26.3 - Legal Issues of First Contact

Xenology: An Introduction to the Scientific Study of Extraterrestrial Life, Intelligence, and Civilization

First Edition

Robert A. Freitas Jr., Xenology: An Introduction to the Scientific Study of Extraterrestrial Life, Intelligence, and Civilization, First Edition, Xenology Research Institute, Sacramento, CA, 1979; http://www.xenology.info/Xeno.htm

Law is a product of societal problems. When there are few problems, there is little law. Not surprisingly, there has been virtually no discussion in the literature of the status and legal rights of ETs, their messages, and their artifacts under our various terrestrial legal systems. There exist, so to speak, no legal precedents.

From the legal point of view, there are basically two classes of contact that are significant: Those in which no physical contact between man and alien is possible (Remote Contact), and those in which physical contact is expected to occur (Direct and Surprise Contact).

In the Remote Contact scenario, direct and immediate extraterrestrial influence on our society is comparatively slight. Consequently, legal issues are few. Since information and ideas are the only mechanism for cultural exchange, there may be a few freedom of speech questions (e.g., prior restraint), but these will probably resolved in favor of the government. The requirements of national security may force limitations on dissemination and use of knowledge contained in the alien transmissions. (For instance, the 1954 Atomic Energy Act prohibits disclosure of any nuclear secrets that could be used to make bombs, even if they originate with the author.) There may be a few attempts to use the Freedom of Information Act of 1974 to pry loose confidential or suppressed material, but these take an enormous amount of time to process and most likely will be to no avail.

There are a number of subsidiary legal questions in the context of Remote Contact. For instance, who will own the patent rights to various inventions and devices described in the messages from the stars: The government, who paid for the radiotelescope; the university scientists, who first translated the messages and drew the first blueprints; the engineers who produced the first working model; etc.? Under 35 U.S.C. §101, the invention or discovery of any new and useful process, machine, method of manufacture, or composition of matter is patentable. Data from the Galactic Library surely constitutes a discovery. Two possible restrictions, however, may moot the issue of patentability. First, inventions described in a printed publication in a foreign publication before the application for patent are not patentable. This may perhaps be inferred from the presence of the data in the beacon, but is another planet "a foreign country" for the purposes of this law? And what if the ETs don't print or "publish" anything (perhaps using a planetwide computerized solid state database)? Second, and most important, consider the wording of 35 U.S.C. §101 under which secrecy orders could be applied to alien technologies:

Another legal question might involve issues of governmental tort liability. If information from the stars is released by a U.S. operated observatory, and that information is misused or causes harm in any way, is the government liable to the injured parties? (For example, suppose that a new alien formula for high explosives is released to industry, and the commercial testing station using it detonates unexpectedly, flattening an entire city.) In general the answer is no -- there would little if any governmental liability. Under the Federal Tort Claims Act of 1946, only "operational negligence" and not "policy negligence" is actionable. In the landmark case Dalehite v. United States (1953) 346 U.S. 15, in which Texas City was largely destroyed by a harbor explosion of two shiploads of ammonium nitrate placed there as a matter of government policy, the Supreme Court found that the negligent government decisions were at the planning or policy level, hence within the Tort Claims Act exception as to "discretionary function or duty" (so the government was not liable for the mishap).