This month, space enthusiasts were shocked to learn that an Israeli lunar lander that crashed into the Moon’s surface in April actually had some passengers aboard: a tiny capsule filled with dehydrated microscopic organisms known as tardigrades. These little “water bears,” known to withstand very extreme environments, may have survived the wreck. Almost no one knew they were on board until a recent report in Wired revealed they had been added to the mission last minute — and without any governmental approval.

The news was met with a mixture of surprise and dismay, with some fearing that these lifeforms could contaminate the Moon. The good news is that’s probably not going to happen. “At best, the tardigrades will survive in a dormant state for some period of time depending on their level of exposure to vacuum, temperature cycling, and radiation,” Lisa Pratt, NASA’s planetary protection officer, writes in an email to The Verge.

“It sets a dangerous precedent that it’s in some way acceptable to do this.”

The mishap does raise many questions about the protocols surrounding how space-bound payloads are approved. Technically, international guidelines on interplanetary contamination don’t prohibit sending biological matter and organisms to the lunar surface, since most living creatures can’t survive there. But no governing body had a say in the tardigrade matter at all. The tardigrades were added to the lander by a US nonprofit called the Arch Mission Foundation, whose goal is to create a digital and biological “backup of planet Earth” out in space. The team had approval to add a digital library on the lander, but they didn’t inform Israel or the United States about the added water bears.

“We didn’t tell them we were putting life in this thing,” Nova Spivack, co-founder of the Arch Mission Foundation, tells Mashable. “Space agencies don’t like last-minute changes. So we just decided to take the risk.” Spivack did not want to give further comment to The Verge.

Now, some are wondering if new international guidelines should be put in place to prevent copycat missions in the future. “It sets a dangerous precedent that it’s in some way acceptable to do this without a broader scientific consultation,” Christopher Newman, a professor of space law and policy at Northumbria University in the United Kingdom, tells The Verge.

While the Arch Mission Foundation didn’t violate any official international regulations for space contamination, the nonprofit may have put Israel and the US in a vulnerable position by not explicitly asking for permission first. And the tardigrades are part of a growing trend of companies that are sending things into space that don’t have any scientific value without prior approval. All of this reopens a long-debated question: who ultimately should have a say in what we send to space?

Space pirates

With the Moon’s high radiation, violent temperature swings, and almost nonexistent atmosphere, it’s likely that the tardigrades will meet the same fatal fate as other biological materials that have been sent to the Moon. “Although excessive uncontrolled biological contamination of the Moon’s surface is not scientifically desirable, small quantities of tardigrades encapsulated in amber are likely to be of minimal environmental impact,” Pratt writes to The Verge.

“small quantities of tardigrades encapsulated in amber are likely to be of minimal environmental impact.”

Despite the near-certainty of death for the tardigrades, NASA still prefers to do an inventory check of biological materials that are being sent on each mission to the lunar surface, according to Pratt. This isn’t mandated by international law, but most space-faring nations adhere to this policy of planetary protection under guidelines established by an international group known as the Committee on Space Research. Those guidelines dictate how much biological material you can send into space based on where you’re going. And the Arch Mission Foundation denied Israel and the US a chance to do this when it added the tardigrades without telling anyone. “Technically, I’m the first space pirate,” Spivack tells Mashable.

By secretly putting the tardigrades on board, Spivack also evaded an armada of other government agencies and policies in both the US and Israel. The Outer Space Treaty — a 1967 agreement between 109 nations that provides loose guidelines for how countries should explore space — states that countries must oversee and supervise all activities in space conducted by non-government entities. Since this launch occurred in Florida, the Federal Aviation Administration had to approve the launch vehicle. The FAA does at least review payloads that are being launched when it gives out licenses, but it’s likely the agency didn’t know at all about the tardigrades. “We are looking into the matter,” an FAA representative tells The Verge. “We don’t have a timeline as to when we’ll have additional information.”

What’s more, it’s the US State Department’s responsibility to make sure the United States and entities within the US are adhering to the Outer Space Treaty. Since the Arch Mission Foundation is a US nonprofit, this may fall under its purview. When The Verge reached out, the State Department declined to comment on the situation.

But ultimately it was up to Israel to approve the payload since the lander was built and operated by an Israeli nonprofit called SpaceIL. Yoav Landsman, SpaceIL’s senior systems engineer, hinted on Twitter that the team didn’t know at all about the payload. By adding the tardigrades in secret, the Arch Mission Foundation did not allow Israel, the US, or SpaceIL to oversee the mission properly. The Verge reached out to Israel’s Ministry of Foreign Affairs, but did not receive a response.

“They’re not who gets to decide what the US’s international obligations are,” Christopher Johnson, space law advisor for the Secure World Foundation, a nonprofit that specializes in space security, tells The Verge. “They’re not who gets to decide what Israel’s international obligations are. The real worrying precedent is that private entities are putting governments on the hook for their actions under the requirements of space law.”

“They’re not who gets to decide what the US’s international obligations are.”

This isn’t the first time that a private entity has sent something into space without explicit permission. In January of 2018, a US aerospace startup called Swarm launched four tiny satellites into space on an Indian rocket that lofted a total 31 payloads. Swarm had actually been denied a license by the Federal Communications Commission, which expressed concern that the satellites were too small to track in space. But Swarm defied the FCC and put its satellites on the launch anyway. In response, the FCC fined Swarm, and the company vowed to follow all proper licensing procedures in the future.

These instances illustrate ways in which private entities have figured out how to shirk the system and international law. And experts worry that other companies may follow suit. “I think individually, nationally, all of these countries need to be thinking about these questions,” Elsbeth Magilton, the executive director of the space, cyber, and telecommunications law program at the University of Nebraska College of Law, tells The Verge, “and asking ourselves what kinds of norms of behavior are we going to set by what we approve to send to space?”

Time for a change?

The US’s licensing regime was set up when the private space industry wasn’t very mature, so it’s tailored to oversee satellites that are launched into Earth orbit, not deep space. But recently, commercial space companies have grown much more ambitious and capable, proposing sending landers to other worlds, and habitats into space for people to visit. With those growing ambitions, the US government has recognized the need for some kind of framework to regulate missions that are going into deep space and to other worlds.

The Trump administration has proposed that the Commerce Department become a “one-stop shop” for space travel, overseeing space missions like these. But that’s just the start of a broader international conversation. Some experts say this recent tardigrade fiasco highlights that more discussions need to be had about what kinds of deep space payloads are acceptable and what kind of behavior we’re all okay with.

“What’s the point?” Linda Billings, a former consultant to NASA’s Planetary Protection Office and a current consultant to NASA’s astrobiology and planetary defense programs, tells The Verge. “To me, it’s just the height of arrogance to say this is what I want to do and I’m going to do it even though it serves no public purpose. There’s no benefit to humankind.” The Arch Mission Foundation claims they are making a backup of human history, but Billings notes that other organizations, like the Lifeboat Foundation, are already taking on this endeavor, too.

The US has been fairly relaxed about people sending things into space that do not serve a scientific purpose. Numerous art projects — such as Rocket Lab’s disco ball-like satellite, the Humanity Star, or Trevor Paglen’s Orbital Reflector, a giant inflatable balloon connected to a satellite — have gone up into orbit. Those have irked astronomers, who fear these reflective objects will mess up their sensitive images of the night sky. Most notably, SpaceX launched its CEO’s sports car into deep space during the inaugural launch of the Falcon Heavy, sending the vehicle on an orbit around the Sun that crosses paths with the orbit of Mars.

“you always hear this ‘light touch, light touch, minimal regulation, light touch.’ And this has been going on for decades.”

Billings argues that the lax approach stems from a desire not to over burden the industry. “There’s been an ongoing dialogue about regulations and space activity,” she says. “And you always hear this ‘light touch, light touch, minimal regulation, light touch.’ And this has been going on for decades.”

Johnson of the Secure World Foundation argues that even though these missions were approved by the US, they may still make our country look bad to others in the international community. “They look at what the West is doing and say, ‘They can’t even control their own private entities,’” he argues. “‘Do we really trust that they can supervise and authorize and make sure that their national activities are in continuing compliance with international law?’”

However, others caution against too much regulation, which could turn into an exhaustive list of dos and don’ts. “Do we have to get so specific, that we’re listing out what you can and cannot do in space?” says Magilton. “And I think that’s a real concern, and that’s not a healthy, useful way to regulate, and it doesn’t provide that security. On the flip side, if you’re too vague, then they don’t have that security, they don’t know what’s okay, and what’s not okay.”

It’s unlikely that the international community will come together to create another major space treaty as they did back in the 1960s with the Outer Space Treaty. But the private space industry is only going to grow, and the possibilities for more bad actors in space increases as costs come down and capabilities increase. It’s clear that many more discussions are on the horizon about who and what should break free of Earth’s gravity.