A Technological Dream Turned Legal Nightmare: Potential Liability of the United States under the Federal Tort Claims Act for Operating the Global Positioning System

Beginning of article

ABSTRACT

The U.S. Global Positioning System (GPS) provides precise positioning information to anyone in the world, regardless of nationality, as long as they have access to an inexpensive receiver. However, in managing and providing the GPS for no charge, the United States may have opened itself, to worldwide tort exposure. This Note analyzes U.S. liability for negligently operating the GPS under the Federal Tort Claims Act (FTCA) in four categories.

First, this Note examines the transformation of the GPS from its domestic military beginnings to its current role as the foremost radionavigation technique in history and as a vital tool to civilians across the world. Relying on historical data and the GPS's rapid expansion, this Note establishes how negligent GPS operation by the United States could harm a non-American outside of the United States.

Second, this Note addresses the applicability of the FTCA's foreign country exception to a lawsuit arising from negligent GPS operation. This second section argues that the foreign country exception should probably not prevent the lawsuit from progressing.

Third, this Note surveys and analyzes U.S. Supreme Court and U.S. Courts of Appeals caselaw to determine the applicability of the FTCA's discretionary function exception to this lawsuit. It then reveals the crucial issues relevant to a GPS lawsuit under the FTCA's discretionary, function exception.

This Note concludes by stating that Congress should exempt the GPS from FTCA liability because of the devastating effect unparalleled global liability would have on the planet's preeminent navigational device.

I. INTRODUCTION

Pick up the phone and dial 1-703-313-5907.(1) After two rings, a recorded message curtly announces the availability of items listed by an alphanumeric sequence.(2) The voice then gives the expected downtime of these objects calibrated to ZULU time.(3) This constantly updated message concludes with additional information relevant to these items.(4)

This recording does not relay information concerning an alien landing, the expected impact of an asteroid with earth, or a secret military code but instead provides information essential to more than a million people across the globe.(5) This mysterious message updates the status of the Global Positioning System (GPS).(6) The GPS is a navigational tool that fixes a position anywhere on earth but with a few more "bells and whistles" than your average compass and map.(7)

Relying on GPS information, pilots land commercial airliners, mariners negotiate the stormy seas of the North Atlantic, architects determine where to build the world's next skyscrapers, motorists navigate through unknown cities, and hikers transverse uncharted terrain.(8) What began as a tool for the U.S. military to provide precise positioning for its targeting systems, such as nuclear ballistic missile submarines, has become a global resource that more and more people employ each day.(9) After spending a couple of hundred dollars to buy a receiver, any person, regardless of their nationality, can use the system free of charge, courtesy of the U.S. Government and its taxpayers.(10)

Along with the pride of paying for the world's use of the most precise navigational tool in history, U.S. taxpayers should also recognize that this system has exposed the United States to liability from citizens around the globe.(11) In 1992, the Air Force inaccurately updated the position of one of the satellites in the GPS.(12) The resulting error caused a horizontal position error to GPS receivers that exceeded three hundred meters.(13) Had a Belgium citizen been relying on GPS information to land an airplane at a fogged-in airport in Germany at this time, the airplane may have crashed into the control tower instead of gently landing on the airstrip. Consequently, the descendants of the pilot and the passengers could sue the United States for the negligent operation of the GPS in U.S. federal district court.(14) While the GPS gives the world the capability to perform previously unthinkable tasks, it has also opened the United States to unparalleled liability.(15)

The GPS consists of three components: (1) a receiver on earth that asks satellites in outer space to fix the receiver's location, (2) the satellites that determine the longitude, latitude, and altitude of that location, and (3) a manager that controls the system's integrity.(16) While private companies such as Rockwell Aerospace and Orbital Services manufacture many of the satellites and receivers used in the GPS, respectively, the United States is the GPS's manager.(17) Consequently, negligent GPS management could expose the United States to significant liability from people around the globe.(18)

Persons suffering injury from a GPS miscalculation could recover loss through one of four ways. First, the person could recover through her respective country, which would seek redress against the United States under international law. The United States has liability under the United Nations since the United States signed the 1972 Convention on International Liability for Damage Caused by Space Objects.(19) Second, the citizen could sue under the Foreign Claims Act (FCA).(20) However, recovery under the FCA does not allow a person to recover in a court of law. It only allows the plaintiff to file an administrative claim against a government agency.(21) Therefore, these first two avenues of redress do not allow the wronged to personally pursue the claim.

Nevertheless, the remaining possibilities do allow an injured party to directly pursue the United States in court. As a third option, a plaintiff could sue under the Federal Tort Claims Act (FTCA).(22) Finally, the plaintiff could sue under the Suits in Admiralty Act (SAA).(23) Both of these acts waive sovereign immunity for the acts of government employees.(24) Since the SAA is limited to torts committed in navigable waters controlled by the United States,(25) much of the liability exposure of the United States for negligent GPS operation would originate under the FTCA.(26)

While the FTCA waives sovereign immunity, it does not waive U.S. immunity under all circumstances.(27) One of the more significant and litigated exceptions to the FTCA is the discretionary function exception.(28) The exception immunizes the United States for

   [a]ny claim based upon an act or omission of an employee of the Government,
   exercising due care, in the execution of a statute or regulation whether or
   not such statute or regulation be valid, or based upon the exercise of or
   performance or the failure to exercise or perform a discretionary function
   or duty on the part of a federal agency or an employee of the Government,
   whether or not the discretion involved be abused.(29)

Since the SAA lacks a discretionary function exception, some plaintiffs have filed claims under the SAA when a tort occurs in waters controlled by the United States.(30) Nevertheless, U.S. courts have read a discretionary function exception into the SAA to prevent recovery that would ordinarily be barred had the tort occurred on land instead of on water.(31) Since a negligence suit involving the discretionary function exception of the SAA does not materially differ from the same lawsuit under the FTCA, this Note will hereinafter refer to the FTCA for clarity.(32)

This Note addresses the global liability of the United States for negligent GPS operation under the FTCA with a focus on the FTCA's discretionary function exception.(33) Part II addresses the expansion of the GPS from a military to a civilian tool and the continued role of the United States in providing GPS information.(34) Part III evaluates the availability of the FTCA to civilians suffering harm outside of the United States.(35) Part IV analyzes the development of the FTCA's discretionary function exception through Supreme Court caselaw and an analysis of U.S. Courts of Appeals caselaw.(36) Part V assesses whether the discretionary function exception will protect the United States from liability for negligent GPS management.(37) Finally, Part VI concludes by recommending a course of action to protect the United States from the unlimited worldwide liability generated by its policy of providing GPS information free of charge.(38)

II. EXPANSION OF THE GPS'S CIVILIAN USE AND THE CONTINUED ROLE OF THE UNITED STATES IN ITS GLOBAL EVOLUTION

In one of the more dramatic displays of the U.S. military's technological superiority in the 1991 Persian Gulf War, a Standoff Land-Attack Missile (SLAM) blew a hole in the wall of an Iraqi Power Plant.(39) Two minutes later, a second SLAM flew through the hole created by its predecessor.(40) Signals from the then partially complete GPS guided both of these SLAMs to their targets.(41) In the early bombing raids against Germany in World War II, only three percent of British bombs landed within five miles of their intended targets.(42) What began as a vision of using radio signals from satellites as a navigational tool during a 1973 Pentagon meeting has resulted in a weapon that provides the U.S. military with capabilities few could have imagined in 1940.(43) Furthermore, this system has continued to enhance the capabilities of the American military. The Tomahawk missile gained fame in the Persian Gulf War by matching visual landmarks to an inertial pre-programmed map to surgically destroy military targets amidst civilian structures after flying over 1500 miles.(44) When President Clinton resumed airstrikes against Saddam Hussein in 1998, an updated Tomahawk carrying a GPS receiver improved the Tomahawk's legendary precision.(45) While the U.S. government has extended the GPS's applicability to additional military uses, people from across the globe have begun exploring GPS civilian uses.

A. Extending the GPS to Civilian Use

In 1983, the Soviet Union shot down Korean Air Lines Flight 007 after the pilot accidentally strayed off course and violated Soviet Union airspace.(46) Shortly thereafter, President Reagan announced that the United States would grant civilians access to GPS information.(47) Today the Department of Defense (DOD) manages GPS for more than one million civilians that use the GPS for a variety of purposes.(48) Included among the many current GPS users are commercial ocean-going vessels that use the positioning information for everything from navigation on the open sea and in harbor to emergency locator beacons.(49) Furthermore, the Federal Aviation Administration (FAA) has begun constructing GPS landing systems that will eventually replace the current Loran-C, Omega, and Instrument Landing Systems (ILS) used by today's commercial airliners.(50)

However, GPS use is not limited to large-scale commercial enterprises such as commercial fishing or aviation. In order to construct the Chunnel,(51) workers began digging from both ends of the English Channel--Dover, England and Calais, France.(52) Workers used GPS receivers to insure that the tunnel was not only straight but that both sides would meet in the middle of the English Channel.(53) People have employed GPS technology, moreover, in enterprises not even associated with navigation. GPS receivers have been used by environmentalists to track population patterns of Montana Elk and Mojave Desert tortoises,(54) miners to dig long-wall coal mines, the Coast Guard to track hazardous icebergs, and explorers to discover famous ships destroyed by icebergs.(55)

Despite the nearly endless list of applications for GPS information, one of the fastest-growing segments of the GPS market is land-based navigation.(56) Car companies have already begun interfacing GPS receivers with onboard maps located on a vehicle's dashboard.(57) Furthermore, the Baltimore Mass Transit Administration is improving its on-time record by equipping its buses with GPS receivers so that the city's central dispatch can more effectively reroute its buses.(58) Meanwhile, Iowa, Minnesota, and Wisconsin participated in a test project that used GPS receivers to track the miles driven by cars to calculate fuel taxes.(59) With its ever-expanding popularity, GPS has become a government tool that more civilians around the world depend on for accurate information.

B. Precision of the GPS

The GPS consists of two systems: Precise Positioning Service (PPS) and Standard Positioning Service (SPS).(60) PPS provides accuracy to 22 meters horizontally and 27.7 meters vertically, but it is only available to users that the DOD approves of, such as the U.S. military.(61) Meanwhile, SPS is a PPS signal that the DOD degrades and then provides to users worldwide free of charge.(62) SPS only provides horizontal accuracy to 100 meters and vertical accuracy to 156 meters.(63)

Even using the degraded SPS signal, GPS users receive considerable advantages over the only other global radionavigation technique currently in use--Omega.(64) The Omega is one hundred times less accurate than GPS with a positioning error of two to four nautical miles.(65) Other radionavigation techniques used by airplanes, such as the ILS and Microwave Landing System (MLS), provide precision similar to that of GPS, but these techniques exist within limited areas such as the immediate vicinity of airports.(66)

In spite of the SPS's superiority over the Omega system, the government has begun augmenting the SPS signal to improve its accuracy even more. Augmentation is the concept of receiving a GPS SPS signal and then recalculating the signal's position by using a known location on earth, for example, a nearby radio beacon.(67) Since many of the radio beacons surround harbors, the U.S. Coast Guard has been able to achieve this upgrade-referred to as differential GPS (dGPS).(68) With dGPS techniques, the Coast Guard has achieved accuracy to ten meters surrounding harbor approach and entrance areas.(69)

Meanwhile, the standard SPS signal is not sufficient for the FAA to use as the primary method of navigation for landing airplanes.(70) Therefore, using augmentation similar to the Coast Guard's dGPS, the FAA has implemented its own strategy to improve GPS accuracy to the point that an airplane could perform a Category III landing relying on GPS information.(71) Given the increasing accuracy of augmented GPS, the DOD and the Department of Transportation (DOT) will terminate or will have begun to phase out all non-GPS navigation devices by the year 2006 leaving GPS as the lone navigational tool used by the United States.(72) To expedite civilian GPS use, Vice President Gore announced on March 30, 1998 that the United States would provide a second civilian GPS channel.(73) The second channel enhances the accuracy, robustness, and reliability of GPS by allowing GPS receivers to more accurately correct for signal distortion caused by the sun.(74) Consequently, this new channel gives civilians comparable access but still inferior accuracy compared to that enjoyed by the U.S. military, which has always possessed two GPS channels.(75) Furthermore, the U.S. Interagency GPS Executive Board (IGEB) expects to add a third GPS channel that will be used as a "safety-of-life" service signal in the near future.(76)

C. Expansion of the GPS to a Global Navigation Satellite System (GNSS)

In March 1996, President Clinton provided a "strategic vision for the future management and use of GPS, addressing a broad range of military, civil, commercial, and scientific interests."(77) As part of his plan to create an international radionavigation network, President Clinton directed the Department of State to analyze potential agreements and to coordinate with foreign countries and international organizations in preparation of a Global Navigation Satellite System (GNSS).(78) In specifying this broad directive, the Federal Radionavigation Plan noted that the FAA has cooperated with the Russian Federation to study the benefits of combining the GPS with the former Soviet satellite navigation system called GLONASS.(79) By combining the satellites of the two systems, a GNSS could offer advancements in polar coverage, resistance to jamming, and accuracy.(80)

Recognizing the need of the United States to maintain its lead and influence in the development of satellite-based navigation, the U.S. Congress passed the Commercial Space Act of 1998 on October 28, 1998.(81) The Act promotes U.S. GPS standards and the maintenance of the GPS free of user costs.(82) Furthermore, the Act encourages the President to "eliminate any foreign barriers to applications of the Global Positioning System worldwide" and to enter into international agreements with foreign governments that will expand the U.S. role in the space radionavigation market.(83)

D. Management by the United States

Regardless of the future shape of the GPS or the GNSS, the United States is expected to play a key role in the control segment of any space radionavigation technique.(84) While the United States has expanded GPS access and civilians have begun to rely on the service more extensively, the DOD still provides GPS information to anyone in the world for no cost.(85) The U.S. involvement with the management of GPS consists of three segments.(86) First, the Operational Control Segment consists of the Master Control Station (MCS) located at Schriver Air Force Base in Colorado Springs, Colorado.(87) Operated twenty-four hours a day, seven days a week by Air Force Space Command, the MCS calculates ephemeris orbital and clock data and uploads this data to each satellite in the GPS constellation.(88) Without this data, the GPS would not work because the satellites would not know their precise position in space.(89) Second, monitor stations located at the MCS, Hawaii, Kwajalein, Diego Garcia, and Ascension serve as listening posts to gather the raw pseudorange data required by the MCS to calculate the ephemeris orbital data relayed to the satellites.(90) Third, Ground Antennas controlled by the MCS--but located at Kwajalein, Diego Garcia, and Ascension--enable the MCS to control the satellites.(91)

E. U.S. Exposure to Liability

The source of U.S. liability exposure from civilians will most likely emanate from an error resulting from the operation of the MCS, the Monitor Stations, the Ground Antennas, or a combination thereof. For example, in October 1992, the MCS uploaded an ephemeris orbital error to a satellite that caused a horizontal position error to GPS receivers that exceeded three hundred meters.(92) If an experimental mass transit system called "platooning" or if surveyors building the world's next skyscraper received an error similar to the one in 1992, the error would cause the cars to crash or the building to be built in the wrong location. Thus, such an error could incur physical or economic loss.(93) The world's increased dependence on accurate GPS operation, combined with the history of the 1992 error, highlight the possibility of another GPS miscalculation.(94) If such an error occurs again, a plaintiff suffering harm from a GPS error could file a negligence claim under the FTCA in federal court.(95) Since the United States should argue immunization because it has performed a discretionary function, the FTCA caselaw deserves analysis.(96)

III. APPLICABILITY OF THE FTCA TO TORTS OCCURRING OUTSIDE THE UNITED STATES

Before analyzing the FTCA's discretionary function exception, it is first necessary to define the jurisdictional applicability of the FTCA. The FTCA states that it does not apply to "any claim arising in a foreign country" (foreign country exception).(97) The international applicability of the FTCA in a GPS context would most likely stem from an upload error to a satellite by the MCS in Colorado that causes harm somewhere outside the United States.(98) Since the GPS and its likely successor, the GNSS, are truly global services, it is highly likely that an upload error will affect a non-U.S. citizen using GPS information outside the United States. It appears from the FTCA's language that the United States is immune from suit in U.S. federal court for any GPS-reliant damage occurring outside its borders.

However, courts have focused on where the claim "arises"(99) and not the location of damage to determine the FTCA's applicability. In United States v. Spelar, an airplane crashed on approach at U.S-operated Harmon Field in Newfoundland.(100) The estate of a decedent in the crash alleged that the United States negligently operated the field.(101) In order to decide whether the FTCA barred the action, the Supreme Court looked to the legislative history of the FTCA.(102) After examining the legislative record, the Court concluded that Congress passed the FTCA's foreign country exception to guarantee that the United States would not be subject to the "laws of a foreign power."(103) Since the accident and the base where the alleged negligence occurred were in Newfoundland, the Court concluded that the site of the negligence was Newfoundland and not the United States.(104) The foreign country exception, therefore, barred the suit.(105)

In a subsequent case that decided which U.S. state law to apply to a FTCA claim, the Supreme Court further clarified the FTCA's foreign country exception. In Richards v. United States, an American Airlines' airplane crashed in Missouri en route from Tulsa, Oklahoma to New York City.(106) The plaintiffs, representatives of the decedent passengers, argued that the United States was liable under the FTCA for allowing the airline's negligent overhaul of the plane before it left Tulsa.(107) The Court held that FTCA claims applied the law of the state where the "acts of negligence took place," not where the negligence had its "operative" effect.(108) Thus, the law of the site of the plane's overhaul, Oklahoma, and not the site of its crash, Missouri, controlled the FTCA claim.(109)

Meanwhile, the Courts of Appeals have followed the Supreme Court's lead by defining the FTCA's foreign country exception as the situs of the negligent act and not the locus of the injury. In In re Paris Air Crash of March 3, 1974, a Douglas DC-10 airplane operated by Turkish Airlines crashed shortly after takeoff in Paris, France killing all 346 people on board.(110) The plaintiffs alleged that the United States was liable because the FAA failed to certify, inspect, and require that structural changes be made to the airplane.(111) Citing the Supreme Court's interpretation of the state conflict of law issue in Richards, the court held that where the tort arises and not the location of injury determines the applicability of the FTCA.(112) Because the allegations for negligent inspection occurred in the state of California in In re Paris Air Crash, the court ruled that the suit could proceed under federal and California law.(113)

Similarly, in Sami v. United States, an Afghanistan citizen sued the United States for an improper extradition request sent from Florida to the International Criminal Police Organization (Interpol).(114) Because German authorities improperly detained the plaintiff, he sued the United States for false arrest, defamation, and a deprivation of his constitutional rights.(115) Citing the legislative history of the FTCA's foreign country provision, the U.S. Court of Appeals for the District of Columbia stated that the "[foreign country exception to the FTCA] does not apply if the wrongful acts or omissions complained of occur in the United States."(116) Because the Broward County Sheriff's office in Florida committed the negligent act that proximately caused the plaintiff's false detention in Germany, the D.C. Circuit overturned the District Court by holding that the plaintiff's suit could proceed under the FTCA.(117)

Furthermore, courts have extended the FTCA to cover alleged negligent government decisions made in the United States but carried out entirely in a foreign country. In In re "Agent Orange" Product Liability Litigation, Vietnam veterans and their families sued the chemical companies that manufactured the biological weapon Agent Orange.(118) Consequently, the chemical companies impleaded the United States for its decision to use Agent Orange in the Vietnam War.(119) Noting that Congress intended that the foreign country exception protect the United States from the laws of a foreign power, the court ruled that the decision to use the chemical was made in the United States.(120) Writing for the court, Chief Judge Jack Weinstein stated that "under the FTCA, a tort claim `arises' at the place where the negligent act or omission occurred and not where the injury occurred."(121) Thus, the plaintiffs could proceed with their suit, and the foreign country …