Biden Wants to Give Us the Right to Repair. Now What?

Last week, anyone who cares about being able to fix the things they own got a huge win when the Biden administration said it would make rules that prevent companies from restricting repair through anticompetitive practices. The executive order that Biden signed is a huge deal, but it’s just the first step in what’s likely to be a protracted and perhaps hotly contested rulemaking process. 

A Biden administration official who requested anonymity because they weren't authorized to speak to the media told Motherboard the contours of what the White House is looking for, and explained why the administration believes that the Federal Trade Organization has the legal authority and muscle to make right to repair a reality. 

We’ve been reporting on the right to repair for years, and one recurring theme is that it is overwhelmingly popular among both Democrats and Republicans. Repair businesses are overwhelmingly locally-owned, small businesses, and the ability to repair something feels very American—many people I’ve spoken to over the years have stories about building PCs as a kid, or fixing their car, or troubleshooting a broken appliance. The artificial loss of that self reliance, caused by digital rights management systems, proprietary parts, and onerous end user license agreements, makes no one but big businesses happy. Given the idea's popularity, it’s been surprising that more politicians haven’t taken up the cause over the years. 

The White House official Motherboard spoke to said the administration was trying to respond to this section of the American public.

"Joe Biden responds to felt frustrations and what seems wrong, what seems right. I think it’s very consistent with his presidency to choose something that’s not a Republican or Democratic issue, it reflects a universal sense of frustration when you’re prevented from fixing something you own,” they said. “I think it’s a very basic sense of what does it mean to own something? I don’t think that’s tied to party, location, ideology, anything. It’s very basic."

The official said that the White House believes the FTC will understand that right to repair is an issue that affects anyone who has ever had a broken iPhone, tractor, appliance, and that the agency will work to implement a rule that applies not only to tractor companies but to any company that engages in anticompetitive repair practices. 

Even so, we don’t yet know how strong the “right to repair” protections will be because of how the rulemaking process works: The FTC announced on Monday that it will vote on a repair “policy statement” at its meeting next week. It will then at some point issue a notice of proposed rulemaking, in which it will issue a proposed regulation. Then, that rule goes through a public comment period in which the public and affected companies can weigh in on the proposed rule.

This part of the rulemaking is most fraught, with room for companies to bend the process in their direction. As Motherboard has reported before, agencies rarely consider letter writing campaigns or public opinion in rulemaking. They are more likely to consider legal arguments and “comments” made by corporate lawyers, which can sometimes be hundreds or thousands of pages long. Companies like John Deere and Apple—and the trade groups that lobby for the agriculture and electronics industry—have fought hard against right to repair legislation at the State level and against repair-friendly exemptions to copyright law at the federal level, so it’s likely that these big corporations are going to put up a hard fight to any regulation they see as being too burdensome to implement or that could affect their bottom lines. 

After the rulemaking process, a final rule is posted. Even then, though, we might not necessarily have the right to repair. Companies can sue the government to challenge the legality or constitutionality of any given rule, which is exactly what Big Telecom did in the immediate aftermath of net neutrality being implemented during the Obama administration. 

An FTC spokesperson declined to comment for this story. The White House official said, however, that its lawyers did a legal analysis before putting the right to repair language in the executive order, and said that they believe the FTC has broad rule making authority to restrict “unfair methods of competition and unfair acts and practices.” 

The official also pointed to the 1992 Supreme Court decision Kodak v. Image Technical Services, which held that Kodak could be held liable for violating antitrust laws for restricting access to repair parts under the Sherman Antitrust Act of 1890. The White House believes that the FTC’s unfair methods authority, is broader than the regulations outlined in the Sherman Act.

It’s also worth noting that the executive order not only directs the FTC to make right to repair rules, but also instructs the Department of Defense to make a plan “for avoiding contract terms in procurement agreements that make it challenging or impossible for the Department of Defense or service members to repair their own equipment, particularly in the field.” While this isn’t rulemaking, the administration believes that, because the military works with so many different contractors, a bias toward companies that make their products easier to repair will change the practices of entire industries.

So while this is a good start, there's still a lot of work to be done.