How the FTC’s War on ‘Dark Patterns’ Could Help the Fight for Repair Rights
Roundups

How the FTC’s War on ‘Dark Patterns’ Could Help the Fight for Repair Rights

Each week, we bring you the top repair news from around the world, curated by the folks over at FightToRepair.news. Here are the happenings for the week of September 18th.

The Federal Trade Commission is going after “dark patterns” used by companies to trick or manipulate their customers. Here’s why that could be good news for those fighting for a right to repair. Also: Framework releases a new Chromebook and the dark side of frictionless technology.

Big News:

How the FTC’s War on Dark Patterns Helps the Fight for Repair

The U.S. Federal Trade Commission (FTC) is signaling that it will crack down on so-called “dark patterns”—a term used to describe business practices that “trick or manipulate users into making choices they would not otherwise have made and that may cause harm.” That campaign, if successful, may also pay dividends in the fight for the right to repair.

Dark Patterns Throw Shade on Consumers

The agency has had “dark patterns” in its sights for a while. In April 2021, the FTC hosted a public workshop on digital dark patterns that explored whether user interfaces can have the effect of obscuring, subverting, or impairing
consumer autonomy and decision-making. Earlier this month, the FTC released a report, Bringing Dark Patterns To Light, based on the findings from the workshop. Among other things, the report declared that “dark patterns” are “squarely on the radar” of the agency and that “companies offering consumer products and services should take heed of the FTC’s report and ensure that their marketplaces do not subject consumers to the tactics identified by the report.”

That could end up benefitting those fighting for the right to repair equipment, machinery, home appliances, and personal electronics. That’s because some of the “dark patterns” identified by the FTC are important tools in the tool belts of manufacturers seeking to establish sales and service monopolies.

For example, the FTC report makes frequent mention of “hidden terms” as a dark pattern. That describes the practice of burying important conditions—especially those that affect data privacy—within lengthy terms of service. The FTC says that companies should “generally minimiz(e) data collection efforts and “also avoid subverting consumers’ privacy choices” by steering clear from “default settings that lead to the collection, use, or disclosure of consumers’ information in a way that they did not expect (and collect information only when the business has a justified need for collecting the data).

Too often, terms of service include giving up personal data and accepting repair and software restrictions.

I Agree?

But those are standard practices in a wide range of industries—from smartphones and fitness trackers to automobiles and farming equipment. Owners of these devices frequently “sign off” on wholesale data harvesting and other restrictions imposed by manufacturers by way of lengthy software licensing agreements or Terms of Service that must be agreed to in order to operate the product.

“Consumers should not have to navigate through multiple screens to find privacy settings or have to look for settings buried in a privacy policy or in a company’s terms of service: they should be presented at a time and in a context in which the consumer is making a decision about their data,” the FTC report reads.

Those practices figured prominently in two cases the FTC brought against manufacturers for illegally restricting repair. In June, for example, the agency reached agreements with motorcycle maker Harley Davidson over the imposition of illegal warranty terms. According to an FTC statement, Harley Davidson voided customers’ warranties if they used anyone other than the companies and their authorized dealers to get parts or repairs for their products. Part of Harley Davidson’s scheme, according to the FTC, was not to fully disclose all of the terms of its warranty in a single document, requiring consumers to contact an authorized dealership for full details.

Consumers should not have to navigate through multiple screens to find privacy settings or have to look for settings buried in a privacy policy or in a company’s terms of service.

–The Federal Trade Commission

Commercial Surveillance in the Crosshairs

And dark patterns aren’t the end of it. In addition to dark patterns, the FTC is cracking down on a wide range of other “commercial surveillance” practices. The FTC has said that it has deep concerns about practices including wholesale data aggregation and monetization—much of which takes place without consumers’ explicit understanding and consent. That would seem to strike at the heart of business models promoted by companies like John Deere and Apple as well as automakers, which are increasingly looking to leverage their hardware to collect and monetize massive data troves and unlock a seemingly endless stream of renewable revenue via subscription services tied to their products.

Other News:

Framework Builds an Upgradeable, Repairable, Customizable Chromebook

Framework Computer is releasing the Framework Laptop Chromebook Edition, a ChromeOS version of the company’s first Framework Laptop with a fully upgradeable, repairable, and customizable design. The Chromebook Edition, like the original, addresses one of the biggest drawbacks in modern laptops as part of the right-to-repair movement

The Chromebook uses the same design as the Windows model, built around a 13.5-inch 2,256×1,504-pixel display with a 3:2 aspect ratio tucked inside a milled aluminum housing. The base configuration has an Intel Core i5-1240P processor, 8GB of DDR4 memory and a 256GB NVMe PCIe SSD for storage. Those components are upgradeable with up to 64GB of memory and 1TB of storage. (CNET.com)

Listen: Debrief on Congressional Right to Repair Hearings

I hopped on Twitter Spaces this week with Fight to Repair co-editor Jack Monahan to talk about what the latest congressional hearings mean for national right to repair legislation. Some key takeaways from the conversations were:

  1. A National “Right to Repair” Bill Unlikely: There doesn’t seem to be enough of an appetite from lawmakers for there to be a push for national legislation soon. A split Congress after the November midterms could make this more difficult.
  2. Progress is coming, slowly: While these conversations are happening in more “obscure” subcommittees, there is much more interest from federal lawmakers than ever before.
  3. Keep it simple: As is tradition with Congressional hearings, there was no shortage of semantics and minutiae—but lawmakers seemed to connect most to right to repair when thinking about it in material terms (e.g., tractors breaking down). If we want people to connect with right to repair, we need to meet them where they’re at.

💬 What do you think it will take to see a national right to repair law in the US? You can comment or tweet at us.

New Farm Machinery OEM group, NAEDA, Gears up for Right to Repair Fight

A newly created group, the North American Equipment Dealer Association (NAEDA), which claims to represent about 4,000 farm machinery and other industry dealerships in Canada and the United States, is gearing up to go to war with right to repair advocates and talking up their alternative to folks having the right to repair their own property. Eric Wareham, NAEDA vice-president of government affairs, told Grain News that everyone has it all wrong… manufacturers and dealers actually encourage farmers to do their own maintenance and repairs. (Just ignore all those “call your authorized dealer!” entreaties in the manuals, everyone.)

NAEDA’s secret weapon? The same old OEM saw we’ve been hearing for years: you have a right to repair but not to “modify” your product. What does that mean, exactly? It’s unclear—but there is lots of hand waving about violating environmental laws (even though the Clean Air Act states clearly that equipment owners—not OEMs—are responsible for engine maintenance. There’s also this little “whattabout” (mind the flailing!) “Suppose some modification is made that a dealer is not aware of and the piece of equipment is later traded in and sold to a new owner who is also not aware of the modification. And then there is some breakdown due to the modification,” says Wareham. “So, then there is the question about who is liable for those repair costs?” Wait…what??!  (Grainnews.ca)

NIST Awards Funding for Programs on a Circular Economy to Reduce Plastic Waste

The U.S. Department of Commerce’s National Institute of Standards and Technology (NIST) has awarded $500,000 to each of five universities to develop new curricula for students who are interested in helping to solve the growing problem of plastic waste. The new curriculum will focus on chemistry, economics, business management, entrepreneurship, and related topics.

A graphic showing the ideal circular economy including refurbish, repair, reuse, and recycle.
Repair: An important part of the complete Circular Economy breakfast.

The Training for Improving Plastics Circularity (TIPC) Grant Program aims to develop the future workforce needed to grow a circular economy for plastics. A circular economy is one in which materials retain their value through repeated reuse, repair and recycling, and are finally discarded only as a last resort. (NIST.gov)

The Dark Side of Frictionless Technology

Last week, while taking the week off, I read one of those books: Matthew B. Crawford’s 2009 best seller, Shop Class as Soulcraft. Crawford—a Ph.D think-tank dropout turned motorcycle mechanic—offers a passionate case for the value and dignity of manual work and elaborates at great length on what I like to call the art of slow progress.

Crawford says fixing your stuff means you’re more mindful of it.

Crawford has a compelling argument about the misconceptions around how people unlock creativity. He suggests that the common view of creativity (what he dubs a “kindergarten idea”) is that it happens almost only when we have enough freedom from conventional constraints, and that our creativity is some special force inside us that we can unleash. Crawford thinks this is bullshit and that creativity is actually “a by-product of mastery of the sort that is cultivated through long practice.”

His claim is part of a bigger argument about most technology, which he laments has become aggressively convenient. He’s frustrated that analog car components and parts have been replaced—or obscured—by digital parts and interfaces. As a result, they’ve become more intuitive for the operator, but much more complicated and expensive to repair. Crawford also argues that, worse yet, we’re losing something essential as a result of all this intuitive technology.

Crawford gets a little heady here. He’s saying that frictionless experiences with technology mean that we notice less about the tools we’re using and what it is they actually do. This, he thinks, promotes a kind of self-absorption. We don’t see ourselves as being in conversation with our tools or the physical world; instead, we see ourselves as masters of our environment, with the expectation that every tool and service ought to perfectly attend to our needs. And, because we don’t know how our tools work, we can’t repair them when they break. (The Atlantic)

Energy Crisis Prompts ‘Moral’ Dilemma over Repair

At times it is not “morally right” to repair old appliances which cost more to run, experts on waste electrical and electronic equipment (WEEE) said at the RWM & Letsrecycle Live trade shows on 15 September. Robert Sant, managing director of AO Recycling, suggested it was not “morally right” to repair some older domestic appliances because they cost a lot of money to run.

AO Recycling is one of the UK’s biggest recyclers of fridges and other large domestic appliances. During his talk, Mr Sant questioned the morality of repairing older large domestic appliances which require a lot of electricity to run at a time when people are struggling with energy costs. This, he said, provided a barrier to increasing the rate at which large domestic appliances are reused. “It seems pretty clear that older appliances do cost more to run,” he said. “Is it morally right to repair an old appliance if it costs a lot of money to run? “Typically, these appliances are going to people who have the lowest disposable income, and then we are going to give them the burden of running a very old appliance for a long time.”

Mr Sant said AO Recycling’s exacting standards mean the company only repairs less than 5% of the appliances it collects. This equates to 50,000 appliances a year. (Letsrecycle.com)

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Appliance

Comprehensive disassembly and installation guides for home appliances.

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As John Deere Digitizes, Some Worry about Cyber Risk

Beyond security concerns, Deere’s digitization has put a new strain on a pre-existing issue: longstanding frustration that the company has limited the ability for farmers to fix their own equipment.

Hartmann said via email that in May the company made its diagnostic service tool available to customers and independent repair shops, and that in 2023 it plans to introduce an “enhanced customer solution that includes a mobile device interface and the ability to download secure software updates directly to embedded controllers on select John Deere equipment with 4G connections.”

The diagnostic software starts at $1,200 and is a limited version of what Deere technicians themselves have.

“John Deere has diagnostic software on laptops that their technicians have that they will not provide to the farmers,” Wiens said. “So the computer in the tractor will see, ‘Hey, this sensor reading is out of calibration.’ And the tractor just won’t start up.” (Emerging Tech Brew)

A Long-ignored Federal Law Could Tame Giants like Amazon, Walmart

The American Economic Liberties Project released a new report arguing for the resurrection and expansion of the Robinson-Patman Act, legislation that was once widely known as the “Magna Carta of small business” but has not been enforced for decades.

“The power buyers of today—like Walmart, Amazon, major grocers, and PBMs—pose the same threats as Standard Oil and A&P did 100 years ago. They weaponize their power to disadvantage rivals and harm suppliers and consumers,”  said Katherine Van Dyke, Senior Legal Counsel at the American Economic Liberties Project.  “Their tactics are illegal, and enforcers should use Robinson-Patman Act to protect small businesses, as Congress intended when it passed the law over 90 years ago.”

The Robinson-Patman Act prohibits price discrimination, which is the charging of different prices to different buyers for the same product. It also prohibits buyers from knowingly inducing or receiving discriminatory prices. Originally called the Wholesale Grocer’s Protection Act, it was passed in 1936 to protect smaller grocers from the increasingly dominant chain store A&P. Indeed, the Robinson-Patman Act was, per the Supreme Court in 1960, designed to “to curb and prohibit all devices by which large buyers gained discriminatory preferences over smaller ones by virtue of their greater purchasing power.” Yet this is exactly what we see today. (Economic Liberties Project)

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iPhone 14

Apple's smallest iPhone 14 was released on September 9th and comes with a 6.1" OLED display, an advanced dual 12 MP camera system, and a front camera with autofocus. Successor to the iPhone 13

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iPhone 14 iFixit Teardown Shows Apple’s Learning on Repairs

The iPhone 14 harbors a secret that’s a pretty big deal: The internals have been redesigned to make it more repairable, says iFixit. Gone is an excessive use of glue and solder, iFixit CEO Kyle Wiens said in his iPhone 14 teardown report. Instead, Wiens said, the iPhone 14 features a butterfly-style design with a pop-off screen and back plate that can be removed with nothing but a single pair of screws, as you can see below. 

Wiens said the iPhone 14’s design is a “dramatic rethinking” of Apple’s flagship device that signals right-to-repair advocates have won yet another victory against Apple, a long-standing opponent of the self-repair movement. But the legislative tide is turning and Apple sees which way the wind is blowing.

“This design improvement is a big win. These changes to the iPhone will help it last longer and reduce its overall impact on the planet. With any luck, it will inspire other manufacturers to follow suit. All of our—and your—work has paid off. Our advocating, lobbying, yelling in the streets. We’ve convinced Apple’s design team that repairability matters,” Wiens said in his teardown post. (The Register)

iOS 16.0.1 is Shown to Recant Certain Repair Locks in the iPhone 14, but Not the 14 Pro

Apple is well-known for baking replacement part-detection measures into iOS, resulting in error messages and broken functions should a user dare to do something like replace their own iPhone’s display. The new 14 Pro flagship has shown itself to be just as repair-unfriendly as the 13 Pro in the latest video from a prominent device-repair YouTuber – however, a comparable video may prove that these issues have gone away in the vanilla 14.

The YouTuber Phone Repair Guru claims to have established that the base-model Apple flagship has also dropped at least some of the software locks that normally impair or even break potentially important features should its system detect a non-factory display, battery or logic board.

Unfortunately, the 14 Pros proceeded to exhibit symptoms about as severe as the pair of 13 Pros before them. The 14 did not drop its own errors until it was updated to iOS 16.0.1; however, this was not the case in the Pro, with 1 unit even “rejecting its original camera” under the newer version after swapping it back. (notebookcheck)

India’s Demand for Refurbished Gadgets Rising: E-Repair Market All Set to Boom

Earlier this month, Manufacturers’ Association for Information Technology (MAIT) presented the benefits and future scope of these services to the union IT minister Ashwini Vaishnaw. Nitin Kunkolienker, president emeritus of MAIT, opines that incentivizing local manufacturing of components is critical for such services to flourish in an economy.

“One of the key aspects of promoting a homegrown repair services economy is to ensure that the components are being sourced locally, which has not happened extensively so far. India has a robust supply chain that caters to various industries, which can diversify to procure and manufacture components that are critical for a local repair economy to grow.”

Nitin Kunkolienker, president emeritus of MAIT

Nitin Gupta, the CEO of electronic waste recycling firm Attero India, said the company has seen a clear growth in the volume of e-waste that it collects and recycles every year though the benefits of these actions have not trickled down to companies in India so far.

As India needs to formalize the domestic market for third-party repair and refurbishment of electronic items, Chowdhry opines that initiatives such as Flipkart’s acquisition of refurbishing and repair services startup, Yantra, earlier this year are crucial baby steps. Other example includes the Onsite-Go and Urban Company’s partnership, which provides at-home repair services for smartphones, laptops and other common gadgets. (ElectronicsB2B)

Welsh Government Focuses on Circular Economy and Extended Producer Responsibility

Dr Andy Rees OBE, head of waste strategy at the Welsh government, has outlined the steps Wales is taking towards achieving a circular economy, including greater support for reuse and repair hubs. The Welsh government’s goal is to support 80 reuse and repair hubs in town centres.

The head of waste strategy also touched upon other aspects of legislation, mentioning Wales’s moratorium on energy from waste facilities with a capacity over 10MW, which was introduced in March 2021 due to “incineration not being part of circular economy”. In terms of the future, Dr Rees talked about the forthcoming extended producer responsibility for packaging regime, highlighting Wales and Scotland’s plans to include local authorities’ costs for cleaning litter and emptying street bins.

Next year’s legislation will also see non-domestic premises obliged to segregate recycling as commingled streams will no longer be accepted, he said. Ahead of the consistency regime to be rolled out in 2027, the Welsh government has plans to undertake a trial to figure out the best way to phase plastic film into kerbside collections. Dr Rees added that “this is something we need to explore and work towards with the plastic recycling industry”. (LetsRecycle)

MA Auto Repair Case: Revised Guidance Dashes Hopes for Pre-Emptive Rules

Two procedural orders issued on September 14, 2022 by the Massachusetts federal court in Alliance for Automotive Innovation v. Healy suggest that a public decision in that case is unlikely to be forthcoming until October 2022 at the earliest. The case involves a challenge by the Alliance for Automotive Innovation, a trade association representing manufacturers in the automotive industry, to recent changes to the Massachusetts Right to Repair Law. Those changes, adopted by Massachusetts voters via a ballot initiative in November 2020, require that commencing with Model Year 2022 (MY22), vehicles sold in Massachusetts using telematics systems be equipped with “an inter-operable, standardized and open access platform” to enable customers and independent repair shops to access mechanical data from those systems.

Meanwhile, the National Highway Traffic Safety Administration (“NHTSA”) recently published an update to its 2016 guidance on vehicle cybersecurity best practices. In the update, NHTSA recommended that OEMs strike a balance between the need for cybersecurity and third-party access to the type of data that is at the heart of the Right to Repair litigation. But NHTSA also recognized that “the balance between third party serviceability and cybersecurity is not necessarily easy to achieve.” NHTSA’s guidance continues to be non-binding and voluntary, a point the Attorney General has made in the litigation to argue that the Right to Repair Law does not conflict with and therefore is not preempted by any binding federal law. (Seyfarth.com)

The Disappearing Art of Maintenance

Under capitalism, maintenance is an ambiguous position, almost a kind of limbo. The economics are rarely cooperative. There are plenty of carrots from a technical point of view — make things safer, more reliable, longer-lasting — but often no stick. In the developing world, sticks are everywhere. Cuba’s beautifully maintained mid-century automobiles owe their longevity to a cruel and arbitrary embargo. India’s long-standing repair culture is the byproduct of the country’s position at the bottom of the global supply chain, and even now is being undermined by rising incomes and consumption. 

Maintenance could serve as a useful framework for addressing climate change and other pressing planetary constraints that, if left unaddressed, could recreate on a global scale the localized austerity of a cash-strapped transit agency. Indeed, maintenance as a concept could encompass both the built environment and the so-called natural world. Perhaps maintenance, rather than sustainability, is the more useful framework for a green transition, because it can account for how human infrastructure is now deeply entangled with the environment in the age of the Anthropocene. 

Sustainability, and the climate discourse in general, fails to disentangle the built environment in this way. The built and unbuilt environment are treated as totalities caught in a zero-sum conflict. One barrages the other with smokestacks and landfills, the other retaliates with forest fires and flooding. Climate change becomes a hyperobject, bearing down on all of humanity at once, condemning and forbidding it. (NoemaMag)

YouTuber Rich Rebuilds Promotes CAR Coalition

The Auto Body Parts Association (ABPA) announced that “Rich Rebuilds”, a prominent YouTube channel that focuses on automotive repair and general vehicle information, released a new video in support of the CAR Coalition, urging his 1.3 million subscribers to learn more about both the Save Money on Auto Repair Transportation (SMART) and the Right to Equitable and Professional Auto Industry Repair (REPAIR) Act.

The ABPA says the SMART Act will restore balance to the auto body part patent process and reduce the costs of post-collision auto repairs and insurance for consumers by ensuring vehicle owners have more choices when they need to repair their cars. The REPAIR Act, the ABPA says, will reduce barriers it claims car companies are creating that limit consumer choice and increase the cost to repair and maintain vehicles. (Body Shop Business)

A solar panel next to a duck pond, CC 2.0 by Albert Lozada on Flickr
Solar’s great for getting power in places where it hasn’t been before. But what should be done with the infrastructure when it breaks down? Image CC by 2.0 via Albert Lozada on Flickr.

Towards a Repair Research Agenda for Off-grid Solar E-waste in the Global South

A new paper considers how practices of repair might contribute to addressing the issue of e-waste created from solar grid usage in the global south, and sets out a research agenda to facilitate new approaches to the issues of solar e-waste.

There has been a boom in the sale of small-scale off-grid solar products across the Global South over the past decade. A substantial portion of this boom has been driven by international investment in off-grid solar start-up companies, and a formalized off-grid solar sector has been established, with the Global Off-Grid Lighting Association acting as a key representative body. Although this boom has aided in extending electricity access to many energy-poor households and businesses, an emerging concern is the short (three to four years) working life that these off-grid solar products typically have. This has led to a growing issue of solar e-waste.

Preliminary research indicates that local and informal repair geographies have emerged in response to the rise of solar e-waste. Local repairers—who often have existing business in electronic repair (for example, car batteries, radios, and so on)—are often extending their work to include solar repair. However, the extent, distribution, capacity, and current impact of local repairers in the context of solar e-waste is largely unknown. What kinds of off-grid solar products are ending up at local repair shops and how? What products can local repairers easily fix? What products do they struggle with and why? What gaps are there in terms of knowledge, tools, and spare parts that curtail the potential expansion of local repair as a means to address SEW? Localized repair solutions to SEW evidently exist in some form in the Global South, but research is needed to understand the opportunities to augment and extend these repair geographies, networks, and practices. (Nature)

Right to Repair Debate Continues for Canadian farmers

The stories are out there. Farmers held up at a time of critical field operations because machinery needed, perhaps, a fairly simple reset of computer codes or minor repair, but it took hours for a dealership technician to get there to do it. Northern Alberta farmer Cole Siegle has told his story a few times. Siegle speaking to Alberta Wheat and Barley Commissions members last winter described how his combine sat idling for two hours until a dealership technician could arrive on the farm to diagnose the problem and reset the system.

Circumvention Legislation: Still in play, however, is another change in legislation proposed by B.C. MP Wilson Miao. The intent of Bill C-244, introduced in February 2022, is to amend the Copyright Act “in order to allow the circumvention of a technological protection measure in a computer program if the circumvention is solely for the purpose of the diagnosis, maintenance or repair of a product.”

“The bill is aimed at addressing copyright that is being used to stop Canadians from repairing and maintaining items that have been purchased and are owned by Canadians. It is a targeted bill that creates specific exemptions to copyright,” said Miao, as he introduced the bill in the House of Commons. “When an individual makes a purchase of an item, the owner should have a right to repair it and not be restricted by the manufacturer.” (Grain News)

Why US Farmers Are Now at the Forefront of the Right to Repair Movement

If you poke around the internet, a motivated farmer could find hacked versions of the John Deere Service Advisor diagnostic-calibration tool; John Deere files required for programming and configuration of some machine parts; drivers that allow the computer to “communicate” with the tractor and you can find licensed key generators, speed limit modifiers and even special cables for connecting to tractors.

Farmers say they have to hack their own tractors, just to keep their gear running when they need it running and to not pay an arm and a leg for it. They say equipment that’s in constant use requires constant maintenance and relying on dealer-approved technicians to diagnose issues that could be handled on the farm wastes valuable time, and of course, costs farmers cash. Now, hacking John Deere tractors has become something of a sport to people with tech skills and there is even a “Tractor Hacking team site” where the tech-savvy can pitch in.

Now, John Deere has somewhat softened its stance (perhaps US President Joe Biden’s executive order last July, directing federal agencies to encourage competition had something to do with it) announcing that in May farmers and independent repair shops would be able to buy through its online store a version of its Customer Service ADVISOR diagnostic service tool. 

It said it would follow up in 2023 with “an enhanced customer solution” allowing owners and independent mechanics to download software updates to the machines from a Deere data network. (interest.co.nz)