Damned If You Do, Damned If You Don’t: The Problem of Informed Consent for Foreign Space Flight Participants Under U.S. Law

Abstract

This paper explores the tension that exists between US export control regulations and FAA space flight participant informed consent regulations that potentially limits a foreign space flight participant from launching aboard an FAA licensed launch vehicle. The development of the “space tourism” industry has slowly evolved over the last decade. As dream becomes reality for those willing to pay for a flight into outer space, foreign space flight participants will be subject to US export regulations. The International Traffic in Arms Regulations (ITAR) prohibit the export of technical data to foreign nationals without an export license from the Department of State. Under ITAR, technical data includes “Information, in any form, which is directly related to the design, engineering, development, production, processing, manufacture, use, operation, overhaul, repair, maintenance, modification, or reconstruction of defense articles.” In addition, the FAA requires that space flight participants be given informed consent of the risks involved in space flight on a licensed commercial launch vehicle, i.e., the ability to ask questions and receive information with respect to certain dimensions of their participation in space flight, which includes potentially divulging some US controlled technical data. Because the commercial space flight regulations have not specifically addressed this issue, it is unclear whether a spaceflight operator can balance the need to obtain an export license for foreign nationals who seek to fly aboard a licensed commercial launch vehicle as a spaceflight participant with “lawful” informed consent of the underlying technologies in order to comply with commercial human space flight requirements under U.S. law.Thus, this paper advocates that some reforms will be necessary in order for commercial space flight companies to launch foreign space flight participants. Otherwise, since US export control regulations and informed consent requirements tend to be open-ended and unclear, commercial spaceflight companies could be potentially open to legal risks that arise from two broad legal requirements.This article was published in Volume 6, Issue 2 (2012-2013) of the Phoenix Law Review and starts on page 303. With permission from the Phoenix Law Review, a pdf copy is available to download on ssrn.