A Briefing On Public Policy Issues Affecting Civil Liberties Online
from
The Center For Democracy and Technology
(1) CDT Releases Updated Analysis as FCC Flag Rule Moves Forward
(2) FCC Ruling Includes Consumer-Friendly Changes, But Defers Key Questions
(3) Questions Raised About FCC Jurisdiction in Flag Ruling
(4) Next Steps: CDT Urges People to Stay Involved
The FCC broadcast flag
rule, an attempt to address concerns about piracy of digital television by mandating copy protections in consumer devices, was officially published in the Federal Register earlier this month, opening the way for legal challenges and launching a follow-on proceeding in which the FCC will take up issues deferred in its first ruling. CDT has released a new report examining the flag regulation that details the concerns it raises for consumers and Internet users.
The flag regulation presents a novel policy approach, mandating that all equipment capable of receiving digital television (DTV) broadcasts include federally approved copy protection technologies. While aimed at addressing a serious copy protection issue for content owners, the flag approach also has the potential to impact how consumers will record, watch, and use digital television for many years to come--and to set a precedent for government regulation of the architecture of computers.
The Implications of the Broadcast Flag: A Public Interest Primer (Version 2.0),
updates CDT's earlier report on the broadcast flag proposal and provides a detailed examination of the flag regulation put in place by the FCC. The report concludes that the FCC's ruling includes some consumer-friendly modifications to earlier proposals, but that the Commission put off consideration of many of the most important questions of concern to consumers. CDT's report notes that the Commission's ruling is unlikely to be the final word on the flag issue, as critical issues remain for a follow-on rule-making, and court challenges to the flag rule and further Congressional debate are expected as well.
CDT's updated and expanded public interest primer on the broadcast flag issue can be found at http://www.cdt.org/copyright/031216broadcastflag.pdf.
A shorter overview the broadcast flag scheme can be found at http://www.cdt.org/copyright/031200cdt.shtml and more information about digital copyright issues generally is available at CDT's digital copyright page, http://www.cdt.org/copyright/.
The FCC's Report and Order on digital broadcast content protection, published in the Federal Register on December 3, creates a new federal regulation setting in place the broad outlines of the broadcast flag protection mechanism for digital television (DTV) broadcasts. The ruling requires that by July 2005 any new device sold or distributed in the U.S. that is capable of receiving DTV broadcasts must look for a flag
that marks content as protected, and must obey certain content protection rules for flagged programs.
While the FCC ruling includes important improvements over earlier drafts of the rule proposed by the Motion Picture Association of America (MPAA) and others (see CDT Policy Post 9.21), it leaves consumers with no guarantees that many of their biggest concerns will be addressed.
A central issue in the broadcast flag approach is what protection technologies will be mandated in consumer devices and what those technologies will allow people to do. The FCC ruling appears to limit the scope of earlier proposals by seeking protection technologies that prevent indiscriminate redistribution of [digital broadcast television] over the Internet or through similar means.
The rule also adds consumer-oriented factors to the considerations that will be used in the review of protection technologies. The Commission also indicated its willingness to consider software-based protection measures, which will be essential if computers are to be allowed to handle DTV content without major redesign.
However, the FCC's rule leaves unanswered the essential questions of exactly what consumers will be permitted to do with television broadcasts, and how approved protection technologies will be selected. Without answers to those questions, the ruling leaves consumers at risk that their ability to record, watch, and use television programs will be unreasonably restricted. It also leaves real concerns that the approval process for new technologies will harm innovation in new consumer products.
The FCC ruling set in motion a second rule-making proceeding designed to address many of these hard issues. The rule sets forth an interim procedure
that the Commission has adopted for approving technologies in the short term, but defers the standards for a permanent approval process to the follow-on proceeding. Other questions deferred by the Commission include the effect of the Commission's rule on open source software for handling DTV broadcasts, and the definition of a personal digital network environment
within which redistribution of protected content would be allowed.
Public comments are now due by January 14, 2004 in the FCC's further proposed rulemaking on the broadcast flag.
Credible questions have also been raised about whether the FCC had the authority to issue the flag regulation. In many ways the flag ruling creates an unprecedented level of FCC regulation of consumer electronics devices and computers, which will be directly impacted by the requirements that only authorized technologies may handle marked DTV broadcast content.
Critics have noted that the Commission has no direct statutory authorization to enact the rule, but the FCC argues that the regulation falls under its ancillary jurisdiction
to promote the nation's transition to digital broadcast. Supporters of the flag scheme have said that without some form of mandated content protection, studios and programming providers will be unwilling to release high quality content for digital broadcasts, leaving little incentive for consumers to purchase the DTV receivers that they will need if the US is to make the transition to digital.
The new version of CDT's flag primer includes an overview of the contentious jurisdiction issue, which could quite possibly be the grounds of a court challenge to the FCC's ruling. If legal challenges succeed in stopping or slowing the flag, further action may be needed by Congress to give the broadcast flag effect.
Policy makers have generally avoided government mandates of specific Internet and computing technologies, for fear such mandates could burden the rapidly evolving information infrastructure and threaten innovation. Without changes, CDT believes the broadcast flag rule may set a troubling precedent for government regulation of the architecture of digital devices without adequate attention to the concerns of consumers and computer users.
Critical questions remain to be answered by the FCC as it continues its rulemaking on the flag approach. CDT urges those interested to file comments in the FCC's follow-on proceeding. CDT's own list of recommendations for ways the Commission can address problems with the flag approach can be found in our Public Interest Primer. Comments can be filed online at the FCC's website at http://gullfoss2.fcc.gov/ecfs/Upload/ until January 14th. The broadcast flag is MB Docket Number 02-230.
The flag issue may also come under further Congressional review, especially if legal challenges to the FCC's ruling are successful. The broader question of whether government should get directly involved the design of technologies to promote content protection is certain to remain an important issue before Congress for years to come.
Detailed information about online civil liberties issues may be found at http://www.cdt.org/.
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Policy Post 9.24 Copyright 2003 Center for Democracy and Technology
