Dr Michael Fradley writes:
On 25 June 2020 it was announced at the 27th meeting of the Advisory Council on Commercial Remote Sensing (ACCRES) of the U.S. National Oceanic and Atmospheric Administration (NOAA) that the Kyl-Bingaman Amendment (KBA) restrictions on the optical resolution of satellite imagery over Israel would be dramatically lowered from the current level of 2m Ground Sampling Distance (GSD) down to 0.4m GSD. This news, which is important for earth observation and remote-sensing research in the region, marks a major step forward in a campaign led by me and my late colleague Dr Andrea Zerbini to reform this regressive legislation, which impacted directly on the work of the EAMENA project in the Levant, particularly in the Occupied Palestinian Territories.
This fundamental reform will now improve access to very high-resolution satellite imagery taken over Israel, the Occupied Palestinian Territories and the Golan Heights. Whereas previously imagery produced by U.S. satellites would be down sampled so that only an object 2m or larger would theoretically be visible, there will now be the possibility, depending on the capabilities of the satellite, to view images where objects as small as 0.4m in size will be visible (Fig.1). This should apply to satellite imagery captured in the future, as well as applying to previously restricted commercial imagery taken over the previous two decades, and earlier U.S. military satellite images. For archaeologists, this will see a major improvement in our ability to remotely identify archaeological sites, interpret the detailed form of those sites, and to more accurately monitor damage issues and future threats.
The KBA is a U.S. regulation which restricts the resolution of satellite imagery produced by U.S. companies covering Israel (and by implicit extension the Occupied Palestinian Territories and the Golan Heights), so that available imagery is relatively coarse and ‘blurred’ compared to imagery of other areas. It came in to being in the early stages of development of the commercial remote-sensing industry in the U.S. in the 1990s. As the Cold War came to an end, efforts were made under the Clinton administration in the U.S. to repurpose the espionage technology of satellites for wider commercial purpose, while also declassifying imagery collected by earlier U.S. military satellite missions in the 1960s and 1970s. The declassification of the Corona mission led to concern about the emerging satellite imaging industry on national security in Israel, and the resultant subsequent political lobbying in Washington led to the passing of the KBA by the U.S. Senate.
House Report 104-724 – NATIONAL DEFENSE AUTHORIZATION SEC. 1064. PROHIBITION ON COLLECTION AND RELEASE OF DETAILED SATELLITE IMAGERY RELATING TO ISRAEL.
(a) COLLECTION AND DISSEMINATION – A department or agency of the United States may issue a license for the collection or dissemination by a non-Federal entity of satellite imagery with respect to Israel only if such imagery is no more detailed or precise than satellite imagery of Israel that is available from commercial sources.
(b) DECLASSIFICATION AND RELEASE – A department or agency of the United States may declassify or otherwise release satellite imagery with respect to Israel only if such imagery is no more detailed or precise than satellite imagery of Israel that is available from commercial sources.
The brief wording of the law could be broken down into two sections, the first (a) covered future commercial satellite images, while the second sought to prevent further declassification of higher-resolution spy imagery from the KH-7 (Gambit) and KH-9 (Hexagon) missions. The phrase ‘available from commercial sources’ referred specifically to commercial imagery available from non-U.S. sources, which were barely existent in the 1990s, but was envisaged as a way of allowing U.S. companies to remain competitive against foreign companies in the future, and would be the key target of our reform campaign. While the U.S. satellite imagery industry was unhappy about this censorship when introduced, it being the only blanket censor applied by the U.S. government to any part of the world, the regulation was set in place at a limit of 2m GSD. This can be seen in comparison to the 0.8m GSD resolution attainable from the IKONOS sensor once operational in 2000, and commercial imagery available today is more likely to range from 0.25–0.6m GSD.
Fast forward to 2017, where the KBA was still in place with a 2m GSD restriction. While there was a sense that the KBA would be reviewed annually by the U.S. government, there is little evidence that this took place. Although there had been some calls for it to be revoked, particularly after the launch of online access systems such as Google Earth made this restriction readily apparent, the 2m GSD limit remained in place. There was also a wider lack of knowledge of the KBA among the remote-sensing community, with a general understanding that imagery of Israel was restricted, but not that it had the potential for reform in line with the capabilities of imagery produced outside of the U.S.
The EAMENA project had started in 2015, and while we too were vaguely aware of the KBA restrictions, it was only in late 2016 when the project received funding from the British Council’s Cultural Protection Fund to provide training in the EAMENA methodology to archaeologists and heritage professionals from the Palestinian Territories and five other countries, that these restrictions loomed firmly into view. Satellite imagery is a key tool used by EAMENA for survey and monitoring, but the 2m GSD limit over the Palestinian Territories was of very limited use for this methodology, lacking the details necessary to identify and monitor changes to heritages sites, particularly when compared to the c.0.5m GSD average that was accessible for other countries that we were working with as part of this funded project such as Jordan and Tunisia.
So in March 2017 Andrea and I began looking at the KBA directly, trying to find a solution to our problem that would allow us to work with unrestricted satellite imagery of the Palestinian Territories. What followed were two weeks of frantic research, culminating in what we saw as all the evidence needed to push for a reform of the current restrictions. The key point was that a number of non-U.S. companies had been producing and retailing satellite imagery of Israel above the 2m GSD U.S. limit, which should have triggered the KBA’s inbuilt reform mechanism to keep U.S. satellite companies competitive. Most prominent was the Airbus Pleiades constellation, which had been producing imagery of the region from at least 2012 at a resolution of c.0.5m GSD (Fig. 2), and we had even been able to purchase said imagery directly from U.S.-based satellite imagery resellers. If an annual review of the KBA had been taking place, this should have led to the reduction of the restrictions nearly a decade ago, but clearly no such monitoring was taking place. Since 2012 a number of other non-U.S. companies had joined the ranks in producing imagery above the 2m GSD level, including the South Korean company Kompsat, whose K3a satellite could achieve a leading 0.4m GSD. Our research also picked up a number of other interesting issues, including the fact that some of this high-resolution Airbus imagery had already been uploaded to the U.S.-based Google Earth virtual globe platform, but the key point was that the reform mechanism of the KBA should have been triggered given the advances in commercial satellite imaging outside of the U.S.
We set about working our findings up into a research papers, and began contacting the KBA regulators at the NOAA, naively assuming that they would be bound by the wording of the KBA legislation to, at the very least, lower the current KBA resolution restrictions. In March 2017 we had emailed the regulator to ask about a review of the restrictions, and although we had no response, we would read in the ACCRES meeting notes of 24 August 2017 that they were now aware of non-U.S. companies producing imagery above the 2m GSD limit and would now begin a review. We saw this as a positive, and set about looking to publish our own research on the subject. This in itself proved to be a lot more difficult than we had supposed, as while nobody could question the findings of our research, we came up against some reluctance to actually go ahead, in part because our paper seemed to fall between the cracks of various journal remits. We finally found a home for it in the journal Space Policy, with the final publication arriving in early 2018, nearly a year after our initial burst of research, and ahead of the next ACCRES meeting in the U.S., where we expected to hear the result of their own KBA review.
With a published paper in hand, we reached out again to the ACCRES committee, and this time received a response. But communication soon ran cold, and we subsequently were to find out that the ACCRES review was still ongoing, with a final announcement put back until at least October 2018. The ACCRES review would therefore have taken over 12 months to complete, compared to the two weeks that we had taken in early 2017, with no experience of research on satellite regulations, to flesh out the salient points of our reform argument. Worse was to come in October 2018, when the ACCRES would announce their review complete and that they did not accept that sub-2m GSD satellite imagery was readily accessible outside of the U.S.
The news left us deflated. We knew our research was conclusive, and yet the regulator of a scientific industry had rejected them out of hand. But there was still hope for reform if we could push the case harder, particularly as ACCRES had not reported on their research methodology, preventing any comparison with our results. But how could we hope to impact government policy in the U.S. from our little office in Oxford. It was at this stage that we called on new colleagues based in the U.S., particularly Zena Agha and Mimi Kirk of the al-Shabaka network based in Washington D.C. They provided an avenue into the workings of U.S. government, with Mimi attending ACCRES meetings (and fielding my convoluted questions), while Zena’s editorial on the subject did so much to raise the profile of the issue.
A lot had also changed in the EAMENA project by this stage, as Andrea had moved on to a new post as Assistant Director of the CBRL in Amman. While he still remained involved in the campaign, it was very much more a passive position. Tragically his role would come to an end completely in December 2018, when he was diagnosed with a rare form of cancer.
Still shaken by this news, I tried to push on with the KBA reform campaign. At a 4 June 2019 meeting of the ACCRES group, much to the annoyance of the committee, Mimi Kirk continued to push the KBA issue and the failings of their recent review, leading to an acknowledgement that another review would take place in 2020. That no other formal review had taken place of the KBA between 1997 and 2017, the fact that another review was taking place seemed to be an acknowledgement of how the 2017–18 ACCRES review had been flawed, particularly in light of our published research which had disproved much of what they claimed.
In early 2020, I was pointed in the direction of Sarah Brothers at the NOAA, who was undertaking the new review of the KBA. By the stage I had little faith in NOAA to follow the wording of the KBA and lower or remove the current restrictions, but this time they seem to be willing to engage with some of the specific issues and follow up on the interpretations made in our research. Still, as the next ACCRES meeting approached I did not expect the restrictions to be altered, or more likely that the review would be delayed, particularly given the impact of the Covid-19 crisis. It was something of a surprise when, listening in to the virtual meeting, that the NOAA had undertaken a complete U-turn and were willing to accept that sub-2m resolution imagery was available from non-U.S. sources to a maximum resolution of 0.4m, which would be the new restriction benchmark.
This is a hugely important reform for remote-sensing science in the region, not only for the work of EAMENA, but for any other earth observation research for the region as it opens up access to vital geodata. It also impacts on the border regions of neighbouring countries of Egypt, Jordan, Syria and Lebanon, which had also been covered by these restrictions at times. It will also be necessary to keep pushing to ensure archival satellite imagery of the area is re-released at the correct resolution where possible, and that the classified imagery from the Hexagon and Gambit missions are released. There is also a question of whether a regressive regulation such as the KBA should even be in place, and why regulators did not identify that Airbus surpassed the 2m GSD level in 2012.
It is also a bittersweet victory, as Andrea Zerbini, who passed away in July 2019, never got to see the reform that we had worked so hard for finally realised. But it is a victory that I know he would have been proud of, and one that will have a legacy that goes far beyond the EAMENA project. It is also a victory in which many people helped and supported at various stages, from our funders at Arcadia for providing the opportunity to undertake this work down to the smallest contribution, all of whom made this landmark reform possible, and to whom I would like to say thank you. The change to the KBA restrictions is just one step that we had planned, and now the truly exciting remote-sensing work in this region can begin.