Biden’s EO Could Transform Right to Repair Debate

The President pushed right to repair to the front burner with a planned executive order targeting repair restrictions on agricultural equipment, according to reports.

These days, every political decision is sliced and diced six ways before it happens. That’s especially true of Presidents. In modern times, we’re really not used to Presidents getting out in front of an emerging issue and pulling the rank and file along. Presidential embraces - if they happen at all - usually are a denouement.

But that’s what appears to be happening right now in the U.S., after reports Tuesday that President Joseph Biden will issue an Executive Order that, among other things, instructs his Department of Agriculture to adopt new rules to boost competition and the Federal Trade Commission to craft new rules designed to protect the right to repair in agriculture and other industries such as home appliances and cars.

On the agricultural right to repair, White House Press Secretary Jen Psaki said on Tuesday the effort would help farmers "fight back against abuses of power by giant agribusiness corporations and give farmers the right to repair their own equipment how they like.”

Subsequent reporting by Bloomberg suggests that the scope of the order may go well beyond agriculture, targeting consumer electronics like smart phones as well as Department of Defense contractors, as well. (Recent reports have highlighted how repair restrictions hamper military operations with needless expense and delays.)

The Presidential Executive Order is expected within days.

WTF Just Happened?

As the editor of a pro-repair newsletter, and the founder of a pro-right to repair group, SecuRepairs.org, I’m thrilled with this news. And also pleasantly surprised at this lurch forward by the Biden Administration on an issue that, until recently, had a low profile in Washington D.C.

Sure, Montana Senator Jon Tester has been a consistent voice in favor of the right to repair, and has made public calls for the Federal Trade Commission to address gross abuses of power by agricultural equipment makers like John Deere. But there was nothing in the way of actual legislation, or even enforcement of existing laws to reign in egregious anti-repair and anti-consumer behavior by manufacturing and technology giants. In fact, it was only weeks ago that the first piece of federal legislation calling for a right to repair, The Fair Repair Act, was introduced by Rep. Joe Morelle (D-NY). That’s legislation introduced. Not passed by a chamber of Congress, mind you. Not voted on. Not even taken up in a committee hearing.

Prior to that, the Federal Trade Commission (FTC) held a workshop in July, 2019, Nixing the Fix, that focused on impediments to repair and servicing. SecuRepairs member Gary McGraw participated in that event. But, following that event? Silence. It took an Act of Congress, as it were - a request tucked into an appropriations bill - to get the FTC to report out what its findings were from the event.

When that report came, it was a doozy: slamming manufacturer restrictions on repair while declaring, flat out, that arguments against providing tools and service information - including cyber security arguments - didn’t hold water. Still: the FTC’s report was cautious about next steps. While enforcement of existing laws like the Sherman Antitrust Act and the Magnusson Moss Warranty Act may trim some of the most egregious practices, expanded enforcement of monopolistic, anti-repair practices like those of John Deere and other connected device makers would almost certainly require new rule-making by the FTC - a much more fraught process.

Drum Beats in the States

Still, the fight for the right to repair was - until Tuesday - almost entirely based in the states, where 26 state legislatures this year have considered one or more right to repair bills covering everything from farm equipment, to medical devices to consumer electronics. Despite broad and bipartisan public support, many of those laws have died in committee in the face of fierce lobbying by special interests including the likes of TechNet (tech industry lobby), AHAM (home appliance makers lobby), CTA (consumer technology lobby), medical device makers, and on and on.

As we’ve reported, these hearings have been both inspiring and depressing. Consumers and small business owners - even disabled Americans - provided passionate testimony about the need for a right to repair to give them choices about how to maintain their own property.

As for the depressing bits: in the face of that poignant and sometimes heartbreaking testimony, legislators often parroted industry talking points about interstate commerce, intellectual property rights, and so on. As much as we complain about big money’s influence on federal lawmaking, the sad truth is that money and lobbyists speak even louder at the State level, where the stakes are lower, the bribes…sorry…campaign contributions are smaller, and fewer people are looking.

Admittedly: right to repair is showing promise in the states. New York State’s Senate just became the first chamber in any state legislature to vote on and pass a piece of right to repair legislation. Alas: it was on the last day of their legislative calendar and, absent a similar vote by the NY State Assembly, the bill died there.

In Massachusetts, of course, voters overwhelmingly approved a ballot measure to expand that state’s automobile right to repair law in November, 2020. right to repair legislation is very much alive and may also come up for a vote. (The State is now being sued by automakers who wish to stop implementation of that law.) Lawmakers on Beacon Hill are also considering two digital right to repair bills, which have attracted many sponsors and may see their way out of committee and to a floor vote. Though when that might happen is anybody’s guess.

Biden: Hold My Beer

Into that somewhat disjointed picture has stepped Joe Biden - aviator shades and all. While the specifics of his executive order aren’t known, the impact of a presidential directive specifically mentioning the right to repair can’t be overstated.

For one thing, it prods the FTC to do exactly the thing it seemed reluctant to take on: new rulemaking to address the myriad ways that technology, software locks and digital rights management have given device makers the ability to turn the owners of their products into digital “sharecroppers,” beholden to the manufacturer for even the simplest repairs, service and parts.

“Our research has shown that the way the equipment is built makes it necessary to get specialized software tools that, despite promises that manufacturers would share them, farmers can’t get. This order should be the first step in giving farmers a choice for who repairs their equipment,” said Nathan Proctor, the Campaign Director for Right to Repair at U.S. PIRG in a statement.

Second, it puts the right to repair on the map as a federal issue and the Biden administration squarely behind the rights of consumers against monopolies. In all likelihood this is no accident. Biden has made economic populism a pillar of his agenda and “Bidenism,” more broadly. Putting abusive monopolies and companies like Apple and Google in the crosshairs is something that’s unlikely to cost him politically. His appointments have underscored that focus on breaking up monopolies and other concentrations of power. Lina Khan, his pick to head the FTC, made a name for herself protesting anti-competitive practices by Amazon and Facebook. Biden also named Tim Wu, a Columbia law professor and another antitrust expert, as a special assistant to the president for technology and competition policy.

Putting the full force of the Biden Administration behind the right to repair, at the very least, pushes aside arguments that lawmakers have bigger priorities than addressing repair restrictions. It also makes bureaucratic hand wringing harder, by putting POTUS squarely behind the notion that a right to repair is important and worthy of federal action.

Kyle Wiens of the firm iFixit said the planned Executive Order was welcome. “Big tech has been taking advantage of consumers for too long, at the expense of local small businesses,” he said. “We're very encouraged that the Biden administration is planning to use the rulemaking power of the FTC to restore competition.”

“This is great news for farmers,” said Proctor of US PIRG. “It’s great news for everyone concerned with repair monopolies. It also shows that the Right to Repair campaign is continuing to move forward, and win new support. Already, the vast majority of the American people agree with us. Now, it appears, the president also believes that people should be able to fix their stuff. It’s time for manufacturers to wise up, because we’re not going to stop pushing for our Right to Repair.