NY tech device repair bill shrank under lobbyists’ influence – Times Union

Brown’s smartphone is among the microchip-powered devices contemplated in New York’s Digital Fair Repair Act, a bill the Legislature passed this spring targeting consumers’ “right to repair” the devices they own.

The bill would mandate that companies supply materials, tools and instructions at a reasonable cost to allow consumers and repair shops to fix electronic devices powered by microchips.

But while earlier drafts covered items ranging from tractors and lawn mowers to gaming consoles and microwaves, a burst of end-of-session lobbying from companies worth billions and their affiliated trade associations pressed legislators to whittle it down until limited to devices like smartphones, tablets and laptops.

Insiders told the Times Union that lobbyists realized late in the legislative session that the bill, which had been introduced each year for about a decade, had a good chance of passing in the Senate — where it ended up going through even before the Assembly — something they had previously thought unlikely. So they rushed to make themselves heard.

“All hell broke loose. Opposition came out of the woodwork and I had to deal with it, because (otherwise) the bill was dead, when you have that much opposition,” said Patricia Fahy, the bill’s Assembly sponsor. “When session is ending, the clock works against you in a huge way. It’s much easier to have it fall apart, and that’s where lobbyists can be very, very powerful.”

Fahy was adamant about passing a bill that at least required smartphone manufacturers and the like to provide customers and third-party repair shops access to the diagnostic tools and parts needed to repair broken devices. So her team and colleagues wrote enough carve-outs for other skittish industries that her Assembly peers, many of whom had been lobbied about the issues that companies said this bill might create, stopped pushing back.

On the last day of session in June, the bill made it onto the Assembly floor calendar, a decision that lies with Democratic Speaker Carl E. Heastie. In New York, the speaker only calls up bills they already know will pass. But at the end of session, having a bill on the floor is still no guarantee: Once it gets introduced, any member — usually a member of the minority party — can ask for it to be put aside for a later debate.

“I just know a lot of bills will die. Sometimes they’ll just say, ‘we’re done,’ and members won’t get their bill debated. I just could not take that chance,” Fahy said. “So I was able to approach members (across the aisle) to say, ‘What’s it going to take to get this off the debate list?'”

But the Digital Fair Repair Act is still not a done deal. It needs Gov. Kathy Hochul’s signature, and she has the option of a veto.

In May and June, as other industry lobbyists were still looking to lawmakers for carve-outs, state filings show that TechNet — a trade group that represents the tech industry — focused the energy of its lobbyists from the top-tier firm Albany Strategic Advisors as well as its in-house government affairs team on influencing the Executive Chamber.

As the summer wore on, lobbyists for trade associations and tech companies — including Apple and Microsoft — continued to push against its adoption, meeting with the offices of the governor and state attorney general. And corporations whose products had already been carved out of the bill, including Medtronic and John Deere, kept lobbying as well.

If Hochul signs the bill in spite of the pressure, it will become the first of its kind in the nation. The law would take its cues from language originally drafted by The Repair Association, a trade group formed in 2013 as the Digital Right to Repair Coalition by leaders including the founders of iFixIt, which sells parts to mend tech devices.

Old-school tinkerers, tech-savvy youngsters and people concerned about landfills round out much of the increasingly popular repair movement, which argues that if you own something you should be free to fix it or get it fixed. But independent repair companies are also investing in the movement to introduce laws like the Digital Fair Repair Act, hoping that such laws might give them access to manuals and diagnostic software.

In Brown’s case, when the weight dropped, he did rush to his provider Verizon to ask about getting it fixed. But employees couldn’t tell him whether the phone would work again if he paid for a new screen through Apple, and though he was under warranty, the company’s repair offerings didn’t include a full suite of internal fixes. So he took his salesperson’s suggestion and sent it in for a replacement.

For Brown, a discounted new phone wasn’t a perfect fix: Not only did he have to do the exchange by mail, but he had also run out of memory in his device’s cloud backup, which made him lose key photos he had hoped to share with his now-wife. 

“If this happened again, I’d want to see if I could actually repair my phone first,” Brown said.

The fixers’ fix 

It was lobbyists for The Repair Assocation who first approached U.S. Rep. Joseph Morelle, a former New York Assemblyman, and suggested a “right to repair” bill for the state. Morelle was excited by the idea, believing it would “dramatically extend the life cycle of products.”

“The original equipment manufacturers certainly weren’t particularly interested in allowing consumers a lot of choice here,” Morelle said, noting his impression was that they pushed for “planned obsolescence.”

The federal lawmaker, who now carries a similar bill in Washington, D.C., shares some messages with one of the repair movement’s pop icons, Louis Rossman, who is widely known for his YouTube videos showing how to repair devices.

“When you start limiting the functionality or completely removing the user’s ability to change parts in his own device unless they have the blessing of the Apple store, that’s where it’s gone too far,” Rossman said in a recent video.

As he notes, manufacturers have the ability to alter how a device functions long after it has been sold. They can, and do, program microchip-powered devices including smartphones to respond differently to independent repair through something called “part serialization.”

With serialized parts, each device can recognize internally if a replaced part is original or aftermarket, but also if it is the exact part that was installed by the manufacturer, or one with a different serial number.  

Apple, which has received a lot of attention for the practice, uses serialization in both overt and subtle ways. On newer iPhones, an alert pops up if a part is replaced by anyone without access to Apple’s system. Even if the repairer uses a brand new Apple screen, the message will read “unable to determine if this iPhone display is a genuine Apple part.” Independent repairers cannot make this message go away, but they say it has little effect beyond making some consumers nervous.

Other part serialization programming is less obvious and more impactful. Even when using new genuine iPhone parts, an unauthorized front camera repair eliminates Face ID, while a screen replacement does away with a feature that adjusts screen color, called “True Tone.” The company controls these changes through the operating system: after receiving backlash for programming the iPhone 12 so that replaced cameras would not function at all, it reversed the decision with a software update.

Staff members of corporate repair shops who are authorized to fix phones for competitors like Samsung and Google confirmed that part-serialization is not unique to Apple.

“Working in a repair store, I see it all the time,” said Hany Elgoarany, who is employed by one of these corporations. “Certain companies will just completely stop features from working properly. And because they do it in a way that most people don’t notice, it’s impossible for it to be found.”

Elgoarany said each time he repairs a device, he has to access a proprietary system to reregister newly installed parts. He said it causes simple repairs to take hours.

Small repair businesses like the storefront FixTeam in Crossgates Mall say paid training and partnership with equipment manufacturers that would allow similar access is financially out of reach. The business interests opposing “right to repair” laws say fixers can’t be trusted without it.

Dusty Brighton, the go-to voice for tech companies’ concerns in national news outlets, said, “frankly, there are independent repair shops now. It’s just that some of them have taken the time to become trained and to be authorized by the equipment manufacturer.”

Brighton is a career political strategist for tech companies and trade organizations, and the spokesperson for a new coalition called Repair Done Right, who TechNet – the trade group lobbying in Albany – pointed the Times Union to when asked for comment on the New York bill.

With pieces of “right to repair” legislation proposed in at least 41 states according to The Repair Association, manufacturers have slowed down company-publicized resistance and begun getting out ahead of reparability criticism.

Apple recently uploaded repair manuals and started selling self-service screen replacement kits on its website. Samsung and Google have promised repair programs later this year — in partnership with iFixIt, the same company behind a significant arm of the pro-repair lobby.

But even for smaller fixes, at-home repair will likely be more expensive for consumers than the cost Brown paid to trade his dumbbell-crushed phone in for a new one. In Apple’s repair program, even replacement screen packages retail for upward of $250, and its users need to rent a toolkit for $49, which comes in cases weighing a combined 79 pounds.

These self-repair announcements came after a 2021 Federal Trade Commission report to Congress, which examined reparability of microchip-powered devices including smartphones and said that though “consumers (have) the right to make repairs on their own or through an independent repair shop without voiding a product’s warranty, repair restrictions have made it difficult for consumers to exercise this right,” listing cost and access as issues, along with software “locks” like the serialization techniques.

But in spite of the report, the federal government is unlikely to pass legislation soon. So advocates have flocked to states like New York to set a national precedent, hoping to replicate an automobile industry cascade effect described in the FTC report.

In 2014, shortly after Massachusetts passed a law codifying automotive reparability rules, four trade groups signed a memorandum of understanding in which “250 manufacturers agreed to sell the diagnostic and repair information that manufacturers make available to their dealers to car owners and independent repair shops.” According to the FTC, Tesla was the lone holdout. In exchange, the “repair-side” trade groups agreed not to support new legislation in other states.

The heavy hand of lobbyists

Home tinkerers and moneyed repair businesses spent the last decade trying to convince lawmakers to adopt a variation of  The Repair Assocation’s template legislation. At the same time, lobbyists for corporations and trade organizations have been cautioning lawmakers about its dangers, drilling home the messages repeated by Dusty Brighton and his Repair Done Right Coalition, which lists the group lobbying Hochul’s team — TechNet — as a member.

“Our feeling on the bill is that if Gov. Hochul signs it, manufacturers … will be forced to supply unvetted and untrained repair shops with their technical information that is proprietary,” Brighton said. “They’ve put in the time and the money to innovate. And just turning it over to anybody who is not authorized or doesn’t have the proper training is dangerous.”

Brighton pointed to physical safety concerns, which the FTC report also acknowledged, though its authors suggest those concerns could be mitigated by companies’ designs. He also singled out information security, suggesting devices contain too much of consumers’ sensitive data. (FixTeam partner Hamza Malik said that his shop rarely needs to unlock devices to fix them.)

While Brighton has had this perspective shopped out to media outlets by public relations professionals, it is unclear who is paying the bills — the coalition’s members, who include TechNet, are not required to pay dues. But the list of companies who paid lobbyists to try to nix or carve up the bill is more transparent.

Apple, Google, HP and Microsoft all paid professionals to convince lawmakers against the bill this year, each using separate advocates from the highest-earning professional lobbying firms in Albany. The perspectives of additional tech companies were drilled home for lawmakers by trade associations like TechNet, the Cellular Telecommunications Industry Association and The Business Council.

Consumer tech did most of its lobbying this year behind closed doors. But while representatives from farm equipment dealers and household appliance makers scheduled closed-door conversations too, they also sent position memos to lawmakers across the Senate and Assembly. 

For instance, John Deere and CNH Industrial America, two of many farm equipment corporations to weigh in, hired the lobby firm Hodes & Landy to speak with a laundry list of legislators. They spoke to lawmakers including bill sponsors Fahy and Sen. Neil Breslin, head of the Assembly consumer affairs committee Nily Rozic, and those with the power to block the bill entirely: Assembly Speaker Heastie and the office of the governor. But the John Deere logo also showed up in the pile of memos from farm equipment dealers and accredited repair shops.

After the end-of-session lobby rush, the last-minute changes that Fahy said helped the bill pass in the Legislature removed “any off-road (non-road) equipment,” including “farm and utility tractors,” and also items such as “power tools” and “garden equipment.”

The farm equipment memos that had helped push those changes through honed in on the idea that the proposed law — in the words of one trade group — would allow “tampering with the safety and emission controls of outdoor power equipment,” which could be both dangerous and environmentally detrimental.

But New York Farm Bureau spokesman Jeff Williams argued that type of modification will remain illegal regardless, and farmers need more independence from equipment repair staff, when possible. 

“Depending on how far away that dealer is, or the equipment repair company is, it certainly may not be that day, let alone that week (that they can complete a repair),” Williams said. He had wanted the legislation to be a pathway for farmers to “run diagnostics and hopefully fix that equipment themselves.”

Kim Zuber, whose family owns a dairy operation near Rochester, said that time lost from unrepaired equipment can be devastating. If a machine breaks down while combining wheat, for instance, a stoppage could mean tens of thousands of dollars of losses.

“People will pay more for an old tractor that doesn’t have a computer in it (because) they can work on it,” Zuber said.

While several New York lawmakers said lobbyists pushing for carve-outs argued the repair problem was really with smartphones and their industries were different, online repair movement loyalists remain preoccupied with the overlap. In one of his YouTube videos, Rossman quotes an email from a farmer.

“This past spring we had a tractor that had a hydraulic valve that needed replacing,” he read. “It wouldn’t have been that hard for one of us to replace it, except we needed the dealer computer to pair it to the tractor computer… Tell me how that is not right to repair.”

Gay Gordon-Byrne, head of Repair.org who is known to lawmakers as the face of the pro-repair lobby, thinks that consumers are noticing the similarities, especially with part serialization and repairs reliant on “digital locks.” She told the story of a friend who recently needed a new thermostat for his refrigerator from General Electric. She said he ordered it online and installed it, only to discover the part was password-activated.

“He called GE and said, ‘You shipped me the part, thank you very much, but where’s the password?’ They said, ‘We can’t give you the password. You have to get a GE-authorized service technician to come out and install the password.'”

General Electric, a Northeast powerhouse with a large footprint in the Capital Region, had already seen its refrigerators written out of the New York bill. But the company continues to pay lobbyists from the firm Plummer & Wigger to monitor its progress through the Executive Chamber. Hochul could have until early next year to decide whether to sign it into law.