Watching the watchers
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Technology -- July 1996

High Resolution, Unresolved

Private companies will soon
launch satellites powerful enough to spot
environmental hazards--or a car
in your driveway. Should we worry about
snooping from space?

by Mary Graham

FOR more than thirty years spy satellites launched by the United States have been gathering a "virtual time-machine record of the earth," as Vice President Al Gore has described it. The public has paid close to $100 billion for that record. But national-security and personal-privacy concerns have blocked the use of the world's most powerful sensors to make current information about natural resources, environmental hazards, and private property in the United techno picture States available to environmental scientists, government agencies, and businesses. Because the Central Intelligence Agency is barred by federal law from spying on Americans, it shares current environmental information about the United States only in rare instances--for example, in response to natural disasters.

Now, though, spy-satellite technology that has been used for a single purpose--espionage--with extraordinary government controls can suddenly be used for any purpose with few controls. In 1994, concerned about the post-Cold War health of the U.S. aerospace industry and fearful that foreign competition might challenge U.S. leadership in satellite technology, the Clinton Administration decided that private companies could launch satellites with high-resolution sensors previously available only to the intelligence community, and could provide information to anyone willing to pay for it. As government officials take cautious steps to share information gathered by military satellites, four U.S. companies are racing to launch satellites of their own equipped with similar technology. The first launch is scheduled for later this summer.

At a recent conference in Washington, D.C., Mark Brender, ABC's Pentagon producer, predicted that precise pictures from space will revolutionize television news, both by freeing reporters from relying on government-provided information during international crises and by freeing viewers from relying solely on what reporters tell them. David Bohrman, an executive producer at NBC, demonstrated how networks could use satellite pictures to simulate flyovers of troop encampments in Bosnia. At his command a technician in New York using prerecorded images zoomed in on villages, scanned rivers, and hovered over military bases, producing a moving picture that resembled a helicopter ride around the countryside.

WHAT is really at stake is the ground rules for the next phase of mapping the earth. By next year three of the four companies plan to produce images of one-meter resolution--100 times as precise as those of current civilian satellites. The ability to see hazy outlines of large buildings will be replaced with the ability to see the clear shapes of small cars. The ability to observe the same farm or city block every sixteen days will be replaced with the ability to observe the same point every two or three days; three to six images a day of most places in the United States are promised within four years.

Fundamental issues are being decided now. When should the government be allowed to censor images to protect national security? Should fears of military snooping from space be replaced with fears of snooping by corporations or domestic agencies? Will access to satellites' most detailed pictures pass from a small cadre of military clients with top-secret clearance to a small cadre of corporate clients with the means to pay for them?

Since commercial use of this technology is new, no one has a ready framework for resolving questions about national security, the protection of privacy, and public access to information. Time-tested principles that allow the government to block information in emergencies, keep homes and their surroundings free from intrusion, and treat geographic information as a national resource can provide guidance--if they are heeded. The breadth of the government's power to censor images may be decided this fall, when the Commerce Department is expected to issue final policies setting the conditions for commercial licenses to operate satellites. Privacy questions may be decided in an international context: strict privacy rules adopted by the European Union last July require consent for the use of information that identifies an individual. They may keep companies in the United States from selling images abroad unless similar rules are approved in this country. Access questions--whether images can be copied and distributed to the public, for example--will probably be negotiated between satellite companies and their customers, including government agencies.

NO longer simply the source of spectacular views of the earth, satellite images have a new capacity to influence what people do and how they think. Using sophisticated software and powerful, inexpensive computers, businesses, government agencies, citizens' groups, and individuals can now produce layered maps (called Geographic Information Systems, or GIS) that combine new environmental findings with information already available to the public, such as property ownership and census data. New satellites will make such maps more useful by providing high-resolution images with digital precision and offering predictable repeat visits. Neither aerial photography nor current civilian satellites like Landsat or the French SPOT can produce this combination.

The investigative powers of satellites derive not just from photography but from sensors measuring visible and invisible wavelengths of the sun's energy. These can reveal more about an object's character than can be discovered standing next to it: each species of plant, type of soil, and kind of rock or building material, for example, uniquely reflects and absorbs wavelengths. Experts add a few caveats: measures of reliability are critical; interpretation is complicated; and much of this science is still in its infancy. And like all maps, these reflect the quality of underlying information.

Information from sensors can give early warning of environmental hazards. Kass Green, the president of Pacific Meridian Resources, a mapping firm, expects that new images will help minimize the damage done by wildfires like those that sweep through urban areas such as Los Angeles and Oakland, California. For the first time, she says, it will be possible to easily distinguish asphalt, wood-shake, and synthetic-shake roofs and to assess from week to week the dryness of vegetation around homes. Planning firebreaks and other preventive measures depends on accurately predicting a fire's path.

Satellite maps can help to settle political controversies--or create them. When, for example, environmental groups and the Bush Administration clashed over how much old-growth forest in the Pacific Northwest should be protected as habitat for the spotted owl, competing layered maps produced by the Wilderness Society and the federal Forest Service provided a basis for negotiation, by clarifying different ways of defining old growth. New maps of Latin America that were completed last fall by the World Wildlife Fund have led to a debate about how to use limited conservation funds: the maps make clear that tropical dry forests and grasslands are as important to biodiversity as rain forests, and are more severely threatened.

Satellite images can make things harder to hide. The Environmental Protection Agency has used such images to help identify hazardous-waste sites and sources of water pollution. European farmers, who receive crop subsidies of $50 billion a year, have new reasons to submit accurate information: their planting patterns are monitored from space by the European Commission. When farm boundaries are layered over images of the countryside, infrared color codes reveal whether a field is growing barley, wheat, corn, or something else.

OF course, newly explicit images can also be used to make mischief. Foreign intelligence agencies are expected to be among the largest buyers of high-resolution images. "International security issues are serious," says Ray Williamson, a senior research scientist at the George Washington University Space Policy Institute. "Iraq would be interested in information about Saudi Arabia. Iran would like to see data about Israel. India and Pakistan would like to have information about each other. If you were concerned about troop buildup on your border, you could put in a standing order for the satellite to take a picture every time it passed over." During international conflicts this greater access could lessen the information advantage the United States has over other countries.

Some experts argue that expanded access could be beneficial. Neighboring countries might be less quick to threaten each other when troop movements were visible to all. When U.S. troops are involved in international conflicts, though, the U.S. government has a strong interest in controlling the flow of information. "One reason we were able to best the Iraqis," Williamson says, "was that we had very good information about them and they didn't know what we were doing."

To minimize security risks, the U.S. government is working to keep "shutter control"--broad latitude to turn off sensors when images might compromise "national security, international obligations and/or foreign policies." Representatives of television networks and other news media argue that the government's authority to stop the use of satellite images should be no broader than its authority to stop the publication or airing of other sensitive information, and that exercising it should require the same judicial process.

Whatever the outcome of that debate, growing international competition means that customers who want high-resolution images will probably be able to buy them. The CIA has been cautious about declassifying spy-satellite pictures: so far only archives from 1960 to 1972 have been released to the public, and the results of a joint U.S.-Russian effort to study environmentally important sites around the world using spy satellites will be kept secret for the foreseeable future. But Russia is already selling some current two-meter images from military satellites, and France, Israel, and Japan plan to market high-resolution imagery.

WHERE to draw the line between personal privacy and the public and commercial need for information will become urgent when high-resolution surveillance is routine. For the first time, detailed pictures of every piece of private property in the United States will be routinely compiled and marketed. Commercial satellites cannot yet produce images of people, but they can show vehicles parked in driveways and structural changes to homes. They can provide images within a few hours and exact comparisons of the same property at precise intervals without giving clues about their presence--things that aerial photography cannot do.

For the police, precise images mean a new investigative tool, says James Frelk, the vice-president of EarthWatch, the company that plans the first new satellite launch. Officers monitoring a suspected crack house, for example, will be able to see the pattern of vehicles arriving and leaving. "They can see the difference between a van, a truck, and a car," Frelk says, "and make a good guess about whether the same car was there yesterday." He expects local governments to be regular customers for other uses, such as updating tax assessments and spotting additions to homes and outbuildings that are in violation of building codes.

The Fourth Amendment to the Constitution has traditionally been understood to protect homes and the areas immediately surrounding them from unreasonable government intrusion; laws of trespass have protected against snooping by businesses or individuals. In the days before electronic wizardry, that meant freedom from physical entry. When wiretapping and hidden microphones made intrusion possible without breaking down doors or climbing fences, the idea of privacy became more subjective. The Constitution was then taken to mean that areas where individuals have "a reasonable expectation of privacy," including homes and yards, must remain free of government intrusion--physical or electronic.

But in the past ten years judicial support for the use of aerial photography to spot marijuana crops in the war against drugs has left doubt about whether any outdoor space can be considered private. The last time the Supreme Court ruled on the question, in 1986, it upheld the legality of an aerial backyard search that produced pictures of a stand of marijuana plants, hidden from view on the ground by a ten-foot-high fence. In the war against drugs "one of the casualties has been the Fourth Amendment," says Yale Kamisar, a professor of constitutional law at the University of Michigan and a leading authority on privacy issues. Most constitutional scholars agree that increasingly sophisticated technology is no justification for lessening the protection of privacy in one's home and yard. Yet courts continue to uphold warrantless searches of yards by means of aerial surveillance, even though the searches would be illegal if the police jumped a fence. "We have much less privacy than we think," Kamisar says. "If the Fourth Amendment doesn't adapt to new technology, it's going to wither and die."

Corporate privacy, too, is shrinking. On the same day that it upheld the aerial search for marijuana plants, the Supreme Court ruled on a case in which inspectors from the Environmental Protection Agency sought entry without a warrant to the 2,000-acre Dow Chemical plant in Midland, Michigan, in order to check emissions from power plants and take photographs, and were denied it. The inspectors then rented a plane and took seventy-five color photos using an aerial mapping camera; the Court found that inspection using aerial photography did not violate the Constitution.

Confusing matters further, the Court left clues that government satellite surveillance might be an invasion of privacy even when aerial photography is not. The majority said that "surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant." In each of the two cases four dissenting justices thought that there should be more protection of privacy than the Court provided.

Other threats to privacy arise when scattered public information is combined with precise images of homes or farms. A new wing on a house, a trip to the Caribbean, and a few major purchases could together signal a change in lifestyle of interest to tax collectors, business partners, or ex-spouses. Farmers competing for high yields could profit from a week-by-week record of a neighbor's success in using irrigation, fertilizers, and pesticides. New satellites will make information accessible on personal computers within hours.

Congress and state legislatures have in some instances restricted the free flow of information among companies and between government agencies and companies. Self-restraint by businesses and government agencies, too, can go a long way toward avoiding consumers' worst nightmares. But advances in technology are running far ahead of efforts to limit their use. Any further privacy protection will have to be legislated. "Whenever privacy questions occur in the context of new technology, it takes a long time for the courts to respond," says Gilbert S. Merritt, the chief judge of the U.S. Court of Appeals for the Sixth Circuit, who wrote the appellate opinion upholding the EPA's aerial surveillance of the Dow Chemical plant. "The last issues arose with wiretapping. It's taken forty years to reach some kind of stability in that law."

MOST new information, of course, will not raise privacy questions. But on what terms will it be shared? Until now geographic data have been treated as a national resource. Only a few governments have been capable of launching earth-observing satellites. The last generation of U.S. civilian satellites, the Landsat series, was financed by taxpayers, and most of its images are available to the public for the cost of duplicating the information. (Landsat images have been distributed commercially since 1985.) But the next group of earth-observing satellites is being financed and launched by private companies. Their images will be produced under contract, customized for clients, and made available at market prices. EarthWatch will retain the ownership of all its images, licensing their use by individual customers and restricting their reproduction, just as computer companies now limit the copying of software. Foreign governments, large corporations, and other paying clients will get exclusive rights to information they pay for--a big change. "Up to now, when we have acquired mapping information by contract, it has been in the public domain," says Gale TeSelle, who coordinates geographic data at the Department of Agriculture. "We give it away or we sell it as inexpensively as possible." TeSelle believes that by using such information to encourage farmers to fight erosion, for example, or to use a minimum of chemicals against pests, the government can "increase the conservation ethic."

None of these concerns should slow the next steps in mapping the earth. It is cause for celebration that we are entering a time of competitive, unpredictable exploration just when description of the seven continents seemed virtually complete. Amid budget pressures and privatization efforts, however, there is real danger that simple and familiar protections will be compromised. Whatever the public and commercial value of creating precise maps linking physical characteristics of residences with other publicly available information, the making of those maps should be limited by the traditional notion that a person's home and surrounding areas are private. And commercial satellite ventures should be limited by the idea that geographic information remains a national resource, to be shared at minimal cost. Dangers lie not in what satellite sensors can record but in how the political system allows that information to be used. The clearer the protections now, the greater the likely benefits later.

Illustration by Phillip Anderson
Copyright 1996 by The Atlantic Monthly Company. All rights reserved.
The Atlantic Monthly; July 1996; High Resolution, Unresolved; Volume 278, No. 1; pages 24-28.

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