Keeping Pace with Crimes in Space

Katherin Nixon, MJLST Staffer

At the end of August, something peculiar happened. Something extraterrestrial. No, NASA did not discover aliens on Mars (although that would have been peculiar and extraterrestrial too). Instead, the first crime was allegedly committed in Space—by a human being. Anne McClain was on a six-month mission aboard the International Space Station (“ISS”) when she accessed her estranged spouse’s bank account using NASA’s computer network. McClain has since been accused of identity theft and improper access to private financial records. Regardless of her innocence or guilt, this raises two important issues for law-oriented earthlings: (1) what laws govern Space; and (2) who has jurisdiction?

Among the laws that govern Space, two are especially noteworthy in this case. According to Article VIII of the Outer Space Treaty of 1967, “A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.” This would seem to suggest the United States maintains jurisdiction in this case. But, it is important to remember the crime was committed aboard the ISS. On January 29, 1998, fifteen governments came together to sign the International Space Station Intergovernmental Agreement (“IGA”). As the name indicates, this agreement governs all things ISS. Article 22 of the IGA states, “Canada, the European Partner States, Japan, Russia, and the United States may exercise criminal jurisdiction over personnel in or on any flight element who are their respective nationals.” Since McClain is a United States citizen—and the alleged crime was committed against another United States citizen—the United States has jurisdiction over this case.

However, what if the crime was committed against say—a Japanese citizen or a Russian citizen? This is the entry point for a black hole. Consider this hypothetical offered by Michelle Hanlon, professor of air and space law at the University of Mississippi: “Astronaut A from Country A stole a watch from Astronaut B from Country B, and it happened in a part of the ISS that belonged to Country C.” (Doesn’t this feel like the Space version of Civil Procedure?) In that situation, the IGA would require the different countries to come together in order to discuss their prosecutorial interests. Assuming the three countries could come to an agreement on whose jurisdiction governs, there would not be much of an issue.

Traveling further down the black hole, what happens when Space tourism takes off? With Space tourism, the discussion would involve private citizens and private companies instead of government employees and government entities. As noted by Loren Grush and The Verge, “[I]f someone from the U[nited] S[tates] gets hurt on a private Japanese space hotel, along with other passengers from Spain and Singapore, it’s unclear exactly how to proceed.” The Outer Space Treaty would likely be the start. Yet, countries with companies interested in Space tourism should come together to discuss a new agreement. The new agreement could be modeled after the IGA, but should include an added level of specificity.

As it turns out, keeping pace with crimes in space will be no easy task. Luckily, this will not be a pressing issue anytime in the near future. For now, it is an interesting thing to ponder as our presence in Space grows. The McClain case—despite its relative simplicity—serves as a preview for the more complicated cases that will eventually come.