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Image credit: NASA (public domain) 1689 words / 7-minute read It sounds like something out of a bad dream. You're outside in the early evening, enjoying the night air and contemplating the stars. All of a sudden, a glowing message drift across the sky: EAT AT JOE'S. It has all the appeal of a commercial message in a nature reserve. Yet such a scenario may only be a few years away. In a previous post here, we asked whether we should worry about satellite light pollution. At that time we argued there was little reason for concern. Yet it's easy to conceive of a future in which it is a problem. We made that argument based on certain realities about shortcomings in how we govern human activities in outer space. "Space advertising" is in even earlier stages of development, but the same anxieties apply. The difference is that for space advertising, there is still time to get out ahead of the situation. An old use case for outer spaceThe uses and occupation of orbital space near the Earth have transformed since 2019. In the time since, the number and pace of launches of satellites into orbit around our planet more than doubled compared to their Cold War peak. An important difference compared to decades ago is that private actors conduct most of these operations. This brings activities motivated by profit rather than, say, geopolitical superiority. Yet long before the arrival of this new use regime, some eyed outer space as the next frontier of product marketing. For some, it was enough to engage in product placement on rockets or spacecraft. Others saw space as the medium of advertisement itself. One notable episode in 1993 involved a proposed orbiting billboard made of Mylar that would appear about half the size of the full moon in the sky. Outcry from astronomers and environmental groups led to an act of the U.S. Congress that prohibited such activity if launched from U.S. territory. The 1993 law defined obtrusive space advertising as "advertising in outer space that is capable of being recognized by a human being on the surface of the Earth without the aid of a telescope or other technological device." Congress worded it so to draw a distinction with a more passive form of advertising such as corporate logos on launch vehicles. But in enacting the prohibition, Congress made clear that the U.S. would not abide "obtrusive" commercial messages in space. An evolving skyscapeBesides the potential to annoy billions of people, obtrusive space advertising poses a threat to astronomy. To be bright enough for people on the ground to see it, ads in space must be bright. Any such object wandering through the field of view of a telescope would obliterate faint cosmic light beyond. These object would also be bright at infrared wavelengths. Even if the lights switched off while flying over observatories, dark objects would block starlight for several seconds. There are already concerns that much smaller conventional satellites will have similar effects on astronomical observations. At the same time, it seems inevitable that someone will try this. The lure of passive income from space advertising is great. It was once the case that the high cost of launching objects into orbit was a disincentive to potential space advertisers. But the recent mass-commercialization of launch services caused per-kilogram launch costs to plummet. Another factor is a shift in government attitudes toward commercial activities in space. From its founding, the U.S. National Aeronautics and Space Administration (NASA) faced restrictions on even appearing to promote commercial products or services. That stance is shifting. For example, in 2018 the NASA administrator formed a committee to investigate changing the policy. Legal considerationsNothing in international law now governs this variety of space advertising. The founding document of international space law, the 1967 Outer Space Treaty (OST), is silent on this topic. It does not prohibit commercial activity in space. In fact, it refers to the "use of outer space", which many construe to include both commercialism and exploitation. But it doesn't render such activities limitless. Its Article IX calls for "due regard" among spacefaring nations toward "the corresponding interests of all other States Parties to the Treaty". And it considers the possibility that some of those activities could drive conflict. Any activity that "would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space" requires consultations between countries causing and receiving the interference. The U.S. prohibition on obtrusive space advertising also faces civil liberties challenges. Some assert that the First Amendment to the U.S. Constitution precludes such laws. In their 1995 law review article "People Do Read Large Ads: The Law of Advertising from Outer Space", Don Tomlinson and Robert Wiley came to different conclusions on this point. Tomlinson argued "Ban Without Reservation", while Wiley promoted "Regulate with Reservations". Still, the world often looks to the United States to lead on international policy matters. The Outer Space Treaty led to the establishment of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS). It serves as an international forum for diplomatic discussions of matters flowing from implementation of the OST. At its annual meetings (and those of its subcommittees), national delegations debate various concerns. Because COPUOS operates on a consensus basis, the pace of legal conventions over the decades has been very slow. The U.S. and its allies exert an outsized influence in the international community. To that extent they have led efforts to recognize norms of behavior outside the realm of binding, 'black-letter' law. Astronomers (re-)enter the frayThe American Astronomical Society (U.S.) and Royal Astronomical Society (U.K.) recently asked for exactly that. Both are associations of astronomers that advocate for their members on both national and international matters. In the past year, both issued statements calling for their national delegations to promote discussing obtrusive space advertising at COPUOS. That led to media coverage (e.g., here, here and here) that raised more public attention to the issue. A particular episode spurred them on. As the AAS statement notes, "Avant-Space Systems LLC, a private entity incorporated in the Russian Federation, recently launched a prototype cubesat intended to demonstrate the feasibility of this technology." Avant-Space launched a 3U cubesat in April 2024 to test objects that would make glowing message formations in space. The successful effort made the prospect of near-term advertising missions palpable. The AAS statement calls out two specific aspects of the OST. First, it declares that astronomy is a kind of Article I "use" of outer space. And second, as a result Article IX dictates that it is entitled to "due regard" from launching States to limit harmful interference. But it goes further. Because "no known mitigation of such harmful interference enables the peaceful co-existence of obtrusive space advertising alongside astronomy consistent with Article IX", it argues that States should simply prohibit launch of such payloads from their territories. That's exactly what U.S. law already demands. AAS thus asks the U.S. COPUOS delegation to promote the same policy worldwide. The RAS takes a similar stance, noting that the Society "opposes all space-based advertising, recognising it as detrimental to the science of astronomy and to our shared heritage of the night sky". It references the 2007 Declaration in Defence of the Night Sky and the Right to Starlight, a nonbinding statement supported in part by the United Nations Educational, Scientific and Cultural Organization (UNESCO). That document called an unpolluted night sky "an inalienable right of humankind equivalent to all other environmental, social, and cultural rights." It also builds on moves the international astronomical community made almost a quarter-century ago. In its 2001 COPUOS statement, the International Astronomical Union (IAU) referenced the 1993 U.S. obtrusive space advertising prohibition. It called on COPUOS to encourage member States to "adopt similar legislation on obtrusive space advertising, so that this activity is regulated by all space-faring nations." This month, the COPUOS Science and Technology Subcommittee will hold its annual meeting in Vienna, Austria. At that meeting, it will hear again from the IAU: "[T]here is no means of mitigating the potential harm to astronomy of obtrusive space advertising. It represents the ultimate light trespass because its purpose is to be visible as widely as possible on the surface of the Earth. The IAU urges COPUOS national delegations to consider a prohibition on this technology that creates the risk of unwanted messaging and disruption of the dark night sky." What kind of future?No one yet knows whether COPUOS will take this advice to heart. Reading the diplomatic tea leaves is often difficult. But this effort may well have the majority of public sentiment on its side. As effective as advertising is, many people tire of being targets of a nonstop, 24-hour-a-day marketing regime. Especially given the proliferation of electronic media and mobile devices, their waking hours are often bombarded with commercial messages. And for some, the notion of advertisements brightening the night sky beyond the pale.
The world faces an imminent choice. It can allow this kind of activity in space, or it can prevent it from ever taking root. If it chooses the former, experience shows that it will be difficult to put the proverbial genie back in the bottle. Of course, a rogue actor could (and may well) launch an space advertisement in violation of domestic law. Some argue against the very notion of law in space to begin with; others note that the OST enforcement regime has no effect at the international level. It remains an evolving geopolitical matter. The night sky is one of the few remaining aspects of the natural world that all humans share. Our increasingly connected world has blurred other boundaries, but the sky remains a kind of public commons. Whether the world will assert proper control over that commons remains to be seen. But if we lose that shared sense of ownership by allowing narrow commercial interests to take it over, we will have lost something much more significant: a rare medium that draws us together more than it pushes us apart.
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