#73 The Other Kind of Star Wars
Are We About to Witness An EMP Weapon in Space?, Reconciling Tangible and Intangible Property Rights in the Digital Age
Today, Saurabh Todi examines the recent US scrutiny of Russia’s space-based nuclear weapon capabilities while a guest post by Advay Thangoor highlights the legal difficulties arising over muddled ownership rights of physical properties.
Also,
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Technomachy: Are We About to Witness An EMP Weapon in Space?
— Saurabh Todi
Earlier this week, the chair of the House Intelligence Committee of the United States Congress issued a statement saying that his panel “had information concerning a serious national security threat.” This announcement led to intense speculation on what this threat could be. Possibility ranged from it being a nuclear weapon in space to an anti-satellite EMP weapon to just a nuclear-powered satellite.
Later this week, US President Joe Biden confirmed that the ‘threat’ was a new Russian nuclear anti-satellite capability but did not expand on it. Moreover, US officials have also refused to elaborate on this threat, citing the highly classified nature of the intelligence.
Foremost, what is an anti-satellite weapon? These weapons are designed to disable, destroy, or interfere with satellites. They can be used to target and neutralise both military and civilian satellites in Earth's orbit. There are various methods employed in ASAT weapons:
Direct-Ascent ASATs: These are missiles launched from the Earth's surface directly at the targeted satellite. The missile travels on a trajectory that intercepts the satellite in space, and the resulting collision destroys the satellite.
Co-Orbital ASATs: These weapons are designed to reach and engage satellites from a similar orbit. Co-orbital ASATs can be placed in orbit alongside the targeted satellite, and upon command, they can perform manoeuvres to collide with the satellite.
Directed Energy ASATs: This approach involves using directed energy weapons, such as lasers or high-powered microwaves, to interfere with or damage a satellite's electronic components. These weapons are considered non-kinetic as they don't rely on physical impact but rather disrupt the satellite's functionality.
Developing and deploying anti-satellite weapons have raised concerns due to the potential for creating space debris, which poses risks to other satellites and space activities. Additionally, such actions have diplomatic and geopolitical implications involving interference with space assets crucial for communication, navigation, weather monitoring, and national security.
Reportedly, Russia is trying to develop a nuclear space weapon that would destroy satellites by creating a massive energy wave, also called an Electromagnetic Pulse (EMP) when detonated, potentially crippling a vast swath of the commercial and government satellites that the world below depends on.
A nuclear EMP is generated by the intense gamma radiation produced during a nuclear explosion. When a nuclear device is detonated in the atmosphere, it ionises the surrounding air, creating a flow of electrons that generates a powerful EMP. The altitude and yield of the nuclear explosion significantly influence the range and effectiveness of the EMP. the effect of the EMP is non-discriminatory, so this would impact all satellites in space, irrespective of their national origin or nature of the satellite. Therefore, this is more like a weapon of last resort in space because it will significantly disrupt everyday life on Earth.
It is important to note that the Biden Administration has emphasised that the weapon is still under development and is not yet in orbit. However, if placed in orbit, it would indicate a significant violation of the 1967 Outer Space Treaty, which bans the deployment of weapons of mass destruction in outer space. Furthermore, this is neither a new concept nor a new technology. This has been discussed during the heydays of the Cold War. However, increased geopolitical tensions and weakening global arms control attitudes have reignited these concerns.
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Cyberpolitik Explainer: Reconciling Tangible and Intangible Property Rights in the Digital Age
— Advay Thangoor
**We have previously discussed how new approaches to compute and silicon governance impinge on ownership rights of high-end AI chips. This post highlights a growing trend of divergence between the conceptions of ownership and usage of property in the information age.**
While property cannot exhaustively be defined, especially in the digital age, the most central tenet of property is its ability to be owned. Legal theorist Jeremy Waldron highlights eleven common features that come alongside ownership of a particular property. Provided there is a property X, the most important rights for the owner of X for our current discussion are the right to possess property X and a right to income that can be derived from permitting others to use X.
Any conflict between these ownership rights was simpler to resolve prior to the digital age when the distinction between tangible and intangible property was clear. While these concepts remain distinct in the digital age, there is significant overlap due to the nature of digital goods or services. For example, cryptocurrencies and virtual property behave like tangible assets because they can be bought, sold, and traded on digital platforms. These entities contain characteristics of tangible property while still being intangible, as they cannot be physically corporeal.
The influence of technology here is evident. Until now, if you held a physical book/CD (X), you had the right to possess and use it, you had the right to alienate it, and you had the right to permit others to use X for a particular amount of money. You, as the owner, had a permanency in ownership. However, in the digital age, this permanency gets murky. For example, in 2015, when farmers bought tractors from John Deere, little did they know that John Deere had control of the central software that controlled their tractors. The farmers argued that the software's subscription model restricted ownership and possession rights. They asserted that their inherent right to possession included permanency, which was compromised by the need for continuous subscription renewal. This resulted in the conflict between two seemingly synchronous characteristics of ownership. A consequence is the erosion of ownership of tangible property caused by intangible media spurred on by technology.
A more recent example is that of Tesla. Imagine you are the owner of a brand-new Tesla. The car comes with its inbuilt software. The Tesla website disclaimer states that the car has built-in capability for Tesla to access and control your vehicle remotely. This means that the ownership of the tangible property (car) is with you. However, the tangible property's worth is, in reality, dependent on the software (the intangible property) that runs the car, which is Telsa's. Now, since that software is essential, without which the Tesla (physical car) cannot operate, Tesla retains the characteristics of ownership, which gives them the right to permit you (the user) to use the Tesla for a particular amount of money. This raises fundamental questions of ownership of property that beg clear answers. Who owns the vehicle? Does "owning" a Tesla car practically mean you have entered into a licensing contract with Tesla? Is such an agreement legal?
This is a situation where Digital Rights Management (DRM) in products today incorporate technology that restricts how you can use them. Different jurisdictions have different answers to such questions. In the US, for example, concerning vehicles, including Teslas, the law has considered them akin to typical tangible properties with vehicle titles given to them. However, the US also enacted the Digital Millennium Copyright Act (DMCA) of 1998 to prevent circumvention of Digital rights management. While the DMCA was concerned with the DRM of Intellectual Property, with the onset of digital aspects (generally considered intangible) spilling over into tangible properties, US law does not have a clear answer. In such situations, due to the distinction between the law for tangible property and the law for Intangible property (IP law), there would be a conflict between the right to possess the property of the user (for example, the physical car) and a right to the income of the seller that can be derived from permitting others to use the intellectual property (the technology that powers the vehicle).
Similar answers to such questions are also yet to be considered in India. S.65A and 65B of the Copyright Act 1957 (introduced in 2012) provide comprehensive protection for Digital Rights Management of Copyright. However, the provisions relating to DRM in the Copyright Act, being purely an intellectual property right, do not extend to situations where any tangible product's ownership, possession and functioning solely depends on the intangible digital product.
Therefore, it is clear that any understanding of ownership of tangible property in the digital age must be addressed by a policy change or principle that accounts for the conflict of ownership characteristics between the owner of the tangible asset and the owner of the intangible property. Any solution must answer the question of the true owner. In case such a question cannot be answered, the law must be able to harmoniously provide for ownership that does not infringe on the intellectual property of the seller while also not dispossessing the buyer's right of physical ownership and possession of the property, which accords the buyer a sense of permanence.
**Advay Thangoor is a 2nd year B.A.LL.B. student at the National Law School of India University and an intern with the Takshashila Institution’s High Tech Geopolitics Programme**
What We're Reading (or Listening to)
[Takshashila Discussion Document] A Politico-Legal Toolkit to Respond to a Taiwan Straits Conflict under a UN Framework, by Anushka Saxena
[Opinion] On Regulating AI, by Bharath Reddy and Mihir Mahajan
[ITIF Report] Assessing India’s Readiness to Assume a Greater Role in Global Semiconductor Value Chains, by Stephen Ezell