EFF legal intern Roger Li co-wrote this blog post.

Satellites could soon track our movements from space, allowing for surveillance on a mass scale that most people haven’t ever contemplated. Yet U.S. rules governing commercial satellite licenses require satellite companies to disclose the unenhanced data they collect to governments around the world. This week, EFF filed comments with the Department of Commerce and the National Oceanic and Atmospheric Administration (NOAA) urging the agencies to take privacy into consideration when they issue satellite licenses.

U.S. companies and research institutions that want to launch private satellites must first obtain a license from the federal government. As satellites have become smaller and less expensive to launch, and as the market has increased for the images and other data collected by satellites, satellite companies have been pushing the government to streamline the licensing process. This spring, the Department of Commerce issued a proposed rule that is designed to do that and then requested comments from interested parties. Noticeably absent from this proposed rule are any new protections to address the clear privacy risks raised by satellite images and recordings and the existing rule’s data sharing requirement. EFF’s comment urges the Department of Commerce to address these concerns.

Private Satellites Pose Substantial Risks to Privacy and Civil Liberties

Satellites are capable of highly advanced and continuous surveillance through high resolution imaging, thermal imaging, and near real-time video, and their capabilities are increasing every day. Private satellites are currently allowed to create images of up to 25 centimeters of resolution, which is enough to discern something the size of a mailbox. Satellites can also conduct thermal imaging, hyperspectral imaging (which captures electromagnetic wavelengths outside the visible spectrum), and atmospheric monitoring. Technologies like these can be used to cut through cloud cover, to determine the height of objects, and even to “identify underground bunkers or nuclear materials.”

A single one of these satellites can orbit around the Earth revisiting and reimaging the same area every 90 minutes, and several satellite operators advertise an archive of images that dates back ten or nearly 20 years. These vast archived datasets—which include data on private citizens—allow anyone with access the ability to enter a virtual time machine and view and monitor past actions for as long and as far back as a satellite operator retains data.

As a condition of a license, private satellite operators are required to, upon request, provide unenhanced data to “the government of any country (including the United States)” if the data covers that country’s territory “unless doing so would be prohibited by law or license conditions.” Governments can use these images and video from satellites to surveil our activities, and searchable archives can help them track this activity over time. Governments could also combine satellite data with information gathered from other law enforcement surveillance technologies like automated license plate readers, street-level surveillance cameras, and face and object recognition to deduce an even more detailed log of a person’s movements. With the advent of real-time video, private satellites could subject the entire world to continuous 24/7 surveillance.

Government access to sensitive information like this raises stark Fourth Amendment concerns. As the Supreme Court recently recognized in Carpenter v. United States, a case addressing the collection of historical location information, “time-stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.’”[1] The Supreme Court has also expressed concerns about surveillance that reaches inside the home (including via thermal imaging), surveillance that logs travel in public, surveillance over time that allows law enforcement to look back in time, and the ability to surveil everyone—all concerns that are implicated by private satellites.

These Risks Can Be Mitigated Through a Few Key Changes

To address these concerns, EFF suggests several changes to Commerce’s proposed rule, which would increase transparency and diminish satellites’ privacy risks. These changes include: expanding disclosure of privacy risks in licensing applications, conducting regular audits on government data requests, incorporating privacy considerations in the criteria for high-risk applicants, and conducting a further rulemaking on these privacy concerns. We hope the Department of Commerce will consider these changes in writing their final rule. By doing so, they could begin to address the current and growing risks that private satellites pose to our privacy and our civil liberties.