Hawaii Rep. Scott Nishimoto was in for a surprise as he walked past The Repair Association booth at the 2016 NCSL Legislative Summit in Chicago.
“They kind of corralled me, and they said, ‘Hey, you want us to check your battery to see how it’s working on your iPhone?’” Nishimoto says.
He laughed as he related the story during a panel discussion on the “right to repair” movement at this year’s Summit in Indianapolis. He remembered how nervous he was as they cracked open his phone and delivered a primer on the idea that manufacturers should provide the tools, software, parts and manuals needed for consumers to do their own repairs when products need servicing.
Nishimoto’s takeaway from that interaction seven years ago: “You really don’t have a right to repair anything.”
“You really don’t have a right to repair anything.”
—Hawaii Rep. Scott Nishimoto
Manufacturers argue that restrictions on who can repair their products are necessary to protect trade secrets and avoid the risk that owners of certain equipment, for example, might alter software to bypass emissions controls.
Back home in 2016, Nishimoto began hearing about the issue from his constituents, many of them students at the University of Hawaii. “They were calling and emailing and wanting to meet with me to talk about how they can repair their phones and their video games,” he says.
Nishimoto subsequently introduced right to repair legislation in the Hawaii House. The first year, it “got hammered by everybody,” he says. “Opposition to the bills has definitely gotten softer. ... Normally, I’m the only one that introduces the bill, but I’m very happy that this past session, we had a number of reps that introduced some form of this bill, and it was bipartisan.”
Another change: Representatives from rural districts have started supporting the bills, which Nishimoto suspects is in response to constituents who want to repair their own farm equipment or heavy machinery.
State-level solutions
The Repair Association’s executive director, Gay Gordon-Byrne, who was also on this year’s panel, says that her advocacy focus is squarely on the states. Since the organization introduced its first legislative template in 2014, 45 states have worked on right to repair legislation. “This is something that every legislator in the country can do that will have a huge impact on everybody, not just in their district or in their state, but nationally,” she says.
Gordon-Byrne reeled off a list of problems stemming from the lack of the right to repair, starting with increased electronic waste, or e-waste. Then there are affordability issues for people who could save money by fixing a product, rather than buying a new one. “The third thing that happens is we really don’t own the things that we can’t fix,” she says. “And that’s what’s been going on with these end-user license agreements. ... If we click to accept, then we are agreeing that we will not fix our stuff.”
This is where state legislatures can intercede, she says. “You have the right to not allow that in your state. And rather than ban the whole concept of an end-user license agreement which applies widely to content, not just repair, we’ve simply said, ‘Hey Mr. Manufacturer, if you’re going to do business in my state, you must provide fair and reasonable access to the same repair materials you have already created for purposes of repair and sell those to consumers and to independent businesses.’”
The Repair Association tracks the progress of right to repair legislation nationwide. Four states—Colorado, Minnesota, Massachusetts and New York—currently have active laws, and lawmakers in 30 states introduced bills on the issue this year.
A patchwork of laws
The Consumer Technology Association, which represents about 1,500 consumer electronics manufacturers and retailers, hasn’t historically been a big proponent of right to repair legislation.
“That said, things have changed,” says panelist Walter Alcorn, CTA’s vice president of environmental affairs and industry sustainability. “Really, it’s no longer a question whether electronics manufacturers will implement this policy of right to repair. With New York and Minnesota both having laws on the books specifically for digital repair, we support sharing the same diagnostic tools, spare parts, software updates with independent repair shops and consumers as authorized repair facilities.”
Alcorn argues that “a patchwork of different state laws” will stifle innovation and ultimately hurt consumers. “Are we really going to go down the path of 25, 30, 35 different state laws? Or are we going to do what we should do, which is develop a national approach to this to institute right to repair in every state in the country and do so via a memorandum of understanding?”
The latter option is CTA’s preference, he adds. “We will sit down and work out an MOU with the repair advocates so we don’t wind up with 25 different state laws, like we have on e-waste.”
“I think we need to get past the repair policy,” Alcorn says. “We got it, we’re in. But now it’s time for business to take on the issue and actually to implement the repair policy without, frankly, having minutiae in state laws. That’s going to make it really challenging for this to be a thriving and innovative market.”
Established structures
As many manufacturers have established dealer networks with a framework of authorized repair shops, the language of right to repair legislation has shifted to mesh with existing business models, most notably, dealerships and authorized repair networks.
“The bill that was passed in Colorado accommodates for that and it does not limit the opportunities of the dealership to make money selling parts and so forth,” Gordon-Byrne says. “So we recommend that we take a look at the Colorado law as an example of having dealt with that or attempting to deal with that in a good way.”
Manufacturers also deal with the concept of “extended producer responsibility,” Alcorn says, meaning the manufacturer’s responsibility does not end with the sale of a product, but also involves subsequent issues such as recyclability and data security. Unfettered right to repair legislation can be “contrary to the way manufacturers have approached many of these products and product management issues,” he says.
Eric Peterson is a Denver-based freelance writer.
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