Does the FCPA apply . . . in space?

Don’t laugh. It has taken only ten years for the pipe dream of routine and reusable space travel to become a ho-hum, near-daily reality, thanks primarily to Elon Musk’s SpaceX. Assuming similar progress over the next twenty years, what are the implications — out there — for compliance?

SpaceX has a new rocket still in the testing phase called Starship. According to the company’s website, Starship is “a fully reusable transportation system designed to carry both crew and cargo on long-duration interplanetary flights, and help humanity return to the Moon, and travel to Mars and beyond.”

Let’s assume Elon Musk will accomplish what he says he will, as he did with the Falcon 9, Falcon Heavy, and Dragon spaceships. So, will the FCPA apply on the Moon and Mars and beyond?

From the SEC’s spotlight on the FCPA page (my emphasis added):

The FCPA can apply to prohibited conduct anywhere in the world and extends to publicly traded companies and their officers, directors, employees, stockholders, and agents.

So the SEC answers the question on this planet. But what if this were to read instead “anywhere in the solar system”?

There are major jurisdictional obstacles with that one.

According to the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) — of which the United States is a member — the Outer Space Treaty specifies:

• Space activities are for the benefit of all nations, and any country is free to explore orbit and beyond.
• There is no claim for sovereignty in space; no nation can “own” space, the Moon or any other body.

Looking past the sovereignty-in-space problem, will spaceships someday be treated like ships on the high seas? Maritime law is complex because ships move, the oceans are vast, and are mostly controlled by no one. Yet, the oceans are ultimately finite and measurable. Space, on the other hand, is apparently infinite. That complicates things.

Staying with the high-seas analogy, the FCPA itself defines “interstate commerce” this way (with my emphasis):

The term “interstate commerce” means trade, commerce, transportation, or communication among the several States, or between any foreign country and any State or between any State and any place or ship outside thereof, and such term includes the intrastate use of– (A) a telephone or other interstate means of communication, or (B) any other interstate instrumentality.

Is that definition broad enough to cover interplanetary travel — starting with travel between the Earth and the Moon? The language might stretch that far, but probably not the intent.

Here’s a hypothetical. What if one day all your communication is through Starlink — the SpaceX satellite communication service that already serves over 40 countries? And say you do all of your banking through (the yet-to-be-announced fantasy of this author) Starlink Bank in the denomination of Starlink MoonCoins — the Moon’s first currency. 

And indulge me one step further: Starlink is the first company to have its corporate HQ and servers on the Moon.

Servers on the Moon might sound like a fantasy, but one company is already working on it. The light face of the Moon always has a direct line-of-sight to the Earth, making communication efficient. According to the company, it is currently “running the world’s first web server on the International Space Station.”

By traditional thinking, and again with reference to the Outer Space Treaty, this scenario would create seemingly insurmountable jurisdictional barriers for prosecution under the FCPA.

What about the question of who in space is a “foreign official”? This one is easier to answer.

From the DOJ FCPA Guidance:

In general, the FCPA prohibits offering to pay, paying, promising to pay, or authorizing the payment of money or anything of value to a foreign official in order to influence any act or decision of the foreign official in his or her official capacity or to secure any other improper advantage in order to obtain or retain business.

. . . 

The FCPA defines “foreign official” to include: any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or of a public international organization, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organization.

According to the FCPA, a corrupt rendezvous with a foreign official from earth on the space station would be no different than a conspiratorial meeting in a St. Moritz watering hole over champagne.

As of today, however, if there is no sovereignty in space or on the Moon or any other body, and therefore no “government” out there, as COPUOS asserts, then there can be no such thing as an extraterrestrial “foreign official” under U.S. law. If one day there’s a separate, independent government on the Moon or Mars, perhaps Congress will consider expanding “foreign official” in the FCPA to include “foreign or extraterrestrial official.”

So, can FCPA enforcement keep interplanetary commerce fair?

No one has sovereignty over space. That, for now, makes space the FCPA’s final frontier.