If You Do the Space Crime, You May Do the Space Time

If You Do the Space Crime, You May Do the Space Time

Legal Sidebari

If You Do the Space Crime, You May Do the
Space Time
December 2, 2022
In recent years, a number of high-profile commercial space flights—some of which included celebrity
passengers—garnered widespread media attention. Moving forward, one company aims to provide
hundreds of passenger space flights per year. Another venture promises a “civilian lunar orbital mission”
in 2023. One CEO has suggested the possibility of a “crewed mission to Mars in 2029.” Regardless of the
outcome of any of these specific plans, space tourism companies are pursuing travel that is more frequent,
ambitious, and perhaps longer in duration. In short, more humans may be spending more time in space,
increasing the potential for crime to occur during a mission or voyage. The issue is not entirely
speculative—a range of violent behavior and sexual misconduct has reportedly occurred during simulated
space missions. Should a criminal act occur during an actual trip to space, is there federal jurisdiction to
prosecute it?
In light of Congress’s continuing work on various matters pertaining to space, including commercial
space flight, this sidebar explores the situations in which federal jurisdiction over crimes committed in
space might exist. The sidebar focuses on crimes committed by private individuals in space and concludes
with a brief discussion of congressional considerations. This sidebar does not examine the various
additional laws that may be uniquely relevant to military or official personnel in space and does not cover
other regulatory frameworks that may be relevant to space commerce. Information on some of these
topics may be found in CRS In Focus IF11940, Commercial Human Spaceflight, by Daniel Morgan; and
CRS Report R45416, Commercial Space: Federal Regulation, Oversight, and Utilization, by Daniel
Morgan.
Special Maritime and Territorial Jurisdiction
One way the federal government may have jurisdiction over crimes committed in space is if the conduct
occurs in the special maritime and territorial jurisdiction of the United States (SMTJ) and violates the
substantive elements of a federal statute applicable in SMTJ. As one federal appellate court has
explained, SMTJ generally includes “areas where American citizens and property need protection, yet no
other government effectively safeguards those interests.” One quintessential example is the “high seas,”
which are included in the definition of SMTJ in 18 U.S.C. § 7, along with certain international
waterways, federal lands, islands containing bird guano, and domestic aircrafts in flight.
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Congress has amended § 7 to extend SMTJ to two situations that have particular relevance to crimes
committed in space. First, in 1981, Congress added a new subsection—§ 7(6)—specifying that SMTJ
includes vehicles “used or designed for flight or navigation in space.” According to a 1981 report by the
Senate Committee on Commerce, Science, and Transportation, before the enactment of § 7(6) there was a
lack of “clear U.S. jurisdiction over criminal acts committed on a space vehicle, such as the Space
Shuttle, while in flight.” The report explained that, by “establish[ing] such jurisdiction over U.S.
registered vehicles while in outer space as well as during the launch and reentry/landing phases,” § 7(6)
aligned domestic law with an international treaty (the Outer Space Treaty), specifying that a country
“retains jurisdiction and control over objects on its registry that are launched into outer space.” The
provision applies only to vehicles listed on a registry maintained by the State Department pursuant to the
Outer Space Treaty and a related convention. Registered vehicles have included “[r]eusable space
transportation system[s]” and a variety of spacecraft. Further, § 7(6) applies only to vehicles “in flight.”
Under § 7(6), in flight means “from the moment when all external doors are closed on Earth following
embarkation until the moment when one such door is opened on Earth for disembarkation or in the case of
a forced landing, until the competent authorities take over the responsibility for the vehicle and for
persons and property aboard.” According to the report, this definition of “in flight” established “a
[clearer] interface . . . between Federal and State criminal jurisdiction”—essentially by restricting SMTJ
to the portions of a vehicle’s journey where state jurisdiction might be lacking, unclear, or impractical.
Thus, for federal statutes that apply in SMTJ, § 7(6) provides a tool for prosecuting violations that occur
on a U.S. registered space vehicle while in flight.
Second, in 1984 Congress added another subsection—§ 7(7)—to the SMTJ statute. This subsection
encompasses “[a]ny place outside the jurisdiction of any nation with respect to an offense by or against a
national of the United States.” Based on its text, § 7(7) appears aimed at crimes involving Americans that
are committed in frontiers where there would otherwise be no jurisdiction. Case law interpreting § 7(7) is
scarce, but some jurists have speculated about its applicability to one such place—Antarctica. Similarly,
the application of § 7(7) in space seems logical, so long as the crime involves an American defendant or
victim, and the particular location in space is not already under the jurisdiction of another country.
Sample Federal Statutes that Apply in SMTJ
An array of federal criminal statutes expressly apply to SMTJ. For instance, 18 U.S.C. §§ 1111 and 1112
punish murder (defined as the unlawful killing of a human being with malice aforethought) and
manslaughter (defined as the unlawful killing of a human being without malice) within SMTJ. Other
federal offenses applicable in SMTJ include, for example:
 Assault (at minimum, an attempt or threat to injure another);
 Theft (taking and carrying away, with intent to steal or purloin, the personal property of another);
 Arson (willfully and maliciously setting fire to or burning any building, structure, or vessel,
among other things);
 Sexual Abuse (among other things, engaging in a sexual act with a person without that person’s
consent);
 Robbery (taking anything of value from another by force and violence or intimidation);
 Kidnapping (seizing or confining, among other things, another person against their will for an
appreciable period).
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International Space Station Intergovernmental
Agreement
Commercial space flights from the United States have included at least one purely private visit to the
International Space Station (ISS), a permanently inhabited research-oriented facility in low Earth orbit
cooperatively operated by the United States, Member States of the European Space Agency, Russia,
Canada, and Japan. Criminal conduct on the ISS implicates an ISS-specific agreement. Modifying and
displacing an earlier agreement, the 1998 ISS Intergovernmental Agreement (IGA) signed by the
governments of the cooperating countries provides that, in general, each country retains “jurisdiction and
control” over (1) the “flight elements” or areas it provides and registers in accordance with the agreement
(for instance, the habitation module provided by the United States); and (2) “personnel in or on the Space
Station who are its nationals.” In other words, unless a more specific provision of the IGA applies, each
signatory retains jurisdiction over the areas and personnel it has provided to the project.
Article 22 of the IGA sets out more specifically the bases for criminal jurisdiction aboard the ISS, stating
that each country “may exercise criminal jurisdiction over personnel in or on any flight element who are
their respective nationals.” However, in cases involving certain conduct—in particular, conduct that either
(1) “affects the life or safety” of another country’s national, or (2) occurs in or on, or causes damage to,
another country’s flight element—the country whose national is the alleged perpetrator must “consult”
with the affected country at its request “concerning their respective prosecutorial interests.” The affected
country can exercise criminal jurisdiction in such cases if the country of the alleged perpetrator concurs or
if that country “fails to provide assurances that it will submit the case to its competent authorities for the
purpose of prosecution.” It thus appears that disputes could arise as to which, if any, country should
exercise criminal jurisdiction where one country’s national causes harm or danger to a national of another
country or engages in criminal conduct on portions of the ISS provided and controlled by another country.
For instance, if a U.S. national aboard the ISS attempted to kill a national of another cooperating country
or stole items from an area of the ISS controlled by such other country, the United States would, if
requested, be required to consult the affected country. If the United States indicated that it did not intend
to prosecute the alleged perpetrator, the terms of the IGA would permit the affected country to pursue
prosecution of the U.S. national in its own courts even if the United States did not concur.
Crimes with a Domestic Impact
The sections above discuss crimes occurring in space where the harm also occurs in space. However,
what if a crime committed in space causes harm domestically in the United States? Criminal conduct
occurring in space that causes domestic harm—for instance, hacking that causes damage to a computer in
the United States—will likely be subject to federal jurisdiction. In one widely publicized incident,
NASA’s Office of Inspector General investigated allegations that one of its astronauts improperly
accessed a bank account from space. The resulting investigation disproved the allegations, but the
incident highlights the technological possibility of cybercrime committed in space affecting computers in
the United States. Federal prosecutors currently use tools like the Computer Fraud and Abuse Act (CFAA)
and the wire fraud statute to prosecute cybercrimes originating abroad, and it seems plausible that federal
prosecutors could use such statutes to charge violations committed from space where they affect
computers in the United States. However, practical problems with cross-border prosecutions could
complicate prosecutions of non-U.S. nationals who violate U.S. federal law in space. For instance, if a
non-U.S. national commits a cybercrime during a space mission and that mission returns to a country
where the United States lacks an extradition treaty, federal prosecutors would likely face obstacles in
obtaining custody of the suspect to stand trial in the United States. For additional information on the
CFAA and the wire fraud statute, see CRS Report R46536, Cybercrime and the Law: Computer Fraud
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and Abuse Act (CFAA) and the 116th Congress, by Peter G. Berris; CRS Report R41930, Mail and Wire
Fraud: A Brief Overview of Federal Criminal Law, by Charles Doyle.
Congressional Considerations
As discussed above, there are a number of ways in which federal criminal jurisdiction may reach conduct
committed in space. As commercial space travel develops, it may present scenarios where jurisdiction is
lacking or where an expansion of conduct subject to criminal sanction may be warranted. For example,
Congress could extend federal statutes governing conduct such as hoaxes or violent threats to apply in
SMTJ. Additionally, Congress could potentially use SMTJ as a jurisdictional hook to create laws
criminalizing other conduct it believes worthy of criminalization in space, including offenses traditionally
criminalized by state and local governments—such as vandalism, cruelty to persons, trespass, indecent
exposure, disorderly conduct, and operating a vehicle while intoxicated.
Federal jurisdiction and the existence of an applicable statute does not mean that either a prosecution or a
conviction would necessarily result. Crimes committed in space would likely raise a number of other legal
and practical issues. It is possible to envision scenarios that pose questions about the application of the
laws and rules governing search and seizure, the extent of constitutional rights such as a right to counsel
during custodial interrogation, and the limits of international cooperation in incidents involving crews or
vessels from other countries. For now, these issues are speculative, but the existence of federal criminal
jurisdiction is a key threshold that will allow judicial precedent on such topics to develop. As human
space travel pushes to new horizons, the universe of relevant federal criminal case law will likely expand.

Author Information

Peter G. Berris, Coordinator
Michael A. Foster
Legislative Attorney
Acting Section Research Manager

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