Tommaso Mambrini, LL.M. Class of 2026
In recent years, private companies have pursued greater participation in the space economy, now playing a key role in the industry. Yet the legal framework governing their relationship with public entities was not built with this in mind. As international law scholar Gershon Hasin has observed, “until recently, activities in space were quite limited and primarily state led.” As a result, the “boom in commercial space companies …will necessarily lead to filling in the gaps, because the main legal instruments are very outdated.” Indeed, the 1967 Outer Space Treaty, the foundational instrument of space law, provides only “rudimentary and vague norms.” In this vacuum, domestic legal systems have stepped in. As Hasin notes, companies operating in space must obtain a license from a national authority, making domestic laws a primary driver of the regulation of private actors.
Complexities arise when these technologies have dual use—meaning they can serve both civilian and defense purposes, often indistinguishably. The same synthetic aperture radar used for environmental monitoring can produce high-resolution images for counterforce strikes and espionage and the same satellite constellation that provides consumer internet also underlies battlefield communications. Indeed, scholars estimate that 95% of space technologies have both military and civilian applications. The blurring of boundaries exposes a deeper legal problem: to safeguard the strategic relevance of these technologies, they can be simultaneously subject to patent law and export control regulations.
I. Space X: an emblematic example
No single example better illustrates the problem than SpaceX. Holding approximately $22 billion in U.S. government contracts, its satellite internet service Starlink is described by analysts as “an indispensable asset throughout the entire government sector, from U.S. embassies to the battlefield.” Starlink accounts for 97% of Space Force program task orders, and its military variant, Starshield—a hardened, government-controlled version of Starlink offering encrypted communications and intelligence capabilities—is built on the same underlying technology to support national security operations. As the California Coastal Commission has noted, for many U.S. Government users, the two are indistinguishable. SpaceX thus exemplifies a private company whose technology simultaneously underpins consumer internet, battlefield communications, and classified intelligence programs—a convergence that existing legal frameworks were never designed to govern.
II. Dual Use Technologies in the U.S.: Limitations to Private Autonomy
As commercial space activity accelerates, the U.S. regulatory framework governing dual-use technologies has struggled to keep pace, imposing significant constraints on private autonomy across intellectual property and export control.
In terms of patentability, the inventor’s ability to receive a space-related patent is not guaranteed. Under the Invention Secrecy Act, the Department of War may prevent disclosure of technical data pertaining to space applications by imposing a secrecy order on the relevant patent application where disclosure could harm national security, effectively suspending publication and preventing the patent from issuing for as long as the order remains in force, which may be renewed indefinitely.
Furthermore, the International Traffic in Arms Regulations (ITAR) govern defense articles listed on the United States Munitions List, including space launch vehicles and related items, that require specific State Department authorization regardless of their destination. The Export Administration Regulations (EAR) governs “dual-use” items—defined as items having “civil applications as well as terrorism and military or weapons of mass destruction (WMD)-related applications.” EAR generally operates on a more permissive basis, providing broader license exceptions for allied nations. The differentiation between the two disciplines is very delicate; both regimes might apply to different components of the same system, complicating companies’ ability to conduct detailed analysis for every product they seek to export. Failure to accurately classify a component can result in delays, denial of licenses, and penalties.
A private actor seeking to export, reexport, or transfer space-related technology must obtain a license or qualify for an exemption under one or both regimes. In 2024, the U.S. Department of Commerce’s Bureau of Industry and Security (BIS) and the Department of State’s Directorate of Defense Trade Controls (DDTC) proposed reforms to both regimes “to better enable a globally competitive U.S. space industrial base.” The input led to a series of reforms, including the transfer of various commercial satellite components from ITAR to EAR jurisdiction. The rationale for these constraints is national security: secrecy orders exist to prevent the disclosure of technologies that could aid other (adversarial) countries and export controls exist to restrict the transfer of sensitive military capabilities to hostile actors. The problem is not the constraints themselves but how they can adapt to market mutations, where private actors now play an increasingly important role. The intersection of patent law and export control represents just one layer of a far broader and increasingly complex regulatory landscape, one that continues to shift as commercial space activity accelerates, new actors enter the market, and governments scramble to adapt outdated legal frameworks. The challenge for policymakers is not simply classifying a technology as civilian or military, the challenge is designing a legal framework capable of accommodating both realities simultaneously.