

(RTNDA) argued shutter control is a violation of the First Amendment because it allows

the government to impose prior restraint on the flow of information with no need to prove

clear and present danger or imminent national harm.49 Shutter Control is directed

exclusively by the executive branch, RTNDA argued that this eliminates the need for a

judicial review to determine if the information will cause harm to national security.

Ironically, Florini stated in her article, even if shutter control could withstand judicial




48 Pam Hess, DOD Locks up Commercial Satellite Pix, U.S. Press Int'l (Oct. 12, 2001),
Imp \ %\ \ .globalsecurity.org. (last visited Oct. 4, 2007).
49 Florini, supra note 7. Clear and present danger is a test developed by Justice Holmes following in his
opinion on Schenck v. U.S., 249 U.S. 47 (1999). The test determines if speech "creates a clear and present
danger that will bring about substantive evils that the United States Congress has the right to prevent."
Imminent refers to speech that will cause an unlawful act more quickly then can be handled by officials.









review, it provides little protection to national security because remote sensing is a global

market.50

In summary the continued advances in technology, coupled with the World Wide

Web as a vehicle of distribution for information, has sparked concerns among

government agencies that current regulations for remote sensing are becoming obsolete.

This research will try to identify if there are potential risks to military operations by

commercial satellite imagery, to determine if regulations are in place to protect military

operations, and to try to balance the need to protect both free press civil liberties and

national security. Although there have been several studies on remote sensing and the

effects on national security they all fail to research the effects of commercial remote

sensing imagery on military operations. In contrast, the research in this thesis will

identify Web sites such as Google Earth and Terraserver that publish information that

could impact military operations. The researcher will focus on information the military

has classified as "sensitive" to mission accomplishment, identifying that these risks that

can aide military leaders in mission planning.51 The most important aspect of this study

will examine the balance of civil liberties and national security. The thesis will weigh

both sides to try to determine the proper balance in an environment of self government.

Chapter Summary and Methods

To sufficiently answer the research questions posed in the introduction, a variety

of methods will be used. This paper will concentrate on different methods including a

case study and formal legal research. Because the thesis is three-pronged it seemed most



50 Florini, supra note 7.
51 Sensitive refers to any material that is not deemed classified but can be used against military operations.










appropriate match discussion of methods in the relevant chapters. The chapters and

methods are explained below.

Chapter 2 will explore if information on Google Earth and Terraserver are

threatening military operations based on Army directives and Army Regulations utilizing

comparative analysis.52 The researcher will examine Army Regulations, the Army Field

Manual, Department of the Army pamphlets, Department of Defense Regulations,

Executive Orders, and Post memorandums on security, force protection, antiterrorism and

sensitive information and compare the data to information available on the Web sites

such as Google Earth. Comparative analysis integrates key aspects of content analysis

although no specific coding is utilized. The research will incorporate Army Doctrine that

dictates what information, although unclassified, is considered sensitive to military

operations. Army publications will be found at www.us.army.mil/usapa and opened

using an Army Knowledge Online password supplied by the U.S. Army. The free trail of

Google Earth and Terraserver will be the utilized to determine if information on the Web

could be found contrary to Army doctrine.

Chapter 3 will examine current U.S. and U.N. regulations governing remote

sensing. Legal research will be used to determine whether U.S. and U.N. regulations for

remote sensing provide safeguards for military operations and national security. The

legal research will be conducted utilizing the University of Florida Legal Information

Center and Lexis\Nexis. The search string utilized will be "regulations land remote

sensing" and "U.N. regulations land remote sensing." The researcher will examine



52 Comparative analysis is a qualitative method used to compare two groups. The methodology makes
comparisons to evaluate and examine research questions. See e.g. ALLEN RUBIN & EARL R. BABBIE
RESEARCH METHODS FOR SOCIAL WORK (Thompson Wadsworth 2001).









remote sensing regulations and U.S. Army doctrine, found at www.us.army.mil/usapa, to

determine whether current regulations have provisions to protect mission essential

vulnerable areas identified by the U.S. military.

Chapter 4 will examine whether current remote sensing regulations pass

constitutional muster and are available under the Freedom of information Act (FOIA).

Legal research will be utilized to examine federal statutes, case law, and executive

directives found at the University of Florida legal Information Center, Lexis Nexis and

Westlaw. The researcher will employ on-line searches on Lexis\Nexis and Westlaw

using a string of search terms such as "national security", "remote sensing", "shutter

control", "FOIA", "Freedom of Information" and "first amendment" to determine

whether current remote sensing regulations are unconstitutional. Additionally, an

electronic search of the University of Florida's George C. Smathers database will be

conducted, using the following search terms: "remote sensing first amendment", "media

and remote sensing imagery", "regulation remote sensing imagery" and "press remote

sensing".

Finally, Chapter 5 will provide a brief summary and an analysis of the data found

in the previous chapters. The chapter will provide recommendations for current

regulations and further research.









CHAPTER 2
INFORMATION AND MILITARY OPERATIONS

Information is the oxygen of the modem age. It seeps through the walls topped by barbed wire, it
wafts across the electrified borders.1

Introduction

The U.S. military has favored the idea that "information" is a major tool in defeating the

enemy.2 The importance of information is not a new concept to the military, George Washington

stated during the colonial war that "even minutiae should have a place in our collection, for

things of a seemingly trifling nature, when enjoined with others of a more serious cast, may lead

to valuable conclusion."3 The objective of military intelligence and operation security is to

gather information about the enemy while simultaneously protecting information inherent to

mission accomplishment.4 The objective is to gain "information superiority" against the enemy

establishing a strategic advantage. The military defines information superiority as denying

adversaries key information that could be used to disrupt military operations.5 Washington

understood that information about the enemy could be collected and analyzed to disclose a major

weakness enabling a successful plan of defeat. The same concept can be applied to the enemies'

ability to collect information about U.S. forces. Although information protection was utilized



1 President Ronal Reagan, GUARDIAN (London, June 14, 1989).
2 U.S. Department of the Army, Regulation 530-1. Operations Security (OPSEC) (19 April 2007) [hereinafter AR
530-1]. For the purpose of this paper AR 530-1 defines information superiority as "the degree of dominance in the
information domain which permits the conduct of operations without effective operations." Id.

3 U.S. Department of Energy, An Operational Security (OPSEC) Primer, available at
hup \ \ \\ .defendamerica.mil/articles/a02120b.html.
4 Id. Operations security is defined as, "identifies the critical information of military plans, operations, and
supporting activities and the indicators that can reveal it, and then develops measures to eliminate, reduce, or
conceal those indicators."

5 d.









during the colonial period it did not become a standard methodology until the Vietnam War.

During the Vietnam War a group of soldiers were assigned to investigate how the enemy had

advance knowledge of planned military attacks. The Vietnamese soldiers had information that

aided in countering the U.S. military attacks. In order to determine the source of information

leaks the military developed the operational security measures. The soldiers determined that the

countermeasures in place to safeguard information were insufficient and therefore developed a

new methodology (operational security program) to ensure information was protected.

Operational security (OPSEC) programs are programs that identify information based on an

adversary's viewpoint, or on how an adversary could use the information against the U.S.

military. In 2007, operational security was said to be based on the following five steps: 1)

identification of critical information to be protected, 2) analysis of the threat to military

operations, 3) analysis of the vulnerabilities to military operations, 4) assessment of the risks to

military operations, and 5) application of the counter measures to protect release of information.6

The OPSEC methodology utilizes the five steps to identify unclassified information that can be

used to hinder successful military operations against the enemy or aide the enemy in attacking

the U.S. military installations and units.

Regulations on information security are based on Executive Order 12958, Classified

National Security Information; Executive Order 12972, Amendment to Executive Order 12958;

and Executive Order 13142, Amendment to Executive Order 12958 (EO 12958).7 Executive

Order 12958 sets the parameters to balance individual's right to access to government

information with protecting information that could harm national security.8 EO 12958 prescribes


6 d.

7Id.

8 Exec. Order 12,958, 60 Fed. Reg. 15,315 (Mar. 25, 2003).










a system to classify, safeguard and declassify information to ensure that information protection

and sharing is balanced. EO 12958 was amended by President George W. Bush after he took

office. EO 12958 stated that in order to classify information it must fall into specific categories

such as these pertaining to military plans and operations.9 Information that does not meet the

requirements set forth in EO 12958 maybe released under the Freedom of Information Act

(FOIA).

EO 12958 places information into three categories:

* "Top Secret" shall be applied to information, the unauthorized disclosure of which
reasonably could be expected to cause exceptionally grave damage to the national security
that the original classification authority is able to identify or describe.

* "Secret" shall be applied to information, the unauthorized disclosure of which reasonably
could be expected to cause serious damage to the national security that the original
classification authority is able to identify or describe.

* "Confidential" shall be applied to information, the unauthorized disclosure of which
reasonably could be expected to cause damage to the national security that the original
classification authority is able to identify or describe.10

In order to achieve information superiority the military uses additional categories when

planning and executing military operations to protect information that is not classified by EO

12958. The categories can be implemented by military leaders to protect military operations.

Information is controlled for military operations by categorizing it into an additional category

called Controlled Unclassified Information (CUI). This category includes information

considered For Official Use Only (FOUO) and Sensitive But Unclassified (SBU)." FOUO is

unclassified information originating from the Department of Defense (DOD) that may be exempt



9 d.
olId at 3. Top secret, secret and confidential are considered classified information. Classified Information is
restricted from public release by exemption lof FOIA.
11 U.S. Department of the Army, Regulation 530-5, Information Security (September 2000).











from released under the Freedom of Information Act.1 SBU is information that originates from

the Department of State but is contained in a DOD document and is not required to be released

under the Freedom of Information Act.13

The Freedom of Information Act was enacted by Congress and signed in 1966 by Lyndon

Baines Johnson. The FOIA was enacted to aide in the democratic process, to provide citizens

access to government information and to promote openness in government.14 The FOIA states

that citizens have access to government records unless the information is protected under the one

of the nine exemptions.1" Exemption One incorporates the executive order to protect national

security by protecting the disclosure of information that pertains to "intelligence collection,

national defense, or foreign policy that has been properly classified."16 Information on military

operations can be protected under Exemption One of the FOIA. Military officials follow the

same guidelines for classifying information as found in EO 12958.17

The challenge many military leaders face is how to protect information that is unclassified

because the safeguards that are instilled with classified information do not exist under law for

unclassified information and therefore the information is not handled as carefully. It is difficult

to identify and manage information that is considered unclassified but still sensitive to the



12 Department of Defense Directive, Directive 5400.7R The Freedom of Information Act Program (Sept. 9, 1997) at
page 43.
13 Homeland Security Act 6 U.S.C 482 (2" '14).

14 Freedom ofInformation Act Guide, March 2007, lmp \\ \\ .usdoj.gov/oip/foia_guide07.htm (last visited Oct. 18,
2007).
15 The Freedom of Information is codified 5 U.S.C. 552 (b) (2003). The Freedom of Information Act has nine
exemptions. The exemptions are 1) matters of national security; 2) internal personnel rules of the agency; 3)
information that is protected because of federal statues; 4) business information; 5) inter and intra- agency
memoranda; 6) personal privacy; 7) law enforcement records; 8) records of financial institutions; 9) oil well data.
16 United States Department of Justice, supra note 14.

17 See generally U.S. Department of the Army, Regulation 530-1.


.









military mission. When identifying CUI all information that is not classified must be assessed.

Since 9/11, military intelligence agencies have frequently found that information on the Internet

falls into CUI. The information, although unclassified, can be assessed by the enemy and can be

used to in planning attacks against U.S. military.18 For example, the U.S. military has captured

insurgents with hand-drawn handbooks on vulnerable spots on the Abrams Tank. Army

intelligence officers-after further investigation-discovered that the information had been

obtained from pictures posted on the Internet of an Abrams tank penetrated by a rocket propelled

grenade (RPG).19 These examples of sensitive information entering the media prompted the

Army Vice Chief of Staff, General Richard Cody, to require military leaders to tighten measures

to safeguard information."

The immense quantity of information on the Internet, combined with the ease of posting

and assessing information, poses a threat to information superiority and operational security.21

Military leaders have aggressively tried to manage information that is posted on the Internet by

posting directives such as the message from the Vice Chief of Staff, reviewing army Web sites to

ensure soldiers are not posting critical information, and updating regulations that deal with

information security. Critical information is not always classified but has been identified as

information that could affect mission accomplishment or aide the adversary.22 Information

categorized as critical information includes specific current force locations, command post



18Chief ofStaff of the Army OPSEC Guidance, UNCLAS ALARACT, Aug. 23, 2005,
lip \ i\ \ .fas.org/sgp/news/2005/08/usa0805.html (last visited Oct. 18, 2007).

19 d

20 Id

21 Id

22 U.S. Department of the Army, supra note 2.









vulnerabilities, and command post locations and communications. Critical information can be an

important to successful military mission.

Army Doctrine and Freedom of Information

Although military leaders are continuously evaluating information to ensure that

information is safeguarded, the protection of information is part of the mission of all military

personnel. In order to ensure that all soldiers are aware of their responsibilities Army officials

have implemented several regulations, pamphlets and directives. The military has several

regulations that govern security to ensure that information superiority is maintained.

Military officials follow several steps when writing regulations and when reviewing

current regulation to ensure they do not hinder constitutional rights, are within the limits of

executive orders and are legally binding.23 Army personnel are assigned a subject based on their

individual expertise generally personnel in operations and intelligence sections.24 Operations and

Intelligence personnel review all current laws, directives and orders pertaining to the regulation

to ensure that regulations fall within the confines of current laws and regulations. After the

drafts are written they are forwarded to commanders for review for clarity and grammar. The

commanders review the regulation and forward it the Headquarters Department of the Army

(HQDA).25 HQDA is responsible for reviewing and commenting on drafts and assigning

publishing control officers. The draft regulation is corrected and forwarded to the Judge



23 U.S. Department of Army, Regulation 25-30 The Army Publishing Program (27 March 2007). [Hereinafter AR
25-30].
24 The job of an Army Operations staff serve as the principal staff responsible for preparation and sustaining of war
fighting in peace and war today and tomorrow. See generally Mission statement by the Deputy Chief of Staff
hp \ "\ \" .amc.army.mil/G3/. (last visited at Oct. 18, 2007). The Army Intelligence personnel deduce threat to the
military and gather information on the enemy.
25 A commander is the highest member of their echelon. The use of commander in this thesis refers to the
commanders of major command.










Advocate26 for legal review to ensure all policies and procedures fall under laws, directives and

regulation. The regulation is forwarded to Deputy Chiefs of Staff and reviewed for justification.

After the regulation is properly staffed it is forwarded to the office of the Secretary of the Army

for approval.2 After the regulation is approved for released it is labeled "official use only."

Army regulations are not intended for public release.

Military Operations and Operational Security

After 9/11 the U.S. military has adopted several additional safeguards to protect

information. Under the military's Operational Security (OPSEC) program access to all U.S.

military posts is controlled through identification at the gates of anyone entering the military

installation.28 The main goal of OPSEC, which also imposes random vehicle checks in order to

deter terrorist activity, is to identify critical information and initiate measures to protect it. AR

530-1, the document that authorized the updated OPSEC program in 2007, addresses new

technologies such as the Internet. OPSEC mangers state that the information posted on the

Internet is opened-sourced and unclassified, but when this information is pieced together can

aide adversaries in attacks against the U.S. military.29 AR 350-1 states that it is imperative for

military leaders to identify critical information30 during the planning phase of a mission's

development, and they should identify what questions an adversary will ask about U.S.

limitations and intentions.



26 Judge Advocate is the military's legal assistance. The Judge Advocate consists of paralegals, lawyers and judges.
27 "Staffing" refers to sending a document to through the Army staff. The staff consists of personnel, intelligence,
operations, supply, and communication.
28 U.S. Department of Energy, supra note 3.

29 U.S. Department of the Army, supra note 2. AR 530-1 has a vast list of information considered critical
information. The examples listed are used based on the thesis questions.

30 See page 5 of this thesis for the definition of critical information.









In addition to critical information, a key element in OPSEC program is the identification of

"sensitive information." The term "sensitive information" refers to unclassified that requires

special protection because disclosure could cause harm to military installations, operations, and

personnel.31 Sensitive and critical information are similar, but critical information is either

needed by the U.S. to meet an objective or information that aids adversary and could include

sensitive information.

Another program developed by the military to protect information is the Physical Security

Program, used to protect military installations during times of peace against criminals, terrorists

and hostile intelligence operatives.32 The Physical Security Program identifies the

responsibilities of the chain of command to protect information and describes installation

Mission Essential Vulnerable Areas (MEVAs).33 AR 190-13, the document containing the

regulation, identifies MEVAs as military assets that need special protection because an attack on

one could cause severe loss of life, loss of essential equipment, extreme financial loss or

disruption in military operations. MEVAs can include airfields, aircraft parking or maintenance

areas, classified sites, main and alternate command posts, communication facilities, motor pools

and consolidated supply and storage operations.34

Pictures of MEVA's have been mistakenly posted on the Internet including base defense

plans. One of the reasons that the Internet creates so much concern is that it is so difficult to

monitor. For example, a training manual recovered from an Al Qaeda group stated that 80

31 U.S. Department of the Army, supra note 2.
32 U.S. Department of the Army, supra note 2 at 5.

33 U.S. Department of Army, Regulation 190-13, The Army Physical Security Program (30 September

1993) [hereinafter known as AR 190-13].
34 Id. The Mission Essential Vulnerable Areas listed does not constitute a complete list. AR 190-13 lists several
MEVA's and states that any installation commander can add to the list based on threat and mission planning. Id.












percent of the information needed against an enemy can be found using public sources including

the Internet.35 Military units place information on company and battalion Web sites, contractors

put installation plans on company Web sites and satellite imagery Web sites such as Google

Earth include military bases.

The Making of Google Earth

Google Earth is a Web site operated by Google Inc., an Internet search engine and online

advertiser, that makes it possible for users to see a virtual globe through the use of satellite

imagery and the Google search engine.36 The images can be viewed in three-dimension and

places can be place-marked and shared with other Google Earth users using Keyhole Markup

Language (KML). KML allows the users to tag geographical locations that others can view.

The program requires an operating system that supports Windows 2000, XP, Vista or MAC OS

10.3.9 and a broadband internet connection.

Google Earth provides images that are considered unclassified under Executive Order

12958.37 Google Earth provides resources that enable people to obtain information with

anonymity making it more difficult for military officials to identify the release of sensitive but

unclassified information on the Internet.





5 Former U.S. Secretary of Defense Donald Rumsfeld, Website OPSEC Discrepancies, Memorandum for all
Department of Defense Activities, (January 14, 2003) available at Ihp % %\ \ .ioss.gov/docs/rumsfeld_14Jan03.html,
(last visited June 24, 2007). The memorandum states that For Official Use Only (FOUO) and sensitive information
is continually placed on the internet. The memorandum provides guidance to military personnel on how to protect
information. Id.
36 The website has a compassion guide for Google Earth, Google Pro and Google Plus. The Google Earth homepage
provides tutorials on basic use of the product, product downloads and product tours. Information on Google earth
can be accessed at http:// www.earth.google.com (last visited Oct. 18, 2007).

7 Exec. Order 12958, 60 Fed. Reg. 15315 (Mar. 25, 2003). President George W. Bush kept President Clinton's
executive order on national security classification. However, he amended it to include procedural matters on
safeguarding information based on national security.











Google purchased Keyhole three-dimension mapping technology, including the program

Earthviewer, in 2004. Earthviewer, a mapping program created for commercial use of satellite

imagery, is utilized both by businesses and educators. After Google purchased Earthview, it

renamed it Google Earth, now one of three Google mapping systems available.38 Google Earth is

a free service enabling consumers to view a specific location on a three-dimensional satellite

picture and retrieve driving directions. Google Earth Pro and Google Earth Plus added global

positioning services. Connecting Google Earth to GPS displays your position in real time and

track data on Google earth.

In 2006, Google stated that it provides imagery of more than 20 percent of the Earth's

land mass on Google Earth. The data on Google Earth is a combination of aerial and satellite

data that are not updated based on customer request but as they become available.39 The images

on Google Earth are generally between one and three years old and have a 15-meter resolution

provided by Digital Globe.40 The Web site is available in thirteen languages and supports data

sharing through the KML feature.

Google Earth is marketed as a mapping Web site that can be used to track disease,41

examine buildings in three dimensions and explore disasters. Google Earth was instrumental

38 Google Earth Plus, which cost $20 annually, provides consumers with the same features as Google Earth but also
provides higher resolution printing, faster performance, and the ability to connect global positioning services (GPS)
The program Google Earth pro. costing $400 a year, is targeted for commercial users. Google Earth pro is used
primarily for research, presentations, and as tool to identify location-specific information. The author of this thesis
did not evaluate the other programs because Google Earth is free, requires no registration and the simplest to use.
Information http:// www.earth.google.com (last visited Oct. 18, 2007).

39 In July 2007 Google purchased Image America, a company that builds high resolution cameras for aerial imagery
but has not released what new features will be available to their users. Details of purchase at Google's official blog
http://google-latlong.blogspot.com/2007/07/imaging-america.html.
40 Digital Globe is the company that owns Quickbird satellite used to produce high-quality (such as some seen on
Google Earth) geospatial data.
41 The Center for Communicable Disease, scientist, and medical personnel tag areas where diseases have been
reported on Google Earth to track the movement of disease. This was recently done for the tracking the bird flu
epidemic, it is useful in determining the path of the disease.










during the aftermath of Katrina and the 2005 earthquake in Pakistan. Relief workers used the

Web site to classify priorities, identify open routes and plan logistics.42 Although the images are

generally one to three years old the use of Keyhole Markup Language permits users to update

images using overlays. KML provides the user with recent updates to buildings, roads and

points of interest by using overlays. Google Earth also acquired images from Digital Globe,

processed the imagery and made imarery available within five days. Generally, Google Earth

only displays imagery that is up to three years old, but because of the emergency situation

encountered after the earthquake in Pakistan it used newer imagery purchased. The imagery

purchased from Digital Globe was removed briefly because of disputes from Pakistan and India

over the imagery of Kashmir.43

Operational Security versus Google Earth

Google Earth does not analyze imagery before putting it on the Internet. Google Inc. has

stated that the information it provides, whether it creates problems for the military or not, is open

to the public. Although officials of the company say they believe in open access. Google Inc. is

not averse to meeting with government officials to discuss images of concern.44 For example, the

Associated Press discovered information on the Internet that contained plans for a military

holding facility in Iraq, geospatial data of two airfields in Iraq, and plans for a fuel farm at


42 Illah Nourbaksh, Mapping Disaster Zones, NATURE, February 16, 2006, at 787.

43 Id. The decision of Google Earth to display images that were five days old to aide in the rescue mission after the
2005 earthquake concerned both Indian and Pakistan governments, both contended that Google Earth did not
accurately portray he border of Kashmir, Pakistan and Kashmir, India. This has been a significant issue between
India and Pakistan. See Somini Sengupta, The claim over Kashmir goes to the heart of the identities of India and
Pakistan. NY TIMES, January 13, 2002,
http://query.nytimes.com/gst/fullpage.html?res=9803E5DF1738F930A25752COA9649C8B63&n=Top/News/World
/Countries%/o20and%20Territories/India. (last visited at October 18, 2007) Google Earth was asked by Indian
government official to remove the images until the dispute could be heard by the UN. The United Nations met with
the Pakistan and Indian governments and the decision was made that the imagery did not pose a threat. After the
UN decision Google Earth decided to repost the images on their Web site. Id.

44 Did Google Censor Basra Imagery, UK TELEGRAPH, January 14, 2007.










Bagram Air Base in Afghanistan.45 These types of information can aide terrorists in planning

attacks and assessing weaknesses in military facilities. The Army Corps of Engineers asked the

Associated Press to destroy the information above and added additional guidelines to their

current policies relating to the Internet.46

Army Intelligence officers believe that mapping Web sites such as Google Earth are

responsible for mortar attacks on a British Military Base in Basra, Iraq.47 Intelligence officers

seized documents that contained the longitude and latitude of bases in Basra, and aerial photos

downloaded from Google Earth with vulnerable sites listed on the back. Prior to Web sites such

as Google Earth, terrorists had to be in the vicinity of the target in order to obtain this

information.48 This gave the military a greater chance of identifying security breaches and

apprehending suspicious people.

The military has several directives to guide webmasters on information that should not be

placed on the Internet. A Headquarters Department of the Army memorandum instructed all

battalion commanders to perform an OPSEC review of their unit's Web sites.49 The

memorandum provided a checklist of information that was considered a violation of AR 530-1,

the Army's operational security directive. The memorandum instructed commanders to remove

the information and disseminate to soldiers violations of OPSEC. The checklist categorizes

45 Associated Press, Government Agencies .,,, ig Sensitive, 'Need to Know' Material On-line, FOX-NEWS, July
12, 2007, http://www.foxnews.com/story//0,2933,289011,00.html. (last visited Oct. 12, 2007).
46 The Army Corps of Engineers' policy for civilian contractors' states that blueprints and plans are not to be placed
on the Internet for public or private use.

47 Thomas Harding, Terrorist use Google Earth to hit UK Troops TELEGRAPH, January 13, 2007,
hip %\ \ \ .telegraph.co.uk/news/main/ (last visited Oct. 12, 2007).
48 U.S. Department of the Army, Field Manual 3-19.30, Physical Security (January 8, 2001) [hereinafter FM 3-
19.30].

49See Memorandum from the Director Information Operations, to Battalion level Commanders (6 August 2006),
hup \ %\ \ .wsmr.army.mil/workforce/informationassurance/taskeropsec_review for websites.pdf. (last visited
Oct. 18, 2007).









categories of OPSEC violations into the personal information, technical data, administration,

operations, plans and training, communication and logistics and maintenance. The logistical and

maintenance guidance stated that mapping, imagery and special documentation is a violation of

OPSEC and should not be placed on Department of Defense Web sites. Although mapping and

imagery is a violation of OPSEC, the imagery of all military bases is available through Google

Earth.50

John Pike, the director of Globalsecurity.org, has stated that images on Google Earth are

not a danger to national security because the images posted by Google Earth are not newly

acquired images and the images are too outdated to pose a threat.51 Although the images on

Google Earth are not newly acquired, Google Earth does simplify gaining information about

military bases.

In analyzing the Google Earth Web site and comparing the information against mission

essential vulnerable areas, physical security programs and operational security programs several

violations occurred. Below is an image taken from Google Earth that clearly shows an airfield,

UH-60 Blackhawk helicopters and a black and yellow 1st Cavalry Division patch.52 The airfield

is a permanent infrastructure that most likely will be utilized by all aircraft that occupy Camp

Taji, Iraq. An adversary could obtain the longitude and latitude of the airbase, the number and

type of aircraft, and the location of aircraft maintenance facilities. Airfields are listed as mission

essential vulnerable areas and are considered unclassified but sensitive that should be protected.53


50 U.S. Department of Energy, supra note 3.

51 Katie Hafner, Government's Tremble at Google's Bird's Eye View, NY TIMES, December 20, 2005 at Al.
52 The image was found by typing Taji, Iraq in the search bar on the Google Earth Web Site http://google.earth.com
(last visited Oct. 18, 2007). The exact date of the image is unknown. The black and yellow patch was painted in
2004 by the 1st Cavalry Division. The author of this thesis was there when the patch was painted.
5 6 U.S.C 482 21 '1 I4).













The information is unclassified based on the criteria in EO 12598. However, although

information is unclassified does not mean it is not sensitive or considered a MEVA (mission

essential vulnerable area).54


_r,_, If I" TW H,



















Figure 2-1. Taji, Iraq

The image below clearly depicts air capabilities in Afghanistan. The image, similar to

the airfield in Taji, illustrates the formation of aircraft, the location of aircraft and the types of

aircraft available. Although the exact timeframe of picture is unknown, a lot of information

about U.S. forces can be gathered.














54 U.S. Department of Army, supra note 23.












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Figure 2-2. Bagram Air Base, Afghanistan


A Google Earth search of Balad Airbase generated the image below. Imagery of


the entire base includes an image of a UH-60 Blackhawk helicopter in flight over the airbase.


The imagery depicts F-16 aircraft, Chinooks, and Blackhawk aircraft.55 The image combined,


with a Google search for textual material about Balad Airbase, provides information about base


capabilities, approximate number of troops, the mission of the base, and placement of aircraft.56


The number and types of aircraft can be estimated by scanning the imagery provided by Google


Earth. Army regulations state this type of information is considered sensitive but unclassified.5














55 The image above depicts only UH-60 helicopters. In order to view additional aircraft scan throughout Balad
Airbase.

56 A Google Search for textual material using the words "Balad Airbase" provides information that Balad is the
major HUB for the Airforce, a supply retransmission HUB and home to radar antennae.

57 U.S. Department of Army, supra note 23.


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Figure 2-3. Balad Airbase, Iraq

The image below is of a communication facility on Camp Victory in Iraq. AR 190-13

stated that communication facilities are considered mission essential vulnerable areas. The

image depicts a satellite and several vehicles located on hill. Communication facilities are

instrumental in proper dissemination of information over vast distance. If an adversary was able

to interrupt communication that would severely disrupt the ability of the military to complete a

mission. The image below Earth of a communication retransmission site at Camp Victory, Iraq

was downloaded from Google.8 The limited number of vehicles, combined with the satellite,

would lead an adversary to reason that the base is a communications facility.










58 The terrain in Baghdad and surrounding areas is mostly flat. A man-made lake was built for Saddam Hussein
during his reign and the dirt used made one of the highest points in Baghdad. After the military occupied Baghdad
the hill was named signal hill. The hill is a major signal retransmission center and is considered a vulnerable area
necessary for the mission in Iraq.



























Figure 2-4. Signal Hill, Baghdad Iraq

AR 190-13 stated that military motor pools are considered vulnerable areas essential to

the Iraq mission. These areas are classified MEVA's, areas vulnerable to mission

accomplishment, because they contain vital equipment that, if destroyed, would impact military

missions. The smaller image above is that of the motor pool is of the 1st Cavalry Division

Headquarters, which the author used to pinpoint the estimated time of the imagery.59 The

structure in the upper right corner is a memorial dedicated to the soldiers that were killed during

Operation Iraqi Freedom II. By viewing the motor pool an adversary can determine types of

equipment, amount of equipment and formation of equipment.














59 Geographically the images are less than 1/2 mile apart.




































Figure 2-5. Fort Hood, Texas

Conclusion

The U.S. military has gone to great lengths to limit access to mission essential

information. They have put fences around the areas and placed additional guards at the gate.

The Department of Defense recently stated that content on the Internet is a deterrent to

information security.60 Although Google Earth does not post images that are considered

classified by EO 12958, it still provides enough information to aid in an attack from the enemy.

Google Earth, particularly when combined with other publicly available information, can impact

military operations.

The imagery of military bases both overseas and in the continental U.S. negates

regulations meant to protect sensitive military information. A search of Fort Bragg, home of the


60 U.S. Department of Energy, supra note 3.


^ iaair









Delta Force and Special Operations, provides the user with the exact location of Special

Operations Command Headquarters with the building number. The Internet presents a

significant challenge for military personnel. At the very least, it presumably would take

enormous resources to monitor the information that is placed on the Internet and to determine

how it could impact military operations, let alone respond by moving or camouflaging all

equipment and information.










CHAPTER 3
REMOTE SENSING IMAGERY REGULATIONS

It is the policy of the United States that activities in space should be devoted to peaceful
purposes for the benefit of all mankind.'

Introduction

Chapter 2 provided an analysis of U.S. Army regulations that govern the protection of

information, operational security, and mission essential areas. The chapter compared the

information in the army regulations to items that can be found on Internet sites such as Google

Earth. Chapter 3 will discuss the current U.S. and U.N. regulations that cover remote sensing.

The Committee on the Peaceful uses of Outer Space (COPUOS) was started by the United

Nations' General Assembly as an ad hoc committee in 1958 after the successful launch of

Sputnik I by the Soviet Union.2 In 1961 the General Assembly established COPUOS as a

permanent committee under Resolution 1721. Resolution 1721 stated that space would fall

under international law, and the continued advancements in space are to build economic and

scientific developments COPUOS was established to study and resolve legal problems that

involve space.3 COPUOS' main functions are to ensure the peaceful use of outer space,

encourage the use of outer space and review the legal issues involved with outer space, including

remote sensing.4



1NANDASIRI JASENTULIYANA, INTERNATIONAL SPACE LAW AND THE UNITED NATIONS, 36 (Kluwer Law
International 1999). The launch of Sputnik one started the space race between the U.S. and the Soviet Union. Id.

2 Id. Committee on the Peaceful uses of Outer Space (COPUOS) was originally an ad hoc committee. COPUOS has
two subcommittees' Scientific and Technical subcommittee and Legal subcommittee. The subcommittees meet
annually to review the questions set forth to the General Assembly that pertain to their specific areas. Id.

3 G.A. Res. 1721, U.N. GAOR, 16th Sess., Supp. No. 17 at 6, U.N. Doc. A/5100 (1962). Resolution 1721 stated
that "International Law, including the Charter of the United Nations, applies to outer space and other celestial bodies
and outer space and celestial bodies are free for exploration by all States in conformity with the international law are
not subject to national appropriation." Id.

4 Jasentuliyana, supra note 1.










When COPUOS first convened, in May 1959, the Soviet Union, Czechoslovakia and

Poland boycotted the meeting because they did not agree with the scope of responsibilities of

COPUOS or the lack of veto power.5 The Soviet Union felt that without a veto over issues

before COPOUS the United States and its allies, in the majority, would ignore the concerns of

socialist nations. But after, Soviet Premier Nikita Khrushchev, Chief Director of the Soviet

Union, publicly congratulated President John F. Kennedy on the successful orbiting of space by

John Glenn in 1962. Soviet Premier Khrushchev proposed to President Kennedy that the two

nations should combine their efforts in space.6 President Kennedy responded that the U.S.

should collaborate with the Soviet Union in space which elated some political attitudes between

the two nations.

The U.S.-Soviet agreement led to the establishment of COPUOS as a permanent

committee. COPUOS meets annually to discuss issues pertaining to space and to review any

new developments in space relating to space. If any member of the U.N. has a concern relating

to space it is supposed to submit a draft proposal to the committee for consideration. The

COPUOS legal sub-committee negotiates the legality and language of the draft proposal at the

annual meeting. If the legal sub-committee deems necessary the draft is forwarded to the

scientific sub-committee for further review. The draft is revised and reviewed, if the content can

be agreed upon by the consensus7 of the Committee, "the General assembly adopts a resolution


5 Jasentuliyana, supra note 1. In the 1960's the United States and Soviet Union were the leaders in space
advancement.
6 Nikita Sergeyevich Khrushchev to John F. Kennedy, Feb. 21,1962, as printed in U.S. Congress, Senate, Committee
on Aeronautical and Space Sciences, Documents on International Aspects of the Exploration and Use of Outer
Space, 1954-1962, 88th Cong., 1st sess., 1963, p. 232.

7 Consensus is "the acceptance of the discussed option to all its scopes, which implies a common feeling by those
that chose it." Consensus was used to create five treaties: 1) Treaty on Principles Governing Activities of States in
the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (1967); 2) Agreement on
the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched in Outer Space (1968); 3)
Convention on International Liability for Damage Caused by Space Objects (1972); 4) Convention on Registration










containing the text."8 If the resolution becomes a treaty individual nations decide to sign or not.

If the resolution does not become a treaty, then it is considered a "declaration of legal principles

rather than a treaty, which are not legally binding."9

Prior to the advances in space, nations had complete sovereignty over their land, sea and

air.10 Remote sensing provides the means for a country to gather intelligence about another

country without the country's knowledge. Because no nation has sovereignty over space it is

legal for a nation to gather information by remote sensing over another nation."

International Laws Governing Space

Remote sensing was discussed at COUPUS as early as 1968, but negotiations on regulating

remote sensing did not begin until a draft proposal was submitted by Argentina in 1970. After

16 years of negotiations, COPUOS adopted the Principles Relating to Remote Sensing from

Outer Space in 1986.12 The major point of contention during negotiations was the interest of

developing countries to have the authority to approve of the distribution of any imagery.1 The

developed countries such as the United States wanted the freedom to collect and disseminate




of Objects Launched into Outer Space (1975); and 5) Agreement Governing the Activities of States and Moon and
Other Celestial Bodies (1979). See Julian Hermida, Legal Basis for a National Space I.., ,ih,. 'i xvii KLUWER
ACADEMIC PUBLISHERS (2I li4).

8 Jasentuliyana, supra note 1 at 27.

9 Jasentuliyana, supra note 1 at 27.

1'MERRIAM-WEBSTER COLLEGIATE DICTIONARY (11th ed. 1993) defines sovereignty as the exclusive right
to exercise supreme authority over a geographic region, group of people, or oneself. Page 265

1 Article II of the Outer Space treaty reads, "Outer space, including the moon and other celestial bodies, is not
subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means."

12 Jasentuliyana, supra note 1. The Principles are not binding as a treaty but as guidelines for the countries in the
U.N. to follow.

13 A country is considered developing is when compared to other "lacks industrialization, infrastructure, developed
agriculture, and developed natural resources, and suffers from a low per capital income as a result." available at
uip \\ \ \ \.teachmefinance.com/Financial Terms/underdeveloped country.html. (last visited Oct. 3, 2007).










imagery without contacting the country the image was obtained from.14 Although the Principles

were adopted by consensus of the nations' participants, the developing countries were not

satisfied with the terms and requested the COUPUS to continue to look for alternatives that

would protect the developing countries' uses of remote sensing.1

The Principles Relating to Remote Sensing of the Earth from Outer Space can be broken

down into fifteen principles.16 Define key terms relating to remote sensing;

* Remote sensing should benefit all countries "with special consideration" for developing
countries;
* Remote sensing falls under international law;
* Remote sensing should benefit all countries regardless of their scientific or technical
capabilities;
* Remote sensing should be a "collaborative effort" between countries;
* Joint collection, storage, processing and interpreting centers;
* Countries who utilize remote sensing will provide technical assistance to other countries
that are not technologically advanced;
* U.N. and countries within the U.N. will "promote international co-operation";
* Countries should make information on remote sensing available to other nations,
particularly underdeveloped nations;
* Remote sensing should protect the environment;
* Remote sensing should help protect mankind from "natural disasters";
* Countries should have access to the imagery "at a reasonable cost";
* Nations should consult with other nations referencing remote sensing;
* Information found utilizing remote sensing that "could be harmful" to the Earth's
environment "will be disclosed immediately";
* Disputes involving remote sensing will be settled "through established procedures for the
peaceful settlement."17







14 Jasentuliyana, supra note 1 at 43.

15 Report to the Committee for the Peaceful uses of Outer space, U.N. Doc A/41/20 (June 26,1986). To date no
further changes have been made to the Principles.
16 Principles Relating to Remote Sensing of the Earth from Outer Space, G.A. Res 41/65 at 115, U.N. Doc 53 (Dec.
3, 1986).
17 Id












The Principles Relating to Remote Sensing of the Earth from Outer Space were not

accepted as a treaty and therefore are not binding on all nations.18 However, several nations have

incorporated them into their national remote sensing policy.19

As seen throughout the Principles Relating to Remote Sensing "special consideration"

was given to developing countries. In the initial draft presented by Argentina to COPUOS, the

Argentine officials stated that remote sensing would benefit all countries, especially those that

"are not fully developed." The draft emphasized the need to protect developing countries from

being taken advantaged of by developed countries. The concern was that developed countries

would have the technology to gather information by remote sensing and use that to "exploit the

resources" of undeveloped countries and use information to their economic advantage.20 The

suggestion that remote sensing could be used to discover mineral resources in countries

concerned undeveloped countries was seen as a significant economic threat by officials. This

was greatly overstated and the information on natural resources gathered through remote sensing

was of little benefit.21 In reality remote sensing was not a significant resource for identifying

mineral resources.22 The principles stressed the need for developed countries to assist

undeveloped countries in advancements in remote sensing and access to imagery obtained from

remote sensing.

18 Jasentuliyana, supra note 1. In April 2006 Greece proposed that the Principles Relating to Remote Sensing of the
Earth from Outer Space should be revised as a Treaty. To date the principles have not been revised.

19 The following countries have a policy governing remote sensing: Argentina, Australia, Austria, Belgium, Brazil,
Canada, China, France, Germany, Hong Kong, India, Iran, Israel, Italy, Japan, Malaysia, Nigeria, Poland, Russia,
South Africa, South Korea, Spain, Thailand, Turkey, Ukraine, United Arab Emirates, United States and the United
Kingdom. The U.S. is recognized as a leader in remote sensing and most nations have modeled their policy after
The Land Remote Sensing Commercialization Act of 1992.
20 Jasentuliyana, supra note 1, at 43.

21 Jasentuliyana, supra note 1.
22 Charles C. Okolie, International Law of Satellite Remote Sensing and Outer Space, 86 AMER JOUR OF INT L
(1992) at 221.











Although several technological advances have been made, the guidelines governing

remote sensing have not been updated since 1986. Several countries have identified the need to

review the regulations but no evidence was found by the author of this thesis to determine if any

substantial review has occurred.

The Principles Relating to Remote Sensing of the Earth from Outer Space are the only

international guidelines that govern remote sensing although several treaties have provisions that

could be applied to remote sensing. The Treaty on Principles Governing the Activities of States

in the Exploration of Outer Space including the Moon and other Celestial Bodies (1967) stated

space will fall under international law, free to access and the exploration of space will be done to

benefit all nations.23 Based on this treaty the use of space for remote sensing cannot be governed

by any one nation. 24 The treaty declares that all nations have the right to use outer space without

discrimination as long as it is done to "promote peace." The most common theme in all

regulations governing space and remote sensing is the general term that is not defined "peaceful"

use. If a country uses satellite imagery from remote sensing to plan and execute an attack, as the

U.S. did during the Gulf War, is that a peaceful use of space?

Another treaty, The Declaration on International Cooperation in the Exploration and the

Use of Outer Space for the Benefit and in the Interests of all States, Taking into Particular

Account the Needs of Developing Countries does not specifically discuss remote sensing but,







23 Treaty on the Principles Governing the Activities of States in the Exploration and use of Outer Space including
the Moon and other Celestial Body, January 27, 1967 18 U.S.T 2410, 610 U.N.T.S. 205, T.I.A.S No. 6347. The
treaty contains seventeen articles regulating the exploration of outer space. [Known hereinafter as the Outer Space
Treaty].

24 Jasentuliyana, supra note 1.









similar to the Outer Space Treaty, does provide relevant guidelines.25 The Declaration was

brought before the General Assembly because developed countries feared that the technical gap

between developed and undeveloped countries put undeveloped countries at a disadvantage with

regards to remote sensing. The draft declaration in 1996 stated that space should be used to

promote peace and that cooperation in space projects should be mandated by the General

Assembly. The Declaration provides guidelines to promote the peaceful use of outer space in

general and fosters the joint efforts of nations in space. The declaration provides guidance to

ensure all nations are actively working together in the advancements in space.

United States Regulations on Remote Sensing

In the United States, President Dwight D. Eisenhower signed the National Aeronautics and

Space Act in 1958 to govern U.S. activities in space.26 The Space Act stated U.S. activities in

space are to be for peaceful purposes to benefit "all nations." In addition, the use of space will

be regulated by a civilian agency. The Space Act of 1958 stated that in order for the U.S. to

remain competitive in aeronautics and space technology developments in the field needed to

continue.2 This led to satellites being launched into space for reconnaissance. The first U.S.

satellite used for remote sensing was launched in 1959. From 1959 tol962, Corona satellites






25 The Declaration on International Cooperation in the Exploration and the Use of Outer Space for the Benefit and in
the Interests of all States, Taking into Particular Account the Needs of Developing Countries, December 12, 1996,
U.N.G.A. Res. 51/122. [known hereinafter as the Declaration]
26 The National Aeronautics and Space Act of 1958, 42 U.S.C. 2457. [known hereinafter as the Space Act of
1958].
27 Id. The Nation Aeronautics and Space Administration was created in October 1958 for national defense. The
United States and the Soviet Union were the two focal points of the Cold War. The Cold War refers to the conflict
between the U.S., Soviet Union and their allies. The Cold War lasted from the 40's to mid 90's. The Cold War
involved competition in technology, military, economy, and industry. A direct result of the Cold War was space
exploration creating the space race.









were launched as spy satellites for military surveillance.28 The satellites were launched with

small panoramic cameras that were later released and floated to the Earth on parachutes. The

intelligence gathering satellite could produce a 7.5 meter high resolution image of Earth.

President John F. Kennedy placed space high on his presidential agenda. However,

Kennedy was most famous for his vision to send a man to the moon and did not believe remote

sensing was a priority. Remote sensing during President Kennedy's administration was

performed by spy airplanes as opposed to satellites. He believed the nation that led space

exploration would be the leading nation in technology, economy, and intelligence. He also was

the first president to advocate for a joint space program with the Soviet Union.

President Lyndon Baines Johnson continued to follow President Kennedy's space policy

after Kennedy's assignation. President Richard M. Nixon had six objectives for space: 1) to

explore the moon, 2) explore planets, 3) reduce the cost of space operations, 4) extend man's

ability to live and work in space, 5) hasten and expand the practical applications in space and, 6)

encourage international cooperation in space.29 Although President Nixon had objectives for

space, none addressed remote sensing. However, there were no significant space policies put

into effect during President Gerald Ford's term in office.

In Presidential Directive 37 signed in 1978, President Jimmy Carter outlined his National

Space Policy. The policy stated that the U.S. will support the commercialization of space

exploration in all areas except remote sensing.30 The policy stated that remote sensing satellites


28 Corona satellites were launched by the U.S. Air Force as a surveillance program. The imagery taken by Corona
satellites was secret until 1992, when it was declassified.

29 President Richard Nixon Statement About the Future of the United States Space Program, THE AMERICAN
PRESIDENCY PROJECT, Mar. 7, 1970, hImp % % .presidency.ucsb.edu/ws/index.php?pid=2903 (last visited at
Oct. 18, 2007).

3POres. Dir. 37, NATIONAL SPACE POLICY (May 11, 1978),
http://www.globalsecurity.org/space/library/policy/national/nsc-37.htm (last visited Oct. 18, 2007)










necessitated more stringent government regulations including limits on resolution in order to

protect national security.31

In 1984, the United States enacted the first policy on governing remote sensing which

clarifies the use of the commercial satellite. President Ronald Reagan, in 1984, enacted the first

policy that reversed the existing policies on remote sensing when he signed The Land Remote

Sensing Commercialization Act. The Land Remote Sensing Commercialization Act

(LANDSAT Act) provided guidance for the commercialization of remote sensing. The act stated

there should be limited government involvement in remote sensing, that space should be

privatized to enhance the ability of the U.S. to stay competitive with limited cost to the

government.32 However, President Reagan had limited success in increasing the market for

remote sensing. During his administration, the imagery from satellites was very expensive and

there was little market for it.33

In 1992, during George H. W. Bush's presidency, The LANDSAT Act was replaced by the

Land Remote Sensing Act of 1992. The act said that remote sensing has not been a successful

program in the U. S. and therefore the U.S. was in jeopardy of losing its national superiority.34

The Remote Sensing Policy stated that national security depends on the United States' continued

advancement in remote sensing technology. One of the major purposes of the Land Remote

Sensing Act was to state that "full commercialization of the Landsat program cannot be achieved



31 Id.

32 Land Remote Sensing Commercialization Act, 15 U.S.C.4201 et. seq. (1984). The act is commonly referred to as
the LANDSAT Act of 1984. The act authorized NOAA to seek commercial bids on remote sensing a move toward
the privatization of remote sensing. Id. Privatization refers to the transfer a function from government (public) to
business (private) sectors.

33 The Gulf War was a leading component in the U.S. decision to commercialize remote sensing imagery. The U.S.
spent millions of dollars to obtain imagery of Iraq and used that imagery to defeat Saddam's Army.

34 Id










within the foreseeable future, and thus should not serve as the near-term goal of national policy

on land remote sensing."35 The policy stated that the most effective way for continued

advancements in remote sensing was to keep the program unclassified and to foster "open skies"

and "nondiscriminatory access."36

The Foreign Access to Remote Sensing Space Capabilities, commonly referred to as

Presidential Decision Directive 23 adopted by President William Clinton, based on The Land

Remote Sensing Act of 1992.37 PDD 23 was the fist remote sensing policy that stated of remote

sensing imagery by U.S. satellites could be sold internationally. Due to this PDD 23 provided

several provisions for national security as related to remote sensing. PDD 23 also stated the U.S.

would have involvement in foreign remote sensing programs by establishing an export on

technology involving remote sensing. PDD 23 outlines the criteria for obtaining a license for

remote sensing satellites. The license issued is for a set amount of time and the criteria to obtain

a license includes: 1) the licensee must maintain accurate records of satellite activity; 2) any

encryption device used for remote sensing must be approved by U.S. government; 3) in times of

increased risk to national security the licensee must limit distribution of imagery; and 4) the U.S.

government has access to all data and equipment held by the licensee.38





35 Land Remote Sensing Commercialization Act, supra note 32. The bill was set to ensure that the U.S. remains the
leader in land remote sensing.

36 Id.

37 U.S. POLICY ON FOREIGN ACCESS TO REMOTE SPACE SENSING CAPABILITIES, H.R. 6133, 103d
Cong (1994). [Hereinafter known as PDD 23] PDD 23 was signed by President William Clinton. PDD 23 stated
that in order to export remote sensing capabilities, the U.S. must have a government-to-government agreement, and
constraints on resolution and data must be agreed upon. Licenses are issued to monitor actions relating to remote
sensing. The license is issued by the National Oceanic and Atmospheric Administration (NOAA). The NOAA will
periodically review the license to ensure the licensee is in compliance with regulations.

38 Id.









PDD 23 provided safeguards for national security by providing provisions that monitor

remote sensing, limit data collection and limit distribution to foreign nations.39 PDD 23 was the

first policy to identify shutter control, a clause stating that the government has the right in times

of national security to interrupt satellites from retrieving imagery through remote sensing and

can stop distribution of imagery.40 In 1997, Congress enacted the National Defense

Authorization Act which in part specified restrictions of collecting imagery of Israel, commonly

called the Kyl-Bingman Amendment. 41 The policy was put into effect after the Israeli

government officials expressed concern that remote sensing would endanger their national

security. The Kyl-Bingman Amendment stated that U.S. companies may not collect or

disseminate imagery of Israel at a better resolution than available from other nations with remote

sensing capabilities.42

In 2003, a little more than a decade after the adoption of PDD 23, President George W.

Bush authorized the U.S. Commercial Remote Sensing Policy, superseding PDD 23. The policy

stated that several technological advancements and national security issues had prompted the

need for revised policies for remote sensing. The policy goal of the presidential directive is to

protect national security and foreign policy by continuing to advance technology in order to

dominate the remote sensing industry. The policy stated that commercial remote sensing should






39 See Supra 31.
40 PDD 23, supra note 23. Although PDD 23 does not coin the term shutter control it discusses the U.S. government
control over commercialized remote sensing activities.
41National Defense Authorization Act for Fiscal Year 1997, 1745, Pub L. No. 104-201, HR. 3230, S. 1064 104th
Cong., 2nd Sess (1996).[herein after known as Kyl-Bingman Amendment The National Defense Authorization Act
includes but is not limited to base closures, funding for Iraq, military pay raises and military weapons. Id.
42 Id. Based on other countries laws the resolution could not be better than 2 meters. Id.












be utilized for military, intelligence, foreign policy, and homeland security.43 The policy is set to

ensure that U.S. commercial remote sensing providers 1) meet the needs of government agencies,

2) develop an equitable relationship between commercial remote sensing agencies and

government agencies, and 3) ensure commercial remote sensing agencies are competitive with

other nations advancing in commercial remote sensing.44 The policy is a U.S. government

commitment to support commercial companies such as DigitalGlobe in remote sensing.45

In August 2006, President George W. Bush authorized a new U.S. National Space Policy.46

As mentioned in many previous presidential directives the policy reiterates that advances in

space should be used for "peaceful purposes."" The Bush administration enacted the U.S.

Commercial Remote Sensing Space Policy updating the commercialization of remote sensing

policies set forth in PDD 23. The Commercial Remote Sensing Policy stated the U.S. would:

Compete successfully as a provider of remote sensing space capabilities for foreign
governments and foreign commercial users, while ensuring appropriate measures are
implemented to protect U.S. national security and foreign policy interests.48 The
appropriate measures to protect national security include but are not limited to the
government's right to restrict operations and to implement additional controls.49

In 2006 President Bush amended his Space Policy to add additional safeguards for national

security. The policy stated that developments in remote sensing are important to protecting



43 U.S. Commercial Remote Sensing Policy (April 25, 2003),
http://www.globalsecurity.org/space/library/policy/national/nsc-37.htm (last visited Oct. 2, 2007).

44 d.

45 DigitalGlobe is an international leader in remote sensing. The 2001 launch of the Quickbird satellite provides
commercial imagery at high resolution.
46 All policies and directives since 1984 share similarities but address the issues involving the current climate.

47 US National Space Policy (August 31, 2006), http://www.globalsecurity.org/space/library/policy/national/ncs-
37.htm (last visited Oct. 15, 2007). The policy supersedes PDD/NCS-49.
48 National Defense Authorization Act, supra note 41.

49 National Defense Authorization Act, supra note 41.









national security. The unclassified section of the policy does not address remote sensing but

does provide national security guidelines that can be used for remote sensing such as the:

"Establish and implement policies and procedures to protect sensitive information
regarding the control, dissemination, and declassification of defense activities related to
space."5

National security is one of the major considerations as policies continue to evolve for

developing space programs and advancements in remote sensing. The goal of commercializing

remote sensing was to lessen the cost to the government while simultaneously "advancing and

protecting national security."51 The most controversial clause in the remote sensing license

agreement in PDD 23 is the "shutter control" clause, as will be more apparent in the next

chapter.

Conclusion

Since the beginning of the space race, superiority in space has been the overall goal of the

U.S. in part because of the Cold War. Every president since Eisenhower has encouraged the

continued exploration of space. Although it has been higher on some administration's agenda

than others, the space race competition has been considered when developing national policy.

As technology advancements increased the uses of remote sensing became less expensive and

more easily applied. President George W. Bush's National Space Policy stated, "Freedom of

action in space is as important to the United States as air power and sea power.""2 The

importance in space has changed from President Eisenhower's Space Policy. Eisenhower, unlike





50 US National Space Policy, supra 44 at 4.

51 Fact sheet: U.S. Commercial Remote Sensing Space Policy available at
http://www.whitehouse.gov/news/releases/2003/05/20030513-8.html. (last visited October 3, 2007).
52 See Supra 41.










Kennedy, did not need the prestige of being first in space exploration but favored reconnaissance

satellites in space.

Both U.N. and domestic principles and regulations state that space should be used for

peaceful purposes that benefit all nations. The need to protect national security is stated

throughout the U.N. and domestic policies but there are few guidelines how to implement this.

The U.N. regulations stated that all issues pertaining to space or disputes involved with space--

including remote sensing--should be brought before Committee on the Peaceful uses of Outer

Space (COPUOS). The current U.N. principles on remote sensing are not binding and offer little

protect to national security of any country. The U.S. policies aim at stricter policies on remote

sensing but cannot regulate international satellites. The advances in technology, such as

satellites, GPS and, Internet, and the easy access to remote sensing imagery on Web sites such as

Google Earth, suggest the need for updated international regulations.










CHAPTER 4
FIRST AMENDMENT AND REMOTE SENSING

That the freedom of the press is one of the great bulwarks of liberty, and can never be
restrained but by despotic governments.'

Introduction

The Bill of Rights was enacted on December 15, 1791, in order to limit the power of the

government and protect individual rights.2 Although the Bill of Rights was enacted to protect

individual rights throughout history the government has enacted laws limiting civil liberties to

protect national security. One of the jobs of the judiciary branch is to decide if the laws enacted

are constitutional, and a few laws limiting speech have been declared unconstitutional. The

Sedition Act of 1798 was one of the first laws enacted that caused controversy. The Sedition Act

of 1798 signed by President John Adams stated it was illegal to publish "false, scandalous, and

malicious writing."3 The Anti-Federalists claimed that the Sedition Act of 1798 was a violation

of the Bill of Rights. The Sedition Act of 1798 expired in 1801 and President Thomas Jefferson

reversed all convictions under the Sedition Act of 1798.

The Sedition Act of 1798 is not the only law that was enacted to protect national security

during times of war or conflict.4 It is most common in times of war for laws to be enacted that




1 Virginia Declaration of Rights of 1776, 12, in Federal and State Constitutions 7:3812, 3814 (Francis N. Thorpe
ed. 1909).
2 U.S. BILL OF RIGHTS, available at www.archives.gov/national-archives-experience/charters/bill of rights.html.
(last visited at Oct. 17, 2006). Several scholars, lawyers, and judges have attempted to define what the founding
fathers meant when writing and adopting the First Amendment meant. Some jurists such as Justice Hugo Black
suggest that there the First Amendment should be absolute, stating that there can be no restrictions on the individual
rights of free speech, press and to peacefully assemble.

3The Sedition Act was challenged by many Anti-Federalists. The Sedition Act of 1798 was set to expire in
1801after President Adams term. GEOFFREY STONE, PERILOUS TIMES: FREE SPEECH in WARTIME: FROM THE
SEDITION ACT OF 1798 TO THE WAR ON TERROR (W.W. Norton, 2005).

4 The Espionage Act is codified as 18 U.S.C. 2388 (1917). The Espionage Act stated it was a crime to disrupt the
success of the armed forces or aide the enemy. The Sedition Act of 1918 was an amendment to the Espionage Act
of 1917 and stated a person could be convicted "disloyal, profane, scurrilous, or abusive language". The Smith Act









lean more toward national security than individual rights.5 Because of the continued threat to

national security a National Security Act in 1947 was enacted, The National Security Act

established the U.S. National Security Council and reorganized the National Military

Establishment (NME) creating the Department of Defense.6 The National Security Act outlines

programs that serve to protect national security.' Throughout history a proper balance between

the governments' role to protect national security and the people's rights under the constitution

have been continually tested.

It is difficult to argue that our founding fathers could have imagined how far technology

would advance since the 1790s. Lee Bollinger, noted First Amendment scholar, stated that

technology creates new battles for the First Amendment.8 Technological advances also increase

new challenges for national security. The balance of national security and individual rights are

not always easily struck. As stated throughout this thesis, the emergence of satellite imagery has

invoked discussion of which regulations would be the most appropriate. The inherent desire of

the press to have the right to report on issues that affect citizens and the government's desire to

maintain information superiority on issues that could affect national security has caused friction.

The technological advances of satellite remote sensing have raised the question of whether the

First Amendment restricts the ability government to control the distribution of the satellite

images.



of 1940, 18 U.S.C 2385. The Smith Act stated a person could be convicted for advocating the overthrow of the
U.S. government.
5 GEOFFREY STONE, PERILOUS TIMES: FREE SPEECH in WARTIME: FROM THE SEDITION ACT OF 1798 TO THE WAR
ON TERROR (W.W. Norton, 2005).
6 National Security Act of 1947, Pub L. No. 235, 80, 61 Stat. 496 (amended 1949).

7Id.

8 Lee C. Bollinger, Freedom of the Press and Public Access, MICH L. REV. 1, 24 (1976).










The technological advancements such as the Internet and satellite imagery in the

information age have challenged national security protections. It is difficult to monitor such a

vast medium that has so many users from several countries. Not only do journalists use

information from the Internet; but so do those who want to harm the U.S. and its citizens.

Joanne Gabrynowicz, a remote sensing expert, stated that citizens are part of the "open

information society" and the government must weigh the fears the information could cause

heavily before closing or limiting an open society.9

In chapter two comparative analyses indicated that information on Web sites such as

Google Earth does provide information the military has deemed sensitive to military operations.

These images are available to anyone who has a computer and an internet connection. Google

Earth is not regulated by the Land Remote Sensing Act because it doesn't own the satellites that

provide the imagery and therefore it might be difficult to prosecute the company for distributing

the images during what is being called a War on Terror.10 If the imagery on Google Earth is

sensitive to military operations should it be removed from the Web site and deny access to the

public access? There is a significant amount of research on evaluating First Amendment

concerns when restricting information based on national security. This chapter will limit the

scope of the legal analysis to the possible impact of the First Amendment rights on the regulation

of satellite imagery of military areas, specifically on the "shutter control" provisions in The Land

Remote Sensing Policy Act.






9 Missy Fredrick, InternetAvailability of Imagery Worries Some World Leaders Space News, Nov. 7, 2005
Imp \ \ \ .space.com/spacenews/archive05/Google_l 10705.html (last visited Oct. 18, 2007).

10 The images are purchased through commercial companies that are in the U.S. regulated by the Land Remote
Sensing Act.










The Press Right to Access


The media has consistently tried to gain access to military operations during times of war

but has the press has not had free reign to go or report on the military operations. For example,

the press and public have been kept from military installations during World War I, II, Vietnam,

Korea, Grenada and the Persian Gulf." During Operation Iraqi Freedom, the military in an

unprecedented event embedded over 600 journalists to accompany troops, but the military set

forth strict guidelines for the embedded journalists.12

In order to determine if the First Amendment applies to accessing sensitive military areas

on Google Earth the right of access should be examined. In other words, is there a constitutional

right of access by journalists and/or the public to images of military bases on Google Earth?

The first suggestion that a constitutional right of access may not be in order is that most

U.S. military bases provide only limited access of journalist to both ground and air spaces. For

example, a U.S. district court ruled in 1993, in the JB Pictures, Inc v. Department ofDefense,

that journalists do not have a First Amendment right to access Dover Air Force Base. The court

in that case said the First Amendment does not give a "per se right of access to government

property."13 The U.S. Circuit Court of Appeals for the District of Columbia upheld the lower



1The purpose of this thesis is not to evaluate the relationship between the media and military but to determine if it
is constitutional to regulate assess or distribution of military operations and bases on websites such as Google Earth.
The Presidents during each of the wars mentioned above had different policies for access to military operations
during war. President Reagan stated it was at the discretion of military leaders to provide or deny access to the
media during the Grenada invasion. President George H. Bush had restraints on the press and generally had press
pools or 5 o'clock follies. All press reports had to be reviewed before they could be released. During World War II
reporters had free access to the battlefield but their reports had to be reviewed by officials before they could be
released. The Department of the Army. Public Affairs Guidance on Embedded Media. Washington D.C., 2003.
12 The Department of the Army. Public, I nt 'Guidance on Embedded Media. Washington D.C., 2003.The
military set fourth guidelines that stated it could issue embargos on information collected from embedded journalists
but journalists also could operate independently of the imbedding process and therefore not be subject to restrictions.
Id.

13 JB Pictures, Inc v. Department of Defense, 21 M.L.R, 1564 (1993). The case involved media groups who were
denied access to Dover Air Force Base. The air base served as a point for the bodies of soldiers killed in action










court's opinion, ruling constitutional closure of Dover Air Base to the media.14 The JB Pictures,

Inc relied on several U.S. Supreme Court cases including Pell v. Procunier, Saxbe v. Washington

Post and, Houchins v. KQED.

Pell v. Procunier, Saxbe v. Washington Post and, Houchins v. KQED

In Pell v. Procunier, Saxbe v. Washington Post and, Houchins v. KQED the U.S.

Supreme Court ruled the press does not have special access to prisons. In Pell, the press and

inmates of the California State irison system brought a suit against the Department of

Corrections to repeal a ban on press' ability to choose which inmates to interview face to face.

Rule 415.071 of the California Department of Corrections manual stated the media interviews

with certain specifically named inmates would not be permitted. The provision was challenged

as unconstitutional under the First Amendment by press and inmates.

A 5-4 majority of the U.S. Supreme Court, in Pell v. Procunier, stated that the press does

not have an automatic constitutional right to access to prisons.15 In Saxbe v. Washington Post,

the Court ruled "newsmen have no constitutional right of access to prisons or their inmates

beyond that afforded the general public."16 In Saxbe, the Court stated that the First Amendment

rights were not abridged by banning press from access to inmates in prison. Houchins v. KQED,

the Supreme Court said, in a 4-3 decision, that the "First Amendment does not mandate the right





during several wars including the Gulf War. The government restricted access to the press and that prompted a law
suit citing First Amendment rights. In the court's reasoning, the court relied on at least in part the argument that the
media access to the White House was limited, and that was not considered a violation of First Amendment Rights.
14 JB Pictures, Inc v. Department of Defense, 86 F. 3d 236 (1996)

15 Pell v. Procunier, 417 U.S. 817 94 S. CT 2800 (1974).

16 Saxbe v. Washington Post, 417 U.S. 843 (1974). The press stated that Policy Statement 12201A was
unconstitutional because it violated the First Amendment rights of the press and prisoners. The press wanted to
interview prisoners in federal prisons in Pennsylvania and Connecticut.









of access" to county jails. 1 The Supreme Court opinion stated the press as an institution does

not necessarily have a right of access to government institutions in order to gather news.

Military bases, like prisons, normally provide only limited access. If the press does not

have a right of constitutional access to prisons then the same reasoning also may apply to

military bases. The district court decision in JB Pictures said just that. The military, like prison

staffs, would find it difficult to protect the facilities and critical information without the

restrictions on both the press and the public. If press can be constitutionally restrained from

access to bases, to protect military security, the same logic might also apply to access to pictures

of the base available through remote sensing. Although no court has directly ruled whether the

press in the United States has access to the images acquired by remote sensing, court precedent

clearly establishes that the government can frequently ground the rights of access to the press on

the very limited access rights of the public to secure institutions. Under that court precedent, the

military may well have the right to determine restrictions on access to the images disseminated

on the Internet by Google Earth or any satellite licensee providing images to Google Earth. The

"shutter control" provision in the Land Remote Sensing Policy Act is an example of increased

law. The provisions said that the government has the right to turn off remote sensing satellites,

restrict the sale of images obtained from Google Earth, and lower resolution of imagery obtained

by remote sensing in times of an increased threat national security.18 Although the courts have

not directly ruled in cases involving remotes sensing imagery several past cases appear to apply.





1 Houchins v. KQED, 438 U.S. 1 (1978) In Houchins v. KQED the press wanted access to a county jail after an
inmate had committed suicide. A psychologist had leaked the conditions in the jail may have been a factor in the
prisoners suicide. The press was allowed a tour of the jail but they were restricted from certain areas.
18 The Commercial Land Remote Sensing Act 15 U.S.C 5601 (1992).









The Freedom of Information Act

Although the U.S. Supreme Court has ruled that the First Amendment does not guarantee a

right of access to government controlled property, Congress has adopted legislation that provides

access to massive amounts of government information. The Freedom of Information Act (FOIA)

was enacted as an instrument used to provide citizens with "access to the government."19 All

information is not available for release under the FOIA. The FOIA contains nine exemptions to

protect information from public release.20 To protect national security Exemption One protects

information form being released if the information:

specifically authorized under criteria established by an Executive order to be kept secret in
the interest of national defense or foreign policy and are in fact properly classified pursuant
to such Executive Order.21

In order for information to be exempt under Exemption One of the FOIA, the government

must prove the information is classified and it has the "potential" to cause harm to national

security.22 Because it is unlikely that the Constitution would require access to military

information the question is whether any statue requires nondisclosure of remote sensing. Remote

Sensing could be protected from disclosure under the classification order of the president under

Exemption One.

However, Remote Sensing is more directly protected under FOI Exemption Three.

Exemption Three, often called the "Catch-all Exemption," provides exemptions authorized by


19 Letter from the Coalition of Journalist for and Open Government, to House and Senate Conference Committee
(Sept. 10, 2004) available at lhp \\ \ \ .cjog.net/protestsatellite_images_and foia.html (last visited October 18,
2007)

20The nine exemptions are for national security, internal agency rules, information exempted by other statues,
business information, inter- and intra- agency memorandum, personal privacy, law enforcement, records of financial
institutions and oil well data. The Freedom of Information is codified 5 U.S.C. 552 (b) (2003). After evaluating all
nine exemptions commercial remote sensing data falls under exemption one.
21 The Freedom of Information is codified 5 U.S.C. 552 (b) (2003).

22 d.











statues outside the FOIA. In 2005, in order to add greater protection to national security in times

of conflict the, Department of Defense requested additional exemption protection from

commercial land remote sensing beyond the Remote Sensing Act. In the National Defense

Authorization Act for Fiscal Year 2005, Congress specifically added additional provisions that

stated:


The requirements to make information available under section 552 of title 5, United States
Code, shall not apply to land remote sensing information.23

Under Exemption Three of the FOIA states that "FOIA does not apply to matters that are

specifically exempted from disclosure by statue."24 So even if imagery on Google Earth cannot

be classified under Exemption One, it is still exempt under FOIA Exemption Three.

U.S. v. Reynolds

In addition, the U.S. government has a way of controlling images provided by private

corporations not subject to U.S. law or foreign governments. Prior to the FOIA, the U.S.

Supreme Court in U.S v. Reynolds stated the government can withhold information considered

privileged because of national security implications. In Reynolds, a military aircraft had crashed,

killing civilian passengers. The widows of the deceased wanted a copy of the accident

investigation report under the Federal Rules of Civil Procedures rule 34.25 Rule 34 stated that a

person can request a government agency to produce documents in the discovery process in

preparation for a trial. The Secretary of the Air Force stated the information requested under

Rule 34 in Reynolds was privileged. The Staff Judge Advocate refused to provide the



23 National Defense Authorization Act, H.R. 1812, 108th Cong. (2i r').

24 HARRY A. HAMMITT, DAVID L. SOBEL and, MARK S. ZAID, 67 LITIGATION UNDER the FEDERAL OPEN
GOVERNMENT LAWS (Epic,2002).
25 U.S. v. Reynolds. 345 U.S. 1 (1953).










information contending it could not be released without causing serious harm to national

security, an argument the Supreme Court accepted in recognizing State Secrets Privilege.26 The

States Secrets Privilege, which can be triggered solely on a government affidavit that disclosure

of the information could potentially harm national security, was invoked over 23 times from

2001-2005 alone.2 Hence, during a legal proceeding, where a non-government party is seeking

information about remote sensing, the government may well be able to refuse disclose the

information under the State Secrets privilege.

If the Courts have so far refused to grant unlimited press access to secure government

institutions the ability of the government to prevent the press or Google from publishing

information publicly available is far less clear. The Court used a series of tests to determine if

the restriction of national security on information is constitutional. However, the fact that

government agencies are protected from disclosing remote sensing data does not prohibit private

firms such as Google from releasing maps without a court order.

Prior Restraint

If the Courts have so far refused to grant unlimited press access to secure government

institutions the ability of the government to prevent the press or Google Earth from publishing

information publicly available is far less clear. If the courts were to rely on the precedent of New

York Times v. U.S., the government might not successfully use "shutter control" to restrict the

distribution remote sensing imagery without meeting a much stronger burden of proof than

necessary in the access cases. However, in Near v. Minnesota, in 1931, the Supreme Court


26 Id. State Secret Privilege refers to the government asking the court to exclude information based solely on an
affidavit. The government affidavit states the information will disclose information that could potentially harm
national security.
27 Carrie Newton Lyons, The State Secrets Privilege: Expanding Its Scope Through Government Misuse, 11 Lewis
& Clark L. Rev. 1(2007).









demonstrated that it would be sensitive to national security arguments in prior restraint cases,

cases involving the government's attempts to stop the publication of information that it did not

directly control. 28

Near v. Minnesota

Jay M. Near and Howard Guilford published the Saturday Evening Press in Minneapolis

1927. The Saturday Evening Press ran articles accusing city officials of not properly dealing

with crime and Jewish mobsters, 29 including such language as

there have been too many men in this city and especially those in official life, who have
been taking orders and suggestions from Jew gangsters, therefore we have Jew Gangsters,
practically ruling Minneapolis.30

Minnesota had a law known as the Public Nuisance Law of 1925 which gave the state

authority to control "scandalous and libelous" newspapers.31 County Attorney Floyd Olson

stated the Saturday Evening Press violated the Public Nuisance Law and shut the press down.

The Supreme Court ruled in a 5-4 decision that this was a violation of the First Amendment.32

Justice Charles Evans Hughes wrote that the Minnesota punishment of The Saturday Evening

Press was unconstitutional prior restraint even though the paper had already published the

offensive language. Justice Hughes said stopping the newspaper from printing was precisely







28 Id. State Secrets Privelege refers to the government asking the court to exclude information based solely on an
affidavit. The government affidavit states the information will disclose information that could harm national
security.
29 Near v. Minnesota 283 U.S. 697 (1931).

30 Jay Near, THE SAT. EVENING PRESS, November 19, 192.7

31 Near v. Minnesota, supra note 3, Friendly, Minnesota Rag.
32 Near v. Minnesota, supra note 31.









what the authors of the Bill of Rights meant to protect. However, Hughes said in dicta that there

were times that prior restraint might be constitutionally acceptable.33 He stated:

When a nation is at war many things that might be said in time of peace are such a
hindrance to its error that their utterance will not be endured so long as men fight and that
no Court could regard them as protected by any constitutional right. No one would
question but that a government might prevent actual obstruction to its recruiting service or
the publication of the sailing dates of transports or the number and location of troops.34

In 2007, Near v. Minnesota, a decision that appeared to recognize the government's right

to protect national security, is still the most important precedent for prior restraint. And, until the

arrival of commercial satellites, protecting the movement of troops and machinery was a

comparatively easy task. But the government's burden of proof in court has possibly become

more complicated even as the technology has added to the complexity of the law. In the 1930s,

after Near, the Supreme Court started the process of developing a First Amendment test that that

may make it harder than it appeared in Near to restrain the media, and Google, from distributing

stories and images in their possession.35 Over the years, a "strict scrutiny test" has emerged from

the U.S. Supreme Court when control of media content was at stake. Ordinarily the Court

expected the government to prove a compelling governmental need that would limit the

government's ability to restrict speech36 In the opinion of the Court in the prior restraint case NY

Times v. U.S. the Court went into less detail.

New York Times v. U.S.

The story of, New York Times v. U.S., more commonly known as the Pentagon Papers

case, began with the publication by the New York Times and the Washington Post of articles


3 Near v. Minnesota, supra note 31.
34 Near v. Minnesota, supra note 31.

35MATTHEW D. BUNKER, JUSTICE AND THE MEDIA (Lawrence Erlbaum Associates: New Jersey, 1997).
36 See U.S. v. Carolene Products 304 U.S. 144 (1938).









reporting a government study of the Vietnam War.3 The report was a classified examination of

the decision making process for Vietnam. After the New York Times published the first article,

U.S. Attorney General John Mitchell requested that the paper publish no more about the study.

Because NY Times stated it fully intended to continue to print the articles,38 the government

petitioned the Court for an injunction to stop publication, and a temporary restraining order was

granted by lower court. On appeal, the Supreme Court ruled in a 6-3 opinion that the

government carried a very heavy burden of proof before it could stop the publication of a story,

even over national security matters.39 The brief opinion of the court, similar to the opinion in

Near v. Minnesota, said that prior restraint can be used in some instances to protect national

security.0" However, because every single justice in the case wrote his own opinion, it was

difficult to determine precisely what the government would have to prove to stop a publication in

the national security interest. Soon, lower courts would have to determine just that. The case

U.S. v. Progressive is particularly relevant to this paper because it dealt with an attempted prior

restraint on materials available from public sources.

U.S. v. Progressive

The Progressive case originated in 1979 after the federal government tried to stop

Howard Morland from publishing in Progressive magazine an article about the making of an H-

Bomb.41 The magazine argued the material for the articles was available publicly and Morland

had simply compiled the information. Morland stated that he found the information for the

7 The study was published in the "History of the United States Decision Making Process on Vietnam Policy." Need
citation material.

8 New York Times Co v. U.S, 403 U.S, 713 (1971).
39 Id
40 Id.

41 U.S. v. Progressive 467 F. Supp 990 (1979).









article from the Department of Energy, encyclopedias and Physic textbooks that are publicly

available. The government stated that some parts of the article contained expert analysis of

nuclear weapons and should not be published to protect national security. U.S. District Court

Judge Robert Warren found in favor of the government, and Progressive magazine was enjoined

from publishing the article.42 Judge Warren stated the article could be stopped because

publishing did not add to public debate but could aide other nations in advancing their nuclear

programs. He stated that the government met the heavy burden in the case of providing that the

article could result in an immediate and irreversible harm to the nation's national security, a First

Amendment test that he would be acceptable to a majority of the Supreme Court justices after

reading their opinions in New York Times v. U.S. 4 The Progressive magazine had started its

appeal when the information in the article was published from another source. The government

withdrew its injunction.

In the case of remote sensing imagery, even if the government could shut down Google

Earth, the same information is available for purpose from Russia, France, Canada and other

counties with similar equipment. Therefore, it might be hard to argue that Google Earth would

create an immediate and irreversible harm to distributing maps that others in the world, including

potential enemies, have access to anyway. Unless a U.N. policy can be adapted to regulate

commercial remote sensing any decisions by the U.S. courts to control domestically owned

satellites would be moot.


42 Id.

43 U.S. v. Progressive, supra note 41.









Punishment after the Fact

The tension between national security and the First Amendment has been a continuous

battle since the Sedition Act of 1798. A few jurists and scholars have stated that First

Amendment protections are absolute. The late Justice Hugo Black stated "there absolutes in our

Bill of Rights, and that they were put there on purpose by men who knew what the words meant,

and meant the prohibitions to be absolute."44 In Justice Black's opinion there is no reason a

person's rights should be balanced. Despite Justice Black's opinion, several laws have been

enacted in an attempt to balance national security and the First Amendment. During times of

war the courts often take a more sympathetic view toward the needs of national security than is

otherwise often the case.

Schenck v. United States

In 1919, Justice Oliver Wendell Holmes stated in the court opinion for Schenck v. United

States that "when a nation is at war many things that might be said in time of peace are such a

hindrance to its effort that their utterance will not be endured so long as men fight, and that no

court could regard them as protected by any constitutional right."45 In the case at hand, Charles

Schenck, a member of the Socialist party during World War I, sent a pamphlet to men telling

them to fight the draft. Schenck was arrested and convicted under the Espionage Act of 1917 for

conspiracy to "obstruct recruitment."46 The Espionage Act stated it was a crime to "interfere








44 Black, Hugo, The Bill ofRights, 35 N.Y. L. Rev. 865-881 (1960).

45 Schenck v. United States, 249 U.S. 47 (1919).
46 Id.









with the operation or success of the armed forces."47 The Schenck opinion is most famous for

Clear and Present Danger test first explained in the majority opinion by Holmes, who said


The question in every case is whether the words used are used in such circumstances and
are of such a nature as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent.48

Dennis v. United States

For the next 45 years following the Schenck case, the clear and present danger test see

above became the standard the courts relied upon when weighing national security and the First

Amendment issues dealing with speech.49 In 1951, in Dennis v. U.S., the Supreme Court upheld

the conviction of eleven communist members for violating the Smith Act using Judge Learned

Hand's adaptation of the standard

Eugene Dennis and ten additional members of the Communist Party were indicted of

violating the Smith Act of 1940, which made it unlawful for a person to advocate the overthrow

of the government. 50 Dennis and others contended his prosecution under the Smith Act was a

violation of this First Amendment rights to free speech. Dennis and the other members of the

Communist party generated pamphlets that were pro-Communist party and distributed them.

The Supreme Court ruled in a 6-2 decision that a prosecution for being a member of a group

advocating the overthrow the government was constitutional under the First Amendment.51


47 Espionage Act, supra note 4.
48 Schenck v. United States, supra note 47.

49 Schenck v. United States, supra note 28.
50 Dennis v. U.S. 341 U.S. 494. The case involved members of the communist party advocating the overthrow of
the government. The Smith Act stated it was unlawful to "knowingly or willfully advocate, abet, advise, or teach
the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by
force or violence, or by the assassination of any officer of any such government" The Smith Act 1940, 18 U.S.C
2385.
51 Dennis v. U.S, supra note 53.









Using Judge Hand's test to balance the interest of civil rights and national security., the Supreme

Court said the issue was whether "the gravity of evil" of a speech, discounted by its

improbability. The Dennis v. U.S. opinion stated Congress has a right to protect the U.S. and

therefore the Smith Act is not a unconstitutional as applied in the case.52

Although the Schenck and Dennis cases illustrate the leeway the U.S. Supreme Court often

gives the government during times when the nation's national security is perceived to be at risk,

the clear and present danger test has actually itself been replaced since.

Brandenburg v. Ohio

Brandenburg v. Ohio is not directly pertinent to remote sensing because it deals with the speech

inciting unlawful acts. However, in the 1961 U.S. Supreme Court used the case to replace the clear and

present danger test 53 The Brandenburg test is a three prong test that states a person must show

"intent, imminence and likeliness." The speaker must "intend" to cause harm, the reaction to

the speech must be "imminent," and "likely" to cause harm. The case began after Clarence

Brandenburg, a Klu Klux Klan leader, shouted racial epitaphs at a Klan rally and suggested "the

president, Congress and the Supreme Court" were suppressing the white race. Brandeburg said

members of the audience should march on Washington. Brandenburg was arrested and

convicted under the Ohio Criminal Syndicalism Statue, which made it illegal to "advocate"

violence that would disrupt the economy or the political system. The Supreme Court overturned

Brandenburg's conviction because his actions did not present a clear "intent" to cause a "likely"

or "imminent" danger.






52 Dennis v. U.S, supra note 53.
53 Brandenburg v. Ohio 395 U.S. 444 (1969).









Morison v. U.S.

While Brandenburg did not represent a precedent that could likely be used to govern the

distribution of information gathered by remote sensing satellite, Morison v. U.S. did. One of the

most recent cases involving the punishment of speech after the fact involved the selling pictures

to a magazine published in England. Samuel Morison was convicted in 1988 under the

Espionage Act of 1917 for selling imagery marked secret. The United States said that under the

Espionage Act a person can not sell or give information to another that could cause harm to

national security.54 The U.S. Court of Appeals of the Fourth district stated the Espionage Act

was not "constitutionally vague" and convicted Morrison. This case illustrates how the

government prosecuted for dissemination of imagery that could potentially cause harm to

national security.


Conclusion

The courts have not always found it easy to balance national security and the First

Amendment. Congress and the Courts have worked hard to draw lines that allow both adequate

security protection and adequate disclosure and publication of government-held information.

The continued advances in technology, such as satellite imagery provide anyone with maps of

military bases has made even more difficult to maximize both freedom of protection and national

security during a time of terrorist attacks. When commercial land remote sensing imagery is

made available by private companies all over the world a strategy to protect military-sensitive

data is difficult to find. Under the current regulations the U.S. has authorization to protect

information obtained in the U.S., but has little or no control over the land remote sensing data


54Morisonv. U.S. 486 U.S. 1306 (1988).










collected by other nations. The United States government can most probably refuse to make

information it controls available to commercial mapping companies. However, U.S. v.

Progressive demonstrates that the government may have very little practical control of national

security information that can be accessed from a number of different locations. The only

recourse the government might have would be to punish the publication of a U.S. company only

and only after the publication.









CHAPTER 5
CONCLUSION

Introduction

The complexity of weighing national security and individual rights has been present in the

U.S. since the enactment of the Bill of Rights. Geoffrey Stone, professor of law at the University

of Chicago, has stated that the U.S. government has a history of stifling speech during times of

war and conflict because of national security.' In Professor Stone's historical analysis of the

federal government's restrictions on speech during war he claims that history has proven the

government will often misuse its power in the name of national security.2

The Alien and Sedition Act of 1798 was one of the first laws punishing speech to be

adopted during a time of international crisis, but each war or conflict has involved some kind of

government restriction on free speech and press.3 However, changes in technology make it

increasingly difficult for the government to manage information in times of increased security

threats.4 The Internet's supply of information all over the world presents the latest challenges.

In chapter 1 of this thesis three research questions were posed. First, do the advances in

technology associated with satellite imagery and the Internet allow release of information to the

public that the military has deemed potentially disruptive to military operations? Second, do

current regulations by the United Nations coincide with the United States military's safeguards

for protection? Third, do the United States remote sensing regulations such as "shutter control"

meet constitutional muster under the free speech and free press clause of the First Amendment?


1 GEOFFREY STONE, PERILOUS TIMES: FREE SPEECH in WARTIME: FROM THE SEDITION ACT OF 1798 TO THE WAR
ON TERROR (W.W. Norton, 2005).

2 d.

3 Id.
4 The founding fathers clearly could not have expected the advances in space technology.









Chapter 2 outlined what information military doctrine stated was regarded as sensitive, or

potentially disruptive to operations. Based on Army Regulation (AR) 380-5 information in the

Army is classified based on the criteria in section 1.5 of Executive Order 12958.5 The criteria do

not include maps of military bases unless the map could be classified as part of a military

operation. AR 530-1 spells out that sensitive information needs "special protection from

disclosure that could cause compromise or threat to our national security, an Army organization,

activity, family member, Department of the Army (DA) civilian, or DOD contractor." An

example of material considered by military officials to be sensitive, although not classified, is a

picture of a unit's motor pool, a picture readily available through the Internet. This research

demonstrated that Web sites such as Google Earth provide sensitive information that could be

used to harm military operations.

Information found on Google Earth is one to three years old but still provides sensitive

information. In another example, an image from Google Earth of an airfield in Iraq could be

used to determine how equipment is stored, types and estimated amount of equipment, and

maintenance facilities. In fact, the recent attacks of British bases in Basra are prime examples of

the enemy utilizing public information to affect military missions.6 Although the information

was one to three years old it was used to plan and execute attacks on British bases in Basra. The

British government petitioned Google Earth to remove the images and they complied. To date,





5 The seven criteria in section 1.5 of EO 12,958 are military plans, weapons systems, or operations; foreign
government information; intelligence activities (including special activities); intelligence sources or methods, or
cryptology; foreign relations or foreign activities of the United States, including confidential sources, Scientific,
technological, or economic matters relating to the national security; United States Government programs for
safeguarding nuclear materials or facilities; and vulnerabilities or capabilities of systems, installations, projects or
plans relating to the national security.
6 Thomas Harding, Terrorist use Google Earth to hit UK Troops TELEGRAPH, January 13, 2007 available at
www.telegraph.co.uk/news/main/ (last visited October 1, 2007).









Google Earth has been very receptive to requests by government officials to remove content

from their Web site.

However, Google Earth has removed information from its Web site after being told that it

has caused damage.8 Imagery similar to that used to plan attacks on the British bases in Basra is

still available for most U.S. bases in Iraq and Afghanistan. It could be argued that if the imagery

of British bases has been removed then the imagery should be removed from all bases overseas.

Information of mission essential vulnerable areas can be still found on Google Earth. This

information could potentially aid an adversary in an attack against the U. S. military. Although

Google could certainly voluntarily remove the images, at this time no regulations exist to require

it to do so.

Chapter 3 outlines the current national and international regulations controlling satellite

imagery. The major findings in chapter 3 are the lack of enforceability of vague U.N.

regulations and the fact that even in the United States regulations are inconsistent. The

Principles of Remote Sensing enacted in 1986 by the U.N. are non-binding and provide little

protection against the distribution of photographs that are potentially damaging to nations'

national security.9 The U.N. principles, outlined in Chapter 3, serve only as a guideline and are

outdated since they have not been updated since 1986. A binding regulation or treaty could

provide officials with the tools to manage commercial remote sensing.



7Id.

8 Although the imagery was removed it caused significant damage to British military operations. It is clear that
Google Earth was used to plan the attacks because Intelligence found printouts from Google Earth that displayed
sensitive information on the Basra bases. Did Google Censor Basra Imagery, UK TELEGRAPH, January 14, 2007.

9 Some people suggest the principles are "binding" because countries have inherited them, others believe that
because there is no legal reasoning the principles are not binding, and no nation is obligated to adhere to the
principles. NANDASIRI JASENTULIYANA, International Space Law and the United Nations, 36 KLUWER LAW
INTERNATIONAL (1999) (Neth.).










Commercial remote sensing became a global market after the Gulf war in 1991. The

commercial market exploded after the imagery of Saddam's Army was used to defeat it.10 The

U.N. Principles of Remote Sensing do not address advances in capabilities of remote sensing

satellites or the uses of remote sensing possible through the Internet. The U.N. principles offer

little or no protections for national security; nor do the specifically allow for the military uses of

commercial remote sensing imagery. Continued technological advancements, lack of national

security provisions and the non-binding nature of the principles are all issues that should be

addressed by the U.N. in regards to commercial remote sensing.

The U.S. does have regulations for remote sensing that can help protect the country's

national security. Under section 960.4 of the Land Remote Sensing Act of 1992, a license is

required for satellites used for remote sensing." The license requires that a licensee essentially

forfeits control of commercial land remote sensing satellites during times of increased threat to

national security, a policy know as "shutter control." However, although remote sensing

imagery of U.S. companies can be halted, the same imagery still can be purchased in the

international market. In addition, there are several disadvantages to initiating "shutter control."

If "shutter control" is initiated no one, including the U.S. military, will be able to utilize the

imagery. Although the military has a few military remote sensing satellites of its own, most

imagery for the Department of Defense is purchased by the National Geospatial Intelligence

Agency from DigitalGlobe and Space Imaging.12 For example, the U.S. forces in Iraq are

currently using Google Earth on their secure Internet. Military personnel have found that images


10 See Chapter 1 for details on the use of imagery during The Gulf War.
" The Land Remote Sensing Act, 15 U.S.C. 5602(5) (1992).
12 Theresa Hitchens, Address at the U.S. Space Operations in the International Context Space Conference (Feb. 24,
2004) (transcript available at the Center for Defense Information). Because of the cost of launching and operating
remote sensing satellites the government made the decision to commercialize land remote sensing. Id.










downloaded from Google Earth are a useful tool in planning missions even if they are one to

three years old. Although higher ranking officials13 have access to newer imagery the imagery is

often not available to lower ranking military leaders. The ease of using Google Earth makes it a

vital tool for soldiers at all levels as they try to familiarize themselves with enemy terrain.14

Although the U.S. regulations protect the country from harmful uses of U.S.-licensed satellites

during national security threats threat there is a need for U.N. regulations that prohibit the sale of

imagery of any nations involved in conflict.

Chapter 4 examines the legal precedent for limiting commercial remote sensing through

established U.S. law governing a right to access government information, the limitations on

government to restrain the distribution of information and the provisions for government

punishment of illegally distributed information. Justice Holmes stated in his opinion for the

Court in 1919 Schenck v. U.S. that

When a nation is at war, many things that might be said in time of peace are such a
hindrance to its effort that their utterance will not be endured so long as men fight, and that
no Court could regard them as protected by any constitutional right.


The government has withheld information from public release in the name of national security

only for it to be revealed later that disclosed of the data did not threaten national security.16 The

U.S. Supreme Court has made it clear that the First Amendment protects not only individual



13 The author of this thesis describes a high ranking military official can be considered a person in charge of a
Battalion size element. They hold the rank of Lieutenant Colonel and above.
14 Commercial land remote sensing was vital in the success during operations in the Gulf War. Shutter control turns
off the satellite thereby inhibiting imagery from being processed. There is no way to initiate shutter control and still
have images available for military use.

1 Schenck v. United States, 249 U.S. 47 (1919).

16See, e.g. U.S. v. Reynolds. 345 U.S. 1 (1953). The information was released in 2000 and no national security
issues were discovered. The information withheld from the widows contained information on the faulty aircraft
construction.









speech and news coverage in the media, but also movies,1 cable television,18 non-obscene sexual

expression,9 and the burning of draft cards.20 Commercial land remote sensing imagery would

most certainly be considered speech protected by First Amendment at least in part. To date, no

court has reviewed the question of whether commercial remote sensing imagery would be

protected speech under the First Amendment.

The legal analysis used in chapter 4 indicated three things: 1) the press does not have an

automatic right of access under the First Amendment to government-controlled information; 2)

the federal government, in order to prevent privately-controlled information from being

distributed, must meet a heavy burden of proof, probably establishing that the release of that

specific information will cause "immediate and irreversible" harm to security of the United

States, a burden of proof unlikely to be met if similar information is available else, and 3) Courts

often tend to allow the government greater flexibility to regulate speech and access when

national security is an issue.

Google Earth purchases imagery from non-government sources that inadvertently provides

access to military bases to their consumers. The military has tried to limit access to their bases

by restricting entry and airspace. Given the precedence set by the U.S. Supreme Court in the

prison and jail cases, the press most likely does not have a constitutional right of access to the

military bases. The government does control remote sensing imagery retrieved from satellites

licensed in the United States. The license states satellites can be shut down and the

dissemination of imagery can be stopped in times of increased national threat.


17 Freedman v. Maryland, 380 U.S. 51 (1965),
18 FCC v. National Citizens Comm. For Broadcasting, 436 U.S. 775 (1978).

19 Miller v. California, 413 U.S. 15 (1973).
20 United States v. O'Brien, 391 U.S. 367, 377 (1968)









However, although the privately-owned Google Earth provides access to sensitive

information about military bases it is not the only source of obtaining the information. Hence,

the federal government is unlikely to be successful is trying to retrain public distribution of the

maps on Google Earth. In U.S. v. Progressive, the government stopping pressing its demand for a

prior restraint on bomb-making information in the Progressive magazine after similar was

published elsewhere.21 Even if the government could prevent access to, and the distribution of,

the maps available on Google Earth, the same information can be found in the public domain in

several places. What makes Google Earth practically different-and particularly problematic for

the military-is that that Google Earth is easy to use and free with access to the Internet

connection. It is easier for individuals worldwide to access data that is otherwise harder to find

and more expensive to use.

The Courts require the government to meet a heavy burden of proof with matters of

national security. In times of a threat to national security the federal government has often taken

more control of the country's information flow and courts have tended to be more flexible in

allowing government interference with First Amendment freedoms.

Analysis

In chapter 2, the researcher concluded that imagery on Google earth could disrupt

military operations. In analyzing the finding in chapter 2 of this thesis a number of

recommendations can be deduced. First, the military, to counter information gained by Google

Earth, should cover and conceal mission essential areas, remain cognizant the enemy has this

information, and use counter intelligence to inhibit the use of this information. The military

OPSEC program instructs soldiers to alter their routines in order to counter enemy surveillance


21 see generally U.S. v. Progressive 467 F. Supp 990 (1979).









but the OPSEC program does not emphasize the possible affects of Web sites such as Google

Earth. Military leaders should stress the possible uses of Google Earth by the enemy in their

operations order.

In chapter 3, the researcher concluded that the U.N. does not have any binding

regulations relating to remote sensing. The current U.N. principles took over fifteen years to be

passed, much of the delay centered around the concern of underdeveloped countries that

developed countries with remote sensing capabilities would use the remote sensing imagery to

find the natural resources of underdeveloped countries. The fear was that information would be

used in trade negotiations.22 The Principle of Remote Sensing would be more beneficial if they

were binding and had safeguards to protect national security of all nations. It is doubtful that

"shutter control" is the best answer but it is the most feasible for a U.N. regulation.

Chapter 4 discussed that the press does not have an inherent right of access to

government controlled information. Google does not have any rights to access to information

about military bases than does an average citizen. The government has a heavy burden of proof if

they decided to restrict Google Earth from posting imagery it possesses on the Internet.

Limitations of Study

Among the limitations to this study was that it was limited to unclassified data

that was obtained through the Army Knowledge Online.23 The military has regulations that are

secret and could have additional provisions for OPSEC. These regulations could not used in this

thesis.





22 For an in-depth explanation see chapter 3.
23 Army Knowledge Online is a secure portal to army websites.










A second limitation of the study is that it was not feasible to visit the military bases on

Google Earth to ensure the information on the Web site was accurate. In order to demonstrate

how accurate the images on Google Earth a comparative analysis of the base and the imagery

would be ideal. The majority of the bases used in this analysis were of bases in Iraq and it was

not feasible to perform the comparison.

A third limitation of this study is the lack of legal precedence surrounding commercial land

remote sensing. The government has never exercised "shutter control;" therefore no First

Amendment issues dealing with remote sensing have been decided in the courts. Google Earth

has openly complied with all requests to restrict information on the Web site, and have suggested

that this will be a continued trend. Although Google Earth has complied with requests to remove

imagery the research did not analyze other remote sensing Web sites, such as, Terraserver or

Microsoft.

Future Research

This thesis focused on only a relatively small aspect of remote sensing as an information

source, several other areas of study would be beneficial to research, such as how remote sensing

imagery is used as a tool in newsrooms.

This thesis only evaluated U.N. guideline and U.S. regulations. An evaluation of other

nations' regulations could enhance the argument that the U.N. needs to have binding regulations.

Future research could compare different nations' regulations and evaluate similarities to

determine trends.

This thesis discussed in general legal procedure that would control access to, injunctions

on, and punishment of Google Earth and Remote Sensing. A more thorough legal analysis of

the Supreme Court jurisprudence as it might affect Google Earth and remote sensing imagery

could also be helpful. A thorough analysis of the constitutionality of these issues was beyond the









focus of this paper since there was no court precedent directly on point. However, a more

thorough analysis of all legal topics discussed in this paper is more appropriate. Additional

research is needed for how remote sensing is classified under the federal Freedom of Information

Act, for example. So is there a need for First Amendment court precedent not directly on point

could affect the constitutionality of remote sensing. Still further, given the state of both national

an international law, what kind of risk a punishment to private providers of remote sensing

images face?

Conclusion

In conclusion, this thesis finds the information on Google Earth does provide information

to the public that could hinder military operations. The current U.N. guidelines on commercial

remote sensing do not offer adequate protections and do not address issues of free Web sites such

as Google Earth. The government carries a heavy burden in restraining the further distribution of

information already available to citizens worldwide through both governments and private

companies in other countries. After careful analysis of past precedent, this researcher has

become convinced that "shutter control" and any restrictions on Google Earth are not justified.

Although the commercial remote sensing imagery does provide information sensitive to the

military the same information can be obtained from other sources in the public domain.

In addition, although information on Google Earth does provide adversaries with sensitive

information, it also provides information that serves the nation in other ways. In 2007, the media

used Google Earth to inform the community on the spread of wild fires in California, soldiers'

overseas use Google Earth to help plan flight operations, and Google earth was instrumental in

assisting embedded media report on the War on Terror in 2003. It is important to consider both

the pros and cons of removing information from Google Earth or initiating "shutter control."

When "shutter control" is initiated in the U.S. no one has access to the information. This would









place the U.S. at a disadvantage because other countries would still have access to the

information. The same rationale applies to removing imagery from Google Earth. It is

important to consider the benefits of Google Earth used in traditional media coverage.

Therefore removing particularly sensitive imagery from Google Earth is the most efficient

and least disruptive way to protect sensitive military information. The U.S. military could

provide training for soldiers on the threat information on Web sites such as Google Earth could

aide in mission analysis, updating OPSEC and Physical Security regulations to include remote

sensing imagery, and enforcing the military to cover and conceal mission essential areas, remain

cognizant the enemy has this information, and use counter intelligence to inhibit the use of this

information. This would aide the military in remaining open and transparent while

simultaneously protecting sensitive information.









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BIOGRAPHICAL SKETCH

Angelique Ledesma was born in Perth Amboy, New Jersey, 1972. She enlisted in the U.S.

Army in 1992 as Medical Laboratory Technician and worked as a Transfusion Service

Technician at Brooke Army Medical Center. She received a degree in Medical Technology from

George Washington University in 1998. In 2000, she was selected to participate in the U.S.

Army's Green to Gold program at the University of Washington, Seattle. She earned a B.A.

degree in Mass Communication from University or Washington, Seattle, in 2002. In 2004, she

was deployed to Iraq in support of Operation Iraqi Freedom. In 2005, she served the

humanitarian support mission in New Orleans to support Operation Katrina. She will attend the

Signal Captain's Career Course in Georgia in January 2008.





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1 SATTELITE IMAGERY: FRIEND OR FOE By ANGELIQUE LEDESMA A THESIS PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLOR IDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS IN MASS COMMUNICATION UNIVERSITY OF FLORIDA 2007

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2 2007 Angelique Ledesma

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3 To my Dad, who taught me that hard work comes with reward.

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4 ACKNOWLEDGMENTS I would like to thank Professor William F. Cham berlin, chairman of my thesis committee, for his patience and understanding throughout this thesis. Professor Chamberlins encouragement led me to explore several areas of remote sensing. Professor Chamberlins guidance was instrumental in researching case law. I would like to thank Professor Spiro Kiousis and Professor Cynthia Mort on for their helpful insights th roughout this thesis. I would like to thank the men and women who serve, their courage and dedication in part inspired this thesis

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5 TABLE OF CONTENTS page ACKNOWLEDGMENTS...............................................................................................................4 LIST OF FIGURES................................................................................................................ .........7 ABSTRACT....................................................................................................................... ..............8 CHAPTER 1 REMOTE SENSING AND SATELLITE IMAGERY...........................................................10 Introduction................................................................................................................... ..........10 Literature Review.............................................................................................................. .....13 Remote Sensing, National Security and Military Operations.........................................13 Remote Imagery and Mapping Web sites.......................................................................20 Remote Sensing Regulations...........................................................................................21 Shutter Control versus the First Amendment..................................................................23 Chapter Summary and Methods.............................................................................................27 2 INFORMATION AND MILI TARY OPERATIONS............................................................30 Introduction................................................................................................................... ..........30 Army Doctrine and Freedom of Information..........................................................................35 Military Operations a nd Operational Security........................................................................36 The Making of Google Earth..................................................................................................38 Operational Security versus Google Earth.............................................................................40 Conclusion..................................................................................................................... .........47 3 REMOTE SENSING IMAGERY REGULATIONS.............................................................49 Introduction................................................................................................................... ..........49 International Laws Governing Space......................................................................................51 United States Regulations on Remote Sensing.......................................................................55 Conclusion..................................................................................................................... .........61 4 FIRST AMENDMENT AND REMOTE SENSING.............................................................63 Introduction................................................................................................................... ..........63 The Press Right to Access......................................................................................................66 Pell v. Procunier, Saxbe v. Washington Post and, Houchins v. KQED ..........................67 The Freedom of Information Act....................................................................................69 U.S. v. Reynolds ...............................................................................................................70 Prior Restraint................................................................................................................ .........71 Near v. Minnesota ...........................................................................................................72 New York Times v. U.S. ...................................................................................................73

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6 U.S. v. Progressive ..........................................................................................................74 Punishment after the Fact...................................................................................................... .76 Schenck v. United States ..................................................................................................76 Dennis v. United States ....................................................................................................77 Brandenburg v. Ohio .......................................................................................................78 Morison v. U.S. ................................................................................................................79 Conclusion..................................................................................................................... .........79 5 CONCLUSION..................................................................................................................... ..81 Introduction................................................................................................................... ..........81 Analysis....................................................................................................................... ...........87 Limitations of Study........................................................................................................... ....88 Future Research................................................................................................................ ......89 Conclusion..................................................................................................................... .........90 BIBLIOGRAPHY................................................................................................................... .......92 Primary References............................................................................................................. ....92 Principal Cases................................................................................................................ ........93 Secondary References........................................................................................................... ..94 BIOGRAPHICAL SKETCH.........................................................................................................97

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7 LIST OF FIGURES Figure page 2-1 Taji, Iraq................................................................................................................ .............43 2-2 Bagram Air Base, Afghanistan..........................................................................................44 2-3 Balad Airbase, Iraq....................................................................................................... .....45 2-4 Signal Hill, Baghdad Iraq................................................................................................. .46 2-5 Fort Hood, Texas.......................................................................................................... .....47

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8 Abstract of Thesis Presen ted to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Mast er of Arts in Mass Communication SATELLITE IMAGERY: FRIEND OF FOE By Angelique Ledesma December 2007 Chair: William F. Chamberlin Major: Mass Communication Google Earth is a virtual globe created by supe rimposing satellite imagery. The Web site amalgamates the ease of the Google search engi ne with Google maps. Google Earth has been used to illustrate the path of wild fires, track diseases such as the bird flu, and demonstrate the fighting in foreign wars. There is little ques tion of the usefulness of Google Earth, but it has been criticized for providing information that could potentially harm a nations security. Information is a resource that is vital to the success of military missions in the U.S. and abroad. The military has imposed several regulati ons in order to protect information from the enemy. The military has deemed that certain information that is not classified by Executive Order 12,958 is still considered sensitive but unclassified. The purpose of this thesis is threefold: to determine if information the military has deemed important to the succe ss of a mission can be found on Google Earth, to identify the current regulations governing remote sensing, and to determine if adding additional regulations or provisions on Google Earth woul d stand constitutional muster. The research will show that Google Earth does display imagery that the military has deemed mission essential vulnerable areas. The current regulations governing Google Earth offer little protection in time s of increased threats to national security. The nonbinding

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9 principles that the U.N. enacted in 1986 are qui ckly becoming antiquated b ecause of advances in technology. The research will conclude that th e government holds a heavy burden of proof in removing imagery based on national security. Sim ilar imagery is available from many different sources outside the U.S., making additional regulations moot.

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10 CHAPTER 1 REMOTE SENSING AND SATELLITE IMAGERY If I could get one message to you it would be this: the future of this country and the welfare of the free world depends upon our success in space. There is no room in this country for any but a fully cooperative, urgently motivated all-out effort toward space leadership. No one person, no one company, no one government agency, has a monopoly on the competence, the missions or the requirements for the space program.1 Introduction The Soviet Union launched the first successf ul artificial satellite, Sputnik I, in 1957 and started what was soon coined space race.2 The space race lasted from 1957 until 1975 and was described as a battle between the United States and the Soviet Union to dominate space.3 The space race played a pivotal ro le in technological, economical and political advances of the United States and the Soviet Union dur ing the Cold War. The United States and the Soviet Union bot h evolved technologi cally, paralleling the space race with the arms race as each country developed weapons, advanced their military, and used satellites as eyes in the sky to spy against one another.4 The space race helped establish among both U.S. and Russian officials the need to initiate regulations and laws pertaining to space. President Dwight D. Eisenhower and Soviet Premier Nikita Khrushchev petitioned the United Nations to intervene in disputes over space and requested legal guidance on i ssues involving space. In response, the 1 DAVIS ENGLISH, THE AIR UP THERE: MORE GREAT QUOTATIONS ON SPACE (McGraw Hill-Professionals 2003). 2 MATT BILLE & ERIKA LISHOCK, THE FIRST SPACE RACE, 12 (Texas A&M University Press 2004). 3 Id at 55. 4 Id at 25.

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11 United Nations commissioned the Committee on the Peaceful Uses of Outer Space (COPUOS) responsible for the discussions and negotiations as they pertain to space.5 Military and intelligence agencies of dominant world nations were the primary users of satellite technology pr ior to the launch of SPOT I by the French government in 1986.6 During the early 1980s, the U.S. tried un successfully to open a market for remote sensed imagery.7 President Ronald Reagans admi nistration, in partnership with RCA Corporation and Hughes Aircraft Company, devised a plan to market imagery from the satellite Landsat. The imagery had a coarse resolution and the part ners discovered there was little market for it. Because of the low demand for the imagery, and the lack of funding from the government, the price for customers was very expensive. Although there was not a high demand for imagery, France launched SPOT I, a satellite that provided ten-meter resolution, w ith a shorter time betw een satellite rotation than Landsat, and privatized satellite imag ery. France was the leading distributor of satellite imagery by 1989. During the Persian Gu lf War, the U.S. spent an estimated $5-6 million on satellite imagery, commonly referred to as remote sensing. The Remote Sensing Policy Act defines land remote sensi ng as the collection of data which can be processed into imagery of surf ace features of the Earth from an unclassified satellite or satellites.8 Today more than nine countries have successfully launched satellites for commercial use, making the commercializa tion of remote sensing a billion dollar 5 NANDASIRI JASENTULIYANA, INTERNATIONAL SPACE LAW AND THE UNITED NATIONS, 36 (Kluwer Law International 1999). 6 Jasentuliyana, supra note 5, at 2. 7Ann M. Florini & Yahya Dehqanzada, Commercial Satellite Imagery Comes of Age SCI. & TECH., Dec. 1999. 8 Jasentuliyana, supra note 5, at 37.

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12 industry. The technology has advanced the imagery to a .67 meter resolution, clear enough to read the numbers on a house.9 However, the commercialization and in creased technological advances of remote sensing create several risks to national security and military operations. The capability of a foreign country to obtain sa tellite imagery of an object in the United States without permission or knowledge has invoked concern th at the current regula tions on land remote sensing were inadequate. If an insurgent in Iraq wanted to launch a mortar at an airfield in Iraq, the insurgent would only need a co mputer and Internet connection to obtain satellite imagery with grid coordinates of th e base within his or her legal rights under current regulations. The purpose of this thesis research is to answer: first, whether the advances in technology associated with satellites and the In ternet allow the release of information to the public that the military has deemed pot entially disruptive to military operations; second, whether current regulations by the United Nations coincide with the United States militarys safeguards for protection ; a nd lastly, whether the United States remote sensing regulations such as shutter contro l are constitutional under the free speech and free press clause of the First Amendment.10 The research will begin with an extensiv e review of past literature on remote sensing and will analyze other research on re mote sensing and how it applies to this study. The literature review will consists of f our parts. Part one is an overview of what 9 Bille, supra note 2, at 4. 10 The Land Remote Sensing Policy Act, 15 U.S.C. 5601-5672 (1992), defines Shutter Control as method to interrupt satellite communication during tim es of increased threat to national security.

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13 effects remote sensing has on national securi ty. Part two will in troduce Google Earth and Terraserver, easily accessible free satellite imagery Web sites, and will review prior issues that have arisen from remote sensing We b sites available to the public. Part three is a review of the regulations on remote se nsing in relation to protecting the national security of the nation sensed. Part four is an examination of previous analysis on the constitutionality of regulations on remote sens ing. Following the literature review is an in-depth description of the methodology used to answer the research question posed by the thesis. Literature Review Remote Sensing, National Security and Military Operations Since the launch of SPOT I in 1986, several law reviews a nd journal articles have been written pertaining to the effect of commercialization of remote sensing on national security, the effectiveness of current regulations on remote sensing, and whether current U.S. regulations governing remote sensing are unconstitutional. However, there is very little analysis post 9/11 and very few studies on the effects of remote sensing on military operations. The continued advancements in technology, including the development of the internet superhighway, sparked concerns by the National Geospatial Intelligence Agency over the potential risk of commercial satelli te imagery on national security. The National Geospatial Intelligence Agency commissi oned the RAND National Defense Research Institute to investigate pub licly available geospatial data on government Web sites, including remote sensing imagery to determin e if they were providing information that could impact national security. The RAND In stitutes primary focus was to determine if information on government sponsored Web sites could potentially aide terrorists in an

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14 attack against the United States. The re search, conducted over a one-year period during 2005 and 2006, evaluated publicly available ge ospatial data on government Web sites and assessed if the information could aide terro rist organizations in an attack against the United States. The RAND Institute analyzed informati on publicly available on the Internet and applied analytical reasoning to determine if the data could assist in planning and executing an attack on the United States. RAND analyzed the information found on government Web sites based on three criteria: 1) usefulness, 2) uniqueness, and 3) cost analysis.11 More specifically, RAND examined ho w useful information available on the government Web sites would be in aiding an at tack, whether the information is unique or can it be found through other public resources, and whether restrict ing the information would affect citizens rights to view the information. The RAND Institutes res earch concluded that public geospatial information provided on the government Web sites is unlikely to aide a terrorist in an attack because the information is otherwise available.12 Therefore, RAND said removing the information from government Web sites does no t protect national security. One of the recommendations from the Rand Institute was that the federal government play a proactive role in bringing greater coheren ce and consistence to the public question of assessing the Homeland Security implications of publicly available geospatial information.13 11RAND National Defense Research Institute, Mapping the Risks: Assessing the Homeland Security Implications of Publicly Available Geospatial Information, 2004 (Washington, DC), XVII. 12Id at 123. 13Id at 128.

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15 Although the RAND research is an extens ive evaluation of publicly accessible remote sensing data and how that data could as sist a terrorist in future attacks against the U.S., the research was not intended to explore the effects of data on military operations nor to explore non-government Web sites. The effects of available remotely sensed data on military security and operations were addressed by Theresa Hitchens, vice president at the Center for Defense Information, in a speech to the U.S. Space Op erations Conference in February 2004. The U.S. Space operations conference was sponsored by the U.S. Armys Dwight D. Eisenhower Institute National S ecurity Series in order to discuss intern ational space operations. Hitchens stated that although th e increased accessibility of high-resolution remote sensing imagery benefits national security, it also poses a threat. Hitchens stated the benefits of remote sensing were evident during the Persian Gulf War.14 She said military intelligence officers were able to determine Iraqi troop placement by analyzing remote sensed imagery. The intelligence gathered from the images were utilized to plan the left hook maneuver an instrumental ma neuver in the success of U.S. troops during the Persian Gulf War.15 Hitchens stated military commanders determined that if Saddam Husseins Army had the intelligence gathered from the imagery, the left-hook maneuver would not have been successful. Hitchens said the government has impleme nted three main safeguards to protect military operations from data collected from remote sensing: 1) shutter control, 2) 14 Theresa Hitchens, Address at the U.S. Space Operations in the International Context Space Conference (Feb. 24, 2004) (transcript available at the Center for Defense Information). 15 The US military used intelligence to plan an attack from the West (left) while simultaneously setting up a deceptive frontal attack. Saddams Army was focused on defending the front making the West a vulnerable position. See HART LIDELL B.H., STRATEGY 62 (Plume 1991).

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16 buyouts of foreign imagery and 3) em bedding media in military units.16 The first of the three safeguards, shutter control (turning off satellites from taking images) can be initiated when national security or interna tional obligations and/or foreign policies may be compromised, as defined by the secretary of defense or when the secretary of state requires the licensee to limit data collection and/or distribution.17 In essence, the government now has complete control over a ccess to U.S. private or government-owned satellites and can impose restraints on data distribution by restri cting the selling of remotely sensed images, shutting off access to satellite and reducing the image resolution over areas of interest. The second security safeguard buyouts refers to the U.S. government policy of buying out satellite im ages from foreign nations to control distribution of images. Hitchens third effort to safeguard military operations from remote sensing is to embed media with the forces. Embedded jour nalists are news reporters attached to a military unit; the reporters eat, sleep and travel with the unit in order to tell the factual stories of the unit. Hitchens stated that by providing access to jour nalists the government can reduce news agencies from searching for information from outside sources. Hitchens stated that it is difficult to regulate remote sensing because remote sensing is an open industry. Several countries ha ve access to imagery from sa tellites and the U.S. can not regulate the distribution from fo reign countries. Hitchens st ated that the only effective way to regulate remote sensing is to deve lop a weapon that can be used to destroy satellites in times of crisis.18 16 Hitchens, supra note 14. 17 The Land Remote Sensing Policy Act, supra note 10. 18 Hitchens, supra note 14.

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17 Contrary to Hitchens, Captain Michael Hoversten, chief of the Air Space law branch in the U. S. Air Force Staff J udge Advocate Office, contended in a 2001 law review article, that regulati ons initiated by the United States to regulate remote sensing provide adequate safeguards to protect the s ecurity interest of the United States. Captain Hoversten conducted a legal research analysis of regulations and policies relating to remote sensing and applied them to issues of national security for the U.S. Airforce. He determined that remote sensing imagery is a vital tool in protecti ng national security and that the U.S. government must strike the ri ght balance between main taining technological power and protecting the nations interest. 19 Captain Hoversten said that an example of using remote sensing as a tool for protecti on against foreign nations is the discovery a North Korea missile site sensed by an I KONOS satellite operated by the U.S. owned company Space Image Inc. in 2000. The images were used to determine that North Korean had a missile site that could launch mi ssiles at Japan, and eventually at the United States.20 Captain Hoversten said that U.S. licensing rules and procedures, shutter control and audit practices are adequate in ensuring protecting national security from U.S. sensed imagery.21 The major concern Captain Hoversten me ntioned in his paper was the lack of global policies pertaining to internationally sensed images owned by foreign nations.22 Captain Hoversten said that remote sens ing imagery with greater than one meter 19 Michael R. Hoversten, U.S. National Security and Government Regulation of Commercial Remote Sensing from Outer Space 5 1 A.F. L. Rev. [253] (2001). 20 Id. at 271. 21 Auditing refers to the U.S. governments review of current policies on remote sensing to determine if they are effective. 22 Hoversten, supra note 19, at 272.

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18 resolution is a vital tool for the military, agriculture and the environment. Captain Hoversten stated that although the imagery is useful to the U.S. it is also a double-edged sword.23 Captain Hoversten stated images from in ternational satellites could negatively impact military national security by identifyi ng vulnerabilities in U.S. infrastructure.24 An example used by Captain Hoversten is th e public images of Area 51. Area 51 was a top secret military testing ba se in Nevada until satellit e images sensed by a Russian satellite were made available to general public.25 Captain Hoverstens report acknowledges the difficulties in maintaining secret military areas from being identified by foreign satellites with the current internat ional regulations of remote sensed imagery in a global market but stated he feels that in order to strike the right balance the Department of Defense should implement inte rnal regulations in order to prevent a breach in security. Captai n Hoversten stated internal regulations should include camouflaging and concealing military base layouts that could be of interest to other countries.26 U.S. Senator Daniel Kahikina Akaka, fr om Hawaii, shared Hoverstons concerns but disagreed with his recommendations. Sen. Akaka addressed President William J. Clinton at the Security and Commercial Satellite Imagery Council Meeting on May 2000. Sen. Akakas concern was that the eye in the sky had suddenly made previously secret sites in the United States no longer secret a nd that if satellites have the capability to 23 Hoversten, supra note 19, at 272. 24 Hoversten, supra note 19, at 265. 25 Hoversten, supra note 19, at 245. 26 Hoversten, supra note 19, at 265.

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19 gather images such as Russias use of im ages on Area 51, the host country (Russia) can sell the images under current regulations.27 Sen. Akaka stated that current restrictions such as shutter control will be difficult to en force in a free global market. He expressed concern over the lack of a unified regulati on on the purchasing of commercial imagery. Sen. Akaka suggested that advancing tec hnology should be coupled with advancing regulations from the United Nations on a global level. Research conducted for the Commission to Assess the United States National Security Space Management and Organiza tion (CAUSNSSMO) confirmed Sen. Akakas hypothesis that the increase in technology s hould run parallel with advances in remote sensing regulations. The commission said that the continue d expansion of the commercial remote sensing industry increases the risks of foreign nations discovering vulnerabilities in the U.S.28 The researcher indicated that a greater than one-meter resolution assists adversaries in precis e targeting and bomb damage assessment.29 Lieutenant Colonel George Harris, of the U.S. Army 250th Military Intelligence Battalion study, agreed with the finding by CAUSNSSO. The empirical study analyzed SPOT I imagery sensed at three different stag es of Operation Desert Storm. The first series of imagery analyzed was taken five m onths prior to the start of Operation Desert Storm, the second set of imagery analyzed wa s two weeks after the air war and the final imagery analyzed was imagery sensed four weeks before the ground war. Lieutenant Colonel Harris studied the imagery to detect if military movement and operations could 27 Senator Daniel Kahikina Akaka, Address at th e Security and Commercial Satellite Imagery Council (May 11, 2000). 28 Haller, Linda and Sakazaki, M. Commercial Space and the United States National Security (2001), http://www.globalsecu rity.org/space/library/repor t/2001/nssmo/article06.html (last visited Oct. 5, 2007). 29 Id

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20 be ascertained by the data collected from the images.30 The study concluded that the use of remote imagery could be used by the U.S. to detect and predict troop movement even if the images are months old.31 This study identified remote sensing imagery as a tool that can be used during the military decisi on making process, but failed to assess if foreign adversaries could utilize the technol ogy against United States military troops. Remote Imagery and Mapping Web sites Web sites such as www.googleearth.com or www.terraserver.com have revolutionized who can access remote sensed da ta. A real estate agent can access images of a house on the market, a hunter can plan his h unting trip or a student can travel to Paris without leaving his or her dorm room simply by downloading images from the Internet. How does this affect national security? Since Google Earth wa s introduced in 2005, Australia, the United Kingdom, the Netherlands various Asian countries, and the United States have stated that remote sensing imag ery does affect national security, and each has separately petitioned Google to remove images. A study by the Fleximag, a European Aeronautic Defense and Space Company (EADS), analyzed threats Google Earth presents to the national defens e of all countries. Results indicated that the in formation provided by Google Ea rth is available on several other media and therefore does not directly impact national security. However, the 30 VIPIN GUPTA & LIEUTENANT COLONAL GEORGE HARRIS, DETECTING MASSED TROOPS WITH THE FRENCH SPOT SATELLITES: A FEASIBILITY STUDY FOR COOPERATIVE MONITORING (Sandia National Laboratory 1998). 31 Id.

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21 researchers acknowledged that the information c ould assist in the earl y stages of planning an attack against a nation.32 In a contrasting opinion, Indian President Abdul Kalam stated images of the Indian Parliament found on Google Earth could aide in a terrorist at tack and were damaging to the security of India.33 In an interview referencing the capabilities of Google Earth by Elizabeth Svoboda, a reporter for the Christia n Science Monitor, President Kalam stated that images on Google Earth jeopardize the s ecurity of foreign nations. Furthermore, South Korea expressed concern that North Korea could use Google Earth to locate and target military installations in South Korea.34 Australia petitioned Google Earth to censor images of a nuclear reactor in Sydney, stat ing the images inhibit national security.35 The continuous concern of available information provided by remote sensed images on Web sites such as Google Earth and Terraserver challenge the effectiveness of international policies and regulations. Are the policies currently utilized by the United Nations adequately protecting national secu rity from being compromised by terrorist organizations? Remote Sensing Regulations The United Nations has implemented regul ations to control the use of remote sensing imagery, but several researchers s uggest that continued advancements in technology, as well as globalizati on of commercialized remote sensed imagery, will make 32 Fleximag, European Aeronautic Defense and Space Company, Google Earth: Impacts and Uses for Defense and Security (2005), http://www.felximag.fr (last visited Oct 2, 2007). The study is based on the accuracy of Google Earth, international regulations an d how Google Earth can be used to damage national security. 33 Elizabeth Svoboda Googles Open Skies Raise Cries CHRISTIAN SCI. MONITOR, Dec. 1, 2005, at J1. 34 Id. 35 Id.

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22 the regulations obsolete and make remote sensing ungovernable. These concerns prompted a study commissioned by the U.S. National Oceanic and Atmospheric Administration (NOAA). NOAA evaluated the eff ectiveness of current regulations on the commercialization of remote sensing to dete rmine if they were antiquated based on new technology.36 The research concluded several coun tries, such as the United States, Canada, Korea and Russia, have their own regul ations to protect national security but an up to date unified policy by United Nations did not exist. The research concluded that although the regulations are different from nation to nation, the general trend of each nation is to protect its own national securi ty by regulating the imagery sensed, licensing satellites and initiating safeguards such as shutter control.37 In the study mentioned earlier in the paper, Captain Hoversten analyzed the current regulations on commercial satellite imagery a nd national security to conclude if the regulations provided adequate pr otection to the U.S. national security. Captain Hoversten concentrated his research on the United Nations Remote Sensing Act of 1987, and concluded that commercial satellite imagery is a double-edge sword that was needed to protect the nation, but, at the same time, c ould be used to harm the nation. Captain Hoversten said that the regulations by the United Nations were antiquated when compared to advancements in technology. He concluded that there are several vulnerabilities to security that are not protect ed in the Remote Sensing Principles enacted 36 Joanne Irene Gabrynowicz, The Land Remote Sensing Laws and Policies of National Governments: A Global Survey (2007), http://www.spacelaw.olemiss.edu (last visited Oct. 1, 2007). A report prepared for the U.S. Department of Commerce/NOOA. The study evaluates the commerciali zation and privatization of remote sensing systems. 37 Id

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23 in 1987.38 For example, the provisions in the Remote Sensing Principles permit governments to freely sense and distribute data from other nations without consent.39 Dr. Scott Pace, Associate Administrator for Program Analysis and Evaluation at NASA and a member of the Critical Tec hnologies Institute, testified before the Committee on Science, Space and Technology and the Permanent Select Committee on Intelligence on the U.S. policy and legisla tion affecting remote sensing and the challenges for regulating commercial remote sensing.40 Dr. Pace said that if the U.S. places restrictive regulations on remote sens ing, customers will only seek out foreign sources for the data. Dr. Pace said that the U.S. must remain competitive in commercial remote sensing with minimal regulations. He sa id that the most effective way to maintain competitive and protect national security is to enter governmenttogovernment agreements on remote sensed data.41 The governmenttogovernment agreements should include provisions for national security such as when data should be declassified for public release. Shutter Control versus the First Amendment The current regulations on remote sensing have been criticized by many journalists and law scholars as being too restrictive and unconstitutional. The government implementation of shutter control and use of licensing to control releasing data collected from satellite sensing ha s concerned members of the press. 38 Hoversten, supra note 19, at 266. 39 The Land Remote Sensing Policy Act, supra note 10. 40 The Critical Technologies Institute is a federally funded research and devel opment center which serves the White House office of science and technology. Their mission is to improve public policy that involves science and technology. 41 Scott Pace, Testimony Before the Committee on Science, Space and Technology (Feb. 9, 1994).

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24 A case study conducted by Robert P. Me rges, an associate professor of law at Boston University, and Glenn H. Reynolds, an associate professor of law at the University of Tennessee, concluded that li censing remote sensed imagery is a clear violation of content-based prio r restraint. Merges and Reynol ds stated that regulations in their current form cannot withstand constituti onal scrutiny in light of the principles of the First Amendment.42 Merges and Reynolds stated th at restricting imagery should not be overseen by the executive branch. Restrictio ns should come from the judicial branch based on criteria discussed in the Near v. Minnesota case meaning that only information pertaining to the sailing dates of transports and the number and location of troops could be withheld.43 Near v. Minnesota, a Supreme Court decision in 1931, established the press ordinarily should be free from prior restraints on publication.44 The case made it clear that prior restraint of press violates the First Amendment, while providing an exception for national security. The opinion stated: the protection even as to previous rest raint is not absolutely unlimited. But the limitation has been recognized only in ex ceptional cases. When a nation is at war many things that might be said in time of peace are such a hindran ce to its error that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitu tional right. No one would question but that a government might prevent actual obstr uction to its recruiting service or the publication of the sailing da tes of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the co mmunity life may be protected against incitements to acts of violence and the ove rthrow by force of orderly government.45 42 Robert P. Merges & Glenn H. Reynolds News Media Satellites and the First Amendment: A Case Study in New Technologies 3 HIGH TECH. L.J. 2 (1987). 43 Near v. Minnesota, 283 U.S. 697 (1931). 44 Id 45 Merges, supra note 42.

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25 Merges and Reynolds study focused on whether regulations relating to remote sensing are unconstitutional based on the First Amen dment. The case study concluded that regulations such as shutter control are unc onstitutional because they leave too much discretion to the government and are based on restricting information based on content. Merges and Reynolds stated that past prec edent has dictated the government holds the burden of proof when restricting pub lication based on national security. Merges and Reynolds said the U.S. Supreme Court opinion in New York v. United States set the precedent for burden of proof in censoring the press.46 The courts opinion in New York Times v. United States (1971) declared the New York Times and Washington Post could publish the so-called Pentagon Papers, discussing the history of Vietnam War. Merges and Reynolds stated th at shutter control presents a classic prior restraint on dissemination of expression because the gove rnment can deny a license prior to an image being sensed.47 Similar to the Mergers and Reynolds work, a paper by George E. Seay, a thirdyear law student at Southern Methodist Un iversity, agreed the regulations on remote sensing violate the First Amendment. Seay stated there is a definitive struggle between the U.S. government and the media over the First Amendment right for media to use remote sensed imagery. Seay stated that the government and the media must find a middle ground when restricting remote sensi ng imagery. Seay recommended that the government and the media come to a consensus as to what should be considered a threat 46 New York Times v. United States, 403 U.S. 719 (1971). The court reasoned in 6-3 decision that the government bore the burden of proof in justifying censoring the press. The court stated based on the evidence that burden had not been met. 47 Merges, supra note 42.

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26 to national security. Seay suggested th at this could be accomplished by a better government-media relationship. Pamela Hess, a Pentagon correspondent fo r United Press International, wrote an article discussing the U.S. governments deci sion to buy exclusive rights to the imagery over Afghanistan following 9/11 from Space Imag ing Inc. Hess article stated that the governments purchase of imagery stopped potential lawsuits from the media for violations of the First Amendment. He ss interviewed Mike Bender, director of Washington operations at Space Imaging Inc ., who opposed the medias opinion that the U.S. government bought the imagery to censor th e press. Bender stated it was just a business transaction and nothing more.48 Ann M. Florini, in Science and Technology magazine, discussed the remote sensing industry and the claims that current regulations on remote sensing have been argued to be unconstitutional. Florini stat ed that the RadioTelevision News Directors Association (RTNDA) argued shutter control is a violati on of the First Amendment because it allows the government to impose prior re straint on the flow of information with no need to prove clear and present danger or imminent national harm.49 Shutter Control is directed exclusively by the executive branch, RTNDA argue d that this eliminates the need for a judicial review to determine if the inform ation will cause harm to national security. Ironically, Florini stated in he r article, even if shutter c ontrol could withstand judicial 48 Pam Hess, DOD Locks up Commercial Satellite Pix, U.S. Press Intl (Oct. 12, 2001), http://www.globalsecurity.org (last visited Oct. 4, 2007). 49 Florini, supra note 7 Clear and present danger is a test developed by Justice Holmes following in his opinion on Schenck v. U.S. 249 U.S. 47 (1999) The test determines if speech creates a clear and present danger that will bring about substantive evils that th e United States Congress has the right to prevent. Imminent refers to speech that will cause an unlawful act more quickly then can be handled by officials.

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27 review, it provides little protec tion to national security because remote sensing is a global market.50 In summary the continued advances in technology, coupled with the World Wide Web as a vehicle of distribution for information, has sparked concerns among government agencies that current regulations for remote sensing are becoming obsolete. This research will try to identify if there are potential risks to military operations by commercial satellite imagery, to determine if regulations are in place to protect military operations, and to try to balance the need to protect both free pre ss civil liberties and national security. Although there have been several studies on remote sensing and the effects on national security they all fail to research the effects of commercial remote sensing imagery on military operations. In c ontrast, the research in this thesis will identify Web sites such as Google Earth a nd Terraserver that publish information that could impact military operations. The researcher will focus on information the military has classified as sensitive to mission accomplishment, identifying that these risks that can aide military leaders in mission planning.51 The most important aspect of this study will examine the balance of civil liberties a nd national security. The thesis will weigh both sides to try to determine the proper bala nce in an environment of self government. Chapter Summary and Methods To sufficiently answer the research que stions posed in the introduction, a variety of methods will be used. This paper will concentrate on different methods including a case study and formal legal res earch. Because the thesis is three-pronged it seemed most 50 Florini, supra note 7 51 Sensitive refers to any material that is not deemed classified but can be used against military operations.

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28 appropriate match discussion of methods in the relevant chapters. The chapters and methods are explained below. Chapter 2 will explore if informati on on Google Earth and Terraserver are threatening military operations based on Army directives and Army Regulations utilizing comparative analysis.52 The researcher will examine Ar my Regulations, the Army Field Manual, Department of the Army pamphlet s, Department of Defense Regulations, Executive Orders, and Post memorandums on s ecurity, force protecti on, antiterrorism and sensitive information and compare the data to information available on the Web sites such as Google Earth. Comparative analysis integrates key aspects of content analysis although no specific coding is utilized. The rese arch will incorporate Army Doctrine that dictates what information, although unclassifie d, is considered sensitive to military operations. Army publications will be found at www.us.army.mil/usapa and opened using an Army Knowledge Online password supp lied by the U.S. Army. The free trail of Google Earth and Terraserver wi ll be the utilized to determine if information on the Web could be found contrary to Army doctrine. Chapter 3 will examine current U.S. and U.N. regulations governing remote sensing. Legal research will be used to determine whether U.S. and U.N. regulations for remote sensing provide safeguards for military operations and national security. The legal research will be conducted utilizing th e University of Florida Legal Information Center and Lexis\Nexis. The search string utilized will be regulations land remote sensing and U.N. regulations land remote sensing. The researcher will examine 52 Comparative analysis is a qualitative method used to compare two groups. The methodology makes comparisons to evaluate and examine research questions. See e.g. ALLEN RUBIN & EARL R. BABBIE RESEARCH METHODS FOR SOCIAL WORK (Thompson Wadsworth 2001).

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29 remote sensing regulations and U.S. Army doctrine, found at www.us.army.mil/usapa to determine whether current re gulations have provisions to protect mission essential vulnerable areas identified by the U.S. military. Chapter 4 will examine whether current remote sensing regulations pass constitutional muster and are available unde r the Freedom of information Act (FOIA). Legal research will be utilized to examine federal statutes, case law, and executive directives found at the Univer sity of Florida legal Inform ation Center, Lexis Nexis and Westlaw. The researcher will employ on-line searches on Lexis\Nexis and Westlaw using a string of search terms such as n ational security, rem ote sensing, shutter control, FOIA, Freedom of Information and first amendment to determine whether current remote sensing regulations are unconstitutional. Additionally, an electronic search of the Univer sity of Floridas George C. Smathers database will be conducted, using the following search terms: remote sensing first amendment, media and remote sensing imagery, regulation re mote sensing imagery and press remote sensing. Finally, Chapter 5 will provide a brief su mmary and an analysis of the data found in the previous chapters. The chapter will provide recommendations for current regulations and further research.

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30 CHAPTER 2 INFORMATION AND MILI TARY OPERATIONS Information is the oxygen of the modern age. It seeps through the walls topped by barbed wire, it wafts across the electrified borders.1 Introduction The U.S. military has favored the idea that inf ormation is a major tool in defeating the enemy.2 The importance of information is not a new concept to the military, George Washington stated during the colonial war that even minu tiae should have a place in our collection, for things of a seemingly trifling nature, when enjoined with others of a more serious cast, may lead to valuable conclusion.3 The objective of military intelligence and operation security is to gather information about the enemy while simult aneously protecting info rmation inherent to mission accomplishment.4 The objective is to gain infor mation superiority against the enemy establishing a strategic advantage. The military defines information superiority as denying adversaries key information that could be used to disrupt military operations.5 Washington understood that information about the enemy could be collected and analyzed to disclose a major weakness enabling a successful plan of defeat. The same concept can be applied to the enemies ability to collect information about U.S. for ces. Although information protection was utilized 1 President Ronal Reagan, GUARDIAN (London, June 14, 1989). 2 U.S. Department of the Army, Regulation 530-1. Operations Security (OPSEC) (19 April 2007) [hereinafter AR 530-1]. For the purpose of this paper AR 530-1 defines information superiority as the degree of dominance in the information domain which permits the conduct of operations without effective operations. Id. 3 U.S. Department of Energy, An Operational Security (OPSEC) Primer, available at http://www.defendamerica.mil/articles/a02120b.html. 4 Id Operations security is defined as, identifies the critical information of military plans, operations, and supporting activities and the indicators that can reveal it, and then develops measures to eliminate, reduce, or conceal those indicators. 5 Id.

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31 during the colonial period it did not become a standard methodology until the Vietnam War. During the Vietnam War a group of soldiers were assigned to investigate how the enemy had advance knowledge of planned military attacks. The Vietnamese soldiers had information that aided in countering the U.S. military attacks. In order to determine the source of information leaks the military developed the operational security measures. The soldiers determined that the countermeasures in place to safeguard informa tion were insufficient and therefore developed a new methodology (operational secu rity program) to ensure information was protected. Operational security (OPSEC) programs are pr ograms that identify information based on an adversarys viewpoint, or on how an adversary could use the information against the U.S. military. In 2007, operational security was said to be based on the following five steps: 1) identification of critical information to be prot ected, 2) analysis of the threat to military operations, 3) analysis of the vulnerabilities to military operations, 4) assessment of the risks to military operations, and 5) application of the count er measures to protect release of information.6 The OPSEC methodology utilizes the five steps to identify unclassi fied information that can be used to hinder successful military operations ag ainst the enemy or aide the enemy in attacking the U.S. military insta llations and units. Regulations on information security ar e based on Executive Order 12958, Classified National Security Information; Executive Order 12972, Amendment to Executive Order 12958; and Executive Order 13142, Amendment to Executive Order 12958 (EO 12958).7 Executive Order 12958 sets the parameters to balan ce individuals right to access to government information with protecting informati on that could harm national security.8 EO 12958 prescribes 6 Id. 7 Id. 8 Exec. Order 12,958, 60 Fed. Reg. 15,315 (Mar. 25, 2003).

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32 a system to classify, safeguard and declassify in formation to ensure that information protection and sharing is balanced. EO 12958 was amended by President George W. Bush after he took office. EO 12958 stated that in order to classify information it must fall into specific categories such as these pertaining to military plans and operations.9 Information that does not meet the requirements set forth in EO 12958 maybe rel eased under the Freedom of Information Act (FOIA). EO 12958 places information into three categories: Top Secret" shall be applie d to information, the unauthor ized disclosure of which reasonably could be expected to cause excepti onally grave damage to the national security that the original classification authorit y is able to identify or describe. Secret shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security that the original classification authority is able to identify or describe. Confidential shall be applie d to information, the unauthor ized disclosure of which reasonably could be expected to cause damage to the national security that the original classification authority is ab le to identify or describe.10 In order to achieve information superiority the military uses additional categories when planning and executing military operations to protect information that is not classified by EO 12958. The categories can be implemented by military leaders to protect military operations. Information is controlled for military operations by categorizing it into an additional category called Controlled Unclassified Information (C UI). This category includes information considered For Official Use Only (FOUO) and Sensitive But Unclassified (SBU).11 FOUO is unclassified information originating from the Depa rtment of Defense (DOD) that may be exempt 9 Id. 10Id at 3. Top secret, secret and confidential are considered classified information. Classified Information is restricted from public rel ease by exemption 1of FOIA. 11 U.S. Department of the Army, Regulation 530-5, Information Security (September 2000).

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33 from released under the Freedom of Information Act.12 SBU is information that originates from the Department of State but is contained in a DOD document and is not re quired to be released under the Freedom of Information Act.13 The Freedom of Information Act was enact ed by Congress and signed in 1966 by Lyndon Baines Johnson. The FOIA was enacted to aide in the democratic process, to provide citizens access to government information and to promote openness in government.14 The FOIA states that citizens have access to government records un less the information is protected under the one of the nine exemptions.15 Exemption One incorporates the executive order to protect national security by protecting the disclosure of information that pe rtains to intelligence collection, national defense, or foreign policy that has been properly classified.16 Information on military operations can be protected under Exemption One of the FOIA. Military officials follow the same guidelines for classifying information as found in EO 12958.17 The challenge many military leaders face is how to protect information that is unclassified because the safeguards that are instilled with classified info rmation do not exist under law for unclassified information and therefore the informati on is not handled as care fully. It is difficult to identify and manage information that is cons idered unclassified but still sensitive to the 12 Department of Defense Directive, Directive 5400.7R The Freedom of Information Act Program (Sept. 9, 1997) at page 43. 13 Homeland Security Act 6 U.S.C 482 (2004). 14 Freedom of Information Act Guide, March 2007, http://www.usdoj.gov/oip/foia_guide07.htm (last visited Oct. 18, 2007). 15 The Freedom of Information is codified 5 U.S.C. 552 (b) (2003). The Freedom of Information Act has nine exemptions. The exemptions are 1) matters of national security; 2) internal personnel rules of the agency; 3) information that is protected because of federal statues; 4) business inform ation; 5) inter and intraagency memoranda; 6) personal privacy; 7) law enforcement record s; 8) records of financial institutions; 9) oil well data. 16 United States Department of Justice, supra note 14. 17 See generally U.S. Department of the Army, Regulation 530-1.

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34 military mission. When identifying CUI all informa tion that is not classified must be assessed. Since 9/11, military intelligence agencies have fre quently found that information on the Internet falls into CUI. The information, although unclassi fied, can be assessed by the enemy and can be used to in planning attacks against U.S. military.18 For example, the U.S. military has captured insurgents with hand-drawn handbooks on vulnerable spots on the Abrams Tank. Army intelligence officersafter further investigati ondiscovered that the information had been obtained from pictures posted on the Internet of an Abrams tank penetrated by a rocket propelled grenade (RPG).19 These examples of sensitive inform ation entering the media prompted the Army Vice Chief of Staff, General Richard Cody, to require military leaders to tighten measures to safeguard information.20 The immense quantity of information on the Internet, combined w ith the ease of posting and assessing information, poses a threat to information superi ority and operational security.21 Military leaders have aggressively tried to mana ge information that is posted on the Internet by posting directives such as the message from the Vi ce Chief of Staff, reviewing army Web sites to ensure soldiers are not posting critical info rmation, and updating regulations that deal with information security. Critical information is not always classified but has been identified as information that could affect mission accomplishment or aide the adversary.22 Information categorized as critical information includes sp ecific current force locations, command post 18Chief of Staff of the Army OPSEC Guidance, UNCLAS ALARACT, Aug. 23, 2005, http://www.fas.org/sgp/news/2005/08/usa0805.html (last visited Oct. 18, 2007). 19 Id 20 Id. 21 Id. 22 U.S. Department of the Army, s upra note 2.

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35 vulnerabilities, and command post locations and co mmunications. Critical information can be an important to successful military mission. Army Doctrine and Freedom of Information Although military leaders are continuously evaluating info rmation to ensure that information is safeguarded, the protection of information is part of the mission of all military personnel. In order to ensure th at all soldiers are aw are of their responsibilities Army officials have implemented several regulations, pamphlet s and directives. The military has several regulations that govern security to ensure that information superiority is maintained. Military officials follow several steps when writing regulations and when reviewing current regulation to ensure they do not hinder constitutional rights, are within the limits of executive orders and are legally binding.23 Army personnel are assigne d a subject based on their individual expertise generally personnel in operations and intelligence sections.24 Operations and Intelligence personnel review all cu rrent laws, directives and orde rs pertaining to the regulation to ensure that regulations fall within the confin es of current laws and regulations. After the drafts are written they are forwarded to comman ders for review for clarity and grammar. The commanders review the regulation and forward it the Headquarters Depa rtment of the Army (HQDA).25 HQDA is responsible for reviewing an d commenting on drafts and assigning publishing control officers. The draft regula tion is corrected and forwarded to the Judge 23 U.S. Department of Army, Regulation 25-30 The Army Publishing Program (27 March 2007). [Hereinafter AR 25-30]. 24 The job of an Army Operations staff serve as the princi pal staff responsible for preparation and sustaining of war fighting in peace and war today and tomorrow. See generally Mission statement by the Deputy Chief of Staff http://www.amc.army.mil/G3/ (last visited at Oct. 18, 2007). The Army Intelligence personnel deduce threat to the military and gather information on the enemy. 25 A commander is the highest member of their echelon. The use of commander in this thesis refers to the commanders of major command.

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36 Advocate26 for legal review to ensure all policies and procedures fall under laws, directives and regulation. The regulation is forw arded to Deputy Chiefs of Staff and reviewed for justification. After the regulation is properly staffed it is forwar ded to the office of the Secretary of the Army for approval.27 After the regulation is approved for releas ed it is labeled offi cial use only. Army regulations are not in tended for public release. Military Operations and Operational Security After 9/11 the U.S. military has adopted several additional safeguards to protect information. Under the militarys Operational Security (OPSEC) program access to all U.S. military posts is controlled through identificati on at the gates of anyone entering the military installation.28 The main goal of OPSEC, which also imposes random vehicle checks in order to deter terrorist activity, is to identify critical information and initiate measures to protect it. AR 530-1, the document that authorized the updated OPSEC program in 2007, addresses new technologies such as the Internet. OPSEC ma ngers state that the information posted on the Internet is opened-sourced and unclassified, but when this info rmation is pieced together can aide adversaries in attacks against the U.S. military.29 AR 350-1 states that it is imperative for military leaders to identify critical information30 during the planning pha se of a missions development, and they should identify what questions an adversary will ask about U.S. limitations and intentions. 26 Judge Advocate is the militarys legal assistance. The Judge Advocate consists of paralegals, lawyers and judges. 27 Staffing refers to sending a document to through the Ar my staff. The staff consists of personnel, intelligence, operations, supply, and communication. 28 U.S. Department of Energy, s upra note 3. 29 U.S. Department of the Army, supra note 2. AR 530-1 has a vast list of information considered critical information. The examples listed ar e used based on the thesis questions. 30 See page 5 of this thesis for the definition of critical information.

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37 In addition to critical information, a key elem ent in OPSEC program is the identification of sensitive information. The term sensitive in formation refers to unclassified that requires special protection because disclosure could cause harm to military installations, operations, and personnel.31 Sensitive and critical information are similar, but critical information is either needed by the U.S. to meet an objective or info rmation that aids adve rsary and could include sensitive information. Another program developed by the military to pr otect information is the Physical Security Program, used to protect military installations du ring times of peace against criminals, terrorists and hostile intelligence operatives.32 The Physical Security Program identifies the responsibilities of the chain of command to protect information and describes installation Mission Essential Vulnerable Areas (MEVAs).33 AR 190-13, the document containing the regulation, identifies MEVAs as milita ry assets that need special protection because an attack on one could cause severe loss of life, loss of e ssential equipment, extreme financial loss or disruption in military operations. MEVAs can include airfields, aircraft parking or maintenance areas, classified sites, main and alternate command posts, communication facilities, motor pools and consolidated supply and storage operations.34 Pictures of MEVAs have been mistakenly pos ted on the Internet in cluding base defense plans. One of the reasons that th e Internet creates so much concern is that it is so difficult to monitor. For example, a training manual rec overed from an Al Qaeda group stated that 80 31 U.S. Department of the Army, s upra note 2. 32 U.S. Department of the Army, s upra note 2 at 5. 33 U.S. Department of Army, Regulation 190-13, The Army Physical Security Program (30 September 1993) [hereinafter known as AR 190-13]. 34 Id. The Mission Essential Vulnerable Areas listed does not constitute a complete list. AR 190-13 lists several MEVAs and states that any installation commander can add to the list based on threat and mission planning. Id

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38 percent of the information need ed against an enemy can be f ound using public sources including the Internet.35 Military units place info rmation on company and battalion Web sites, contractors put installation plans on company Web sites and satellite imagery Web sites such as Google Earth include military bases. The Making of Google Earth Google Earth is a Web site operated by Google In c., an Internet search engine and online advertiser, that makes it possible for users to see a virtual globe through the use of satellite imagery and the Google search engine.36 The images can be viewed in three-dimension and places can be place-marked and shared with other Google Earth users using Keyhole Markup Language (KML). KML allows the users to tag geographical locations th at others can view. The program requires an operating system th at supports Windows 2000, XP, Vista or MAC OS 10.3.9 and a broadband internet connection. Google Earth provides images that are cons idered unclassified under Executive Order 12958.37 Google Earth provides resources that enable people to obtain information with anonymity making it more difficult for military offi cials to identify the release of sensitive but unclassified information on the Internet. 35 Former U.S. Secretary of Defense Donald Rumsfeld, Website OPSEC Discrepancies, Memorandum for all Department of Defense Activities, (January 14, 2003) available at http://www.ioss.gov/docs/rumsfeld_14Jan03.html (last visited June 24, 2007). The memorandum states that For Official Use Only (FOUO) and sensitive information is continually placed on the internet. The memorandum provides guidance to m ilitary personnel on how to protect information. Id. 36 The website has a compassion guide for Google Earth, Google Pro and Google Plus. The Google Earth homepage provides tutorials on basic use of the product, product downloads and product tours. Information on Google earth can be accessed at http:// www.earth.google.com (last visited Oct. 18, 2007). 37 Exec. Order 12958, 60 Fed. Reg. 15315 (Mar. 25, 2003). President George W. Bush kept President Clintons executive order on national security classification. However, he amended it to include procedural matters on safeguarding information based on national security.

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39 Google purchased Keyhole three-dimensi on mapping technology, including the program Earthviewer, in 2004. Earthviewer, a mapping progr am created for commercial use of satellite imagery, is utilized both by businesses and educ ators. After Google purchased Earthview, it renamed it Google Earth, now one of three Google mapping systems available.38 Google Earth is a free service enabling consumers to view a spec ific location on a three-dimensional satellite picture and retrieve driving directions. Googl e Earth Pro and Google Earth Plus added global positioning services. Connecting Google Earth to GPS displays your position in real time and track data on Google earth. In 2006, Google stated that it provides imag ery of more than 20 pe rcent of the Earths land mass on Google Earth. The data on Google Eart h is a combination of aerial and satellite data that are not updated based on customer request but as they become available.39 The images on Google Earth are generally between one and th ree years old and have a 15-meter resolution provided by Digital Globe.40 The Web site is available in th irteen languages and supports data sharing through the KML feature. Google Earth is marketed as a mapping Web s ite that can be used to track disease,41 examine buildings in three dimensions and expl ore disasters. Google Earth was instrumental 38 Google Earth Plus, which cost $20 annually, provides consumers with the same features as Google Earth but also provides higher resolution printing, fast er performance, and the ability to connect global positioning services (GPS ) The program Google Earth pro. costing $400 a year, is ta rgeted for commercial users. Google Earth pro is used primarily for research, presentations, and as tool to identify location-specific information. The author of this thesis did not evaluate the other programs because Google Earth is free, requires no registrati on and the simplest to use. Information t http:// www.earth.google.com (last visited Oct. 18, 2007). 39 In July 2007 Google purchased Imag e America, a company that builds high resolution cameras for aerial imagery but has not released what new features will be available to th eir users. Details of purchase at Googles official blog http://google-latlong.blogspot.com /2007/07/imaging-america.html. 40 Digital Globe is the company that owns Quickbird satellite used to produce high-quality (such as some seen on Google Earth) geospatial data. 41 The Center for Communicable Disease, scientist, and medical personnel tag areas where diseases have been reported on Google Earth to track the movement of disease. This was recently done for the tracking the bird flu epidemic, it is useful in determining the path of the disease.

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40 during the aftermath of Katrina and the 2005 earthquake in Pakista n. Relief workers used the Web site to classify priorities, iden tify open routes a nd plan logistics.42 Although the images are generally one to three years old the use of Keyhole Markup Language permits users to update images using overlays. KML provides the user with recent updates to buildings, roads and points of interest by using overlays. Google Ea rth also acquired images from Digital Globe, processed the imagery and made imagery available within five days. Generally, Google Earth only displays imagery that is up to three year s old, but because of the emergency situation encountered after the earthquake in Pakistan it used newer imagery purchased. The imagery purchased from Digital Globe was removed briefly because of dis putes from Pakistan and India over the imagery of Kashmir.43 Operational Security versus Google Earth Google Earth does not analyze imagery before putting it on the Internet Google Inc. has stated that the information it provides, whether it creates problems for the military or not, is open to the public. Although officials of the company sa y they believe in open access. Google Inc. is not averse to meeting with government o fficials to discuss images of concern.44 For example, the Associated Press discovered information on the Internet that contained plans for a military holding facility in Iraq, geospatial data of two ai rfields in Iraq, and plans for a fuel farm at 42 Illah Nourbaksh, Mapping Disaster Zones, NATURE, February 16, 2006, at 787. 43 Id The decision of Google Earth to display images that were five days old to aide in the rescue mission after the 2005 earthquake concerned both Indian and Pakistan governments, both contended that Google Earth did not accurately portray he border of Kashmir, Pakistan and Kashmir, India. This has been a significant issue between India and Pakistan. See Somini Sengupta, The claim over Kashmir goes to the heart of the identities of India and Pakistan. NY TIMES, January 13, 2002, http://query.nytimes.com/gst/fullpage.html?res=9803E5DF1738F930A25752C0A9649C8B63&n=Top/News/World /Countries%20and%20Territories/India (last visited at October 18, 2007) Google Earth was asked by Indian government official to remove the images until the dispute could be heard by the UN. The United Nations met with the Pakistan and Indian governments an d the decision was made that the imagery did not pose a threat. After the UN decision Google Earth decided to repost the images on their Web site. Id. 44 Did Google Censor Basra Imagery UK TELEGRAPH, January 14, 2007.

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41 Bagram Air Base in Afghanistan.45 These types of information can aide terrorists in planning attacks and assessing weaknesses in military facili ties. The Army Corps of Engineers asked the Associated Press to destroy the information a bove and added additional guidelines to their current policies relating to the Internet.46 Army Intelligence officers believe that ma pping Web sites such as Google Earth are responsible for mortar attacks on a Brit ish Military Base in Basra, Iraq.47 Intelligence officers seized documents that contained the longitude a nd latitude of bases in Basra, and aerial photos downloaded from Google Earth with vulnerable sites listed on the back. Pr ior to Web sites such as Google Earth, terrorists had to be in the vi cinity of the target in order to obtain this information.48 This gave the military a greater chance of identifying security breaches and apprehending suspicious people. The military has several directives to guide webmasters on information that should not be placed on the Internet. A Hea dquarters Department of the Ar my memorandum instructed all battalion commanders to perform an OPSE C review of their units Web sites.49 The memorandum provided a checklist of information that was considered a violation of AR 530-1, the Armys operational security directive. Th e memorandum instructed commanders to remove the information and disseminate to soldiers viol ations of OPSEC. The checklist categorizes 45 Associated Press, Government Agencies Posting Sensitive, Need to Know Material On-line, FOX-NEWS, July 12, 2007, http://www.foxnews.com/story/ /0,2933,289011,00.html. ( last visited Oct.12, 2007). 46 The Army Corps of Engineers policy for civilian contractors states that blueprints an d plans are not to be placed on the Internet for public or private use. 47 Thomas Harding, Terrorist use Google Earth to hit UK Troops TELEGRAPH January 13, 2007, http://www.telegraph.co.uk/news/main/ (last visited Oct. 12, 2007). 48 U.S. Department of the Army, Field Manual 3-19.30, Physical Security (January 8, 2001) [hereinafter FM 319.30]. 49See Memorandum from the Director Information Operations, to Battalion level Commanders (6 August 2006), http://www.wsmr.army.mil/workforce /informationassurance/tasker_op sec_review_for_websites.pdf (last visited Oct. 18, 2007).

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42 categories of OPSEC violations into the person al information, technical data, administration, operations, plans and training, comm unication and logistics and maintenance. The logistical and maintenance guidance stated that mapping, imager y and special documentation is a violation of OPSEC and should not be placed on Department of Defense Web sites. Although mapping and imagery is a violation of OPSEC, the imagery of all military bases is available through Google Earth.50 John Pike, the director of Globalsecurity.or g, has stated that imag es on Google Earth are not a danger to national security because the images posted by Google Earth are not newly acquired images and the images ar e too outdated to pose a threat.51 Although the images on Google Earth are not newly acquired, Google Ea rth does simplify gaining information about military bases. In analyzing the Google Earth Web site a nd comparing the information against mission essential vulnerable areas, physical security prog rams and operational security programs several violations occurred. Below is an image taken from Google Earth that clear ly shows an airfield, UH-60 Blackhawk helicopters and a black and yellow 1st Cavalry Division patch.52 The airfield is a permanent infrastructure that most likely will be utilized by all aircraft that occupy Camp Taji, Iraq. An adversary could obtain the longitude and latitude of the airbase, the number and type of aircraft, and the location of aircraft main tenance facilities. Airfie lds are listed as mission essential vulnerable areas and ar e considered unclassified but se nsitive that should be protected.53 50 U.S. Department of Energy, s upra note 3. 51 Katie Hafner, Governments Tremble at Googles Birds Eye View, NY TIMES, Decembe r 20, 2005 at A1. 52 The image was found by typing Taji, Iraq in the search bar on the Google Earth Web Site http://google.earth.com (last visited Oct. 18, 2007). The exact date of the image is unknown. The black and yellow patch was painted in 2004 by the 1st Cavalry Division. The author of this thesis was there when the patch was painted. 53 6 U.S.C 482 (2004).

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43 The information is unclassified based on th e criteria in EO 12598. However, although information is unclassified does not mean it is not sensitive or considered a MEVA (mission essential vulnerable area).54 Figure 2-1. Taji, Iraq The image below clearly depicts air capabilities in Afghanistan. The image, similar to the airfield in Taji, illustrates the formation of aircraft, the location of ai rcraft and the types of aircraft available. Although the exact timeframe of picture is unknown, a lot of information about U.S. forces can be gathered. 54 U.S. Department of Army, s upra note 23.

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44 Figure 2-2. Bagram Air Base, Afghanistan A Google Earth search of Balad Airbase generated the image below. Imagery of the entire base includes an image of a UH-60 Blac khawk helicopter in flig ht over the airbase. The imagery depicts F-16 aircraft Chinooks, and Blackhawk aircraft.55 The image combined, with a Google search for textual material about Balad Airbase, provides information about base capabilities, approximate number of troops, the mission of the base, and placement of aircraft.56 The number and types of aircraft can be estima ted by scanning the imagery provided by Google Earth. Army regulations state this type of information is considered sensitive but unclassified.57 55 The image above depicts only UH-60 helicopters. In or der to view additional aircraft scan throughout Balad Airbase. 56 A Google Search for textual material using the words Balad Airbase provides information that Balad is the major HUB for the Airforce, a supply retransmission HUB and home to radar antennae. 57 U.S. Department of Army, supra note 23.

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45 Figure 2-3. Balad Airbase, Iraq The image below is of a communication facil ity on Camp Victory in Iraq. AR 190-13 stated that communication facilities are consider ed mission essential vulnerable areas. The image depicts a satellite and several vehicles located on hill. Communication facilities are instrumental in proper dissemination of information over vast distance. If an adversary was able to interrupt communication that would severely di srupt the ability of the military to complete a mission. The image below Earth of a communicati on retransmission site at Camp Victory, Iraq was downloaded from Google.58 The limited number of vehicles, combined with the satellite, would lead an adversary to reason that the base is a communications facility. 58 The terrain in Baghdad and surrounding areas is mostly flat. A man-made lake was built for Saddam Hussein during his reign and the dirt used made one of the highest points in Baghdad. After the military occupied Baghdad the hill was named signal hill. The hill is a major signal retransmission center and is considered a vulnerable area necessary for the mission in Iraq.

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46 Figure 2-4. Signal Hill, Baghdad Iraq AR 190-13 stated that military motor pools are considered vulnerable areas essential to the Iraq mission. These areas are classifi ed MEVAs, areas vulnerable to mission accomplishment, because they contain vital equipm ent that, if destroyed, would impact military missions. The smaller image above is that of the motor pool is of the 1st Cavalry Division Headquarters, which the author used to pinpoint the estimated time of the imagery.59 The structure in the upper right corner is a memorial dedicated to the so ldiers that were killed during Operation Iraqi Freedom II. By viewing the mo tor pool an adversary can determine types of equipment, amount of equipment and formation of equipment. 59 Geographically the images are less than mile apart.

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47 Figure 2-5. Fort Hood, Texas Conclusion The U.S. military has gone to great le ngths to limit access to mission essential information. They have put fences around the ar eas and placed additiona l guards at the gate. The Department of Defense recently stated that content on the Internet is a deterrent to information security.60 Although Google Earth does not pos t images that are considered classified by EO 12958, it still provides enough inform ation to aid in an attack from the enemy. Google Earth, particularly when combined with other publicly available information, can impact military operations. The imagery of military bases both overs eas and in the continental U.S. negates regulations meant to protect sensitive military info rmation. A search of Fort Bragg, home of the 60 U.S. Department of Energy, s upra note 3.

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48 Delta Force and Special Opera tions, provides the user with the exact location of Special Operations Command Headquarter s with the building number. The Internet presents a significant challenge for military personnel. At the very least, it presumably would take enormous resources to monitor the information th at is placed on the Internet and to determine how it could impact military operations, let alone respond by moving or camouflaging all equipment and information.

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49 CHAPTER 3 REMOTE SENSING IMAGERY REGULATIONS It is the policy of the United States that activities in space should be devoted to peaceful purposes for the benefit of all mankind.1 Introduction Chapter 2 provided an analysis of U.S. Army regulations that govern the protection of information, operational security, and mission es sential areas. The chapter compared the information in the army regulations to items th at can be found on Internet sites such as Google Earth. Chapter 3 will discuss the current U.S. and U.N. regulations that cover remote sensing. The Committee on the Peaceful uses of Oute r Space (COPUOS) was started by the United Nations General Assembly as an ad hoc committee in 1958 after the successful launch of Sputnik I by the Soviet Union.2 In 1961 the General Assembly established COPUOS as a permanent committee under Resolution 1721. Resolution 1721 stated that space would fall under international law, and the continued advancements in space are to build economic and scientific developments CO PUOS was established to study and resolve legal problems that involve space.3 COPUOS main functions are to ensu re the peaceful use of outer space, encourage the use of outer space and review the legal issues invol ved with outer space, including remote sensing.4 1NANDASIRI JASENTULIYANA, INTERNATIONAL SPACE LAW AND THE UNITED NATIONS, 36 (Kluwer Law International 1999). The launch of Sputnik one started the sp ace race between the U.S. and the Soviet Union. Id 2 Id. Committee on the Peaceful uses of Ou ter Space (COPUOS) was originally an ad hoc committee. COPUOS has two subcommittees Scientific and Technical subcommittee and Legal subcommittee. The subcommittees meet annually to review the questions set forth to the General Assembly that pertain to their specific areas. Id 3 G.A. Res. 1721, U.N. GAOR, 16th Sess ., Supp. No. 17 at 6, U.N. Doc. A/5100 (1962). Resolution 1721 stated that International Law, including the Charter of the United Nations, applies to outer space and other celestial bodies and outer space and celestial bodies are free for exploration by all States in conformity with the international law are not subject to national appropriation. Id. 4 Jasentuliyana, s upra note 1.

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50 When COPUOS first convened, in May 1959, the Soviet Union, Czechoslovakia and Poland boycotted the meeting because they did no t agree with the scope of responsibilities of COPUOS or the lack of veto power.5 The Soviet Union felt that without a veto over issues before COPOUS the United States and its allies, in the majorit y, would ignore the concerns of socialist nations. But after, Soviet Premier Ni kita Khrushchev, Chief Director of the Soviet Union, publicly congratulated President John F. Kennedy on the successful orbiting of space by John Glenn in 1962. Soviet Premier Khrushchev proposed to President Kennedy that the two nations should combine their efforts in space.6 President Kennedy responded that the U.S. should collaborate with the Soviet Union in space which elated some political attitudes between the two nations. The U.S.-Soviet agreement led to the es tablishment of COPUOS as a permanent committee. COPUOS meets annually to discuss issues pertaining to space and to review any new developments in space relating to space. If any member of the U.N. has a concern relating to space it is supposed to submit a draft propos al to the committee fo r consideration. The COPUOS legal sub-committee negotia tes the legality and language of the draft proposal at the annual meeting. If the legal sub-committee deem s necessary the draft is forwarded to the scientific sub-committee for furthe r review. The draft is revised and reviewed, if the content can be agreed upon by the consensus7 of the Committee, the Genera l assembly adopts a resolution 5 Jasentuliyana, s upra note 1. In the 1960s the United States and Soviet Union were the leaders in space advancement. 6 Nikita Sergeyevich Khrushchev to John F. Kennedy, Feb. 21,1962, as printed in U.S. Congress, Senate, Committee on Aeronautical and Space Sciences, Documents on International Aspects of the Exploration and Use of Outer Space, 1954-1962, 88th Cong., 1st sess., 1963, p. 232. 7 Consensus is the acceptance of the discussed option to all its scopes, wh ich implies a common feeling by those that chose it. Consensus was used to create five treaties: 1) Treaty on Principles Governing Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (1967); 2) Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Object s Launched in Oute r Space (1968); 3) Convention on Intern ational Liability for Damage Caused by Space Objects (1972); 4) Co nvention on Registration

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51 containing the text.8 If the resolution becomes a treaty indivi dual nations decide to sign or not. If the resolution does not become a treaty, then it is considered a declaration of legal principles rather than a treaty, whic h are not legally binding.9 Prior to the advances in space, nations had complete sovereignty over their land, sea and air.10 Remote sensing provides the means for a country to gather inte lligence about another country without the countrys knowledge. Becau se no nation has sovereignty over space it is legal for a nation to gather informati on by remote sensing over another nation.11 International Laws Governing Space Remote sensing was discussed at COUPUS as early as 1968, but negotiations on regulating remote sensing did not begin until a draft propos al was submitted by Argentina in 1970. After 16 years of negotiations, COPUOS adopted the Principles Rela ting to Remote Sensing from Outer Space in 1986.12 The major point of contention duri ng negotiations was the interest of developing countries to have th e authority to approve of th e distribution of any imagery.13 The developed countries such as the United States wanted the freedom to collect and disseminate of Objects Launched into Outer Space (1975); and 5) Agreement Governing th e Activities of States and Moon and Other Celestial Bodies (1979). See Julian Hermida, Legal Basis for a National Space Legislation xvii KLUWER ACADEMIC PUBLISHERS (2004). 8 Jasentuliyana, s upra note 1 at 27. 9 Jasentuliyana s upra note 1 at 27. 10MERRIAM-WEBSTER COLLEGIATE DICTIONARY (11th ed.1993) defines sovereignty as the exclusive right to exercise supreme authority over a geographic region, group of people, or oneself. Page 265 11 Article II of the Outer Space treaty reads, Outer space, including the mo on and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. 12 Jasentuliyana, s upra note 1. The Principles are not bi nding as a treaty but as guide lines for the countries in the U.N. to follow. 13 A country is considered developing is when compared to other lacks industrialization, infrastructure, developed agriculture, and developed natural resources, and suffers from a low per capita income as a result. a vailable at http://www.teachmefinance.com/Financia l_Terms/underdeveloped_country.html (last visited Oct. 3, 2007).

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52 imagery without contacting the country the image was obtained from.14 Although the Principles were adopted by consensus of the nations par ticipants, the developi ng countries were not satisfied with the terms and requested the COUPUS to continue to look for alternatives that would protect the developing countries uses of remote sensing.15 The Principles Relating to Remote Sensing of the Earth from Outer Space can be broken down into fifteen principles.16 Define key terms relating to remote sensing; Remote sensing should benefit all countries with special consider ation for developing countries; Remote sensing falls under international law; Remote sensing should benefit all countries re gardless of their scientific or technical capabilities; Remote sensing should be a collabor ative effort between countries; Joint collection, stor age, processing and interpreting centers; Countries who utilize remote sensing will prov ide technical assistance to other countries that are not technol ogically advanced; U.N. and countries within the U.N. w ill promote international co-operation; Countries should make information on remo te sensing available to other nations, particularly underdeveloped nations; Remote sensing should protect the environment; Remote sensing should help protect mankind from natural disasters; Countries should have access to th e imagery at a reasonable cost; Nations should consult with other nations referencing remote sensing; Information found utilizing remote sensing th at could be harmful to the Earths environment will be disclosed immediately; Disputes involving remote sensing will be settled through established procedures for the peaceful settlement.17 14 Jasentuliyana s upra note 1 at 43. 15 Report to the Committee for th e Peaceful uses of Outer space U.N. Doc A/41/20 (June 26,1986). To date no further changes have been made to the Principles. 16 Principles Relating to Remote Sensing of the Earth from Outer Space, G.A. Res 41/65 at 115, U.N. Doc 53 (Dec. 3, 1986). 17 Id.

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53 The Principles Relating to Remote Sensing of the Earth from Outer Space were not accepted as a treaty and therefor e are not binding on all nations.18 However, several nations have incorporated them into their national remote sensing policy.19 As seen throughout the Principles Relating to Remote Sensing special consideration was given to developing countries. In the initi al draft presented by Argentina to COPUOS, the Argentine officials stated that remote sensing would benefit all countries, especially those that are not fully developed. The draft emphasized the need to pr otect developing countries from being taken advantaged of by de veloped countries. The concern was that developed countries would have the technology to gather information by remote sensing and use that to exploit the resources of undeveloped c ountries and use information to their economic advantage.20 The suggestion that remote sensing could be used to discover mineral resources in countries concerned undeveloped countries was seen as a significant economic threat by officials. This was greatly overstated and the information on natu ral resources ga thered through remote sensing was of little benefit.21 In reality remote sensing was not a significant resource for identifying mineral resources.22 The principles stressed the need for developed countries to assist undeveloped countries in advancements in remo te sensing and access to imagery obtained from remote sensing. 18 Jasentuliyana, s upra note 1. In April 2006 Greece proposed th at the Principles Relating to Remote Sensing of the Earth from Outer Space should be revised as a Treaty. To date the principles have not been revised. 19 The following countries have a policy governing remote sensing: Argentina, Australia, Austria, Belgium, Brazil, Canada, China, France, Germany, Hong Kong, India, Iran, Israel, Italy, Japa n, Malaysia, Nigeria, Poland, Russia, South Africa, South Korea, Spain, Thailand, Turkey, Ukra ine, United Arab Emirates, United States and the United Kingdom. The U.S. is recognized as a leader in remote sensing and most nations have modeled their policy after The Land Remote Sensing Commercialization Act of 1992. 20 Jasentuliyana, supra note 1, at 43. 21 Jasentuliyana, s upra note 1. 22 Charles C. Okolie, International Law of Satellite Remote Sensing and Outer Space, 86 AMER JOUR OF INT L (1992) at 221.

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54 Although several technologica l advances have been made, the guidelines governing remote sensing have not been updated since 1986. Several countries have id entified the need to review the regulations but no evidence was found by th e author of this thesis to determine if any substantial review has occurred. The Principles Relating to Remote Sensing of the Earth from Outer Space are the only international guidelines that govern remote sensi ng although several treaties have provisions that could be applied to remote sensing. The Treaty on Principles Governing th e Activities of States in the Exploration of Outer Sp ace including the Moon and other Ce lestial Bodies (1967) stated space will fall under international la w, free to access and the explor ation of space will be done to benefit all nations.23 Based on this treaty the use of space for remote sensing cannot be governed by any one nation. 24 The treaty declares that all nations have the right to use outer space without discrimination as long as it is done to promote peace. The most common theme in all regulations governing space and remote sensing is th e general term that is not defined peaceful use. If a country uses satellite imagery from remo te sensing to plan and ex ecute an attack, as the U.S. did during the Gulf War, is that a peaceful us e of space? Another treaty, The Declarati on on International Cooperation in the Exploration and the Use of Outer Space for the Benefit and in the In terests of all States, Taking into Particular Account the Needs of Developing Countries does not sp ecifically discuss remote sensing but, 23 Treaty on the Principles Governing the Activities of States in the Explor ation and use of Outer Space including the Moon and other Celestial Body, January 27, 1967 18 U.S.T 2410, 610 U.N.T.S. 205, T.I.A.S No. 6347. The treaty contains seventeen articles regulating the exploratio n of outer space. [Known hereinafter as the Outer Space Treaty]. 24 Jasentuliyana, s upra note 1.

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55 similar to the Outer Space Treaty, does provide relevant guidelines.25 The Declaration was brought before the General Assembly because deve loped countries feared that the technical gap between developed and undevelope d countries put undeveloped count ries at a disadvantage with regards to remote sensing. The draft declarat ion in 1996 stated that space should be used to promote peace and that cooperation in space projects should be mandated by the General Assembly. The Declaration provides guidelines to promote the peaceful use of outer space in general and fosters the joint efforts of nations in space. The declaration provides guidance to ensure all nations are acti vely working together in the advancements in space. United States Regulations on Remote Sensing In the United States, President Dwight D. Ei senhower signed the Na tional Aeronautics and Space Act in 1958 to govern U.S. activities in space.26 The Space Act stated U.S. activities in space are to be for peaceful purposes to benefit a ll nations. In addition, the use of space will be regulated by a civilian agency. The Space Act of 1958 stated that in order for the U.S. to remain competitive in aeronautics and space te chnology developments in the field needed to continue.27 This led to satellites being launched into space for reconnaissance. The first U.S. satellite used for remote sensing was launc hed in 1959. From 1959 to1962, Corona satellites 25 The Declaration on International Coope ration in the Exploration and the Use of Outer Space for the Benefit and in the Interests of all States, Taking into Particular Accoun t the Needs of Developing Co untries, December 12, 1996, U.N.G.A. Res. 51/122. [known hereinafter as the Declaration] 26 The National Aeronautics and Space Act of 1958, 42 U.S.C. 2457. [known hereinafter as the Space Act of 1958]. 27 Id The Nation Aeronautics and Space Administration was cr eated in October 1958 fo r national defense. The United States and the Soviet Union were the two focal points of the Cold War. The Cold War refers to the conflict between the U.S., Soviet Union and their allies. The Cold War lasted from the 40s to mid 90s. The Cold War involved competition in technology, military, economy, and industry. A direct result of the Cold War was space exploration creating the space race.

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56 were launched as spy satellites for military surveillance.28 The satellites were launched with small panoramic cameras that were later released and floated to the Earth on parachutes. The intelligence gathering sa tellite could produce a 7.5 meter high resolution image of Earth. President John F. Kennedy placed space high on his presidential agenda. However, Kennedy was most famous for his vision to send a man to the moon and did not believe remote sensing was a priority. Remote sensing during President Kennedys administration was performed by spy airplanes as opposed to satel lites. He believed the nation that led space exploration would be th e leading nation in technology, economy, and intelligence. He also was the first president to advo cate for a joint space program with the Soviet Union. President Lyndon Baines Johnson continued to follow President Kennedys space policy after Kennedys assignation. Pres ident Richard M. Nixon had six objectives for space: 1) to explore the moon, 2) explore planets, 3) reduc e the cost of space operations, 4) extend mans ability to live and work in space, 5) hasten and expand the practical applic ations in space and, 6) encourage international cooperation in space.29 Although President Nixon had objectives for space, none addressed remote sensing. However, there were no significant space policies put into effect during President Gerald Fords term in office. In Presidential Directive 37 si gned in 1978, President Jimmy Cart er outlined his National Space Policy. The policy stated that the U.S. will support the comme rcialization of space exploration in all areas except remote sensing.30 The policy stated that remote sensing satellites 28 Corona satellites were launched by the U.S. Air Force as a surveillance program. The imagery taken by Corona satellites was secret until 1992, when it was declassified. 29 President Richard Nixon Statement About the Future of the United States Space Program, THE AMERICAN PRESIDENCY PROJECT, Mar. 7, 1970, http://www.presidency.ucsb.edu/ws/index.php?pid=2903 (last visited at Oct. 18, 2007). 30Pres. Dir. 37, NATIONAL SPACE POLICY (May 11, 1978), http://www.globals ecurity.org/space/library/ policy/national/nsc-37.htm (last visited Oct. 18, 2007)

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57 necessitated more stringent govern ment regulations including lim its on resolution in order to protect national security.31 In 1984, the United States enacted the firs t policy on governing remote sensing which clarifies the use of the commercial satellite. President Ronald Reagan, in 1984, enacted the first policy that reversed the existing policies on re mote sensing when he signed The Land Remote Sensing Commercialization Act. The Land Remote Sensing Commercialization Act (LANDSAT Act) provided guidance fo r the commercialization of remote sensing. The act stated there should be limited government involvement in remote sensing, that space should be privatized to enhance the ability of the U.S. to stay competitive with limited cost to the government.32 However, President Reagan had limited success in increasing the market for remote sensing. During his administration, the im agery from satellites wa s very expensive and there was little market for it.33 In 1992, during George H. W. Bushs presiden cy, The LANDSAT Act was replaced by the Land Remote Sensing Act of 1992. The act said th at remote sensing has not been a successful program in the U. S. and therefore the U.S. wa s in jeopardy of losing its national superiority.34 The Remote Sensing Policy stated that national security depends on the United States continued advancement in remote sensing technology. One of the major purposes of the Land Remote Sensing Act was to state that full commercialization of the Landsat program cannot be achieved 31 Id 32 Land Remote Sensing Commercialization Act, 15 U.S.C.4201 et. seq. (1984). The act is commonly referred to as the LANDSAT Act of 1984. The act aut horized NOAA to seek co mmercial bids on remote sensing a move toward the privatization of remote sensing. Id. Privatization refers to the transfer a function from government (public) to business (private) sectors. 33 The Gulf War was a leading component in the U.S. decision to commercialize remote sensing imagery. The U.S. spent millions of dollars to obtain imagery of Iraq and used that imagery to defeat Saddams Army. 34 Id.

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58 within the foreseeable future, and thus should not serve as the near-term goal of national policy on land remote sensing.35 The policy stated that the mo st effective way for continued advancements in remote sensing was to keep the program unclassified and to foster open skies and nondiscriminatory access.36 The Foreign Access to Remote Sensing Sp ace Capabilities, commonly referred to as Presidential Decision Directiv e 23 adopted by President William Clinton, based on The Land Remote Sensing Act of 1992.37 PDD 23 was the fist remote sens ing policy that stated of remote sensing imagery by U.S. satellites could be sold internationally. Due to this PDD 23 provided several provisions for national secu rity as related to re mote sensing. PDD 23 also stated the U.S. would have involvement in foreign remote sensing programs by establishing an export on technology involving remote sensing. PDD 23 outlines the criteria for obtaining a license for remote sensing satellites. The li cense issued is for a set amount of time and the criteria to obtain a license includes: 1) the licensee must maintain accurate records of satellite activity; 2) any encryption device used for remote sensing must be approved by U.S. government; 3) in times of increased risk to national security the licensee mu st limit distribution of imagery; and 4) the U.S. government has access to all data and equipment held by the licensee.38 35 Land Remote Sensing Commercialization Act, supra note 32. The bill was set to ensure that the U.S. remains the leader in land remote sensing. 36 Id. 37 U.S. POLICY ON FOREIGN ACCESS TO REMOTE SPACE SENSING CAPABILITIES, H.R. 6133, 103d Cong (1994). [Hereinafter known as PDD 23] PDD 23 was signed by President William Clinton. PDD 23 stated that in order to export remote sensing capabilities, the U.S. must have a government-to-government agreement, and constraints on resolution and data must be agreed upon. Licenses are issued to monitor actions relating to remote sensing. The license is issued by the National Oceanic and Atmospheric Administration (NOAA). The NOAA will periodically review the license to ensure the licensee is in compliance with regulations. 38 Id

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59 PDD 23 provided safeguards for national security by providing provisions that monitor remote sensing, limit data collection a nd limit distribution to foreign nations.39 PDD 23 was the first policy to identify shutter control, a clause stating that the government has the right in times of national security to interrupt satellites from retrieving im agery through remote sensing and can stop distribution of imagery.40 In 1997, Congress enacted the National Defense Authorization Act which in part specified restri ctions of collecting imag ery of Israel, commonly called the Kyl-Bingman Amendment. 41 The policy was put into effect after the Israeli government officials expressed concern that re mote sensing would e ndanger their national security. The Kyl-Bingman Amendment stated that U.S. companies may not collect or disseminate imagery of Israel at a better resolutio n than available from other nations with remote sensing capabilities.42 In 2003, a little more than a decade after th e adoption of PDD 23, President George W. Bush authorized the U.S. Commercial Remote Sensing Policy, superseding PDD 23. The policy stated that several technological advancements and national security issues had prompted the need for revised policies for remote sensing. Th e policy goal of the presid ential directive is to protect national security and foreign policy by continuing to advance technology in order to dominate the remote sensing industry. The polic y stated that commercial remote sensing should 39 See Supra 31. 40 PDD 23, supra note 23. Although PDD 23 does not coin the term shutter control it discusses the U.S. government control over commercialized remote sensing activities. 41National Defense Authorization Act for Fiscal Year 1997, 1745, Pub L. No. 104-201, HR. 3230, S. 1064 104th Cong., 2nd Sess (1996).[herein after known as Kyl-Bingman Amendment The National Defense Authorization Act includes but is not limited to base closures, funding for Iraq, military pay raises and military weapons. Id. 42 Id. Based on other countries laws the resolution could not be better than 2 meters. Id.

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60 be utilized for military, intelligence foreign policy, and homeland security.43 The policy is set to ensure that U.S. commercial re mote sensing providers 1) meet the needs of government agencies, 2) develop an equitable rela tionship between commercial re mote sensing agencies and government agencies, and 3) ensure commercial re mote sensing agencies are competitive with other nations advancing in commercial remote sensing.44 The policy is a U.S. government commitment to support commercial companies such as DigitalGlobe in remote sensing.45 In August 2006, President George W. Bush au thorized a new U.S. National Space Policy.46 As mentioned in many previous presidential dire ctives the policy reiterates that advances in space should be used for peaceful purposes.47 The Bush administration enacted the U.S. Commercial Remote Sensing Space Policy updating the commercialization of remote sensing policies set forth in PDD 23. The Commercial Re mote Sensing Policy stated the U.S. would: Compete successfully as a provider of remo te sensing space capabilities for foreign governments and foreign commercial users, while ensuring appropriate measures are implemented to protect U.S. national security and foreign policy interests.48 The appropriate measures to protect national security include but are not limited to the governments right to restrict operations and to implement additional controls.49 In 2006 President Bush amended his Space Policy to add additional safeguards for national security. The policy stated that developments in remote sensing are important to protecting 43 U.S. Commercial Remote Sensing Policy (April 25, 2003), http://www.globals ecurity.org/space/library/ policy/national/nsc-37.htm (last visited Oct. 2, 2007). 44 Id. 45 DigitalGlobe is an international leader in remote sens ing. The 2001 launch of the Quickbird satellite provides commercial imagery at high resolution. 46 All policies and directives since 1984 share similarities but address the is sues involving the current climate. 47 US National Space Policy (August 31, 2006), http://www.globalsecurity.org/sp ace/library/policy/national/ncs37.htm (last visited Oct. 15, 2007). The policy supersedes PDD/NCS-49. 48 National Defense Authorization Act, s upra note 41 49 National Defense Authorization Act, s upra note 41.

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61 national security. The unclassified section of the policy does not address remote sensing but does provide national security guidelines that can be used for remote sensing such as the: Establish and implement policies and pro cedures to protect sensitive information regarding the control, dissemina tion, and declassification of defense activities related to space.50 National security is one of the major consid erations as policies continue to evolve for developing space programs and advancements in remote sensing. The goal of commercializing remote sensing was to lessen the cost to th e government while simultaneously advancing and protecting national security.51 The most controversial clause in the remote sensing license agreement in PDD 23 is the shutter control clau se, as will be more apparent in the next chapter. Conclusion Since the beginning of the space race, superiority in space has been the overall goal of the U.S. in part because of the Cold War. Ever y president since Eisenhow er has encouraged the continued exploration of space. Although it has been higher on some administrations agenda than others, the space race competition has been considered when developing national policy. As technology advancements increased the uses of remote sensing became less expensive and more easily applied. President George W. Bush s National Space Policy stated, "Freedom of action in space is as important to the Un ited States as air power and sea power."52 The importance in space has changed from President Eisenhowers Space Policy. Eisenhower, unlike 50 US National Space Policy, s upra 44 at 4. 51 Fact sheet: U.S. Commercial Remote Sensing Space Policy available at http://www.whitehouse.gov/news/releases/2003/05/20030513-8.html (last visited October 3, 2007). 52 See Supra 41.

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62 Kennedy, did not need the prestige of being firs t in space exploration but favored reconnaissance satellites in space. Both U.N. and domestic principles and regul ations state that space should be used for peaceful purposes that benefit all nations. The need to protect national security is stated throughout the U.N. and domestic policies but there are few guideli nes how to implement this. The U.N. regulations stated that all issues pert aining to space or disputes involved with space-including remote sensing--should be brought be fore Committee on the Peaceful uses of Outer Space (COPUOS). The current U.N. principles on remote sensing are not binding and offer little protect to national securi ty of any country. The U.S. policie s aim at stricter policies on remote sensing but cannot regulate inte rnational satellites. The a dvances in technology, such as satellites, GPS and, Internet, and the easy access to remote sensing imagery on Web sites such as Google Earth, suggest the need for u pdated international regulations.

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63 CHAPTER 4 FIRST AMENDMENT AND REMOTE SENSING That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.1 Introduction The Bill of Rights was enacted on December 15, 1791, in order to limit the power of the government and protect individual rights.2 Although the Bill of Ri ghts was enacted to protect individual rights throughout history the government has enacted laws limiting civil liberties to protect national security. One of the jobs of the judiciary branch is to decide if the laws enacted are constitutional, and a few laws limiting speec h have been declared unconstitutional. The Sedition Act of 1798 was one of the first laws en acted that caused controversy. The Sedition Act of 1798 signed by President John Adams stated it was illegal to publish false, scandalous, and malicious writing.3 The Anti-Federalists claimed that the Sedition Act of 1798 was a violation of the Bill of Rights. The Sedition Act of 1798 expired in 1801 and President Thomas Jefferson reversed all convictions under the Sedition Act of 1798. The Sedition Act of 1798 is not the only law th at was enacted to prot ect national security during times of war or conflict.4 It is most common in times of war for laws to be enacted that 1 Virginia Declaration of Rights of 1776, 12, in Federa l and State Constitutions 7:3812, 3814 (Francis N. Thorpe ed. 1909). 2 U.S. BILL OF RIGHTS, available at www.archives.gov/nationa l-archives-experience/char ters/bill_of_rights.html (last visited at Oct. 17, 2006). Several scholars, lawyers, and judges have attempted to define what the founding fathers meant when writing and adopting the First Amendment meant. Some jurists such as Justice Hugo Black suggest that there the First Amendment should be absolute, st ating that there can be no restrictions on the individual rights of free speech, press and to peacefully assemble. 3The Sedition Act was challenged by many Anti-Federalists The Sedition Act of 1798 was set to expire in 1801after Presiden t Adams term. GEOFFREY STONE, PERILOUS TIMES: FREE SPEECH in WARTIME: FROM THE SEDITION ACT OF 1798 TO THE WAR ON TERROR (W.W. Norton, 2005). 4 The Espionage Act is codified as 18 U.S.C. 2388 (191 7). The Espionage Act stated it was a crime to disrupt the success of the armed forces or aide th e enemy. The Sedition Act of 1918 was an amendment to the Espionage Act of 1917 and stated a person could be convicted "disloyal, profane, scurrilous, or abusive language". The Smith Act

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64 lean more toward national security than individual rights.5 Because of the continued threat to national security a National S ecurity Act in 1947 was enacted, The National Security Act established the U.S. National Security C ouncil and reorganized the National Military Establishment (NME) creating the Department of Defense.6 The National Security Act outlines programs that serve to pr otect national security.7 Throughout history a pr oper balance between the governments role to protect national securi ty and the peoples rights under the constitution have been continually tested. It is difficult to argue that our founding fathers could have imagined how far technology would advance since the 1790s. Lee Bollinger, noted First Amendment scholar, stated that technology creates new battle s for the First Amendment.8 Technological advances also increase new challenges for national security. The balanc e of national security and individual rights are not always easily struck. As st ated throughout this thesis, the em ergence of satellite imagery has invoked discussion of which regulations would be th e most appropriate. The inherent desire of the press to have the right to re port on issues that aff ect citizens and the governments desire to maintain information superiority on issues that c ould affect national secur ity has caused friction. The technological advances of sate llite remote sensing have rais ed the question of whether the First Amendment restricts the ab ility government to control the distribution of the satellite images. of 1940, 18 U.S.C 2385. The Smith Act stated a person could be convicted for advocating the overthrow of the U.S. government. 5 GEOFFREY STONE, PERILOUS TIMES: FREE SPEECH in WARTIME: FROM THE SEDITION ACT OF 1798 TO THE WAR ON TERROR (W.W. Norton, 2005). 6 National Security Act of 1947, Pub L. No. 235, 80, 61 Stat. 496 (amended 1949). 7 Id. 8 Lee C. Bollinger, Freedom of the Pres s and Public Access, MICH L. REV. 1, 24 (1976).

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65 The technological advancements such as th e Internet and satellite imagery in the information age have challenged national security protections. It is difficult to monitor such a vast medium that has so many users from se veral countries. Not only do journalists use information from the Internet; but so do those w ho want to harm the U.S. and its citizens. Joanne Gabrynowicz, a remote sensing expert, stated that citizens are part of the open information society and the government must weigh the fears the information could cause heavily before closing or limiting an open society .9 In chapter two comparative analyses indi cated that information on Web sites such as Google Earth does provide information the military has deemed sensitive to military operations. These images are available to anyone who has a computer and an intern et connection. Google Earth is not regulated by the Land Remote Sensi ng Act because it doesnt own the satellites that provide the imagery and therefore it might be difficult to prosecu te the company for distributing the images during what is being called a War on Terror.10 If the imagery on Google Earth is sensitive to military operations should it be removed from the Web site and deny access to the public access? There is a significant amount of research on evaluating First Amendment concerns when restricting information based on national security. This chapter will limit the scope of the legal analysis to the possible impact of the First Amendment rights on the regulation of satellite imagery of military areas, specifically on the shutter control provisions in The Land Remote Sensing Policy Act. 9 Missy Fredrick, Internet Availability of Imag ery Worries Some World Leaders Space News, Nov. 7, 2005 http://www.space.com/ spacenews/archive05/ Google_1107 05.html (last visited Oct. 18, 2007). 10 The images are purchased through co mmercial companies that are in the U.S. regulated by the Land Remote Sensing Act.

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66 The Press Right to Access The media has consistently tried to gain access to military operations during times of war but has the press has not had free reign to go or report on the military operations. For example, the press and public have been kept from military installations during World War I, II, Vietnam, Korea, Grenada and the Persian Gulf.11 During Operation Iraqi Freedom, the military in an unprecedented event embedded over 600 journalists to accompany troops, but the military set forth strict guidelines for the embedded journalists.12 In order to determine if the First Amendment applies to accessing sensitive military areas on Google Earth the right of access should be examin ed. In other words, is there a constitutional right of access by journalists and/or the public to images of military bases on Google Earth? The first suggestion that a constitutional right of access may not be in order is that most U.S. military bases provide only limited access of journalist to both ground and air spaces. For example, a U.S. district court ruled in 1993, in the JB Pictures, Inc v. Department of Defense that journalists do not have a Fi rst Amendment right to access D over Air Force Base. The court in that case said the First Amendment does not give a per se right of access to government property.13 The U.S. Circuit Court of Appeals for th e District of Columbia upheld the lower 11 The purpose of this thesis is not to evaluate the relatio nship between the media and military but to determine if it is constitutional to regulate assess or distribution of military operations and bases on websites such as Google Earth. The Presidents during each of the wa rs mentioned above had different po licies for access to military operations during war. President Reagan stated it was at the discre tion of military leaders to provide or deny access to the media during the Grenada invasion. President George H. Bush had restraints on the press and generally had press pools or 5 oclock follies. All press reports had to be re viewed before they could be released. During World War II reporters had free access to the battlefield but their reports ha d to be reviewed by offici als before they could be released. The Department of the Army. Public Affairs Guidance on Embedded Media. Washington D.C., 2003. 12 The Department of the Army. Public Affairs Guidance on Embedded Media. Washington D.C., 2003.The military set fourth guidelines that stated it could issue embargos on information collected from embedded journalists but journalists also could operate independently of the imbedding process and therefore not be subject to restrictions. Id. 13 JB Pictures, Inc v. Department of Defense, 21 M.L.R, 1564 (1993). The case involved media groups who were denied access to Dover Air Force Base. The air base served as a point for the bodies of soldiers killed in action

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67 courts opinion, ruling constitutional closur e of Dover Air Base to the media.14 The JB Pictures Inc relied on several U.S. S upreme Court cases including Pell v. Procunier, Saxbe v. Washington Post and, Houchins v. KQED. Pell v. Procunier, Saxbe v. Washington Post and, Houchins v. KQED In Pell v. Procunier, Saxbe v. Washington Post and, Houchins v. KQED the U.S. Supreme Court ruled the press does not have spec ial access to prisons. In Pell, the press and inmates of the California State Prison system brought a suit against the Department of Corrections to repeal a ban on pr ess ability to choose which inmates to interview face to face. Rule 415.071 of the California Department of Co rrections manual stated the media interviews with certain specifically named inmates would not be permitted. The provision was challenged as unconstitutional under the First Am endment by press and inmates. A 5-4 majority of the U. S. Supreme Court, in Pell v. Procunier stated that the press does not have an automatic constitutional right to access to prisons.15 In Saxbe v. Washington Post the Court ruled "newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public."16 In Saxbe the Court stated that the First Amendment rights were not abridged by banning press from access to inmates in prison. Houchins v. KQED, the Supreme Court said, in a 4-3 decision, that th e First Amendment does not mandate the right during several wars including the Gulf War. The governmen t restricted access to the press and that prompted a law suit citing First Amendment rights. In the courts reasoning, the court relied on at least in part the argument that the media access to the White House was limited, and that was not considered a violation of First Amendment Rights. 14 JB Pictures, Inc v. Department of Defense, 86 F. 3d 236 (1996) 15 Pell v. Procunier, 417 U.S. 817 94 S. CT 2800 (1974). 16 Saxbe v. Washington Post, 417 U.S. 843 (1974). The press stated that Policy Statement 12201A was unconstitutional because it violated the First Amendment right s of the press and prisoner s. The press wanted to interview prisoners in federal prisons in Pennsylvania and Connecticut.

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68 of access to county jails. 17 The Supreme Court opinion stated the press as an institution does not necessarily have a right of access to governme nt institutions in order to gather news. Military bases, like prisons, normally provide only limited access. If the press does not have a right of constitutional access to prisons then the same reasoning also may apply to military bases. The district court decision in JB Pictures said just that. The military, like prison staffs, would find it difficult to protect the fa cilities and critical information without the restrictions on both the press and the public. If press can be cons titutionally restrained from access to bases, to protect military security, the sa me logic might also apply to access to pictures of the base available through remote sensing. Although no court has direc tly ruled whether the press in the United States has access to the im ages acquired by remote sensing, court precedent clearly establishes that the government can freq uently ground the rights of access to the press on the very limited access rights of the public to secure institutions. Under that court precedent, the military may well have the right to determine re strictions on access to the images disseminated on the Internet by Google Earth or any satellite licensee providi ng images to Google Earth. The shutter control provision in the Land Remote Se nsing Policy Act is an example of increased law. The provisions said that the government has the right to turn off re mote sensing satellites, restrict the sale of images obtained from Googl e Earth, and lower resolution of imagery obtained by remote sensing in times of an increased threat national security.18 Although the courts have not directly ruled in cases involvi ng remotes sensing imagery severa l past cases appear to apply. 17 Houchins v. KQED, 438 U.S. 1 (1978) In Houchins v. KQED the press wanted access to a county jail after an inmate had committed suicide. A psychologist had leaked the conditions in the jail may have been a factor in the prisoners suicide. The press was allowed a tour of the jail but they were restricted from certain areas. 18 The Commercial Land Remote Sensing Act 15 U.S.C 5601 (1992).

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69 The Freedom of Information Act Although the U.S. Supreme Court has ruled that the First Amendment does not guarantee a right of access to government controlled property, Congress has adopted legi slation that provides access to massive amounts of government information. The Freedom of Information Act (FOIA) was enacted as an instrument used to pr ovide citizens with access to the government.19 All information is not available for release under the FOIA. The FOIA contains nine exemptions to protect information from public release.20 To protect national securi ty Exemption One protects information form being released if the information: specifically authorized under cr iteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and are in f act properly classified pursuant to such Executive Order.21 In order for information to be exempt unde r Exemption One of the FOIA, the government must prove the information is classified and it has the potential to cause harm to national security.22 Because it is unlikely that the Constitution would require access to military information the question is whether any statue re quires nondisclosure of remote sensing. Remote Sensing could be protected from disclosure unde r the classification order of the president under Exemption One. However, Remote Sensing is more dire ctly protected under FOI Exemption Three. Exemption Three, often called the Catch-all Ex emption, provides exemptions authorized by 19 Letter from the Coalition of Journalist for and Open Government, to House and Senate Conference Committee (Sept. 10, 2004) available at http://www.cjog.net/protest_s atellite_images_and_foia.html (last visited October 18, 2007) 20The nine exemptions are for national security, internal agency rules, information exempted by other statues, business information, interand intraagency memorandum personal privacy, law enforcement, records of financial institutions and oil well data. The Freedom of Information is codified 5 U.S.C. 552 (b) (2003). After evaluating all nine exemptions commercial remote sensing data falls under exemption one. 21 The Freedom of Information is codified 5 U.S.C. 552 (b) (2003). 22 Id.

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70 statues outside the FOIA. In 2005, in order to add greater protection to national security in times of conflict the, Department of Defense re quested additional exemption protection from commercial land remote sensing beyond the Remo te Sensing Act. In the National Defense Authorization Act for Fiscal Y ear 2005, Congress specifically adde d additional provisions that stated: The requirements to make information availa ble under section 552 of title 5, United States Code, shall not apply to land remote sensing information.23 Under Exemption Three of the FO IA states that FOIA does not apply to matters that are specifically exempted from disclosure by statue.24 So even if imagery on Google Earth cannot be classified under Exemption One, it is st ill exempt under FOIA Exemption Three. U.S. v. Reynolds In addition, the U.S. government has a way of controlling images provided by private corporations not subject to U.S. law or forei gn governments. Prior to the FOIA, the U.S. Supreme Court in U.S v. Reynolds stated the government can withhold information considered privileged because of national security implications. In Reynolds a military aircraft had crashed, killing civilian passengers. The widows of the deceased wanted a copy of the accident investigation report under the Federal Rules of Civil Pr ocedures rule 34.25 Rule 34 stated that a person can request a government agency to pr oduce documents in the discovery process in preparation for a trial. The Secretary of the Air Force stated the information requested under Rule 34 in Reynolds was privileged. The St aff Judge Advocate refu sed to provide the 23 National Defense Authorization Act, H.R. 1812, 108th Cong. (2004). 24 HARRY A. HAMMITT, DAVID L. SOBEL and, MARK S. ZAID, 67 LITIGATION UNDER the FEDERAL OPEN GOVERNMENT LAWS (Epic,2002). 25 U.S. v. Reynolds. 345 U.S. 1 (1953).

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71 information contending it could not be releas ed without causing serious harm to national security, an argument the Supreme Court accepte d in recognizing State Secrets Privilege.26 The States Secrets Privilege, which can be triggered solely on a govern ment affidavit that disclosure of the information could potentially harm na tional security, was invoked over 23 times from 2001-2005 alone.27 Hence, during a legal proceeding, wh ere a non-government party is seeking information about remote sensing, the government may well be able to refuse disclose the information under the State Secrets privilege. If the Courts have so far refused to gr ant unlimited press access to secure government institutions the ability of the government to prevent the press or Google from publishing information publicly available is far less clear. Th e Court used a series of tests to determine if the restriction of national security on informati on is constitutional. However, the fact that government agencies are protected from disclosing remote sensing data does not prohibit private firms such as Google from releas ing maps without a court order. Prior Restraint If the Courts have so far refused to gran t unlimited press access to secure government institutions the ability of the government to pr event the press or Google Earth from publishing information publicly available is far less clear. If the courts were to rely on the precedent of New York Times v. U.S ., the government might not successfully us e shutter control to restrict the distribution remote sensing imagery without m eeting a much stronger burden of proof than necessary in the access cases. However, in Near v. Minnesota in 1931, the Supreme Court 26 Id State Secret Privilege refers to the government asking the court to exclude information based solely on an affidavit. The government affidavit states the information will disclose information that could potentially harm national security. 27 Carrie Newton Lyons The State Secrets Privilege: Expanding Its Scope Through Government Misuse, 11 Lewis & Clark L. Rev. 1(2007).

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72 demonstrated that it would be se nsitive to national security ar guments in prior restraint cases, cases involving the governments attempts to st op the publication of info rmation that it did not directly control. 28 Near v. Minnesota Jay M. Near and Howard Guilford published the Saturday Evening Press in Minneapolis 1927. The Saturday Evening Press ran articles accusing city offi cials of not properly dealing with crime and Jewish mobsters, 29 including such language as there have been too many men in this city and especially those in official life, who have been taking orders and suggestions from Jew gangsters, therefore we have Jew Gangsters, practically ruling Minneapolis.30 Minnesota had a law known as the Public Nuisance Law of 1925 which gave the state authority to control scandal ous and libelous newspapers.31 County Attorney Floyd Olson stated the Saturday Evening Press violated the Public Nuisance Law and shut the press down. The Supreme Court ruled in a 54 decision that this was a viol ation of the First Amendment.32 Justice Charles Evans Hughes wrote that the Minnesota punishment of The Saturday Evening Press was unconstitutional prior restraint even though the paper had already published the offensive language. Justice H ughes said stopping the newspape r from printing was precisely 28 Id State Secrets Privelege refers to the government asking the court to exclude information based solely on an affidavit. The government affidavit states the information will disclose information that could harm national security. 29 Near v. Minnesota 283 U.S. 697 (1931). 30 Jay Near, THE SAT. EVENING PRESS, November 19, 192.7 31 Near v. Minnesota, supra note 3, Friendly, Minnesota Rag. 32 Near v. Minnesota, supra note 31.

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73 what the authors of the Bill of Ri ghts meant to protect. However, Hughes said in dicta that there were times that prior restraint mi ght be constitutionally acceptable.33 He stated: When a nation is at war many things that mi ght be said in time of peace are such a hindrance to its error that thei r utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of tran sports or the number and location of troops.34 In 2007, Near v. Minnesota, a decision that appeared to recognize the governments right to protect national security, is still the most important preceden t for prior restraint. And, until the arrival of commercial satellit es, protecting the movement of troops and machinery was a comparatively easy task. But the governments burden of proof in court has possibly become more complicated even as the technology has added to the complexity of the law. In the 1930s, after Near, the Supreme Court started the process of developing a First Amendment test that that may make it harder than it appeared in Near to restrain the media, and Google, from distributing stories and images in their possession.35 Over the years, a strict scrutiny test has emerged from the U.S. Supreme Court when control of media content was at stake. Ordinarily the Court expected the government to prove a compelli ng governmental need that would limit the governments ability to restrict speech36 In the opinion of the Cour t in the prior restraint case NY Times v. U.S the Court went into less detail. New York Times v. U.S. The story of, New York Times v. U.S. more commonly known as the Pentagon Papers case, began with th e publication by the New York Times and the Washington Post of articles 33 Near v. Minnesota, supra note 31. 34 Near v. Minnesota, supra note 31. 35MATTHEW D. BUNKER, JUSTICE AND THE MEDIA (Lawrence Erlbaum Associates: New Jersey, 1997). 36 See U.S. v. Carolene Products 304 U.S. 144 (1938).

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74 reporting a government study of the Vietnam War.37 The report was a classified examination of the decision making process for Vietnam. After the New York Times published the first article, U.S. Attorney General John Mitchell requested that the paper publish no more about the study. Because NY Times stated it fully intended to continue to print the articles,38 the government petitioned the Court for an inj unction to stop publication, and a te mporary restraining order was granted by lower court. On appeal, the S upreme Court ruled in a 6-3 opinion that the government carried a very heavy burden of proof before it could stop the publication of a story, even over national security matters.39 The brief opinion of the cour t, similar to the opinion in Near v. Minnesota, said that prior restraint can be used in some instances to protect national security.40 However, because every single justice in the case wrote his own opinion, it was difficult to determine precisely what the government would have to prove to stop a publication in the national security interest. Soon, lower courts would have to determine just that. The case U.S. v. Progressive is particularly relevant to this paper because it dealt with an attempted prior restraint on materials availabl e from public sources. U.S. v. Progressive The Progressive case originated in 1979 after th e federal government tried to stop Howard Morland from publishing in Progressive magazine an article about the making of an HBomb.41 The magazine argued the material for the articles was available publicly and Morland had simply compiled the information. Morland stated that he found th e information for the 37 The study was published in the History of the United St ates Decision Making Proce ss on Vietnam Policy. Need citation material. 38 New York Times Co v. U.S, 403 U.S, 713 (1971). 39 Id. 40 Id. 41 U.S. v. Progressive 467 F. Supp 990 (1979).

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75 article from the Department of Energy, encycl opedias and Physic text books that are publicly available. The government stated that some part s of the article containe d expert analysis of nuclear weapons and should not be published to protect national s ecurity. U.S. District Court Judge Robert Warren found in favor of the government, and Progressive magazine was enjoined from publishing the article.42 Judge Warren stated the artic le could be stopped because publishing did not add to public de bate but could aide other nati ons in advancing their nuclear programs. He stated that the government met the heavy burden in the case of providing that the article could result in an immediate and irreversib le harm to the nations national security, a First Amendment test that he would be acceptable to a majority of the Supreme Court justices after reading their opinions in New York Times v. U.S. 43 The Progressive magazine had started its appeal when the information in the article was published from another source. The government withdrew its injunction. In the case of remote sensing imagery, even if the government could shut down Google Earth, the same information is available for pur pose from Russia, Fran ce, Canada and other counties with similar equipment. Therefore, it might be hard to argue that Google Earth would create an immediate and irreversible harm to dist ributing maps that others in the world, including potential enemies, have access to anyway. Un less a U.N. policy can be adapted to regulate commercial remote sensing any decisions by the U.S. courts to control domestically owned satellites would be moot. 42 Id 43 U.S. v. Progressive, supra note 41.

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76 Punishment after the Fact The tension between national security and the First Amendment has been a continuous battle since the Sedition Act of 1798. A few ju rists and scholars have stated that First Amendment protections are absolute. The late Ju stice Hugo Black stated there absolutes in our Bill of Rights, and that they were put there on purpose by men who knew what the words meant, and meant the prohibitions to be absolute.44 In Justice Blacks opi nion there is no reason a persons rights should be balanc ed. Despite Justice Blacks opi nion, several laws have been enacted in an attempt to balance national secur ity and the First Amendment. During times of war the courts often take a more sympathetic view toward the needs of national security than is otherwise often the case. Schenck v. United States In 1919, Justice Oliver Wendell Holmes stated in the court opinion for Schenck v. United States that "when a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no court could regard them as prot ected by any constitutional right.45 In the case at hand, Charles Schenck, a member of the Socialist party during World War I, sent a pamphlet to men telling them to fight the draft. Schenck was arrested and convicted under the Espionage Act of 1917 for conspiracy to obstruct recruitment.46 The Espionage Act stated it was a crime to interfere 44 Black, Hugo, The Bill of Rights, 35 N.Y. L. Rev. 865-881 (1960). 45 Schenck v. United States, 249 U.S. 47 (1919). 46 Id.

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77 with the operation or success of the armed forces.47 The Schenck opinion is most famous for Clear and Present Danger test fi rst explained in the majority opinion by Holmes, who said The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear a nd present danger that they will bring about the substantive evils that Congr ess has a right to prevent.48 Dennis v. United States For the next 45 years following the Schenck case, the clear and present danger test see above became the standard the courts relied upo n when weighing national security and the First Amendment issues dealing with speech.49 In 1951, in Dennis v. U.S., the Supreme Court upheld the conviction of eleven communist members fo r violating the Smith Act using Judge Learned Hands adaptation of the standard Eugene Dennis and ten additional members of the Communist Party were indicted of violating the Smith Act of 1940, which made it un lawful for a person to advocate the overthrow of the government. 50 Dennis and others contended his pr osecution under the Smith Act was a violation of this First Amendment rights to fr ee speech. Dennis and the other members of the Communist party generated pamphl ets that were proCommunist party and distributed them. The Supreme Court ruled in a 6-2 decision that a prosecution for being a member of a group advocating the overthrow the government was constitutional under the First Amendment.51 47 Espionage Act, supra note 4. 48 Schenck v. United States, s upra note 47. 49 Schenck v. United States, s upra note 28. 50 Dennis v. U.S. 341 U.S. 494. The case involved members of the communist party advocating the overthrow of the government. The Smith Act stated it was unlawful to knowingly or willfully advocat e, abet, advise, or teach the duty, necessity, desirability, or prop riety of overthrowing or destroying an y government in the United States by force or violence, or by the assassination of any officer of any such government The Smith Act 1940, 18 U.S.C 2385. 51 Dennis v. U.S, s upra note 53.

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78 Using Judge Hands test to balan ce the interest of civi l rights and national security., the Supreme Court said the issue was whether the grav ity of evil of a speech, discounted by its improbability. The Dennis v. U.S. opinion stated Congress has a ri ght to protect the U.S. and therefore the Smith Act is not a unconstitutional as applied in the case.52 Although the Schenck and Dennis cases illustrate the leeway the U.S. Supreme Court often gives the government during times when the nations national security is perc eived to be at risk, the clear and present danger test has act ually itself been replaced since. Brandenburg v. Ohio Brandenburg v. Ohio is not directly pertinent to remote sensing because it deals with the speech inciting unlawful acts. However, in the 1961 U.S. Supreme Court used the case to replace the clear and present danger test 53 The Brandenburg test is a three prong test th at states a person must show intent, imminence and likeliness. The speaker must intend to cause harm, the reaction to the speech must be imminent, and likely to cause harm. The case began after Clarence Brandenburg, a Klu Klux Klan leader, shouted racial epitaphs at a Klan rally and suggested the president, Congress and the Supreme Court were suppressing the white race. Brandeburg said members of the audience should march on Washington. Brandenburg was arrested and convicted under the Ohio Criminal Syndicalis m Statue, which made it illegal to advocate violence that would disrupt the economy or the political system. The Supreme Court overturned Brandenburgs conviction because his actions did not present a clear intent to cause a likely or imminent danger. 52 Dennis v. U.S, s upra note 53. 53 Brandenburg v. Ohio 395 U.S. 444 (1969).

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79 Morison v. U.S. While Brandenburg did not repr esent a precedent that could likely be used to govern the distribution of information gather ed by remote sensing satellite, Morison v. U.S did. One of the most recent cases involving the punishment of speech after the fact involve d the selling pictures to a magazine published in England. Samu el Morison was convicted in 1988 under the Espionage Act of 1917 for selling imagery marked secret. The United Stat es said that under the Espionage Act a person can not se ll or give information to anot her that could cause harm to national security.54 The U.S. Court of Appeals of the F ourth district stated the Espionage Act was not constitutionally vague and convicted Morrison. This case illustrates how the government prosecuted for dissemination of imag ery that could potenti ally cause harm to national security. Conclusion The courts have not always found it easy to balance national security and the First Amendment. Congress and the Courts have worked hard to draw lines that allow both adequate security protection and adequate disclosure a nd publication of government-held information. The continued advances in technology, such as satellite imagery provide anyone with maps of military bases has made even more difficult to maximize both freedom of protection and national security during a time of terrorist attacks. When commercial land remote sensing imagery is made available by private companies all over the world a strategy to protect military-sensitive data is difficult to find. Under the current regulations the U.S. has authorization to protect information obtained in the U.S., but has little or no control over the land remote sensing data 54 Morison v. U.S. 486 U.S. 1306 (1988).

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80 collected by other nations. The United States government can most probably refuse to make information it controls available to co mmercial mapping companies. However, U.S. v. Progressive demonstrates that the gove rnment may have very little practical control of national security information that can be accessed fr om a number of different locations. The only recourse the government might have would be to punish the publication of a U.S. company only and only after the publication.

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81 CHAPTER 5 CONCLUSION Introduction The complexity of weighing nati onal security and indi vidual rights has be en present in the U.S. since the enactment of the Bill of Rights. Geoffrey Stone, professor of law at the University of Chicago, has stated that the U.S. government has a history of stifli ng speech during times of war and conflict because of national security.1 In Professor Stones hi storical analysis of the federal governments restrictions on speech during war he claims that history has proven the government will often misuse its power in the name of national security.2 The Alien and Sedition Act of 1798 was one of the first laws punishing speech to be adopted during a time of in ternational crisis, but each war or conflict has invol ved some kind of government restriction on free speech and press.3 However, changes in technology make it increasingly difficult for the govern ment to manage information in times of increased security threats.4 The Internets supply of info rmation all over the world presen ts the latest challenges. In chapter 1 of this thesis th ree research questions were posed First, do the advances in technology associated with satellite imagery and th e Internet allow release of information to the public that the military has deemed potentially disruptive to military operations? Second, do current regulations by the United Nations coincide with the United States militarys safeguards for protection? Third, do the United States remote sensing regulations such as shutter control meet constitutional muster under the free speech and free press clau se of the First Amendment? 1 GEOFFREY STONE, PERILOUS TIMES: FREE SPEECH in WARTIME: FROM THE SEDITION ACT OF 1798 TO THE WAR ON TERROR (W.W. Norton, 2005). 2 Id. 3 Id. 4 The founding fathers clearly could not have expected the advances in space technology.

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82 Chapter 2 outlined what information military doctr ine stated was regarded as sensitive, or potentially disruptive to operati ons. Based on Army Regulation (AR) 380-5 information in the Army is classified based on the criteri a in section 1.5 of Executive Order 12958.5 The criteria do not include maps of military bases unless the map could be classified as part of a military operation. AR 530-1 spells out that sensitiv e information needs s pecial protection from disclosure that could cau se compromise or threat to our na tional security, an Army organization, activity, family member, Department of the Ar my (DA) civilian, or DOD contractor. An example of material considered by military official s to be sensitive, although not classified, is a picture of a units motor pool, a picture readily available through the Inte rnet. This research demonstrated that Web sites such as Google Ea rth provide sensitive information that could be used to harm military operations. Information found on Google Earth is one to th ree years old but still provides sensitive information. In another example, an image from Google Earth of an airf ield in Iraq could be used to determine how equipment is stored, types and estimated amount of equipment, and maintenance facilities. In fact, the recent attack s of British bases in Basra are prime examples of the enemy utilizing public information to affect military missions.6 Although the information was one to three years old it was used to plan an d execute attacks on British bases in Basra. The British government petitioned Googl e Earth to remove the images and they complied. To date, 5 The seven criteria in section 1.5 of EO 12,958 are military plans, weapons systems, or operations; foreign government information; intelligence activities (including special activities); intelligence sources or methods, or cryptology; foreign relations or foreign activities of the United States, including confidential sources, Scientific, technological, or economic matters relating to the national security; United States Government programs for safeguarding nuclear materials or facilities; and vulnerabiliti es or capabilities of systems, installations, projects or plans relating to the national security. 6 Thomas Harding, Terrorist use Google Earth to hit UK Troops TELEGRAPH, January 13, 2007 available at www.telegraph.co.uk/news/main/ (last visited October 1, 2007).

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83 Google Earth has been very receptive to reques ts by government officials to remove content from their Web site.7 However, Google Earth has removed information from its Web site after being told that it has caused damage.8 Imagery similar to that used to plan attacks on the British bases in Basra is still available for most U.S. bases in Iraq and Afgha nistan. It could be argu ed that if the imagery of British bases has been removed then the imagery should be removed from all bases overseas. Information of mission essential vulnerable ar eas can be still found on Google Earth. This information could potentially aid an adversary in an attack against the U. S. military. Although Google could certainly voluntarily remove the images, at this time no regulations exist to require it to do so. Chapter 3 outlines the current national and in ternational regulations controlling satellite imagery. The major findings in chapter 3 are the lack of enforceability of vague U.N. regulations and the fact that even in the United States regulations are inconsistent. The Principles of Remote Sensing enacted in 1986 by the U.N. are non-binding and provide little protection against the distribu tion of photographs that are po tentially damaging to nations national security.9 The U.N. principles, outlined in Chap ter 3, serve only as a guideline and are outdated since they have not been updated si nce 1986. A binding regula tion or treaty could provide officials with the tools to manage commercial remote sensing. 7 Id. 8 Although the imagery was removed it caused significant da mage to British military operations. It is clear that Google Earth was used to plan the attacks because In telligence found printo uts from Google Earth that displayed sensitive information on the Basra bases. Did Google Censor Basra Imagery, UK TELEGRAPH, January 14, 2007. 9 Some people suggest the principles are binding because coun tries have inherited them, others believe that because there is no legal reasoning th e principles are not binding. and no na tion is obligated to adhere to the principles. NANDASIRI JASENTULIYANA, International Space Law and the United Nations 36 KLUWER LAW INTERNATIONAL (1999) (Neth.).

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84 Commercial remote sensing became a global market after the Gulf war in 1991. The commercial market exploded after the imagery of Saddams Army was used to defeat it.10 The U.N. Principles of Remote Sensing do not addr ess advances in capabilit ies of remote sensing satellites or the uses of remote sensing possible through the Internet. The U.N. principles offer little or no protections for national security; nor do the specifically allow for the military uses of commercial remote sensing imagery. Continued technological advancemen ts, lack of national security provisions and the non-binding nature of the principles are all issues that should be addressed by the U.N. in regards to commercial remote sensing. The U.S. does have regulations for remote sensing that can help protect the countrys national security. Under sect ion 960.4 of the Land Remote Sensing Act of 1992, a license is required for satellites used for remote sensing.11 The license requires that a licensee essentially forfeits control of commercial land remote sensi ng satellites during times of increased threat to national security, a policy know as shutter control. However, although remote sensing imagery of U.S. companies can be halted, the same imagery still can be purchased in the international market. In additi on, there are several disa dvantages to initiati ng shutter control. If shutter control is initiated no one, including the U. S. military, will be able to utilize the imagery. Although the military has a few military remote sensing satellites of its own, most imagery for the Department of Defense is pur chased by the National Geospatial Intelligence Agency from DigitalGlobe and Space Imaging.12 For example, the U.S. forces in Iraq are currently using Google Eart h on their secure Internet. Milita ry personnel have found that images 10 See Chapter 1 for details on the us e of imagery during The Gulf War. 11 The Land Remote Sensing Act 15 U.S.C. 5602(5) (1992). 12 Theresa Hitchens, Address at the U.S. Space Operations in the International Context Space Conference (Feb. 24, 2004) (transcript available at the Center for Defense Information). Because of the cost of launching and operating remote sensing satellites the government made the decision to commercialize land remote sensing. Id.

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85 downloaded from Google Earth are a useful tool in planning missions even if they are one to three years old. Although higher ranking officials13 have access to newer imagery the imagery is often not available to lower ranking military leader s. The ease of using Google Earth makes it a vital tool for soldiers at all levels as they try to familiarize themselves with enemy terrain.14 Although the U.S. regulations protect the country from harmful uses of U.S.-licensed satellites during national security threats threat there is a n eed for U.N. regulations th at prohibit the sale of imagery of any nations involved in conflict. Chapter 4 examines the legal precedent for limiting commercial remote sensing through established U.S. law governing a right to ac cess government information, the limitations on government to restrain the di stribution of information and the provisions for government punishment of illegally distributed information. Justice Holmes stated in his opinion for the Court in 1919 Schenck v.U.S that When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.15 The government has withheld information from pub lic release in the name of national security only for it to be revealed later that disclosed of the data did not threaten national security.16 The U.S. Supreme Court has made it clear that th e First Amendment protects not only individual 13 The author of this thesis describes a high ranking milita ry official can be considered a person in charge of a Battalion size element. They hold the rank of Lieutenant Colonel and above. 14 Commercial land remote sensing was vital in the success during operations in the Gulf War. Shutter control turns off the satellite thereby inhibiting imagery from being processed. There is no way to initiate shutter control and still have images available for military use. 15 Schenck v. United States, 249 U.S. 47 (1919). 16See, e.g. U.S. v. Reynolds. 345 U.S. 1 (1953). The information was released in 2000 and no national security issues were discovered. The information withheld from the widows contained information on the faulty aircraft construction.

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86 speech and news coverage in the media, but also movies,17 cable television,18 non-obscene sexual expression,19 and the burning of draft cards.20 Commercial land remote sensing imagery would most certainly be considered spe ech protected by First Amendment at least in part. To date, no court has reviewed the question of whether co mmercial remote sensing imagery would be protected speech under the First Amendment. The legal analysis used in chapter 4 indica ted three things: 1) the press does not have an automatic right of access under the First Amendmen t to government-controlled information; 2) the federal government, in order to prevent privately-controlled information from being distributed, must meet a heavy burden of proof, probably establis hing that the re lease of that specific information will cause immediate and irreversible harm to security of the United States, a burden of proof unlikely to be met if si milar information is available else, and 3) Courts often tend to allow the government greater fl exibility to regulate speech and access when national security is an issue. Google Earth purchases imagery from non-govern ment sources that inadvertently provides access to military bases to their consumers. The military has tried to limit access to their bases by restricting entry and airspace. Given the precedence set by the U.S. Supreme Court in the prison and jail cases, the press most likely does not have a constitutional right of access to the military bases. The government does control remo te sensing imagery retrieved from satellites licensed in the United States. The license st ates satellites can be shut down and the dissemination of imagery can be stopped in times of increas ed national threat. 17 Freedman v. Maryland, 380 U.S. 51 (1965), 18 FCC v. National Citizens Comm. For Broadcasting, 436 U.S. 775 (1978). 19 Miller v. California, 413 U.S. 15 (1973). 20 United States v. OBrien, 391 U.S. 367, 377 (1968)

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87 However, although the privately-owned Googl e Earth provides access to sensitive information about military bases it is not the on ly source of obtaining the information. Hence, the federal government is unlikely to be successful is trying to retrain pub lic distribution of the maps on Google Earth. In U.S. v. Progressive, the government st opping pressing its demand for a prior restraint on bomb-making information in the Progressive magazine after similar was published elsewhere.21 Even if the government could prev ent access to, and th e distribution of, the maps available on Google Earth, the same in formation can be found in the public domain in several places. What makes Google Earth practica lly differentand particularly problematic for the militaryis that that Google Earth is easy to use and free with access to the Internet connection. It is easier for indivi duals worldwide to access data th at is otherwise harder to find and more expensive to use. The Courts require the government to meet a heavy burden of proof with matters of national security. In times of a threat to nationa l security the federal gove rnment has often taken more control of the countrys in formation flow and courts have tended to be more flexible in allowing government interference wi th First Amendment freedoms. Analysis In chapter 2, the research er concluded that imagery on Google earth could disrupt military operations. In analyzing the finding in chapter 2 of this thesis a number of recommendations can be deduced. First, the m ilitary, to counter inform ation gained by Google Earth, should cover and conceal mission essential areas, remain cognizant the enemy has this information, and use counter intelligence to inhibi t the use of this information. The military OPSEC program instructs soldiers to alter their routines in order to c ounter enemy surveillance 21 see generally U.S. v. Progressive 467 F. Supp 990 (1979).

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88 but the OPSEC program does not emphasize the po ssible affects of Web sites such as Google Earth. Military leaders should stress the possible uses of Googl e Earth by the enemy in their operations order. In chapter 3, the researcher concluded that the U.N. does not have any binding regulations relating to remote sens ing. The current U.N. principles took over fifteen years to be passed, much of the delay centered around the concern of underdeveloped countries that developed countries with remote sensing capabi lities would use the remote sensing imagery to find the natural resources of underd eveloped countries. The fear was that information would be used in trade negotiations.22 The Principle of Remote Sensing would be more beneficial if they were binding and had safeguards to protect national security of all nations. It is doubtful that shutter control is the best answer but it is the most feasible for a U.N. regulation. Chapter 4 discussed that the press does not have an inherent right of access to government controlled information. Google does not have any rights to access to information about military bases than does an average citizen The government has a heavy burden of proof if they decided to restrict Googl e Earth from posting imagery it po ssesses on the Internet. Limitations of Study Among the limitations to this study was that it was limited to unclassified data that was obtained through the Army Knowledge Online.23 The military has regulations that are secret and could have additional provisions for O PSEC. These regulations could not used in this thesis. 22 For an in-depth explanation see chapter 3. 23 Army Knowledge Online is a secure portal to army websites.

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89 A second limitation of the study is that it was not feasible to visit the military bases on Google Earth to ensure the information on the Web site was accurate. In order to demonstrate how accurate the images on Google Earth a compar ative analysis of the base and the imagery would be ideal. The majority of the bases used in this analysis were of bases in Iraq and it was not feasible to perform the comparison. A third limitation of this study is the lack of legal precedence surrounding commercial land remote sensing. The government has never ex ercised shutter contro l; therefore no First Amendment issues dealing with re mote sensing have been decide d in the courts. Google Earth has openly complied with all request s to restrict information on th e Web site, and have suggested that this will be a continued trend. Although Google Earth has co mplied with requests to remove imagery the research did not analyze other remote sensing Web sites, such as, Terraserver or Microsoft. Future Research This thesis focused on only a relatively small aspect of remote sensing as an information source, several other areas of study would be benefi cial to research, such as how remote sensing imagery is used as a tool in newsrooms. This thesis only evaluated U.N. guideline a nd U.S. regulations. An evaluation of other nations regulations could enhance the argument that the U.N. needs to have binding regulations. Future research could compare different nations regulations a nd evaluate similarities to determine trends. This thesis discussed in general legal pro cedure that would control access to, injunctions on, and punishment of Google Earth and Remote Sensing. A more thorough legal analysis of the Supreme Court jurisprudence as it might a ffect Google Earth and remote sensing imagery could also be helpful. A thorough analysis of th e constitutionality of th ese issues was beyond the

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90 focus of this paper since ther e was no court precedent direct ly on point. However, a more thorough analysis of all legal topi cs discussed in this paper is more appropriate. Additional research is needed for how remote sensing is cl assified under the federal Freedom of Information Act, for example. So is there a need for Firs t Amendment court preceden t not directly on point could affect the constitutionality of remote sensi ng. Still further, given the state of both national an international law, what kind of risk a punish ment to private providers of remote sensing images face? Conclusion In conclusion, this thesis finds the inform ation on Google Earth does provide information to the public that could hinder military operations. The current U.N. guidelines on commercial remote sensing do not offer adequate protections and do not address issues of free Web sites such as Google Earth. The government carries a heavy burden in restraining the further distribution of information already available to citizens worldwide through both governments and private companies in other countries. After careful an alysis of past precedent, this researcher has become convinced that shutter control and any restrictions on Google Ea rth are not justified. Although the commercial remote sensing imager y does provide information sensitive to the military the same information can be obtained from other sources in the public domain. In addition, although information on Google Eart h does provide adversaries with sensitive information, it also provides information that serv es the nation in other ways. In 2007, the media used Google Earth to inform the community on the spread of wild fires in California, soldiers overseas use Google Earth to help plan flight operations, and Google earth was instrumental in assisting embedded media report on the War on Terror in 2003. It is import ant to consider both the pros and cons of removing information from Google Earth or initia ting shutter control. When shutter control is initiated in the U.S. no one has access to the information. This would

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91 place the U.S. at a disadvantage because ot her countries would st ill have access to the information. The same rationale applies to removing imagery from Google Earth. It is important to consider the benefits of Googl e Earth used in traditional media coverage. Therefore removing particularly sensitive imagery from Google Earth is the most efficient and least disruptive way to protect sensitive m ilitary information. The U.S. military could provide training for soldiers on the threat information on Web s ites such as Google Earth could aide in mission analysis, updating OPSEC and Physic al Security regulations to include remote sensing imagery, and enforcing the military to cover and conceal mission essential areas, remain cognizant the enemy has this information, and use counter intelligence to i nhibit the use of this information. This would aide the military in remaining open and transparent while simultaneously protecting sensitive information.

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92 BIBLIOGRAPHY Primary References Address at the U.S. Space Operations in th e International Context Space Conference: Commercial Imagery: Benefits a nd Risks, Feb. 24, 2004. Washington, D.C. (). Bill of Rights (1791). Commercial Land Remote Sensing Act 15 U.S.C 5601 (1992). Cody, Richard A., ALARACT, August 23, 2005. Department of Defense Directive, Directive 5400.7R The Freedom of Information Act Program (September 9, 1997). Department of the Army, Public Affairs Guidance on Embedded Media Washington D.C., 2003. Espionage Act, 18 U.S.C. 2388 (1917). Executive Order 12,958, 60 Fed. Reg. 15,315 (Mar. 25, 2003). Freedom of Information Act, 5 U.S.C. 552 (a), (1994). G.A. Res. 1721, U.N. GAOR, 16t h Session, Supplement No. 17 at 6, U.N. Doc. A/5100 (1962). Homeland Security Act 6 U.S.C 482 (2004). Khrushchev, Nikita Sergeyevich to John F. Kennedy, Feb. 21,1962, as printed in U.S. Congress, Senate, Committee on Aeronautical and Space Scie nces, Documents on International Aspects of the Exploration and Use of Outer Space 1954-1962 88th Congress, 1st Session, 1963. Land Remote Sensing Policy Act, 15 U.S.C. 5601 (1992). Land Remote Sensing Commercialization Act, 15 U.S.C.4201 et. seq.(1984). Letter from the Coalition of Journalist for and Open Government, to House and Senate Conference Committee (Sept. 10, 2004) available at http://www.cjog.net/protest_sa tellite_images_and_foia.html Memorandum from the Director Information Op erations, to Battalion level Commanders (6 August 2006), available at http://www.wsmr.army.mil/workforce/informati onassurance/tasker_opsec_review_for_websites. pdf National Aeronautics and Space Act, 42 U.S.C. 2457 (1958). National Defense Authorization Act for Fi scal Year 1997, 1745, Pub L. No. 104-201, HR. 3230, S. 1064 104th Congress, 2nd Session (1996).

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93 National Defense Authorization Act, H.R. 1812, 108th Cong. (2004). National Security Act of 1947, Pub L. No. 235, 80, 61 Stat. 496 (amended 1949). Presidential Directive/NSC-37, National Space Policy, May 11, 1978. Principles Relating to Remote Sensing of the Earth from Outer Space, G.A. Res 41/65 at 115, U.N. Doc 53 (1986). Rumsfeld, Donald, Website OPSEC Discrepancies, Memorandum for all Department of Defense Activities, (January 14, 2003). Smith Act, 18 U.S.C 2385 (1940). Treaty on the Principles Governing the Activities of States in th e Exploration and use of Outer Space including the Moon and other Celestial Body, January 27, 1967 18 U.S.T 2410, 610 U.N.T.S. 205, T.I.A.S No. 6347. U.S. Department of the Army, Regulation 530-1. Operations S ecurity (OPSEC) (19 April 2007). U.S. Department of Army, Regulation 25-30 Th e Army Publishing Program (27 March 2007). U.S. Department of the Army, Field Manual 319.30, Physical Security (January 8, 2001). U.S. Department of the Army, Regulation 5305, Information Security (September 2000). U.S. Department of Energy, An Op erational Security (OPSEC) Primer available at http://www.defendamerica.mil/articles/a02120b.html US National Space Policy (August 31, 2006), available at http://www.globalsecurity.org/space /library/policy/national/ncs-37.htm U.S. Policy on Foreign Access to Remote Sp ace Sensing Capabilities, H.R. 6133, 103d Congress (1994). Virginia Declaration of Rights of 1776, 12, in Federal and State C onstitutions 7:3812, 3814 (Francis N. Thorpe ed. 1909). White House, US Commercial Remote Se nsing Policy, Fact Sheet, April 25, 2003. Principal Cases Brandenburg v. Ohio 395 U.S. 444 (1969). FCC v. National Citizens Comm. Fo r Broadcasting, 436 U.S. 775 (1978). Houchins v. KQED, 438 U.S. 1 (1978). JB Pictures, Inc v. Department of Defense, 21 M.L.R, 1564 (1993).

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94 JB Pictures, Inc v. Department of Defense, 86 F. 3d 236 (1996). Miller v. California, 413 U.S. 15 (1973). Morison v. U.S. 486 U.S. 1306 (1988). Near v. Minnesota, 283 U.S. 697 (1931). New York Times v. United States, 403 U.S. 719 (1971). Pell v. Procunier, 417 U.S. 817 94 S. CT 2800 (1974). Saxbe v. Washington Post, 417 U.S. 843 (1974). Schenck v. United States, 249 U.S. 47 (1919). Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622 (1994). United States v. Carolene Products 304 U.S. 144 (1938). United States v. OBrien, 391 U.S. 367, 377 (1968). United States. v. Progressi ve 467 F. Supp 990 (1979). Secondary References Akaka, Daniel Kahikina, Addre ss at the Security and Commer cial Satellite Imagery Council (May 11, 2000). Associated Press, Government Agencies Posti ng Sensitive, Need to Know Material On-line, Fox-News, July 12, 2007. Associated Press, Did Google Censor Ba sra Imagery, UK Telegraph January 14, 2007. Baker, John C., Mapping the Risks: Assessing the Homeland Security Implications of Publicly Available Geospatial Information, RAND Na tional Defense Resear ch Institute, 2004. Black, Hugo, The Bill of Rights 35 Ne w York Law Review 865 (1960). Bollinger, Lee C. Bollinger, Freedom of the Press and Public Access 1 Michigan Law Review 24 (1). Bille, Matt and Erika Lishock The First Space Race. Texas A&M University Press, Texas, 2004. Bunker, Matthew D., Justice and the Media, Lawrence Erlbaum Associates, New Jersey 1997. English, Davis, The Air up There: More Great Quotations on Space. McGraw Hill, Inc., Colorado Springs, Colo., 2003.

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95 FLEXIMAG, Google Earth: Impacts and Uses for Defense and Security, European Aeronautic Defense and Space Company, 2005, available at http://www.felximag.fr Florini, Ann M. and Yahya Dehqanzada, Commercial Satellite Imagery Comes of Age, 16 Science and Technology 45 (1999). Fredrick, Missy, Internet Availa bility of Imagery Worries Some World Leaders, Space News, November 7, 2005. Freedom of Information Act Guide March 2007, available at http://www.usdoj.gov/oip/foia_guide07.htm Gabrynowicz Joanne I., The Land Remote Sensing Laws and Policies of National Governments: A Global Survey, (2007) available at http://www.spacelaw.olemiss.edu Gupta, Vipin and Lieutenant Colonal George Harris, Detecting Massed Troops with the French SPOT Satellites: A Feasibility Study for Coopera tive Monitoring ( Report for Sandia National Laboratory, 1998). Hafner, Katie Governments Trem ble at Googles Birds Eye View New York Times, December 20, 2005. Haller, Linda L. and Melvin S. Sakazaki, Commercial Space and the United States National Security, (Report for Commission to Assess United States National Security Space Management and Organization posted January 2001, http://www.globalsecurity.org/space/library/report/2001/nssmo/article06.html Hammitt, Harry A., David L. Sobel and, Mark S. Zaid, 67 Litigation Under the Federal Open Government LAWS Epic Publishing Co., Nevada, 2002. Harding, Thomas, Terrorist uses Google Earth to hit UK Troops, Telegraph January 13, 2007. Hess, Pam, DOD Locks up Co mmercial Satellite Pix United Press Intern ational (October 12, 2001). Hoversten, Michael R., U.S. National Security and Government Regul ation of Commercial Remote Sensing from Outer Space 51 Air Force Law Review 253 (2001). Jasentuliyana ,Nandasiri, International Space Law and the United Nations, Kluwer Law International (1999). Lidell, Hart B.H., Strategy 62 Plume (1991). Lyons, Carrie N., The State Secrets Privilege: Expandi ng Its Scope Through Government Misuse, 11 Lewis and Clark Law Review 1(2007). Merges, Robert P. and Glenn H. Reynolds, News Media Satellites and the First Amendment: A Case Study in New Technologies, 3 Hi gh Technology Law Journal 2 (1987). Near, Jay, The Saturday Evening Press, November 19, 1927.

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96 Nourbaksh, Illah, Mapping Disaster Zones 439 Nature 7078 (2006). Merriam-Webster's Collegiate Dictionary, 10 Revised Ed. (1998). Okolie, Charles C., International Law of Satellite Remote Sensing and Outer Space 86 American Journal of Inte rnational Law (1992). Pace, Scott, Testimony Before the Committee on Science, Space and Technology (February 9, 1994). Reagan, Ronald, Guardian, June 14, 1989. Stone, Geoffrey, Perilous Times: Free Speech in War time: From the Sedition Act of 1798 to the War on Terror, W.W. Norton, New York, 2005. Svoboda, Elizabeth, Googles Open Skies Raise Cries, Ch ristian Science Monitor, December 1, 2005. Woolley, John T. and Gerhard Peters, The American Presidency Project [online]. Santa Barbara, CA: University of California.

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97 BIOGRAPHICAL SKETCH Angelique Ledesma was born in Perth Amboy, Ne w Jersey, 1972. She enlisted in the U.S. Army in 1992 as Medical Laboratory Technici an and worked as a Transfusion Service Technician at Brooke Army Medi cal Center. She received a de gree in Medical Technology from George Washington University in 1998. In 2000, sh e was selected to participate in the U.S. Armys Green to Gold program at the Universi ty of Washington, Seattle She earned a B.A. degree in Mass Communication fr om University or Washington, Seattle, in 2002. In 2004, she was deployed to Iraq in suppor t of Operation Iraqi Freedom. In 2005, she served the humanitarian support mission in New Orleans to s upport Operation Katrina. She will attend the Signal Captains Career Course in Georgia in January 2008.