Dramatic changes needed – Review of the Remote Sensing Space Systems Act released

Back in 2018, SpaceQ asked "can the RSSSA (Remote Sensing Space Systems Act) keep up with the growing smallsat community?" Now, in 2022, a new comprehensive report mandated by law and produced by Space Strategies Consulting Ltd (SSCL) indicates the answer is "only with dramatic changes.” SSCL has a history working with key players in the Canadian space sector, including both governmental stakeholders and industry leaders. Run by Col (Ret) Andre Dupuis, former Acting Director General Space/ Director Space Requirements at DND, it brings a host of defence and space industry experience to bear. They were invited by the Government of Canada to produce a report on the RSSSA, the laws and regulations that govern remote sensing in Canada. The review of the RSSSA is mandated by law to happen every five years. RSSSA was originally passed in 2005, and due to the primacy of security concerns and international relationships at the time, responsibility for the licensing was given to Foreign Affairs, now Global Affairs Canada (GAC). While this made sense when nearly all satellites and launches were being made by state actors, things have changed dramatically since then. Remote sensing is becoming more and more important in the private sector, and questions exist as to whether the existing RSSSA framework and licensing body suits this new reality. The previous review commissioned by McGill’s Institute of Air and Space Law in 2017 strongly suggested that changes were needed. SSCL's new report suggests that, if anything, the situation is worse. Division between satisfied GoC and “extremely critical” academy and industry The report was created through a series of questionnaires and interviews with 62 stakeholders in government, industry, and academia. And while the majority of respondents do support the Act, the nature of the responses reveals a wide gap between Governmental and other stakeholders. Government stakeholders are largely satisfied with the RSSSA and what it does. They see it as doing the job that it was created to do: to protect potentially sensitive information about Canadian and allied military and intelligence assets. They see no issue with the licensing process; generally they either think that it's fine, or simply know little about it either way. SSCL said that the impact of the RSSSA on Canadian industry was "poorly understood" by government stakeholders. People outside the government had dramatically different beliefs. The report revealed that while over 87% of government stakeholders indicated that they either didn't know RSSSA's impact on industry or believed the costs were "minor" or negligible," over 45% of non-government stakeholders (academia and industry) said that the costs were either "significant" or “prohibitive.” Respondents mostly supported the goals of the RSSSA and supported Canada in fulfilling its international obligations, but noted that the RSSSA regulations create significant data management issues with data management, and they struggle with an opaque and difficult license application process. While there is overall support for GAC's efforts, respondents also said that attempts to interface with other parts of the Government of Canada on space-related issues have been either “burdensome” or “very burdensome.” In more detailed interviews, similar themes emerged about the Act. While government stakeholders were "satisfied with their ability to exercise appropriate control over remote sensing space systems, and thus protect the relevant Canadian security and foreign policy interests," non-governmental stakeholders said that "the RSSSA is increasingly out of touch with international trends in the regulation of remote sensing space systems," leading to (in one example) an innovative Canadian remote sensing company using European data instead of Canadian RADARSAT data for its tool to protect Canada’s wetlands. While larger companies are able to navigate the RSSSA labyrinth—though even they can have issues with System Participation Agreements—smaller stakeholders (including university R&D groups) were “extremely critical” of the regulatory regime they struggled with. Considering the frequent complaints in other technology-focused sectors about the difficulty of start-up and scale-up in Canada, an oppressive regulatory environment for earth observation would be the nail in the coffin for any attempt to build a sustainable space sector in Canada. Need for RSSSA now that remote sensing is “commonplace commodity” The report (and most stakeholders) do recognize that the RSSSA served a purpose, but questions what that purpose is now. SSCL emphasizes that remote sensing has gone from being rare and expensive to cheap and ubiquitous. Thanks to the dramatically falling launch costs, equally dramatic reductions in LEO satellite size, and the growing trend towards constellations of satellites that last only a few years before deorbiting, earth observation has become both a big business and nearly ubiquitous. Canadian attempts to lock down Canada’s own satellite data runs into a simple problem: any security- or defence-based asset that they’re trying to protect is going to be observed by any number of other satellites that are not regulated by the RSSSA. Whether by ICEYE, Maxar, Capella Space or others, the report acknowledges that “space remote sensing information has instead become a commonplace commercial commodity that is widely available from many international sources.” That means that "Military forces and others that the RSSSA is intended to protect have already or will soon need to adapt to nearly constant surveillance from space. Therefore, the risks from space surveillance are already being mitigated in ways other than by regulation of satellites…U.S. regulatory controls of remote sensing space systems will be of limited duration and are intended primarily to give national security stakeholders time to adjust their operations as new global space remote sensing capabilities become widely available." Government stakeholders want to ensure that Canada does not leak information that might affect its international partners, but SSCL makes it clear that the international partners have already moved on. The RSSSA, in their words, “puts Canadian industry at an international competitive disadvantage,” and they point to stakeholders that said that “they had lost business opportunities because of the RSSSA.” (The report notes that the United States, Japan, and Germany manage to fulfill requirements under international law in ways that don’t burden their domestic space industries as heavily.) RSSSA hindering both basic research and northern economic development The RSSSA is not only affecting industry; SSCL discovered that researchers were also struggling with the RSSSA regulatory regime. The Act is so broad that any kind of satellite that is “capable of sensing the surface of the Earth through the use of electromagnetic waves” may require a license. This can include university research satellites, and so university scientists and engineers find themselves in a situation where “the time, cost, and complexity of an RSSSA licensing process for their R&D satellite was a significant drag on their R&D programs.” The report also mentions that the RSSSA struggles to manage all these use cases partially because of its unsteady position in Canada’s “patchwork of space governance.” Aside from being “burdensome” in the eyes of stakeholders, it prioritizes security issues to the detriment of all others, so much so that promising potential businesses—like sub-arctic satellite ground stations—are difficult-to-impossible to establish. These businesses would, according to SSCL, “represent a significant economic and social development opportunity for northern and First Nation communities.” It means that company officials may need security clearances, data handling systems may need security requirements, and encryption may need to be vetted. While SSCL didn’t get into these details, all of these situations may require the involvement of the Canadian intelligence agencies responsible for security clearances (CSIS) and cybersecurity (CSEC). While a large company would have the resources and connections to manage these relationships, small ones would not, further harming Canada’s position in the growing space market and driving growing space-focused companies out of the country. RSSSA licensing body in GAC faces “steeply rising workload”, lacks dedicated leadership and basic resources As for the RSSSA and its administration, the report notes that “GAC has a small section of licensing officers to administer the RSSSA,” and is both staffed and led by foreign service officers that may have limited to no knowledge of the space portfolio in general, let alone Canada’s space industry. Its small size and low profile has also meant constant struggles for resources, which affects its ability to manage its “steeply rising workload.” The report asks “Is GAC the appropriate department to administer space remote sensing regulations?” Leadership is highlighted as an especially glaring issue: "Leaders within GAC, including those with direct oversight of the space portfolio (e.g., the rotational Executive Director of the Non-proliferation, Disarmament and Space) may have limited knowledge and experience of space issues, especially in comparison with counterparts in other departments and agencies like National Defence and the CSA." RSSSA now of “little benefit to Canada” The conclusions and recommendations are, as one would expect, somewhat drastic. They recognize that GAC’s staff have done “excellent work administering the RSSSA…despite the complications and contradictions that GAC faces in implementing legislation that is increasingly outdated and arguably irrelevant.” Nevertheless, this situation is a real problem. SSCL concludes that “the RSSSA provides little meaningful security or foreign policy benefits to Canada” in this era of ubiquitous Earth observation, and that it creates “costs and complexity for the Canadian space industry and R&D organizations” that “inhibit innovation and disadvantage Canadian businesses with respect to international competitors.” GAC’s RSSSA staff are doing their best, but cannot keep up with the constantly growing workload and “increasingly complex” technical, legal and policy issues, especially as “the resources applied to administer the RSSSA, especially numbers of personnel, are not increasing in step with the increased workload.” And beyond the RSSSA, Canadian innovators in both industry and academia are “faced with a complex and confusing government bureaucracy when creating, licensing, and operating new space technologies.” Canada needs a General Space Law and a National Space Policy to sort this all out, especially considering the growing importance of space-based data for Canadian enterprise and Canadian citizens. SSCL recommends comprehensive changes Their recommendations on how to resolve this are split into three time horizons: Short-term, medium-term and long-term. In the short term, GAC needs to “lead a formal interdepartmental review of the policy goals of the RSSSA to balance and reconcile Canadian national security and foreign policy interests with the economic development, innovation, and global competitiveness interests of the country”, as well as improving the licensing process, making it more transparent, and establishing a permanent RSSSA advisory committee. GAC has already done some work on the licensing process, but more needs to be done, and the RSSSA group at GAC is still dealing with resource issues. The review needs to look at possibilities for standard exemptions, and especially to ensure that the RSSSA licensing process will not harm disadvantaged communities (including First Nations) in the North. They stand to dramatically benefit from both ground station placement and fro Canadian-made earth observation. In the medium term, GAC needs to find more resources to manage the increasing RSSSA licensing workload, including funding for more policy and license officers, as well as a permanent expert space manager. The Government of Canada needs to create a “one-stop shop” on Space to integrate Canadian space licensing and support activities, and amend the RSSS regulations to implement class exemptions based on the previous review. In the long term, SSCL recommends that Canada create a Cabinet-level Space Committee, much like the U.S. National Space Council. They need to conduct a whole-of-government/industry/academia review of Canadian Space Policy: one that reflects the dramatic changes in the space economy that have taken place in the past decade, and which can manage the equally dramatic changes that are likely to come. Based on that review, Canada should create a new National Space Policy, pass a comprehensive Canadian General Space Act, and should either amend or replace the RSSSA. Will it happen? Whether they’ll implement these changes is an open question. Many of these findings echo those of the Institute of Air and Space Law’s 2017 review. Five years later, the issues remain, and SpaceQ’s inquiries into that previous review elicited nothing but boilerplate responses from GAC. While GAC has produced an application guide for the RSSSA, SSCL’s review shows it clearly wasn’t enough. This is also a “who will bell the cat?” situation. The review showed that governmental stakeholders seem largely satisfied with the situation; it is industry and academic researchers that are having to deal with these problems. Yet it’s those same governmental stakeholders that would need to implement these changes. Why would they change a situation that they’re satisfied with, when it’s very possible that any problems with the process could affect their reputation or careers? This opens an opportunity for industry advocacy organizations, like the new Space Canada led by former New Brunswick Premier Brian Gallant. It will be their job to educate policymakers on the situation, pointing to these critical Reviews as proof, and to encourage them to direct other Government of Canada stakeholders to implement these changes. Policymakers focused on Canada’s North, on First Nations, and on Canadian technological competitiveness are especially valuable potential allies; Northern First Nations communities stand to benefit from these changes, and the fact of the matter is that space-based technology is an inextricable part of Canada’s future technological competitiveness. In addition, these organizations can reach out to Canada’s defence and intelligence communities to mollify security concerns and ensure that policymakers have the latitude they need to make necessary changes, to ensure that whatever replaces the RSSSA is not a law that only satisfies Government of Canada stakeholders.