Informed Consent v. ITAR: Regulatory Conflicts that Could Constrain Commercial Human Space Flight

Abstract

The International Traffic in Arms Regulations (ITAR) are a set of US export controls that serve as a significant barrier to trade between the US and foreign entities, particularly in the area of spacecraft systems. Not only are spacecraft systems included in the regulations, but these systems are subject to a special regime when not being exported to a NATO country or a major non-NATO ally. Another essential element to the ITAR is the deemed export rule, which holds that if information on defense items is revealed to a foreign national, whether inside or outside the US, then an export has occurred.Potentially, the first private human spaceflights will launch from the territory of the US with US technology. Rules on these commercial flights have been promulgated and require that the provider give to spaceflight participants. Informed under the regulations requires the provider to disclose an extensive amount of information. The information that is required for a participant to have full may be of the type that is controlled under ITAR, and its disclosure could constitute a deemed export if the passenger is a foreign national. If the simple transportation of passengers under the ITAR requires export licensing under ITAR, then implications for the commercial industry are substantial, especially since tickets have already been sold to non-US citizens. The extra licensing hurdle could have a crippling affect on the initial viability of the industry. Through an evaluation of the content of the term informed consent under US law, this paper identifies the potential conflicts between information controlled under ITAR and information required to be disclosed under the Human Spaceflight Participant regulations. Once these conflicts are identified, the paper explores whether or not these conflicts can be resolved through law or policy. Finally, the paper will evaluate the impact these conflicts could have as the fledgling industry prepares for its initial flights.