Eyes in the Sky: As the Media Use More Satellite Imagery, Government Shutter Control Raises Concerns

Article excerpt

Are not just for spying anymore. In fact, since the mid-1980s, when the U.S. government began licensing commercial satellites, those images have been used repeatedly by both the print and broadcast media to illustrate and explain stories such as the nuclear meltdown at Chernobyl, wars in the Middle East, die Exxon Valdez oil spill in Alaska and, more recently, the plane crash that killed Commerce Secretary Ron Brown.

Satellite, or remote-sensing, imagery also has been used by the news media to develop investigative stories based on the data.

But as the federal government rethinks its licensing of commercial satellites, news organizations have stepped up to warn against controls that could amount to unconstitutional prior restraint.

The National Oceanographic and Atmospheric Administration (NOAA), which oversees the regulations for licensing commercial satellites, recently solicited public comment about updating those regulations. It is likely there will be public hearings before a more detailed rule-making proposal is put forth.

Included in the areas in which NOAA is soliciting comment are a review of the license application procedures; what standards and procedures should be applied when restricting imagery for national security/foreign policy concerns; and the impact of foreign agreements.

The regulations currently give a certain degree of "shutter control" to the secretary of commerce, in consultation with the secretaries of defense and state, if they believe distributing data from a certain area might compromise national security or foreign policy interests.

That standard, however, is simply too vague - and amounts to unconstitutional prior restraint - as far as the media are concerned.

In comments filed with NOAA, the Radio-Television News Directors Association, the American Society of Newspaper Editors, the Media Institute, the National Broadcasting Co. Inc., and the Reporters Committee for Freedom of the Press maintained that the "current U.S. policy governing remote-sensing images creates the possibility of prior restraint of both the gathering and dissemination of news, because it grants the government `shutter control' over privately owned commercial remote-sensing systems without the requisite showing of a clear and present danger or a judicial determination that such censorship is justified.

"Further, they charged that "the developing marketplace for commercial remote-sensing imagery is inhibited by a regulatory environment that does not adequately reflect the free-expression standards of U.S. constitutional law."

The media comments noted that as both print and electronic media "learn more about remote-sensing imagery and photo-interpretation analysis, they with begin to rely more heavily upon imagery not only as one way to cover certain stories, but as a source of stories that might never have been discovered otherwise.

"This field, then, has the potential to become not only a viable commercial enterprise but also an invaluable public interest vehicle, contributing exponentially to the news media's ability to gather information, and thus, to the public's `right to know."'

The media groups urged NOAA to "take every precaution not to hinder the use of this investigative tool unnecessarily and unlawfully" when it crafts its regulations.

Further, they noted, the press needs to know in advance "whether, when and how content-based restrictions will be imposed," or government restrictions could undermine the economic viability" of-such systems for news gathering and possibly "chill the willingness of mass media organizations and other parties to invest substantial sums in developing such systems and applying for a license to operate them."

In addition to their First Amendment concerns, the media groups also pointed out that the regulations raise questions about Fifth Amendment protections against unreasonable searches and seizures and government taking property without just compensation. …