The U.S. Department of Justice (DoJ) has alleged that SpaceX engaged in discrimination against refugees and asylum seekers in its hiring practices in its newest lawsuit. The DoJ says SpaceX refused to hire anyone who wasn’t a U.S. citizen or didn’t have a green card during the period between September 2018 and May 2022. The DoJ says this violated the Immigration and Nationality Act.
The regulation specifically seems to impact Information Technology systems, which SpaceX may be interested in pursuing through its Internet-providing Starlink satellite constellation. It already beefed up Starlink’s ability to resist jamming to fend off Russia’s efforts to attack the satellite constellation as part of its invasion of Ukraine. SpaceX also proposed “Starshield,” a Starlink derivative for military applications.
SpaceX has also launched payloads for the military, including new GPS satellites and experimental “transport layer” satellites that can relay signals from other satellites. Most importantly, it can launch classified payloads like it did on a Falcon Heavy on November 2022. Launches like this would require SpaceX to work with the military to integrate the payloads with its rockets — potentially pitting national security interests against laws forbidding discrimination against foreign nationals when making employment-related decisions.
U.S. authorities also released a report warning that aerospace companies like SpaceX and Blue Origin may be vulnerable to cyberattacks. Most successful cybersecurity breaches are “inside jobs” or social engineering attacks. At least one attempted cyberattack on an Elon Musk company involved a Russian national’s attempt to bribe a Tesla employee to inject malware into Tesla systems, for instance.
The critical element involves SpaceX job postings explicitly stating that it could only hire U.S. citizens and green card holders for certain positions. SpaceX maintains that it had been following Department of Defense (DoD) regulations meant to prevent transfer of sensitive innovations to rival foreign governments like Russia or China. The DoD regulation in question specifically says:
(k) Non-U.S. citizens shall not be authorized to access or assist in the development, operation, management or maintenance of Department IT systems under the contract, unless a waiver has been granted by the Head of the Component or designee, with the concurrence of both the Department’s Chief Security Officer (CSO) and the Chief Information Officer (CIO) or their designees. Within DHS Headquarters, the waiver may be granted only with the approval of both the CSO and the CIO or their designees. In order for a waiver to be granted:
(1) There must be a compelling reason for using this individual as opposed to a U.S. citizen; and
(2) The waiver must be in the best interest of the Government.
Elon Musk also reiterated that he did not want to add a potential International Traffic in Arms Regulations (ITAR) violation to his list of potential legal problems by having a foreign national hired by SpaceX steal trade secrets and hand them off to a foreign government. He phrased it in a way that made it sound like he was stuck between a rock and a hard place and chose to err on the side of national security.
ITAR forbids the export of important defense-related technology, services, hardware such as the rockets used to launch military satellites. In this case, Elon Musk is interpreting to mean that SpaceX should not risk a situation in which an unauthorized foreign national working in his company swipes trade secrets to send to a rival government.
The DoJ disagrees, saying that ITAR does not forbid hiring job applicants who do not have a green card or U.S. citizenship. It filed a lawsuit in a bid to force SpaceX to cease alleged discrimination against refugees and asylum seekers.
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