Maxar Technologies electro-optical satellite image (Maxar)

WASHINGTON: The National Reconnaissance Office is proposing a “Civil Reserve Space Fleet” of commercial imagery satellites, Breaking Defense has learned — a first-of-its-kind construct akin to the Air Force’s Civil Reserve Air Fleet (CRAF) or the Maritime Administration’s National Defense Reserve Fleet.

The twist is that the spy sat agency is seeking the right to permanently commandeer imagery taken during the time when that “fleet” is called up — a contractual form of what is known as “shutter control,” something that long has been the subject of fierce policy debate.

The proposal, embedded in the draft request for proposals (RFP) on commercial electro-optical (EO) imagery obtained by Breaking Defense, has received mixed reviews from industry reps, former and current government officials, and independent experts.

The pertinent language in the “Electro Optical Commercial Layer (EOCL)” RFP reads:

The Government will only direct the Contractor under this section upon direction by the Director, National Reconnaissance Office with concurrence of the Director of National Intelligence and the Secretary of Defense. … 

Upon direction under this section, the Contractor shall provide to the Government all imagery collection opportunities and the collected imagery over a designated area from any Contractor satellite licensed under a Department of Commerce CRS license. Additionally, the Contractor shall permanently withhold all imagery collected by the Contractor’s satellites over the designated area from resale or exposure to a public domain or interface, and shall make the imagery available only to users approved by the Government. The designated area will be significant and the duration of direction will be finite.”

“Clearly the government is trying to adopt market-based incentives for imposing periodic dissemination controls through exclusive purchase options on the community of satellite providers electing to sell to the national security community,” said Andrew D’Uva, chief executive officer of Providence Access Co. “For some operators, this may be seen as a reasonable trade — an opportunity to sell more — but others whose business case depends on selling the same product multiple times to the public may find the exclusive purchase ‘carrot’ might not outweigh the ‘stick’ of periodically limiting their market.”

“I think the overall idea of a civil reserve fleet makes sense — it’s what we do in the air and maritime worlds to augment government capacity in times of great need without having to pay to maintain a ton of extra government stuff all the time,” said Brian Weeden, head of program planning at Secure World Foundation. “You call it up when you need it, but otherwise it goes off and does commercial stuff.”

Likewise, several satellite industry reps were supportive — even of the shutter control clause.

“I believe the intent is to mirror a CRAF-like concept,” one industry source say. “Much like the USG wouldn’t take United’s planes forever — they will take them at time of urgent need, at a pre-negotiated rate, for specific purposes. Note that the authority to invoke this requires [DoD/NRO] authorization with SecDef and DNI. That is a big deal.”

“This seems completely reasonable. There are very good reasons to impose dissemination limitations sometimes, if it’s possible,” another industry source said. “You take Caesar’s coin, you play by Caesar’s rules.”

While high-quality imagery remains “relatively scarce,” governments (not just the US) naturally “will try to control it from time to time,” the source added, but eventually that situation will change and access will simply be uncontrollable.

Satellogic EO sat

Argentinian firm Satellogic’s Aleph-1 EO sat

Closing The Barn Door …

Indeed, many experts believe shutter control already is an obsolete approach, given the explosion of imagery satellites in recent years — including many owned and operated by a host of international commercial firms and foreign governments that would not be subject to the NRO’s restrictions.

For example, a 2019 study by The Aerospace Corporation posits a not-so-far-off future, dubbed the “Geospatial Intelligence (GEOINT) Singularity” where “realtime Earth observations with analytics are available globally” to everyone including the average citizen.

“The thing that strikes me is that this may have made sense back in the day when there were limited EO constellations, but now with the explosion of those types of operators, it would be harder to lock down images entirely,” said Victoria Samson, Secure World’s Washington office director. “[It’s the] same thinking that keeps the existence of certain military satellites classified even though anyone with a telescope who knows where to look can see them being launched/in orbit.”

“Sometimes the glass over the bio-dome in Chantilly is foggier than others,” one insider quipped about the spy agency’s blind spot regarding the widespread availability of high-quality EO imagery. (Chantilly is the Virginia home of NRO headquarters.)

“Frankly, this is an area where the United States can’t control what happens anymore,” Weeden said bluntly.

‘Re-litigating’ A Lost Policy Decision?

While some may shrug at shutter control, feeling it’s an issue that will become obsolete over time, others are concerned the policy could have negative affects on the burgeoning US commercial satellite marketplace. Simply the prospect of shutter control, these sources say, could make foreign customers jittery about buying US imagery products, freezing up needed funds for American companies who would be subject to the rules.

Indeed, these sources argue, the proposal flies in the face of reforms to Commerce Department licensing rules that relaxed restrictions on imagery sales , not only of EO, but also of synthetic aperture radar (SAR),in order to specifically bolster US commercial remote sensing firms on the international market. For many years, US commercial sat firms were prohibited from selling any SAR imagery; leaving NRO birds as the only providers — while in Europe and elsewhere commercial SAR firms thrived.

The Commercial Remote Sensing Regulatory Affairs (CRSRA) office of the the National Oceanic and Atmospheric Administration, which in turn falls under Commerce, regulates space-based commercial remote sensing. CRSRA issued the new rules just last May, which in effect ended shutter control for a majority of operators who qualify for what is known as a Tier 1 license and who are providing imagery at resolutions (a measure of how small an object can be seen) that are widely available overseas. But that decision came only after a fierce, year-long interagency tussle about the issue of how much power DoD and Intelligence Community would have to set restrictions.

“The DoD/IC fought on this issue hard (and lost),” said one industry rep. “It seems like they are trying to put it back in.”

Another expert noted wryly that the clause likely “does not comport [with] what CRSRA thought was agreed to during interagency negotiations prior to rule finalization.”

“There’s a new administration, and NRO is trying to re-litigate this,” the government insider agreed.

Back To The Future

However, Doug Loverro, a former head of DoD space policy, said that the NRO’s contractual clause is consistent with how the National Geospatial-Intelligence Agency (NGA) contracted for commercial imagery prior to 2017, when responsibility for doing so shifted to NRO.

“Yes, this is shutter control (aka Limited Operations) by another means, but it is consistent with how NGA has done this in the past,” he said.

Loverro explained that shutter control has long been a top-level US policy, with its application via regulation by Commerce in its licensing process, and at the request of the defense secretary. However, he said, the regulatory authority was never actually invoked because it was legally unclear with regard to how much liability the government might incur. Further, a broad ban on use of satellite imagery over a region likely would have triggered a First Amendment law suit by media organizations — one that may well have succeeded.

NGA’s approach, however, of using a contract clause was felt by policy-makers to be more easily defended in court — after all, the vendor signed the contract of its own free will.

Indeed, NGA (under its former incarnation as the National Imaging and Mapping Agency) used what was nicknamed “checkbook shutter control” only once — during the invasion of Afghanistan in 2001, when it moved to acquire all of the imagery from the commercial Ikonos satellite. But only two years later, when US and coalition forces invaded Iraq, it didn’t even bother because already then non-US sources of commercial imagery were available.

NRO’s Take

The NRO is stressing that the requirement in the draft RFP is a contractual clause. Further, a spokesperson told Breaking Defense in an email, the Commerce rules do still include regulatory shutter control conditions on some remote sensing operations.

“This is a contractual requirement unique to the EOCL draft RFP, not a policy nor regulation,” the spokesperson said. “However, it would only be invoked when absolutely necessary in a time of national crisis. This is consistent with [Commerce] Tier 2 and 3 license guidelines for shutter control for those companies with U.S. or world-leading capabilities. The U.S. would only invoke this requirement if and where it provides value.”

The spokesperson elaborated:

“The NRO included this requirement to provide the U.S. Government (USG) with extra assurance—beyond the provisions in Department of Commerce (DoC) commercial remote sensing (CRS) operating licenses—that the USG will have necessary, exclusive, and reliable access to U.S. commercial provider capabilities in the event of a national crisis. Like other unique contractual requirements in EOCL, including this requirement was driven by the intended intelligence and defense applications of the commercial imagery procured under this contract.”