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Broadcast flag "recommendations" for Congress published

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
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Declan McCullagh
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An array of non-profit groups including the Electronic Frontier Foundation, Public Knowledge, and the American Library Association spent years fighting the idea of a "broadcast flag," a federal regulation that would have outlawed many digital TV receivers and tuner cards starting July 1.

They won. In May, a federal appeals court unceremoniously tossed out the Federal Communications Commission's regulations.

But now one non-profit advocacy group is breaking ranks with its usual allies and handing Congress a road map to reinstating the broadcast flag. The idea is to reduce piracy of digital TV by prohibiting the manufacture of computer and video hardware that doesn't sport copy protection technology.

The Center for Democracy and Technology on Tuesday published its "recommendations" for Congress. Instead of telling politicians that such a law would be unwise and that it would necessarily infringe on Americans' fair use rights, CDT merely offers some guidelines for what the first President Bush might have called a kindler, gentler broadcast flag.

CDT said, for instance, in its road map: "The FCC did a number of things right in its initial broadcast flag decisions, including being open to approving new technologies even if they were controversial."

"We're not lockstep with EFF/PK on this, so we're not out there saying 'a broadcast flag regime inevitably sucks for consumers,'" CDT analyst David Sohn told me in e-mail. "Aggressive opposition to any and all possible versions of a flag rule is simply not our position."

Does that mean that CDT -- which receives about half its revenue from corporate contributions -- is quietly cashing checks from the big media companies that have begun to lobby Congress to reinstate the broadcast flag?

A now-deleted Web page, saved in February 2003 by Archive.org, shows that Time Warner, Disney, and Vivendi (an owner of NBC Universal) have been supporters. Though for the record, a CDT spokesman said Tuesday that only Time Warner (that is, AOL) currently is providing cash.