Space Opera of the Day: The Anne McClain Case
Posted on August 26, 2019
The New York Times reported last week that Summer Worden, a former Air Force intelligence officer, suspected that her spouse—they were going through a divorce—was accessing her online bank account. She looked into it and discovered that the account had been accessed by someone using a computer whose IP address belonged to NASA. And since Worden’s spouse was Anne McClain, an astronaut on a six-month mission on the International Space Station …
The article says this “may be the first allegation of criminal wrongdoing in space.” I suppose it had to happen sometime. But who would have jurisdiction? People have, of course, thought about this before now. Even the US Congress has attended to the topic of criminal jurisdiction in outer space. The special maritime and territorial jurisdiction of the United States is defined to include:
Any vehicle used or designed for flight or navigation in space and on the registry of the United States pursuant to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies and the Convention on Registration of Objects Launched into Outer Space, while that vehicle is in flight …
There are a couple of questions one could ask. First, where on the ISS was McClain when she accessed the bank account? The station has many modules, some but not all of which are American. We could assume McClain was in the American portion of the station, but if not, well, you may say that the statute also defines the special maritime and territorial jurisdiction to include “any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States.” But I presume that the foreign modules are on the ISS are within foreign states’ jurisdiction for the same reason that the American modules are within US jurisdiction. In any case, only certain serious federal criminal statutes, murder for example, extend to the special maritime and territorial jurisdiction. Under the Assimilative Crimes Act, which was not drafted with outer space in mind, state criminal law is incorporated into federal criminal law for places within the special maritime and territorial jurisdiction that are also within the territory of a state. But that doesn’t seem to apply to orbiting artificial satellites, right?
In short, while everyone seems to accept the notion that each nation that participates in the ISS can exercise criminal jurisdiction over its own vessels and nationals in outer space; but I am not sure I see a federal criminal statute that actually exercises that jurisdiction for minor crimes. Space lawyers, I would welcome your insights!