Could Feds Force Companies to Support Your Right to Repair?

Last Tuesday in Washington, DC, while Facebook executive David Marcus was being grilled by a Senate committee over the company’s foray into cryptocurrency, the Federal Trade Commission was hosting another tech-related panel a mile and a half away. This panel received much less attention and made far fewer headlines than the $5 billion fine slapped on Facebook the week before. But it raised similar questions about the influence of big corporations over the tech we use every day.

The FTC-hosted panel, called Nixing the Fix, asked whether consumers should be able to fix the gadgets they purchase or take them to an unauthorized repair shop without incurring a penalty. Today, customers who take repairs into their own hands often risk voiding their warranty.

The panel included both proponents of the right-to-repair movement—who say tech manufacturers are putting unnecessary restrictions on gadget repairs in order to perpetuate their market dominance—and those who believe there should be guardrails around personal electronics repairs, whether for safety or cybersecurity-related reasons.

As with many FTC workshops, it’s hard to say exactly what will happen in the weeks and months to come. But this event was particularly noteworthy in that it was the first of its kind held at the federal level. To date, right-to-repair legislation has largely been taken up at the state level. And proponents of right-to-repair bills say they felt bolstered by the FTC workshop, citing it as further evidence that this issue is becoming more relevant in the age of never-ending electronic updates and subsequent repairs.

“The FTC is paying active attention to the technology world, and whether we can repair our own devices is highly relevant to that,” says Kyle Wiens, the CEO of iFixit, who sits on the side of right to repair. “It’s part of the skepticism of technology companies on the Hill right now.”

Move Fast and Fix Things

At the heart of the issue lies the Magnuson-Moss Warranty Act, passed by Congress in 1975. The act was written in response to “widespread consumer dissatisfaction with both the content and performance of warranty obligations,” according to Fordham Law Review.

In short, it’s the law that governs consumer product warranties, and it prevents manufacturers—from automakers to tablet makers—from denying warranty coverage on a conditional basis. Manufacturers can’t void the warranty on a product just because the consumer went and repaired it themself, swapped parts, or had it fixed by a third party.

But some manufacturers still use language suggesting that your warranty will be voided. Last April the FTC sent warning letters to six major companies: Asus, Hyundai, HTC, Microsoft, Nintendo, and Sony. (Vice first obtained the list of manufacturers by filing a request under the Freedom of Information Act.) In some cases, as with Microsoft’s Xbox One warranty, the language is just iffy enough to butt up against the law. Others are more explicit, like HTC, which applies stickers stating, “The limited warranty shall not apply if the warranty seal (void label) has been removed.”

Then, in October of last year, the nonprofit US Public Interest Research Group published a report that said 45 out of 50 companies surveyed still void warranty coverage in the case of independent repair. These companies, all members of the Association of Home Appliances Manufacturers, include Breville, Dyson, Haier, Hisense, LG Electronics, Philips Electronics, and Samsung Electronics America. (Disclosure: The author of that report, Nathan Proctor, has written opinion columns for WIRED.)

Charged Conversations

While the FTC’s warning letters on warranty seals and the US PIRG report may have been shots across the bow, the commission insists there was no single major catalyst for last Tuesday’s hearings. Democratic presidential candidate Elizabeth Warren’s support of right-to-repair legislation for the agricultural community had no influence on it either, apparently.

“A study by a private party, or a candidate putting it in their platform, really had no impact on our need to review the effectiveness of the law,” says Dan Salsburg, chief counsel and acting chief of the Office of Technology at the FTC.

Well over a hundred people attended the workshop, though the FTC has not yet shared exact numbers, and nearly 20 people spoke during the four-and-a-half-hour session. State senators David Osmek, a Republican from Minnesota, and Christopher Pearson, a member of Vermont’s Progressive Party, also weighed in.

Wiens of iFixit and US PIRG’s Proctor spoke in favor of fewer manufacturer-imposed restrictions on product repairs, as well as increased education for consumers and repair shops. Manufacturers have access to specific instructions and specialized tools, the argument goes, making it difficult or nearly impossible for consumers and repair shops to fix the products they own.

Jennifer Larson, CEO of the Minnesota-based IT hardware reseller Vibrant Technologies, said at the workshop that she’s “lost millions in revenue—I can’t even quantify over 20 years how much I’ve lost,” due to repair barriers that prove to be too costly and time-consuming for the clients she sells servers to. She hears from angry clients who are upset they have to buy brand-new machines, after unsuccessfully attempting to update firmware, and can’t sell equipment back to her. “The business has changed from whole servers to having to part them down, so you have chassis in landfills,” she said.

For Your Own Good

Part of the opposing argument has traditionally been that allowing consumers and “unauthorized” repair shops to fix electronics could result in safety hazards or security vulnerabilities.

George Kerchner, a regulatory analyst at DC-based Wiley Rein who works on hazardous materials and dangerous goods regulations, spoke at length during last week’s session about lithium-ion battery cells, and particularly “pouch cell” designs. (Kerchner is also the executive director of the Rechargeable Battery Association.) He emphasized that many batteries are designed for specific products, and therefore are designed to be repaired by those trained to work with them.

“Batteries used where there is a continuous low drain, such as in a computer, have different characteristics than those used in power tools, where an immediate burst of power is needed to drill a hole or cut a beam,” Kerchner said, holding up two similar-looking battery cells. Not knowing the difference between the two, he continued, would pose safety risks.

Earl Crane, an independent consultant who previously served as director of cybersecurity strategy at the Department of Homeland Security, laid out a multipronged argument against DIY repairs. Unauthorized repair “removes accountability” from the manufacturers, he said. He also warned that the industry would “backslide” on the security progress it has made, as more and more consumer devices have been brought into enterprise environments.

But Gary McGraw, a security researcher at Securerepairs.org, rejected the contention that repairing gadgets would make them less secure. Other members of his organization have argued against this as well.

“How we can tease apart the spurious security argument and the repair argument? Because mixing them together is a sneaky trick,” McGraw said during his testimony. “The truth of the matter is we can design things to be repairable, we can design them to be secure, and those things are not orthogonal.”

What’s Next

Representatives on both sides of the argument indicated that the FTC workshop was a worthwhile event, although, according to one attendee, the FTC came across as somewhat sympathetic to the right-to-repair side. “The fact that a federal agency is looking into this issue for the first time is a hugely positive sign,” Wiens told WIRED. “Companies have been getting away with taking our rights to fix our own things for too long.”

Kerchner, from the Rechargeable Battery Association, had a more measured response. “I think for the most part it was a very good workshop,” he said over the phone. “The FTC did a good job hearing balanced sides. But I think at the end of the day it will continue to be a state issue before it becomes a federal one.”

Kerchner is referring to the fact that, as of right now, 20 US states have considered right-to-repair bills that either close certain loopholes or require manufacturers to provide access to information, tools, and parts for independent repairs.

But federal action, if any, could still be a long way off. Post-workshop, the FTC has put out a call for empirical research and public comment, open until September 16 of this year, and the agency might come up with some findings and make recommendations. It might even make a recommendation to amend the current law. But, as the FTC’s Salsburg put it, “this can go in any number of different ways.”