Space is a domain accessible to all states for civil, commercial, military, and intelligence activities. The continuous and interactive relationships among these sectors, in a domain also accessible to allies, competitors, and adversaries, changes the character of modern conflict. The Department of Defense (DoD) can no longer rely exclusively on exquisite government-owned and -controlled systems to relay intelligence from the battlefield to decision-makers. Instead, the DoD strategy for joint warfighting includes a United States Space Force (USSF) hybrid architecture comprised of multilayered publicly- and privately-owned systems to enable the seamless flow of data during peace and conflict. To effectively use a hybrid architecture in a conflict, commanders will need to understand the legal considerations, arrangements, guardrails, risks, and challenges of the individual participants, whether sovereign countries or commercial entities.

This paper builds on the recent Potomac Institute for Policy Studies report “Making Space: Clearing the Way for Hybrid Architecture" by discussing the potential legal considerations that could impact a commander’s ability to use a space hybrid architecture in conflict.

Key Points

• The legal challenges facing a United States Space Force (USSF) hybrid architecture raise old and new questions about incorporating commercial systems into operations. None are insurmountable, but solutions will require sustained effort.

• Each participant in a hybrid architecture will have their own motivations, risk calculations, and legal guidelines for participating. These must be taken into account by commanders who seek to effectively operationalize these tools.

• Adversaries may assume all participants in a hybrid architecture digital infrastructure are lawful targets. This may impede participation in such an architecture, especially if insurance and indemnity issues remain unresolved.

• The challenges facing a USSF hybrid architecture are similar to issues encountered in other domains, and lessons can be learned from these examples.

• Commanders will not be able to influence every aspect of a hybrid architecture; however, pre-planning and advance consideration can improve the system’s effectiveness.

Kimberly Sloan, PhD is the Director of Research Strategy and Development at the Potomac Institute for Policy Studies. Her research expertise focuses on intelligence, defense, concept development, and wargaming.

Todd Pennington, Esq is Senior Fellow for Space Strategy and Policy at National Defense University’s Institute for National Strategic Studies. He is also affiliated with Georgetown University Law Center as Adjunct Professor of Law, and as Senior Fellow at the Center on National Security. He is admitted to practice law in the District of Columbia, Virginia, and Tennessee. He previously served as Assistant Deputy General Counsel for Intelligence (with portfolio for space operations) for the DoD, and as Senior Assigned Legal Counsel for United States Space Command and the United States Space Force.