I. Introduction
From becoming the first country to land on the south pole of the moon to the world’s first 3D- printed semi-cryogenic engine, India has taken exponential leaps when it comes to space technology. Not only this, it has also ushered into commercial space age. Although India has kept its space sector highly centralized, with the Indian Space Research Organisation (“ISRO”) at the helm, but, with the advent of private firms such as Blue Origin and SpaceX, a global trend has been manifested and a revolution has been set in motion. This has necessitated the need for India to embark on a similar journey. The concept of ‘New Space’ has distorted the traditional paradigms, introducing greater privatisation, advancement in technology and greater commercial interest.
II. Shift to Privatization
Chandrayaan-3 was India’s first space mission, a testament to the potential of public-private partnerships in space. The huge milestone that was Chandrayaan-3, showed the new heights India can reach by utilizing the resources and capability of India’s private sector in space exploration. With the introduction of the New Space India Limited (“NSIL”), the commercial arm of ISRO and the Indian National Space Promotion and Authorization Centre (“IN-SPACe”), the Indian government has laid the foundation for a more inclusive, collaborative and competitive space industry. These bodies have been critical in creating an ecosystem for private players to play a more substantial role in fulfilling the nation’s space ambitions.
It is undeniable that space-related activities were concentrated in the hands of government companies. IN-SPACe made way for private sector companies to enter into this highly concentrated field. Commercialising it, and allowing the private sector to enter into this “space” has invited novel national security issues and concerns. ISRO knew that the projects it aimed at , and the growth that India needed in the space sector, could not be achieved without the involvement of the private sector. Our current legal framework and policy regulations are not adept in dealing with it but the new opportunities and the benefits that the involvement of the private sector envisages , like economic growth, technology transfer, FDI and commercialization, far outweigh the policy challenges that it poses.
The Indian Space Policy, 2023 (“ISP”) marks a crucial shift in India’s approach to space exploration and commercialization. It delineates the role of the Non-Government Entities (“NGE”) in the space sector, ranging from manufacturing, operating and designing launch vehicles, shuttles etc., to developing and commercializing satellite navigation and communication. The policy has opened up new prospects for private participation in the space sector.
This inclusion allows private companies to participate in various stages of space missions. Thus, encouraging innovation and technological advancement in the industry by allowing independent players to build their satellites and launch vehicles. The public-private partnerships further lead to an increased inflow of FDI in India, thus aiding in fulfilling India’s aim of contributing 10 per cent to the global market share in the space realm by 2030. In 2024, a 100 per cent FDI was allowed in the space sector, liberalizing the FDI policy provisions in the space sector. All of this combines to promote India’s vision of ‘Atmanirbhar Bharat’ and ‘Make in India’.
III. Regulatory Framework and Privacy Provisions
As India delves deeper into fostering its public-private partnerships in the space sector, challenges emerge, particularly concerning the transfer and management of sensitive data between governmental agencies and NGEs. A major chunk of Indian space policy revolves around satellites for communication and remote sensing, as outlined in the Satellite Communication Policy, 2000 (“SatCom, 2000”) and the Remote Sensing Data Policy, 2011 (“RSDP, 2011”). The RSDP contains detailed provisions concerning the collection, use, and dissemination of satellite data to address data concerns effectively. At the core of this regulation is the centralization of data with the Union Government through the DoS, which is the agency responsible for overseeing the distribution and utilization of satellite data. This data can at times include sensitive information with significant privacy implications.
To mitigate these associated risks, a rigorous screening process is carried out for high-resolution satellite images (better than 1-meter resolution) before their distribution. Such imagery poses substantial risk to national security and privacy, as it has the potential to reveal sensitive geographical and spatial information.
Additionally, the legal framework governing India’s space sector is evolving with the introduction of “Draft Space Bill” in 2017 and the ISP. While the former was a legislative proposal, the latter is a policy document; however, both of these frameworks aim to incorporate guidelines for promoting the inclusion of the private sector and increasing investments from the same. Nonetheless, the Draft Space Bill faced heavy criticism for its failure to effectively establish a system for the privatisation of the space sector and its tangential issues, in addition to the heavy control and regulatory challenges.
The “Outer Space Treaty, 1967”, which serves as the backbone of international space law, does not explicitly mention the involvement or role of the private sector in any of its provisions. However, being a signatory, India desperately needs the participation of private sector to align its practices with the vision of the treaty and to enhance its standing in the industry. As of now, India’s participation accounts for just 2 per cent of the global market.
However, the current administrative system including, the Department of Space (DoS), Department of Telecommunications (DoT), Ministry of Information and Broadcasting (MoIB), and the ISRO, among others, remains complex. Overlapping functions and duties within these bodies have been repeatedly underscored as a hinderance for effective governance and expansion of the Indian space sector.
The space industry is highly sensitive and privacy concerns warrant to stringent measures, such as licensing mechanisms, which can act as a major deterrent to the entrance of private players. Privacy-enhancing technologies (PET) have become vital in protecting sensitive data. It utilises cryptography to encrypt data facilitating the protection of sensitive data in its transmission and usage, without the data losing its functionality. It allows the data to remain protected from unauthorized access. By increasing the usage of such technologies, the Indian space sector can mitigate privacy risks, ensuring that data handled by NGEs is protected against breaches and misuse.
IV. Emerging Privacy Concerns due to Private Sector Participation
For privacy concerns to be addressed in its entirety, the critical facet of IPR also needs to be taken into consideration.. Despite the non-functionality of space objects, it is still possible for space debris to contain valuable proprietary information. This further requires protection. Additionally, the risk of reverse engineering is the reason behind the reluctance on the part of States to share configuration details of their space objects as it could potentially have an adverse impact on national security and privacy.
Out of similar concerns and future tussles on the same, the “Draft Space Bill, 2017” provided for the protection of IPR in the name of national security and thus, protected as a property of the Central Government. This might include the potential misuse of proprietary data or technology developed by private entities, especially foreign ones, under the guise of national security and interest. The associated risks increased in 2001, when the DoS approved the purchase of high-resolution data from foreign satellites by private companies, users, or organisations for developmental activities through the NRSA.
Further, the data from these satellites is used for several applications covering agriculture, water resources, urban planning, rural development, mineral prospecting, environment, forestry, ocean resources and disaster management. IPR laws are important with the involvement of private entities in the sector. The ownership of such data by private entities needs to be balanced with privacy rights, ensuring that any personal or sensitive information is adequately protected under privacy laws. It is possible to create a secure and transparent framework that supports innovation and protection by striking a balance between the interests of private entities and the concernsof national security.
V. Conclusion
India’s space sector is undergoing a significant shift with increased privatisation and commercialization, driven by remarkable technological advancements and strategic partnerships. Privacy concerns have not been addressed in a coherent and foolproof manner to date. India has immense untapped potential in this area, particularly, asteroid mining, space tourism and satellite broadband. To reach its 10 per cent goal by 2030, the fastest way would be to leverage the private sector to the best of its capacity. Furthermore, ISRO should delegate its responsibilities, apart from its core competencies, to these newly established agencies and bodies. ‘New Space’ is a crucial time for India to achieve its space ambitions and present a strong foot forward in the global space race. .
References:
1. Indian Space Policy, 2023 (Indian Space Research Organisation, 2023) <https://www.isro.gov.in/media_isro/pdf/IndianSpacePolicy2023.pdf> accessed 25 August, 2024.
2. Government of India, Department of Space, Draft Space Activities Bill, 2017, Explanatory Note on Draft Space Activities Bill, 2017 (Government of India, 2017) <https://www.isro.gov.in/media_isro/pdf/Publications/Vispdf/Pdf2017/seeking_comments_on_draft_space_activities_bill201710.pdf > accessed 25 August, 2024.
3. Neel Agarwal, ‘Space Law and its Position in India’ (2022) 1(1) Inaugural Issue Articles [1, 15].
4. Ms. Rima Hore, ‘A Critique of the Draft Space Activities Bill, 2017’ (2021) School of Legal Studies Journal https://www.cmr.edu.in/school-of-legal-studies/journal/wp-content/uploads/2021/03/Article-5-1.pdf accessed on 25 Aug, 2024.].
5. Kanchan Samtani, ‘Intellectual Property Rights in Outer Space Activities’ (2019) 6(1) Journal of Emerging Technologies and Innovative Research www.jetir.org accessed on 25 Aug, 2024.
6. Shouvik Das, ‘ISRO arm NSIL signs $18-million deal with Australian govt for commercial satellite launch’ Live Mint (26 June 2024) <https://www.livemint.com/companies/news/isro-arm-nsil-signs-18-million-deal-with-australian-govt-for-commercial-satellite-launch-11719382604958.html> accessed 25 August, 2024.
7. Rajeswari Pillai Rajagopalan and Dimitrios Stroikos, ‘The Transformation of India’s Space Policy: From Space for Development to the Pursuit of Security and Prestige’ Space Policy (14 May 2024 <https://doi.org/10.1016/j.spacepol.2024.101633> accessed 25 August, 2024.
8. Vikrant Rana and Vidhi Oberoi, ‘Chandrayaan-3: A Journey Towards the Final Frontier’ Bar and Bench <https://www.barandbench.com/law-firms/view-point/chandrayaan-3-a-journey-towards-the-final-frontier > accessed 25 August, 2024.
9. Sandeepa Bhat B and Shovik Kumar Guha, ‘Chapter 10’ in Fundamentals of National Space Laws (Thomson Reuters, India 2022).
10. Cabinet Approves Amendment in the Foreign Direct Investment (FDI) Policy on Space Sector (21 February 2024) https://pib.gov.in/PressReleasePage.aspx?PRID=2007876 accessed on 25 Aug, 2024.
This article is a part of the Showcase Pieces Series.
Student, Symbiosis Law School, Noida
