New Technologies Symposium: Technology, Synergy, and Regulation

[This post is part of our New Technologies and the Law in War and Peace Symposium.]

Technology advances through synergy. Breakthroughs in one area of technology spurs developments in others. Advances in materials science led to the miniaturization of electronic components. Miniaturization led to a revolution in the architecture of computers. From ENIAC to iPhones. The computer revolution led to a revolution in, well, just about every other area of technology. Advances in electronics, robotics, and computerization each affects space tech. And so on, across a complex web of interactions. Much technological progress is a steady process of incremental steps. But when technology leaps, it often leaps due to synergies. And it may leap in unexpected directions.

What are the implications for regulation of military technology in an era when multiple areas—computation, communication, biotech, space, materials science, and autonomy, to name a few—are all rapidly changing and affecting each other in sometimes surprising ways?  At the start of New Technologies and the Law in War and Peace, Bill Boothby asks whether we are “sure that we understand enough about the capabilities of [a] new technology to be able to formulate rules that maximize the advantages to be derived from it while minimizing the dangers it is assessed as posing…” (p.16)  Boothby gets to the heart of the issue—do we know what we have wrought?  But also: do we know how all that these things that we have wrought affect each other? Consider how advances in autonomy can affect not only battlefield robots but also complex cyber-intrusion programs, robotic surgery, self-driving cars, uncrewed aerial vehicles, and space activities.  

By pulling together insights across a range of domains, including nanotech, space operations, human enhancement, and autonomous weapons systems, Boothby and his contributing authors elucidate not just multiple technologies but also how these technologies affect each other and the implications in our search for effective regulation regarding their military application.

With a nod to my Woomera Manual colleagues Melissa de Zwart, Rob McLaughlin, and Cassandra Steer, who are also participating in this discussion (and de Zwart and McLaughlin also contributed chapters to New Technologies), I would like to consider space technology in particular. Advances in a variety of areas of technology are spurring revolutions in both launch and operations. De Zwart described in her chapter how “SpaceX and other New Space operators have completely disrupted pre-existing business and technology models in the space industry, bringing novel materials and approaches to launch vehicles, fuel, and design.” (p.348)  New technologies such as reusability have the potential to drive down the cost of launches in the market as a whole. Cheaper launches mean more countries and companies will be able to get to space. This, in turn, boosts commercial innovation, ranging from the rise of the satellite imaging market, with potential applications from agriculture to military intelligence. Advances in miniaturization have led to new small and “micro” satellites with a wide range of uses. This, in turn, fosters a new small launch industry, catering to these smaller payloads, and thus developing smaller, cost-effective rockets. A feedback loop of innovation encompassing a range of space operations.

And entrepreneurs are thinking of new applications each day. There are currently about 1,700 operational satellites (as well as thousands of nonoperational satellites that are now debris). SpaceX, One Web, and Amazon are three companies that are each in the process of developing megaconstellations of hundreds or even thousands of satellites to provide global internet access. (This is an example of space tech synergistically affecting cyber.)  Developments in rendezvous and proximity operations (RPOs)—the ability to move satellites around including docking with each other—has implications for both possible new business models in satellite servicing, as well as concerns over such operations being used to threaten space assets. Multiple states are testing their ability to conduct RPOs. 

In short, this is a great deal of change in but a single domain: space operations. (Similar descriptions are possible in regard to industrial developments in robotics, AI, and biotech, to name three areas.) And, as de Zwart noted in her chapter: “Militaries worldwide are increasingly turning to commercial providers for a range of space related services and technology.” (p.350) Just within this one area, it is becoming increasingly difficult to forecast where we will be in a few years. One text about rocketry had noted that landing a first stage used in a launch was just not realistic.  That was written about two years before SpaceX did just that. And, as other new launch providers increase operations, reusability will likely continue moving  from being a technological miracle, to a given.

This points us to the challenge of regulation. Assessing not how single technology acts in isolation, but how the interaction of technologies are rapidly leading to new applications that we haven’t even thought of yet, or are just on the edge of the possible.

Unfortunately, lawyers are notoriously poor prognosticators. However, as Boothby and other contributors to the book note, there may be another strategy besides trying to outguess technology’s leaps.  Rather than trying too hard to peer into the future of how technology will evolve, one can consider the overlapping domains of regulation can help address the synergistic effects of technologies.  For example, Boothby’s chapter on autonomy considered not just autonomous weapons systems, but multiple aspects of autonomy including UAVs, surgery, self-driving cars, and “whether there are aspects of the arrangements for the peacetime regulation of autonomous technologies that could benefit the law as to their military application and vice versa.” (p.177)

In another example of considering how regulatory  overlap can affect the regulation of military technologies,  Rob McLaughlin’s chapter discusses how regulatory regimes beyond the law of armed conflict, including domestic criminal and human rights law as well as various sources of public international law, can affect the use of military technology. (See pp. 64-74) While privacy regulation, for example, is not related to any single technology, it has a scope that can cover multiple technologies ranging from cyber capabilities to UAVs. It is an example of how regulatory regimes may overlap a variety of technological areas that are rapidly evolving.

As many have noted, military cyber activities and military space activities are often closely related. Consequently, regulation of cyber technology may have a spillover effect in relation to space activities. And, as Boothby describes, there are intersecting discussions about autonomy in the terrestrial context, ranging from cars to weapons systems. Not only could these lead to insights across these domains, but also in relation to new space technologies.

Many commentators are skeptical of the likelihood of a new multilateral space treaty addressing new space activities and technologies. In areas where a new treaty is unlikely to address new technology, the regulatory response may be to consider how existing treaties, domestic regulation, and interpretations may overlap and provide a framework for new technology and practices.

In the absence of a new space treaty, individual states are enacting national legislation on space commerce and resource utilization. Military branches are being organized or re-organized, framing what states believe can (or cannot) be done in military space operations.  Industry groups are defining best practices in areas such as RPOs.  In addition, the Woomera Manual project aims to set down a marker by clearly defining the current state of the law, as a way to assist interlocutors to be on the same page.  And, in addition, there are the regulatory and normative initiatives in related areas such as cyber and autonomy. 

The result is a network of legal instruments and normative statements, some with the sanction of law, others with persuasive force but no legal enforcement. As Melissa de Zwart noted, an oft-used phrase is that space has become “congested, competitive and contested.” (p.338)  As it turns out, that not only describes space, but its regulation, as well.

And the way forward in the regulation of rapidly evolving military technology may be less trying to out-guess future synergistic leaps as opposed to conceptualizing a net of overlapping regulations and norms concerning related technologies that will cover the area where those leaps may land.