The Implications of Shutter Control: A Basis for Invoking Force Majeure in Earth Observation Data Licenses

The commercialization of Earth observation technology has created a tension between national security interests and contractual obligations in satellite data licensing. The paper examines whether shutter control policies can justify invoking force majeure clauses in satellite data license agreements. Earth observation has become commercially vital for both the public and private sectors. However, the commercialization of the activity raises national security concerns and has led countries, such as the United States of America (US), to adopt a ‘shutter control’ policy. The policy allows countries to compel satellite operators to cease data collection, potentially preventing licensors from fulfilling contractual obligations. The paper specifically focuses on the US shutter control policy, which originates from the Presidential Decision Directive 23. The policy permits the government to limit data collection to safeguard national security interests, although its ambiguity may lead to disputes in commercial agreements and invoke the force majeure clause. The paper compares the application of force majeure under UK common law, which applies the restrictive doctrine of frustration, and Indonesian civil law, which recognizes broader concepts of force majeure. The review finds that the enforceability of the force majeure clause is strongly influenced by the choice of governing law and the application of the shutter control policy. The analysis concludes that while invoking the force majeure clause may be justified by the implementation of the shutter control policy, its enforceability is conditioned on both the suitability of the governing legal framework and the precision of the contractual terms.