US law regulating commercial human spaceflight dates to 2004 and the Commercial Space Launch Amendments Act (CSLAA), created to balance the needs of public safety with the technological immaturity of a tourism industry that did not yet exist.
In December last year a review of that law made a no-change recommendation to the US Congress, which otherwise would have had to act in accord with a 2012 sunset clause in the 2004 Act.
Had that sunset clause kicked in, it would have seen additional rules and might have ended the informed consent principle. Today this principle underpins the CSLAA, which defines space tourists as "spaceflight participants" and states that they fly in an "environment of informed consent".
That means the tourist is given documented evidence of the risks, which are also explained to them verbally, and they are required to sign a document indicating they have understood the risks before they can fly.
Informed consent is needed because the industry's technological immaturity means the US government is not prepared to certificate space vehicles as it would aircraft. The safety study was, in part, to determine whether the industry had advanced and needed new rules. It found that no change was needed and so informed consent and the rules it underpins for the foreseeable future stay.
Informed consent is given through a form known as a waiver, as signatories waive their rights to litigation. Tourists agree that they will not sue the operator in the event of an accident because they accept the risks. It is an approach legislated for already by some US states for extreme sports. "This isn't too dissimilar to the waivers people sign for climbing Mount Everest, "Virgin Galactic president Will Whitehorn says.
And Virginia and Florida have passed laws giving spaceline operators immunity from litigation where waivers are used-but not from criminal prosecution where an operator has been negligent. While litigants in the USA have the right to sue in a court outside the state in which the company or its operations are based, that other court would be at federal level. According to Virginia Space Flight Authority executive director Billie Reed the CSLAA and its informed consent principle would then be applied.
With Virgin Galactic aiming for a 2010 start in New Mexico at its Spaceport America, that state is preparing to pass an immunity law. "Spaceport America will pursue the liability legislation in the upcoming sessions. There may be a special session later in 2009. The next official legislative session is in January 2010. New Mexico's legislation will be similar to the Virginia and Florida legislation," says New Mexico Spaceport Authority executive director Steve Landeene.
Whitehorn also expects California to pass a similar law in future. But he is aware of the limitations: "The history of waivers is not good. Informed consent has worked quite well in scuba diving, but in other industries it hasn't.You still have to build your business on the basis [that] those protections don't exist because you're talking about people's lives.That is the commercial aviation background coming to the fore."
Before anyone signs a waiver, the US Federal Aviation Administration is to issue experimental permits for testing space tourism vehicles and commercial operations are enabled by a licence.
But Virgin Galactic's plans for European launch sites in Sweden and Scotland face a potentially more complicated legal situation. "We identified Sweden as the easiest place to go to in Europe. It's got legislation, a history with sounding rockets," says Whitehorm.
However, sounding rockets may not be applicable to SpaceShip Two. The European Aviation Safety Agency concluded in a preliminary study last year that existing rules that apply to all its member states can be applied to SS2. Whitehorn admits he has not spoken to EASA yet and says: "It will be interesting to see whether this is done at a national or pan-European level."
But for now, he says,"the good thing about this [is] we have a regulatory regime. It is in its infancy, its going to take the private operator working with the FAA to begin commercial flight, but we do have a process."