[efn_reset][/efn_reset]The exploration of outer space has long been a cultural fascination in the United States. Consider the 1969 moon landing: ask most U.S. citizens born before 1960 and they are likely to remember it as a momentous and even perspective-shifting event in their lives. In more recent years, since the moon landing and the end of NASA’s Cold War-fueled rapid progress, privatized space companies have entered a newly created market for space travel. With that change, space travel is no longer the sanitized, militarily run operation it once was. It is now fueled by eccentric billionaires like Elon Musk (SpaceX), Richard Branson (Virgin Galactic), and Jeff Bezos (Blue Origin), who throw money into the pursuit of government contracts, while quietly (or not so quietly 1) plot their segues into space tourism.
The idolization of the astronaut went hand in hand with the notability of the lunar landing, with names like Buzz Aldrin and Neil Armstrong set to maintain their status as common household names for generations. Naturally, then, one of the most exciting opportunities that came with the privatization of manned space flight was to commodify that glory by offering astronaut status for sale. Several space companies came forward offering rides of a lifetime to the International Space Station (“ISS”), and even to the moon, with a price tag starting at hundreds of thousands of dollars.2 SpaceX, Virgin Galactic, Blue Origin, Boeing, and Space Adventures are all privatized space companies looking to grow and benefit from the commercial space tourism market. Another, Axiom Space, plans to send three civilian “astronauts” to the ISS as soon as October of 2021. For just $55 million, you too could catch a ride to outer space on the SpaceX Crew Dragon for Axiom’s contracted mission.3
Now, however, the commodification of civilian space travel is reaching new heights. Enter a new kind of “American Idol”, but instead of the winner getting a record deal, the prize is a $55 million, 10-day trip to the International Space Station. 4 Space Hero plans to culminate in a worldwide vote for the winner, who viewers will then follow on his or her trip to the ISS. 5
Though this might seem far-fetched, Space Hero recently signed a Space Act Agreement (“SAA”) with NASA.6 The exact provisions of Space Hero’s SAA with NASA have not yet been released, but it is known that this agreement includes a feasibility study of the Space Hero mission, which ostensibly will place its winner on a SpaceX Dragon flight. It is the first step in making Space Hero’s lofty goals a reality.
Space Hero’s next generation of reality television is undeniably a fresh idea for television ratings, but what are the potential legal ramifications of gamifying space travel in this way? Sending a civilian individual to space based on a short-lived, ratings-oriented competition raises concerns about informed consent, preparation, and international complications.
Informed Consent
Firstly, getting the informed consent of game show participants for an extraterrestrial journey could prove complicated. In the U.S., Congress has enacted the Commercial Space Launch Amendments Act in 2004, mandating a phased regulation of human spaceflight and related regulatory standards. Consistent with that, the Federal Aviation Administration (“FAA”) issued the Human Space Flight Requirements for Crew and Space Flight Participants, which applies to any entity that is issued a permit to launch from the U.S. 7 These regulations established requirements for apprising passengers of safety risks involved with space travel, training, and medical qualifications. The regulations have a crew notification requirement, which requires spaceflight operators whose vehicles have not been certified by the U.S. Government “to inform crew of the absence of U.S. Government certification” but does not actually require this certification to launch. 8 Moreover, “the notification requirement requires only that an operator inform the crew that risks exist, not that it identify all potential operational and design hazards.” 9 The operator only has to “disclose that participation in space flight may result in death, serious injury, or total or partial loss of physical or mental function” and must also apprise the passengers of the fact that there are unknown risks.10
The FAA acknowledges that “a space flight participant may not have the training and background to conduct such research and analysis” because they are likely to “come from all walks of life, with varying degrees of technical expertise and understanding.” 11The rules then suggest that it is not necessary that the participant “acquire an understanding of basic engineering principles in order to understand that risk.”12With this assumption, the FAA requires space flight participants to both receive “informed consent in writing from a space flight participant” and hold an oral discussion with the participant for questions and answers on the risks.13The FAA theorizes that this Q&A session will act as an additional “cognizance test or affirmation that the space flight participant understands what he or she is getting into before embarking on a mission.”14However, “discussion does not have to occur if the space flight participant declines it.”15
The FAA’s concerns about space flight participants’ varying experience and expertise raises an important point about informed consent that challenges the assumption that anyone can understand the risks involved with a blanket disclaimer and a question and answer (Q&A) session. Without the extensive knowledge in space travel that most bona fide astronauts have due to the strict requirements for experience in engineering, flight, and high-risk activities, it may be difficult for a civilian to be fully informed of the risks of a trip to space, even with the FAA’s required Q&A session. A reality show ostensibly aimed at choosing the best candidate for space travel may function to filter out individuals without related experience and expertise that may result in an inability to fully understand the risks of space travel. However, as a reality show, Space Hero will also have a goal of getting high television ratings to stay funded and on air. As we know from existing reality and competition shows, producers often choose participants who are entertaining, often with strong personalities, dramatic backstories, and penchants for risk-taking. Moreover, worldwide voting for the ultimate winner will likely resemble a popularity contest more than an election on the basis of ability. Space Hero will undeniably face challenges in dealing with the conflicting realities of ratings and viewer participation with the need to choose a space traveler who can fully understand the risks of space flight.
Preparation and Training
Regulation of preparation is also an issue when sending a civilian to space, especially if that preparation is part of a televised competition. Again, the conflict of television ratings and space traveler safety arises in that entertainment and commercially appealing exercises could be prioritized above sufficient training practices. This is arguably a less likely scenario since the grueling and intensive training that goes into astronaut preparation would likely attract viewers, however the FAA’s regulations only require “an operator [to] train each space flight participant before flight on how to respond to emergency situations, including smoke, fire, [and] loss of cabin pressure.”16With only these few and vague guidelines, there is a risk of under-preparation when in a televised environment.
In finalizing its programming and procedure, Space Hero should institute mandatory non-televised and non-competition-based training for the winner before and after the televised finale of the competition show with a preparation plan based on proper NASA astronaut training. Objective standards must be set independent of the subjective standards fixed by the participant (wherein even the “winning” candidate in a training challenge may not meet objective training success thresholds). Without the pressures of televising worldwide, off-camera training is more likely to ensure that the individual chosen for space travel is physically prepared for the journey.
International Law Implications
From an international law perspective, the outdatedness of widely adopted treaties regarding outer space results in the complete exclusion of any provisions mentioning the relatively new concept of civilian space travel or space tourism. One might argue that vague definitions of “astronauts” and “personnel” used in the Outer Space Treaty 17 and the Rescue Agreement 18 can be interpreted to include civilians or tourists, but it does not seem wise to risk an international incident by depending on an ambiguous treaty term. 19 Especially in the context of a widely-publicized reality television show.
While a show filmed by a U.S. company could be held to the FAA guidelines discussed above if contracting with a launch company based in the U.S., Space Hero could easily choose to place their winner on the launch of an international carrier that does not need to seek FAA permission to take off. There is no uniform international standard for sending civilians to space, so the winning astronaut could be placed on a flight guided by few rules for training, consent, and safety. In fact, Russian or Chinese space flight companies could prove to be a better choice economically and logistically for the showrunners, especially since the Russian Space Agency is currently the only entity to have already sent tourists to space. 20 While a deeper analysis of international space law is beyond the scope of this post, it is sufficient to note that as an international show, Space Hero has virtually no barriers to operating solely inside the U.S. commercial space launch regulations should it chose to launch its winner instead outside the U.S. on a non-U.S. based carrier. If that choice is made, the guiding laws and regulations vary widely depending on the location of the launch.
Conclusion
Space Hero is a concept ahead of its time, and unfortunately that is especially true in terms of applicable law. Public access to space travel beyond the ultra-qualified and ultra-wealthy is an extremely valiant cause that Space Hero approaches with a globally unifying competition. It is my opinion that the issue is not in the show conceptually, but in the lack of evolving law that is able to protect the contestants and ensure that Space Hero and similar endeavors are monitored to ensure the prioritization of safety. Space travel is still not an everyday form of transportation in terms of risk and demands on passengers and may require more regulation and international guidance before it can be gamified on television. However, if the show stays conscious of its duty to maintain integrity and safety in choosing and launching a space flight participant and continues to place this duty above the pressures of creating entertaining television, I, for one, am certain to be a loyal viewer.