Nationalize Starlink

By: T. Quinlan Murphy

The conduct of tech leaders poses a clear threat to the United States’ interests on the global stage. Silicon Valley tech firms play an increasingly important role in defense acquisition, national security, and the promotion of American interests abroad. The modern internet, computing, and revolutions in artificial intelligence (“AI”) determine geopolitical outcomes more and more frequently. Insofar these are primarily American innovations, the federal government must be ready and able to take control of these systems when the outcome of geopolitical competition hangs in the balance.

            Consider Starlink. The satellite-based internet provider offers relatively high-speed internet connection to those without access to cable or cell internet service, which is a coveted service in remote areas, places with little infrastructure development, conflict areas, at sea, in flight, and in areas undergoing natural disasters. Starlink deploys a network of “thousands” of low earth orbit satellites that provide a massive latency advantage over older forms of internet satellites located at a higher orbit. This system’s ability to provide sophisticated communications at a moment’s notice in inhospitable environments demonstrates clear applications for militaries and non-state actors. This capacity repeatedly proves critical in the Russo-Ukrainian war, where the battlefield is dominated by signals-directed artillery and remotely-controlled drones. Starlink recently contracted with the United States Department of Defense to directly integrate a “Starshield” version of its service directly into American military hardware.

            Starlink and its parent company, SpaceX, are controlled by Elon Musk. Mr. Musk has a history of controversial public statements and actions. For instance, shortly after making an apparent marijuana joke in a surprise announcement to take Tesla public, Mr. Musk could be seen consuming the drug on a podcast. Mr. Musk holds a Department of Defense security clearance, which prohibits holders from use of drugs that are illegal under federal law. The Biden Administration confronted Mr. Musk about this incident and his use of psychedelic substances. Musk said he was required to undergo random drug testing for years afterward. Mr. Musk also settled securities fraud allegations against him filed by the SEC. Statements he has made that advertisers considered racist have cost X—née Twitter—millions in advertising dollars since his purchase of the company. Tesla and Mr. Musk were sued for his alleged lies about the capabilities of the car company’s self-driving features. There are no other clear examples of the CEO of an important military contractor so openly violating federal security clearance rules related to trustworthiness and drug use.

            Considering Mr. Musk’s friendly relations towards China and Russia, his control over critical defense technologies like Starlink should be viewed critically by policymakers. In one particularly worrying incident, Mr. Musk disabled Starlink in an area where Ukrainian Armed Forces planned to use the network to launch a surprise attack on Russian naval assets with drones. This was foreign policy practiced by a private party. Ukraine’s defensive war is fulsomely supported the United States, and Mr. Musk denied a de facto ally an opportunity to attack and degrade the enemy. Imagine the disaster if he deprived American forces defending Taiwan from Chinese aggression any element of their communications suite. During the editing of this article, Rep. Mike Gallagher (R-WI) alleged that Starlink was withholding its Starshield service from American military personnel in Taiwan, in violation of its contract with the federal government.

These incidents belie an asymmetry in corporate and governmental capacity in the 21st century. Partially consequent of declining public investment in research and tech, many clever researchers and engineers joined Silicon Valley firms. These businesses tend to prioritize disruption and market cap over the political, economic, or social good of society. In addition to reinvigorating public investment in research and tech, policymakers should consider condemning and seizing companies like Starlink when their operators act contra to U.S. interests or policy.

            Youngstown Sheet & Tube Company v. Sawyer stands for the proposition that the president may not seize a private corporation for reasons of national security absent congressional authorization. However, Justice Clark’s concurrence suggested that congressional authorization to nationalize, even a congressional act that tended toward permission, might permit the president to seize a private corporation for security reasons—Justice Clark considered the seizures in this case unjustified, as Congress had explicitly reviewed and rejected the proposal. After 9/11, President George W. Bush nationalized private function through The Aviation and Transportation Security Act. The act “nationalized airport security, with the creation of the Transportation Security Administration, whose functions to that point had been performed by a patchwork of the now-displaced private security companies contracted out by individual airports . . . . [the Act] resulted in the largest single expansion of the federal workforce since World War II.” Two possibilities towards seizure emerge: (1) authorization by Congress, or (2) the high degree of present and pending legislation related to space travel justifying seizure under Youngstown.

            An act by Congress authorizing seizure would have clear political and factual foundation, even accepting the difficult political terrain of Congress. Mr. Musk has displayed capability and willingness to conduct private foreign policy. A broad coalition may be amenable to restricting his ability to continue to do so. It is also possible that Congress has already delegated the power to nationalize satellite and rocketry companies to the president. If the President attempted to seize Starlink without explicit congressional authorization, courts should adopt Justice Clark’s concurrence and hold the seizure constitutional. Starlink operates in outer space, long recognized an area of prime foreign policy and national security importance. Space travel, satellites, and space communications are regulated by a complex patchwork of statutory regulations administered by executive agencies. A court should find that such legislation justifies a seizure under Justice Clark’s rationale. Mr. Musk has interfered with the government’s authority on diplomacy, force, and policy in these areas, and should be restricted from doing so again in the future.

These concerns are not limited to corporations with traditional national security implications, like space flight. Consider the recent leadership shakeups at OpenAI.  OpenAI’s ChatGPT and similar generative platforms evince a variety of military uses. In November of 2023, its CEO was suddenly ousted, only to be reinstated days later amid a board restructuring. While OpenAI was “structured to resist the values that drive much of the tech industry,” an ideological struggle was roiling the AI firm. Despite the power of these tools, “AI’s future is being determined by an ideological fight between wealthy techno-optimists, zealous doomers, and multibillion-dollar companies. The fate of OpenAI might hang in the balance, but the company’s conceit—the openness it is named after—showed its limits. The future, it seems, will be decided behind closed doors.

            The leadership in this industry seems at least questionably prepared for an era of increasing inter-state competition; all three branches of government should prepare to meet that challenge of constraining the power of their technologies when they threaten American interests. Perhaps the threat of nationalization or a reinvigoration in public investment in pro-social science and technology will avert disaster, and extreme steps will not be necessary. Real power, though, should be sequestered from industry whose crowning achievement is the “like” button.

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