Maine lawmakers are considering a bill that would institute a statewide consumer products rule — dubbed the “right to repair” — for electronic devices.
LD 1487 — An Act to Ensure That Residents of the State Have the Right to Repair Their Own Electronic Devices — was sponsored by Sen. Mike Tipping (D-Penobscot) last year and carried over to this legislative session.
This bill was co-sponsored by a bipartisan group of lawmakers — primarily comprised of Democrats — including Rep. Kristi Michele Mathieson (D-Kittery), Sen. Eric Brakey (R-Androscoggin), Rep. David Boyer (R-Poland), Rep. Sally Jeane Cluchey (D-Bowdoinham), Rep. Rebecca L. Jauch (D-Topsham), Rep. Grayson B. Lookner (D-Portland), and Rep. Amy J. Roeder (D-Bangor).
At its most basic level, LD 1487 aims to ensure that Mainers have the ability to get an electronic device repaired at an independent shop that is not affiliated with the device’s original equipment manufacturer.
Click Here to Read the Original Text of LD 1487
In his testimony introducing the bill to the Innovation, Development, Economic Advancement and Business Committee, Sen. Tipping said that “it has always been understood in this country that when you buy something, it belongs to you.”
“Mainers, with our sense of independence and frugality, have often proudly taken this understanding to its extreme, long extending the useful life of all kinds of items and machines and refusing to throw anything away,” Tipping said. “If you drive down just about any road in my district you’ll eventually see a sign offering small engine or furniture repair.”
“Unfortunately, some manufacturers have found that they can make more money if they make it impossible to repair certain devices, especially electronic items like phones and computers that have become central to our lives,” Tipping said.
“This right to repair bill would prevent manufacturers from making these barriers insurmountable for non-automobile electronic devices, preventing them from denying consumers the ability to repair and modify the items they have purchased and own,” said Tipping.
Tipping went on to suggest that because Maine is a rural state, it difficult for many to access authorized repair shops — such as an Apple Store — and often may be required to travel long distances in order to get their devices repaired.
“This bill is about important rights of ownership and independence, but it’s also a pocketbook issue,” Tipping argued. “This protection would bring down the costs of repairs for Mainers dramatically while allowing them to extend the life of their devices. It makes a big difference to a family budget if you only have to replace your phone every six years, instead of every three.”
Click Here to Read Sen. Tipping’s Full Testimony
Despite the seemingly-straightforward nature of this bill, a number of concerns were raised about the measure in testimony before the Committee, including with respect to data privacy, product safety, statewide economic health, and intellectual property preservation.
Some of those who testified in opposition to the bill raised concerns over the impact that this legislation would have on the integrity of consumers’ privacy, suggesting that by allowing third-party repair shops to perform repairs on devices containing personal information — such as a store’s point-of-sale system — Mainers’ privacy would be severely compromised.
“Passage of LD 1487…would expose personal information to unauthorized users,” the Retail Association of Maine said in its testimony. “Retailers use a variety of point of sale machines, credit card processing systems, and other propriety technology. As drafted, LD 1487 would allow unauthorized retail shops to attempt to fix those machines. Many of those systems store personal information, intellectual property and copyright protected goods.”
Similarly, the Maine State Chamber of Commerce suggested in its testimony that LD 1487 would force manufacturers to “turn over information regarding an electronic security lock or other security related functions” thus weakening data privacy protections.
The Retail Association of Maine also pointed out potential issues with allowing for video game consoles to be included under the umbrella of this law, as it would expose the “proprietary technology embedded in the hardware and software that runs those consoles” that is used to prevent pirated games from being played on the system.
It was also suggested by those in the medical technology industry that this legislation could potentially compromise the integrity of the electronic equipment upon which patients rely for accurate diagnostic information and monitoring.
The amended version of LD 1487 now under consideration by the Committee, however, includes an exemption for medical devices, as well as any “digital electronic product[s] found in a medical setting.”
The amendment — proposed by Rep. Tiffany Roberts (D-South Berwick) — also contains exemptions for a number of other electronic products, including “information technology equipment that is intended for use in critical infrastructure,” farm equipment, “turf, yard and garden equipment,” power tools, “Commercial and industrial electrical equipment,” e-bikes, home appliances, “safe communications equipment,” and video game consoles.
The Maine Chamber of Commerce took further issue in its testimony with the fact that this would legislation “would be another new law that would continue to make Maine an outlier with most of the country.”
“Anytime we have a first in the nation type approach to policy or are considering passing something that isolates us from other states, it is of significant concern to the business community,” the Chamber testified. “We are in a very competitive market for investment and attracting new business to Maine, and when you have a potential new law that is very problematic, companies may look elsewhere.”
It was also suggested during the public hearing on this bill that “right to repair” provisions comprise the integrity of electronic manufacturers’ intellectual property.
“Manufacturers make significant investments in the development of products and services, and the protection of intellectual property is a legitimate and important aspect of sustaining the health of the vibrant and innovative technology industry,” wrote the Repair Done Right Coalition — which represents a number of technology manufacturers and businesses — in their testimony.
“Consumer electronics’ on-board software (i.e., firmware) are key to the functioning and operation of the hardware it is embedded in, and firmware helps protect against unauthorized access to other software and applications,” Repair Down Right testified. “The problem is that making repairs to hardware components may require the circumvention of digital rights management and leave the software in an unprotected state – harming the copyright owners of the software.”
“Firmware controls many other product functions, and opening it up for repair purposes exposes other more sensitive functions, such as security features, to potential tampering,” they said. “Given the scope of products covered and what must be provided under the legislation – including diagnostics, tools, parts, and updates to software – it is highly likely some of the information would be proprietary.”
The amended version of the bill appears to address several of these issues, including a number of specific clarifications that directly exempt original equipment manufacturers from being required to divulge — among other things — “trade secrets,” information that “would disable, reset or override electronic security locks or other security-related measures,” and source code.
The amendment also states that original equipment manufacturers are not liable for “improper use of personal data or any data privacy or security breach in connection repair, diagnosis, maintenance or modification” completed by an independent repair shop or device owner.
This version of the bill also requires independent repair providers to make available in writing a statement that explains they are not an authorized repairer and that obtaining an unauthorized repair may impact the validity of any warranties that customers have on their devices.
Under the “consumer bill of rights” that is written into the amended version of LD 1487, independent shops would also be required to disclose in writing if any used or non-original parts are used during a repair, as well as the expected cost of the job, whether or not the technician performing the repair has been certified or trained, any damage risks associated with the repair, and any potential exposures of personal data that may result from the repair.
The amended legislation also contains an enforcement clause that authorizes the Attorney General to initiate action against an offender in order to seek an injunction or obtain relief after a mandatory thirty-day cure period.
This legislation would not, however, afford a private right of action that would allow individuals to file suit against someone for allegedly being in noncompliance with these provisions.
Maine Attorney General Aaron Frey offered testimony in support of LD 1487, arguing that ensuring consumers have the ability “to repair electronic devices they have purchased is an issue of growing concern among consumer protection agencies like the Office of the Attorney General.”
“This type of strategic OEM market control is not only inconvenient, but it also challenges fair market practices and threatens the livelihoods of smaller, family-owned businesses who cannot reasonably compete with the ever-changing, intentionally complicated technologies,” Attorney General Frey wrote.
“Consumers in rural states, where store options may be limited and finding a reasonably close manufacturer repair may be impossible, are especially disadvantaged,” Frey said. “All of this amounts to an unfair restraint on trade that ultimately serves to drive up prices and give consumers fewer options.”
Early last year, Frey signed onto a letter along twenty-seven other attorneys general asking Congress to adopt federal “right to repair” legislation.
The other signatories on the letter hailed from Alaska, Arizona, California, Connecticut, Delaware, Hawaii, Illinois, Indiana, Idaho, Louisiana, Maine, Maryland, Michigan, Minnesota, Nevada, New Mexico, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Vermont, Washington, and Wisconsin, as well as the District of Columbia, Guam, and the Northern Mariana Islands.
This past November, Mainers voted overwhelmingly in favor of a measure instituting an automotive “right to repair” in the state, with 84.3 percent of voters supporting the proposal.
Under the new law, vehicle manufacturers are required to standardize on-board diagnostic systems, as well as allow both owners and non-dealership repair facilities remote access to these systems and mechanical data.
[RELATED: Mainers Resoundingly Support Automotive “Right to Repair” in Tuesday’s Election]
Although a handful of other states are currently considering “right to repair” legislation for electronic devices, only New York, Minnesota, and California have already enacted such laws.
Click Below to Read the Proposed Amendment to LD 1487
