A New Frontier In Space Travel: The Law

The Virgin Galactic VSS Enterprise spacecraft is seen before its first public landing during the Spaceport America runway dedication ceremony near Las Cruces, N.M., on Oct. 22. Virgin Galactic is one of a handful of private companies that plan to fly paying customers into space.

hide captionThe Virgin Galactic VSS Enterprise spacecraft is seen before its first public landing during the Spaceport America runway dedication ceremony near Las Cruces, N.M., on Oct. 22. Virgin Galactic is one of a handful of private companies that plan to fly paying customers into space.

Mark Ralston/AFP/Getty Images

When space shuttle Atlantis returns to Earth this week from its final flight, NASA will be out of the business of launching humans into space for the foreseeable future.

But soon, there could be more American space travelers than ever. That's because several companies are developing spacecraft that will take anyone into space who wants to go — provided they can pay for the ride.

"I'm convinced in the next few years we're going to see multiple companies flying several times a week," says George Nield, head of the Office of Commercial Space Transportation at the Federal Aviation Administration. "And that will mean hundreds of launches every year, with thousands of people getting to experience space flight firsthand."

Several companies are offering trips that will give people a few minutes of weightlessness at the edge of space. Space Adventures, Virgin Galactic and XCOR are all taking deposits. Other companies are planning to make spacecraft that can take NASA astronauts to the International Space Station.

But the challenges of commercial human space flight are as much about laws and regulations as they are about technology. It will be the FAA's job to license those flights, just as it licenses commercial aircraft flights today. And there will be some significant differences in how the agency deals with space flight.

For example, says Joanne Irene Gabrynowicz, who teaches space law at the University of Mississippi, people on commercial space flights won't be called passengers.

"If you are a passenger, it is understood that your job is to sit in your seat and read your book or whatever," Gabrynowicz says.

Reading a bad novel or sitting through an extended weather delay is about the worst that airline passengers have to worry about. Space is a completely different story — no one thinks space travel will be as safe as air travel for quite a while. And participants on these first flights may do more than sit in their seats.

"There's some thought there that perhaps the participant may need to help the crew in some way. Or they may want to," Gabrynowicz says.

'The Barnstorming Era'

It's hardly the Wild West, but human space travel does have a bit of a Wild West feel.

"In some ways, I think the situation we're in is analogous to the barnstorming era," says Michael Mendelson, who is in space law in Washington, D.C.

In the early days of aviation, pilots would perform aerobatic tricks and then offer adventurous spectators rides on their newfangled flying machines.

"It's not going to be quite the same because technology has advanced quite a bit," he says. "But there has to be a certain willing assumption of risk by the participant."

According to Mendelson, there are still a lot of unanswered legal questions facing companies offering rides into space. Yes, people have to assume risk, but where do you draw the line between inherent risk and inadequate safety precautions?

Safety isn't the only issue. There are other topics that will need to be tackled. These can be as serious as resolving conflicting space laws in different countries, or as whimsical as what to do about people who want their money back because the person sitting next to them spent the entire flight throwing up. Can they sue because they didn't have as much fun as they expected?

Mendelson believes it will probably take a catastrophic accident to force answers to those kinds of questions.

"When something happens — and unfortunately, tragically, something will happen — that's when the system is going to shake out, the market will shake out," he says.

Regulations Not Restrictive, For Now

It's also bound to make the FAA review its licensing requirements. Aerospace consultant Herb Bachner says companies worry about strict regulations that could strangle their new industry.

"You don't want to have regulations that force you into a particular way of thinking or into a particular engineering design when you are in this business of testing and evaluation. They are — rightfully so — extremely concerned about this," Bachner says.

For now, FAA's regulations are not that restrictive. The agency's George Nield says it will be up to the buying public to decide whether to risk a trip into space.

"The launch operators are going to have to thoroughly brief all of their prospective customers about all the hazards, all the risks, all the things that could go wrong, that they could be injured or even killed during these flights," he says. "And if, after hearing that, if they still want to go, they'll have to sign some paperwork and go have a good flight."

Launch operators are confident that real space enthusiasts will do just that.

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