President Biden’s Right to Repair


james seddon is a research assistant at the Brookings Institution’s Center for Technology Innovation. darrell west is a vice president of Brookings and director of its Governance Studies Program and is a senior fellow at Brookings’ Center for Technology Innovation. This article is a modified form of a recent Brookings TechTank Post.

Published August 31, 2021


Frustrated that do-it-yourself repair of everything from tablets to telephones to trucks is just about impossible? Part of the problem is that modern machines are often very, very complicated. But part is the effort by manufacturers to maintain a hammerlock on fixes. Happily, help may be on the way.

Earlier this month, President Biden signed a sweeping executive order directing a multitude of federal agencies to promote more competition in the U.S. economy. One such directive encourages the Federal Trade Commission to enact regulations that prohibit manufacturers from barring the repair of their products by the owners or independent repair shops.

The president certainly has allies in this quest. The FTC has already made clear the benefits of granting what is called the “right to repair.” Meanwhile, bipartisan groups in over two dozen states are pressing for laws to the same end. To get the job done right, though, a more comprehensive federal approach is needed.

The Handwriting’s on the Wall

Responding to concerns that manufacturers are limiting the possibility for owners or “uncertified” third parties to conduct their own maintenance and repairs, the FTC acknowledged in March that its regulations have not kept pace with manufacturer ploys to restrict third-party repair. The FTC subsequently identified several types of repair restrictions, including those stemming from product designs, parts availability, software locks and end-user licensing agreements that need to be reformed.

Intentionally complex product designs — the use of specialized screws, excessive glue inside a device, hard-soldered components — can limit the repairability of products by anyone, including the makers. More commonly, restricting the availability of parts, diagnostic tools and manuals to authorized service providers can make third-party repairs all but impossible. 

Even if consumers or third parties can buy replacement parts, the presence of technological protection measures such as proprietary software keys to reset devices can effectively block independent repairs. Almost all devices with microchips are restricted by end-user licensing agreements preventing modification or reverse engineering, which can legally prohibit third parties from finding repair workarounds.

While the FTC found no empirical justification for these restrictions, it did identify meritorious arguments for the right to repair by proponents. These included the reality that repairs by independent shops are typically quicker and less expensive than service by authorized providers, especially in rural areas. Indeed, President Biden cited one such case in the executive order: farmers often must wait days for an authorized technician to repair farm equipment, even if the fix is as simple as pushing simple software-restricted buttons. The FTC also identified yet another benefit — reduction in e-waste. While manufacturers have worked to bring down e-waste in the past decade, easier fixes for broken equipment would, of course, lead to fewer discarded devices.

Repairs by independent shops are typically quicker and less expensive than service by authorized providers, especially in rural areas. Farmers often must wait days for an authorized technician to repair farm equipment, even if the fix is as simple as pushing simple software-restricted buttons.
Why Government Needs to Play a Part

Three states (CaliforniaIndiana and Rhode Island) have right-to-repair laws that date back to the 1980s. But they are very limited in scope. The first true breakthrough came in 2012 when Massachusetts passed a ballot measure ensuring independent repair shops the right to work on cars sold in the state.

The 2012 referendum required automakers to provide access to diagnostic and repair information as well as technical updates to independent repair shops for a reasonable fee. This led to a unique right-to-repair memorandum of understanding between automakers and independent repair shops, in which all car manufacturers (except Tesla) agreed to abide by the Massachusetts law across the country in return for an end to lobbying for new right-to-repair legislation by the auto repair trade groups. If right-to-repair laws were subsequently passed in other states, automakers could unilaterally withdraw from the agreement in all states impacted.

As the 2012 memorandum specifically excluded automotive telematics, the passage of the 2020 Massachusetts referendum requiring automakers to include systems that collect and wirelessly transmit mechanical data to remote servers for purposes of diagnosis, maintenance and repair by 2022, has left the aforementioned understanding in limbo.

Although no state has enacted comprehensive right-to-repair legislation, the Repair Association, an advocacy organization for the independent repair industry, has successfully persuaded a bipartisan group of legislators in 32 states to introduce bills that include some form of right to repair. Most are based on the trade group’s model legislation template and would require manufacturers of products with embedded digital electronics to make any documentation, parts and tools provided to authorized repair providers also available to independent repair shops on reasonable terms. The bill also clarifies that internal components of devices providing security functions are not exempted — and, as such, manufacturers must provide equipment and documentation to disable and reset security devices that prevent maintenance or repair.

No state legislative chamber has yet approved a bill, with the exception of the recently approved bill in the New York State Senate that appears to have stalled in New York’s lower house. Rep. Joseph Morelle (D-NY) has introduced nearly identical legislation, the Fair Repair Act, in Congress.

So Much More to Do

While the president’s executive order is a good initial step, it is only that. As the FTC points out, there are several issues still outstanding in the Fair Repair Act. If only to preserve the memorandum of understanding between automakers and right-to-repair advocates, it excludes the auto industry as well as the medical device industry. While there could be merit to these exclusions, other industries —including the video game industry, which has already requested an exclusion — will surely want to hitch a ride on the exemption wagon.

The FTC also suggests the need for a legal definition for replacement components, as well as a need for a dollar threshold or duration-after-manufacture limits for these rights. The Repair Association model bill only requires parts made available to authorized service providers to be sold at a reasonable price to third parties, and stakeholders should doubtless weigh in on whether this should include hazardous or dangerous components. Similarly, the FTC report suggests that comment should be sought on whether to include inexpensive, truly throwaway products in the right to repair. Consumers may not expect to repair — nor manufacturers to diagnose — issues with, for example, $5 charging cords, although the model bills would cover them.

One big takeaway from this patchwork history is the need for a comprehensive fix after all the stakeholders have a chance to weigh in. In the greater scheme of things, the right to repair may not be high on your list of economic reforms. But it is a very real issue with tens of billions of dollars at stake. And in a technologically dynamic economy, the pot is bound to grow ever larger.

main topic: Policy