On 26 February 2022, two days after the Russian invasion of Ukraine, Elon Musk, SpaceX founder and CEO, responded to a request from the Ukrainian deputy prime minister, confirming on Twitter that Starlink satellite internet service is active in Ukraine. A technology that had thus far been considered an experimental alternative to undersea and on-the-ground telecommunication services suddenly became the communication lifeline for a war-torn country. But such solutions carry concrete policy and legal implications which must be carefully assessed and addressed.
Starlink over war-torn Ukraine
A surge in the number of commercial satellites in recent years has been celebrated for its potential to improve global connectivity, but has also been met with scepticism over its implications for the environment, astronomy and space security. Communication satellite constellations now being deployed in low earth orbit (LEO) in the tens of thousands will deliver broadband connectivity to remote areas and inhospitable terrain around the globe and provide back up in emergency situations.
While policymakers and lawmakers at domestic and international levels are interpreting and reviewing applicable laws and regulations to address pressing concerns, the US company Starlink has already started providing beta services in multiple jurisdictions, where it has been granted necessary licences and authorisations. Even though Ukraine was not among these jurisdictions, after the Russian invasion began its authorities requested Starlink user terminals to make sure the country didn’t lose connectivity. Russian authorities declared a year ago that they won’t allow the use of foreign commercial communication satellites in Russia and that they view them as security threats serving the interests of their home states. This decision conforms to Russia’s long-term policy of maintaining strict control over connectivity infrastructure and information. If Starlink terminals prove useful in this conflict, they will potentially alter the perception of LEO satellites globally, increase competition among spacefaring nations and increase the emphasis on security-related elements in national authorisation and licensing procedures.
LEO satellite broadband access – what’s new?
Musk’s Starlink is the most prominent of a few companies worldwide offering broadband internet access through LEO satellites. The concept is simple: a company operates large numbers of LEO satellites and offers broadband connectivity directly to consumers or to backhaul services for local internet access providers, like Orange or AT&T. The service would complement terrestrial infrastructure, including undersea fibre-optic cables and wireless radio frequency-based solutions, to provide broadband services to everyday internet users like the readers of this blog.
Accessing the internet through a LEO satellite constellation requires connecting to a user terminal that is placed outside, with a clear view of the sky, just as connecting to the internet used to require a modem that dialled into the ‘international’ network through a landline. Unlike with that old network however, the user terminal, once powered, is sufficient infrastructure in itself – there’s no need for additional fixed ground infrastructure in close proximity. Musk’s promptness and flexibility in deploying user terminals in Ukraine served as a proof of concept for LEO-based internet in more ways than expected.
First, it proved the global prevalence of the satellite broadband infrastructure. Before national communication authorities got a chance to grant Starlink a license for broadband services or ground stations to connect the Satellites to existing fibre-optic cable infrastructure, the service became available simply with the delivery of user terminals. Because of the emergency, existing ground stations in Poland were utilised, requiring cross-jurisdictional cooperation. If they were not available, connectivity via Starlink would have relied on more remote ground stations in Lithuania and Turkey. Reportedly, the official permission for Starlink to launch service in Ukraine was considered to be the tweet from the Ukrainian deputy prime minister. SpaceX president Gwynne Shotwell referred to it as the basis for SpaceX to proceed with landing rights, claiming that providing Starlink was the right thing to do and best way to ‘uphold democracies’.
Second, the Ukrainian Starlink case showed how technically frail LEO satellite broadband is: some radio signals were quickly jammed by Russians while Ukrainians struggled to power up user terminals due to local power shortages. If LEO based internet is to be relied on in underserved regions, these issues must be considered. Equitable internet access therefore will depend on access to other critical infrastructures or decreased power consumption for user terminals. SpaceX is working on the latter, updating its software to reduce peak power consumption and make it possible to power the Starlink user terminals from a car cigarette lighter. In peacetime, jamming is not a common practice; harmful and intentional interference with satellite signals is prohibited by the International Telecommunications Union’s regulatory framework and international space law. In an international armed conflict, if satellite signal interference is used as a tool of warfare, it should be conducted in accordance with the principles of international humanitarian law, when necessary, in a proportional and humane manner.
Third – and most important to readers of this blog – are questions about the legal nature of LEO-based internet connectivity. Has Elon Musk set an international precedent, similar to the Sputnik launch in 1956?
LEO satellites under international law – more than just the outer space treaty
Ukraine officially requested the Internet Corporation for Assigned Named and Numbers (ICANN), a California-based non-profit facilitating the global Empowered Community of stakeholders, take Russia offline as a response to its act of international aggression. ICANN quickly created a USD 1 million fund to support Ukrainian cyber stability and resilience, but denied the request, citing the need to sustain internet identifiers. Other domain name system actors, including RIPE NCC and the Internet Society, expressed similar sentiments, with a long list of civil society organisations praising them and citing the human right to access information as binding among international sanctions. This approach also seems to be supported by Musk, who has called himself a ‘free speech absolutist’ and denied requests from ‘some governments (not Ukraine) to block Russian news sources’.
Musk also referred to accessibility and cybersecurity by pointing out that Starlink is the only non-Russian communications system operational in Ukraine and as such is likely to be targeted, a prediction that came true when the Starlink frequency was jammed the next day. SpaceX quickly adjusted its software to this challenge and overcame the jamming. However, the case reflects the complex cybersecurity and human rights issues intrinsically tied to internet access and multistakeholder governance. Unlike international sanctions, which are rooted in international law, connecting, disconnecting and limiting access to telecommunications in a decentralised environment relies on individual actors, their rough consensus and running code. Will ceding power to provide internet access to private companies give them the ultimate authority to decide what, where and how we can read, watch or experience? Should LEO-based internet access come with an international law or human rights mandate? If so, how can we make sure it is enforceable?
The SpaceX Ukraine case offers some answers. Granted that, per the UN GGE 2013 and 2015 reports, international law applies online as it does offline, it is the legal framework for critical internet infrastructure: undersea cables, landlines and LEO satellites. It applies to a US company offering services in Ukraine as well as a Chinese company that might offer its service in Russia. This technical function must follow international and national norms: refrain from restricting access to content or collecting user data in breach of international human rights treaties. Their operations should follow the coordination and recording procedures of the International Telecommunications Union.
Communication satellites are also subject to space law. Through five treaties and five sets of principles, states have agreed to use outer space for peaceful purposes only and in the common interest of all mankind by all states without discrimination. Accordingly, deployment of weapons of mass destruction in outer space is prohibited, yet deployment of conventional weapons and testing anti-satellite weapons are not prohibited. Spacefaring nations have been pursuing military objectives in outer space and satellites owned by commercial enterprises have been integral parts of their activities. They have served a wide range of functions including reconnaissance, communication, surveillance and navigation.
Notwithstanding the mighty wealth of some present-day companies, their space programmes still rely on government funding. SpaceX has obtained extensive US government funding and contracts for its programmes. China, not intending to license non-Chinese technical solutions, has started its own LEO satellite broadband project. Another company, OneWeb, was saved from bankruptcy by the UK government and is now partly owned by it. Given satellite companies’ intertwined relationships with states, the security-related sensitivities of their activities have always been closely watched.
The principle that regards each nation to be responsible for all space objects originating from its territory, irrespective of who owns them, adds further complication. In consideration of the long-standing complexity of the space sector, the Russian authorities’ demand that OneWeb stop launching satellites unless it could guarantee its spacecraft would not be used for military purposes was somewhat unexpected. Another option offered was for the UK government was to sell its shares. OneWeb declined and suspended its launches. Russia’s demands were likely triggered by the UK’s support for Ukraine and the wide range of sanctions it imposed. This complex public-private relationship adds to challenges of applying international law ‘online’.
While Musk’s quick reaction must be praised, this new Sputnik incident must be read in line with international law. Private enterprises which control internet infrastructure must stand by their duty to offer services without prejudice and in accordance with relevant international law.
This document is a product of a project funded by the Internet Society Foundation.
About the Author
Berna Akcali Gur
Berna Akcali Gur, PhD, is a visiting researcher at the Dickson Poon School of Law, King’s College London. Her research focuses on international law and world trade law implications of advancements in information communication technologies. Previously, she worked as a visiting research fellow at the Institute of Advanced Legal Studies, University of London and as an Assistant Professor at Kadir Has University in Istanbul, Turkey. In a past life, she practiced law in Istanbul, New York and London. Her publications include studies on world trade law, data privacy law and international law. She has a PhD in Law (2014) from the Dickson Poon School of Law, King’s College London.