In December 2019, Congress authorized the creation of the United States Space Force. Thus far, much of the discussion surrounding the Space Force’s mission makes it sound much more like Silicon Valley’s newest startup rather than the Department of Defense’s newest service branch.
Because the Space Force’s mission includes many capabilities that fall within what the Department of Defense defines as the “information environment,” which includes space, the electromagnetic spectrum, and cyberspace, a substantial portion of those capabilities can be referred to as information operations (IO).
Although it is clear the Space Force is being organized, equipped, and trained to conduct military information operations, it is perhaps less clear under what legal authorities it will conduct information operations in space. Nevertheless, there is, at least, a rudimentary legal framework for such operations.
The legal authorities to conduct information operations in space and cyberspace should be viewed through three overlapping lenses: 1) the legal framework for the use of force generally; 2) the international legal framework for information operations; and 3) the domestic legal framework for information operations.
Legal Framework for the Use of Force Generally
The United Nations Charter generally prohibits the threat or use of force, except in cases of individual or collective self-defense.
United Nations Charter, Article 2(4):
“All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the Purposes of the United Nations.”
United Nations Charter, Article 51:
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.”
Even when the use of force is justified under Article 51, such force must be consistent with the long-accepted principles that undergird the law of armed conflict: military necessity; proportionality; target distinction; and minimizing unnecessary suffering.
While Article 2(4) constitutes a general prohibition against the use or threat of force, Article 51 provides a limited exception when an “armed attack” occurs.
Although the terms “use or threat of force” and “armed attack” are often defined differently by member nations, the U.N. Charter does not define those terms to explicitly incorporate information operations.
United Nations Charter, Article 41:
“The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communications, and the severance of diplomatic relations.”
United Nations Charter, Article 42:
“Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such actions may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”
It should come as little surprise that the current legal framework that governs the use of force generally—predominantly the United Nations Charter—does not address information operations as a discrete matter. Fortunately, there are other sources of domestic and international law that can help fill the gaps.
International Legal Framework for Information Operations
The United States recognizes, is a signatory, or has ratified a number of international treaties that have IO implications.
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies, Jan. 27, 1967, Preamble:
“Recognizing the common interest of all mankind in the progress of the exploration and use of outer space for peaceful purposes . . . Desiring to contribute to broad international co-operation in the scientific as well as the legal aspects of the exploration and use of outer space for peaceful purposes … .”
The Treaty does not define the term “peaceful purposes.” A majority of signatory nations, including the United States, adopt the position that “peaceful” means “not aggressive,” while a minority of member nations adopt the position that “peaceful” means “non-military.” The majority view permits a much broader range of activities in space.
Convention on International Liability for Damage Caused by Space Objects, March 29, 1972, Article II:
“A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft in flight.”
“In the event of damage being caused elsewhere than on the surface of the earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, the latter shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible.”
Within the Earth’s atmosphere (including on its surface), liability for damage is absolute. Outside the Earth’s atmosphere, the legal standard is simple negligence. There is an exception to liability when a launching state does so during armed conflict.
The Space Objects Liability Convention has important information operations implications. A nation launching an information operations campaign in space—outside the Earth’s atmosphere—would be liable to the targeted state for damages caused to the targeted state’s satellite(s). A nation launching a campaign in space that caused the targeted state’s satellite to re-enter the Earth’s orbit—inside the Earth’s atmosphere—and crash on its surface would be liable both to the targeted state and for any damage inflicted upon the state in which the satellite crashed.
As stated above, however, under the law of war a launching state has no liability for damage inflicted against a lawful target.
Agreement Relating to the International Telecommunications Satellite Organization (INTELSAT), Aug. 20, 1971, Article III(d):
INTELSAT communications satellites may be “utilized for the purpose of specialized telecommunications services, either international or domestic, [for] other than military purposes … .”
“INTELSAT may . . . provide satellites or associated facilities separate from the INTELSAT space segment for . . . specialized telecommunications services, other than for military purpose … .”
Read in concert, the Agreement states that the INTELSAT organization may provide “public telecommunications services” to a nation’s military and for military purposes, but that the INTELSAT organization may not provide “specialized telecommunications services” for military purposes. Thus, even when used for offensive military purposes, information operations provided via INTELSAT’s public telecommunications services likely do not violate the Agreement.
Convention of the International Maritime Satellite Organization (INMARSAT), Sept. 3, 1976, Article 3(3):
“The Organization shall act exclusively for peaceful purposes.”
Despite this broad statement of intent, the Convention does not prohibit military use of INMARSAT satellites—frequently used to service maritime vessels—when such use is in accordance with the U.N. Charter and other sources of international law.
In addition to the legal authorities described above, there are non-authoritative legal sources that can help shed further light on how the Space Force might conduct operations.
The Talinn Manual 2.0 on the International Law Applicable to Cyber Operations, while not a source of law itself, is perhaps the most comprehensive analysis of how existing international law applies to cyberspace. Talinn 2.0 is organized into 95 rules covering a wide range of operations from peacetime legal regimes to the law of armed conflict.
Domestic Legal Framework for Information Operations
U.S. law is generally permissive when it comes to information operations conducted outside the United States. There are, however, some legal constraints.
18 U.S.C. § 1367:
Prohibits “without authority of the satellite operator, intentionally or maliciously interfere[ing] with the authorized operation of a communications or weather satellite or obstructs or hinders any satellite transmission.”
There is an exception to this broad prohibition for “investigative, protective, or intelligence activity of a law enforcement agency or of an intelligence agency of the U.S.” It is unclear, however, whether this exception applies to activities conducted by the Department of Defense. In addition to Section 1367, 47 U.S.C. § 502 also requires compliance with international telecommunications restrictions (as discussed in the above section).
The fledgling Space Force will inevitably encounter many challenges and obstacles, whether operational, logistical, or legal. The Space Force will likely address the operational and logistical challenges. But Congress should have the foresight to address the coming legal challenges. Although the current domestic legal regime is generally permissive, the groundwork should be laid now to ensure the Space Force is able to accomplish its mission with as few inhibitors as possible.