Massachusetts is a hot battleground for Right to Repair movements – first for cars, and now for smartphones. Right to Repair legislation advocates for consumers to be allowed the access, information and materials that they and third party repair shops require in order to fix their broken-down products. But unlike in the case study of automobiles, the Right to Repair movement for electronic devices may face a grisly demise because of the big bad bogeyman: cybersecurity.
Right to repair is a huge deal.
Tech giants want consumers to keep buying the newest gadget, since their CEOs blame the repair and reuse of older models for deficient bottom lines. And in a world where consumers trash a functional phone because of a spiderweb crack in the corner, electronic waste (“e-waste”) is a rapidly growing threat.
E-waste accounted for a waste stream of 50 million tons in 2018 and is projected to reach at least 120 million tons by 2050. Moreover, e-waste isn’t biodegradable. And due to the prevalence of toxic materials like lead, the disposal of e-waste often causes severe health hazards for countries like the Republic of South Africa that are forced to bear these human and economic costs.
Advocates of Right to Repair cite multiple other reasons to be allowed the resources necessary to fix their own devices. Predominantly, most feel that fixing electronics is a free market issue. Their rationale is that manufacturers shouldn’t be able to charge exorbitant prices for issues that can be fixed by third party repair shops that can do the same job but at a cheaper price, and faster as well. This isn’t even mentioning that sometimes, third party repair shops may be the only option when the original manufacturer refuses to repair the device or sell the parts for repair.
To this end, the electronic Right to Repair bills currently under consideration by the Massachusetts legislature would require manufacturers to make parts, software, and diagnostic repair tools available to everyone, not just authorized repair providers. However, tech giants are steadfastly opposing the bill, citing cybersecurity reasons. Dusty Brighton, the executive director of the Security Innovation Center (an association of tech companies opposing Right to Repair measures) warns that “tinkerers, and do-it-yourselfers” could expose broken devices to hacks and create vulnerabilities that risk personally identifying information and may even result in fire hazards.
Still, consumers want to “own” their products, and some argue that ownership implicitly includes the right to repair their devices and even upgrade their devices if they wish – after all, who hasn’t wanted to increase the storage space on their laptop’s hard drive? It is worth noting that expansive ideas of ownership that extend beyond mere physical possession have already been embraced by intellectual property jurisprudence in various ways. For example, the first sale doctrine (also known as the exhaustion doctrine) has long been recognized and reaffirmed by courts and limits the extent to which owners of intellectual property can control their product or service after an initial sale.
Importantly, people suspect that manufacturers may simply be “conjuring up” these safety risks to sway legislators rather than out of a real concern for consumers’ security. After all, as Maureen Mahoney, a policy analyst for Consumers Union, states: “[i]t’s hard to think of a product that has more to do with safety than automobiles, and we haven’t seen safety problems with that,” in reference to prior, successful Right to Repair legislation in Massachusetts.
The legislative precedent dealing with auto makers is the precise reason why Right to Repair advocates have chosen Massachusetts as their battleground. Massachusetts has seen this exact situation play out before in 2012, when the state passed a landmark Right to Repair bill requiring vehicle makers to provide diagnostic and repair information for sale to vehicle owners and independent shops. This bill paved the way for a national agreement between original manufacturers and independent shops and is precisely what Right to Repair activists are hoping for now in the electronic context.
The first win in the war for Right to Repair activists came in October of 2018, when the US Library of Congress and its Copyright Office issued exemptions that would essentially allow consumers and third party repair shops to circumvent digital rights management (“DRM”) software or firmware in devices when repairing them.
So far, twenty-three other states have considered legislation similar to Massachusetts Bills H.218 and S.107. Even Canada is proposing that “tech companies make diagnostic tools, repair manuals, and official parts available to consumers at their request.”
The biggest issue is that prospects aren’t looking favorable for any of these bills. Proposed legislation in the twenty-three states above have met various fates: “some of the measures have been withdrawn, others are languishing in committees, and none has received a floor vote.” In addition, as the physical repairability of devices plummets with every generation, it is only getting harder and harder for consumers to choose the “right” way – the eco-friendly way. Maybe one day, we’ll be able to repair and reuse instead of buying the next iPhone or Surface, but for now we will have to wait and see.
* Jennifer Huseby is an Associate Editor on the Michigan Technology Law Review.