Month: November 2021

By Austin Wade-Vicente

 

A decades long war between big tech companies and concerned consumers reached a new milestone on July 9th, 2021, as President Joe Biden signed the “Executive Order on Promoting Competition in the American Economy.”[1] Among other important initiatives, the Executive Order gives significant deference to the Free Trade Commission (FTC) to investigate “[c]ell phone manufacturers and others blocking out independent repair shops.”[2] Many companies intentionally make repairs unjustly more time consuming and costly by  “impos[ing] restrictions on self and third-party repairs,” through “restricting the distribution of parts, diagnostics, and repair tools.”[3] To better understand the significant impact of this Order, and what it means for a variety of American consumers, we first need to briefly explore the source of the controversy.

Right to Repair concerns first began in the late 1990s, but only further exponentially increased in the digital age with more products relying on computer chips year after year.[4] “You bought it, you should own it” is the short and sweet argument from Right to Repair advocates.[5] Essentially, Right to Repair is the assertion that consumers should have the right to fix the product they own without pressure to solely rely on the manufacturer for repairs or resort to purchasing a brand new device. On the flip side, corporations argue that allowing third-party repair is an attack on quality control, protection of intellectual property rights, prevention of injuries, and the company’s reputation.

However, these entities have gone to the extreme to keep customers from entertaining alternative sources of repair. A surprising number of big tech companies have exerted monopoly power by forcing consumers to either pay for the company’s expensive repairs or buy a new machine.[6] A solution that further contributes to the 2.5 million tons of electronic waste generated by the globe each year.[7] Moreover, multinational tech company Apple has gone so far as to hide schematics from the public, threaten third-party repair companies with DMCA suits, and even invent their own “pentalobe screw” in efforts to maintain control from sale to landfill.[8]

The illusion of having this “benevolent monopoly,” valiantly protecting customers from conniving hackers and incompetent repairmen, shatters when a growing number of consumers accuse the company itself of being the single source of harm in the repair industry.[9] CBC news even caught Apple in an undercover investigation quoting repair prices comparable to a brand-new laptop to avoid even the simplest of repairs.[10] This behavior begged an important question. Who owns the purchased product when the manufacturer can unilaterally decide the consumer is done using it?

Again, prior to President Biden’s Executive Order, the status quo of repair was free reign to nearly exhaust of all of the public’s options to fix their property, avoid transparency, and force customers to pay artificially high prices for basic maintenance—­­­if done at all. After the Order, the FTC found that monopolizing repair services, the associated repair information, parts, and their necessary tools is plainly anticompetitive.[11]

Just after the release of President Biden’s Executive Order, the FTC unanimously voted to agree to investigate if tech company repairs are “breaking antitrust or consumer protection laws, and to step up enforcement of the laws against violators.”[12] The goal of this investigation, if successful, is “to push harder for the right of consumers to repair devices like smartphones, home appliances, cars and even farm equipment.”[13] Yes, you read that right. The Executive Order’s mention of “others blocking out independent repair shops” includes those providing farm equipment, going well beyond consumer electronics.[14]

Farmers have an immensely time sensitive job, and therefore, need to be able to get under the hood to fix their machines when in the field.[15] Many farmers already work 80 hours a week during harvest, and some have already faced legal repercussions from John Deere for trying to fix their own machines.[16] While waiting upwards of weeks for certified John Deere repairman to fix their fancy internet-connected tractors, some farmers have actually turned to using 40-year-old models to reliably complete harvest seasons.[17] As a result, Right to Repair not only impacts prices of consumer electronics and maintenance, but, more importantly, our food supply chain as well.

Farmers are not the only professionals that would benefit from robust Right to Repair enforcement either, as service members have run into many of the same issues. United States Marine Corps. Captain Elle Ekman was stunned when one of her Marines gave a warranty excuse for refusing to fix a generator in the field.[18] She had no idea a civilian concept like Right to Repair could affect her military career, but it became abundantly clear every time Marines sent equipment back home that they were “los[ing] the opportunity to practice the skills they might need one day on the battlefield.”[19] “Vendor control over warranty repairs is a completely unworkable scheme in wartime” as prompt maintenance could mean the difference between life and death for service men and women.[20] In response, President Biden gave the Secretary of defense 180 days to make a plan to avoid terms that impede service members from repairing their own equipment, “particularly in the field.”[21]

Despite the numerous reasons why Right to Repair should be adopted, it remains to be seen if measures taken by the FTC will pass into law.[22] If no one takes action on the federal level, 27 states have passed Right to Repair legislation that helps combat many of the previously explored problems.[23] However, much like other state regulations, these Right to Repair laws are not uniform. For example, the state of Washington only enforces Right to Repair laws on consumer devices, while South Carolina only focuses on ag equipment.[24]

“‘It isn’t like we’re asking for something that’s impossible,” remarked Special Assistant to the President for Tech and Competition Policy Tim Wu.[25] “Provide parts, provide information and let people really feel like they own their own devices.”[26] If the FTC finds ample evidence of violation of antitrust or consumer protection laws there may be top-down enforcement from the federal government. Until then, only time will tell if farmers, service members, and the everyday consumer will be free to claim ownership of their respective devices.

 

[1] Exec. Order No. 14,036, 86 Fed. Reg. 36987 (2021); Emily Matchar, The Fight for the “Right to Repair,” Smithsonian (July 13, 2016), https://www.smithsonianmag.com/innovation/fight-right-repair-180959764/.

[2] Id.

[3] Id.

[4] See Matchar, supra note 1; Thorin Klosowski, What You Should Know About Right to Repair, N.Y. Times (July 15, 2021), https://www.nytimes.com/wirecutter/blog/what-is-right-to-repair/.

[5] The Repair Association, Repair, https://www.repair.org/.

[6] See Andrew Thompson, The Fix Is Out: Product Repairs Get Tougher in New Age of Obsolescence, NBC News (July 31, 2016, 2:30 PM), https://www.nbcnews.com/news/us-news/fix-out-product-repairs-get-tougher-new-age-obsolescence-n614916.

[7] See Vanessa Forti, Global Electronic Waste Up 21% in Five Years, and Recycling isn’t Keeping Up, The Conversation (July 10, 2020, 10:38 AM), https://theconversation.com/global-electronic-waste-up-21-in-five-years-and-recycling-isnt-keeping-up-141997.

[8] Kyle Wiens, Apple Is Bullying a Security Company with a Dangerous DMCA Lawsuit, iFixit (Jan. 2, 2020), https://www.ifixit.com/News/34892/apple-is-bullying-a-security-company-with-a-dangerous-dmca-lawsuit; Kyle Wiens, Apple’s Diabolical Plan to Screw Your iPhone, iFixit (Jan. 20, 2011), https://www.ifixit.com/News/14279/apples-diabolical-plan-to-screw-your-iphone.

[9] Nathan Protor, Here’s How Manufacturers Argue Against Repair, U.S. PIRG (July 1, 2019), https://uspirg.org/blogs/blog/usp/here%E2%80%99s-how-manufacturers-argue-against-repair.

[10] See CBC News: The International, Apple Under Fire for Allegations of Controversial Business Practices, YouTube, at 1:48–6:00, (Oct. 18, 2018), https://www.youtube.com/watch?v=_XneTBhRPYk.

[11] Michael Kan, FTC Calls Out Tech Companies for Onerous Right-to-Repair Restrictions, PCMag (May 7, 2021), https://www.pcmag.com/news/ftc-calls-out-tech-companies-for-onerous-right-to-repair-restrictions.

[12] Aishvarya Kavi, The F.T.C. Votes to Use Its Leverage to Make it Easier for Consumers to Repair Their Phones, N.Y. Times (July 21, 2021), https://www.nytimes.com/2021/07/21/us/politics/phones-right-to-repair-FTC.html.

[13] Id.

[14] Exec. Order No. 14,036, supra note 1.

[15] Jonathan Ahl, Right to Repair Mandate From Biden Might Help Farmers Fix Their Own Equipment, Harvest Public Media (Aug. 5, 2021), https://www.harvestpublicmedia.org/post/right-repair-mandate-biden-might-help-farmers-fix-their-own-equipment.

[16] Nicky Ellis, How Many Hours Do Farmers Work?, Farm & Animals (Nov. 25, 2020) https://farmandanimals.com/how-many-hours-do-farmers-work/#:~:text=During%20the%20harvest%2C%20a%20farmer,about%2060%20hours%20a%20week; Jordan Almond, Farmers Across America Are Suing for the Right to Repair Their John Deere Tractors, Motor Biscuit (July 15, 2021), https://www.motorbiscuit.com/farmers-america-right-to-repair-john-deere-tractors/.

[17] Kari Paul, Why Right to Repair Matters – According to a Farmer, a Medical Worker, a Computer Store Owner, The Guardian (Aug. 2, 2021, 6:00 AM), https://www.theguardian.com/technology/2021/aug/02/why-right-to-repair-matters-according-to-a-farmer-a-medical-worker-a-computer-store-owner.

[18] Elle Ekman, Here’s One Reason the U.S. Military Can’t Fix Its Own Equipment, N.Y. Times (Nov. 20, 2019) https://www.nytimes.com/2019/11/20/opinion/military-right-to-repair.html.

[19] Id.

[20] Kyle Mizokami, The U.S. Military Has a ‘Right to Repair’ Problem, Popular Mechanics (Feb. 11, 2020), https://www.popularmechanics.com/military/weapons/a30859791/us-military-right-to-repair/.

[21] Exec. Order No. 14,036, supra note 1.

[22] Nadeem Sarwar, What Biden’s Right-To-Repair Executive Order Means For You, ScreenRant (July 12, 2021), https://screenrant.com/right-to-repair-executive-order-explainer-and-details/.

[23] Nathan Proctor, Half of U.S. states looking to give Americans the Right to Repair, U.S. PIRG (Mar. 10, 2021), https://uspirg.org/blogs/blog/usp/half-us-states-looking-give-americans-right-repair.

[24] Id.

[25] Joanna Stern, How the ‘Right to Repair’ Might Save Your Gadgets—and Save You Money, Wall Street Journal (Aug. 30, 2021), https://www.wsj.com/articles/how-the-right-to-repair-might-save-your-gadgetsand-save-you-money-11630324800.

[26] Id.

Image Source: https://www.cleanwateraction.org/2021/02/01/sb0412hb0084-right-repair-and-why-matters-environment

By Annalisa Gobin

 

In the Spring of this year, Apple released its new AirTags, small tracking devices that emit Bluetooth signals so that users can locate lost items using Apple’s Find My network.[1] While they are advertised to help retrieve misplaced items like keys and wallets, consumers have found that the new product is more versatile than Apple likely anticipated.[2] AirTags are now being attached to cars, bikes, and bags as an efficient form of theft prevention.[3] With consumers finding various ways to utilize the new gadget, there has been a rise in recent discussions on whether AirTags are a nifty product to prevent theft or a dangerous tool that promotes stalking.[4]

Since their April release, there have been several reports of consumers using AirTags to combat several forms of crime.[5] One consumer used his AirTag to help the police locate and retrieve his stolen gaming computer.[6] In Oregon, a lawyer used AirTags to prove that city contractors were immediately dumping the belongings of homeless people after clearing out their campsites, instead of saving the property for a month as required by law.[7] Additionally, parents have been using AirTags to track their children (although Apple warns that the product is not a GPS tracker and that the location updates are too sporadic to track moving objects).[8] This is good news for those wanting to protect personal property, and to some extent, ward off potential kidnappers.

However, there is concern that AirTags and their tracking feature may aid stalkers and domestic abusers in harassing victims.[9]

Apple has made attempts to limit the use of the AirTags as a stalking tool.[10] If an iPhone detects that an AirTag is following it, it will display a notification.[11] In addition, if the tracker is away from its owner’s iPhone for more than three days, it will beep.[12] However, if a tracking victim owns a phone other than an iPhone, there is no way for that user to receive the same notification that they are being tracked.[13] There have also been reports that the 15-second beep is not loud enough to be heard over common household noises.[14] In June, Apple addressed these concerns by releasing an update to the devices to beep randomly between 8 and 24 hours if it is away from its owner’s iPhone.[15] Apple has planned to launch an app that will allow Android users to determine whether an AirTag is traveling with them.[16] Apple has also embedded a serial number into each AirTag, which they argue can be used as evidence in court to identify trackers and prosecute stalking crimes.[17]

Critics warn that these new safety features may not be enough to stop digital tracking, which has been linked to physical abuse and murder.[18] The coin-sized devices are so small that they can easily be buried into a car seat or under a carpet to muffle the sound of the notification beep.[19] Further, the notification beep does nothing for victims who live with their abusers who can prevent the sound from going off by periodically bringing their phone back into proximity with the AirTag. Furthermore, as of the time of this post, Apple has yet to release the app so that android users can be alerted when they are being tracked.[20]

Without implementing additional safety features, it is worth considering if the ability to find your keys in a split-second or recover a stolen bike is worth the risk of the crimes that AirTags may help perpetrators carry out.

 

[1] Heather Kelley, I found my stolen Honda Civic using a Bluetooth tracker. It’s the Latest Controversial Weapon Against Theft, Wash. Post (Oct. 28, 2021, 7:00 AM), https://www.washingtonpost.com/technology/2021/10/28/airtags-theft/.

[2] Id.

[3] Id.

[4] See id.

[5] See id.; Brianna Provenzano, Apple Airtags Used to Prove That Contractor Illegally Trashed Unhoused People’s Property, Gizmodo (Aug. 4, 2021, 11:20 AM), https://gizmodo.com/apple-airtags-used-to-prove-that-contractor-illegally-t-1847421031.

[6] Kelley, supra note 1.

[7] Provenzano, supra note 5.

[8] Morgan Brinlee, No, Apple Doesn’t Want Parents To Track Their Kids With AirTags, Romper (Apr. 22, 2021), https://www.romper.com/life/no-apple-doesnt-want-parents-using-airtags-to-track-their-kids.

[9] Albert Fox Cahn & Eva Galperin, Apple’s AirTags Are a Gift to Stalkers, Wired (May 13, 2021, 9:00 AM), https://www.wired.com/story/opinion-apples-air-tags-are-a-gift-to-stalkers.

[10] See Geoffrey A. Fowler, Apple’s AirTag Trackers Made It Frighteningly Easy to ‘Stalk’ Me in a Test, Wash. Post (May 5, 2021, 8:00 PM), https://www.washingtonpost.com/technology/2021/05/05/apple-airtags-stalking.

[11] See id.

[12] Id.

[13] Id.

[14] Apple Updates AirTags After Stalking Fears, BBC News (June 4, 2021), https://www.bbc.com/news/technology-57351554.

[15] Id.

[16] Id.

[17] Id.

[18] Fowler, supra note 10.

[19] Id.

[20] Id.

Image Source: https://www.macrumors.com/guide/airtags

By Hannah Ceriani

 

In 2019, journalist Kashmir Hill wrote a New York Times article about a company that was quietly aiding in privacy violations.[1] The company Clearview AI has developed a facial recognition app, which is essentially a database of billions of images copied from millions of websites like Facebook, YouTube, and Venmo.[2]

The app can potentially identify anyone since the “computer code underlying [the] app…includes programming language to pair it with augmented-reality glasses.”[3] A person could be anywhere in public doing anything, and the app could reveal that person’s name, home address, career, and any other information that is out there on the Internet.[4]

Six hundred police departments were using the app less than three years after it was released to help solve various types of crimes, including murders and kidnappings.[5] Those law enforcement agencies have since copied 10 billion photographs.[6] They have done so without consent from the individuals who uploaded the photos, without authorization from the companies behind the websites where the photos were originally uploaded, and without the knowledge of the general public.[7]

Obviously, the use of facial recognition technology could quickly become a major violation of First and and Fourth Amendment rights. When used in public, this technology has a high likelihood of halting unabridged free speech and peaceful assembly because it could be seen as a form of surveillance.[8] Viewing facial recognition technology in this light, it is plausible that people will begin to alter their behavior because of the feeling that they are always being watched, particularly by law enforcement.[9]

The Supreme Court addressed Fourth Amendment privacy issues in the case Carpenter v. States.[10] Chief Justice Roberts noted that the ability of police to “secretly monitor and catalogue every single movement” of a person is unconstitutional and violates what society perceives law enforcement’s job to be.[11] The Court suggested that a person’s “privacies of life” should be protected.[12] The Court considered those privacies to include an individual’s “familial, political, professional, religious, and sexual associations,” which could be determined by using such technology.[13]

Large tech companies like Google and IBM have refrained from using similar technology in response to such concerns.[14] Only ten states have taken any sort of action to regulate the use of facial recognition by law enforcement.[15] Some cities, like Detroit, Chicago, and San Francisco have also enacted their own regulations and legislative bans.[16]

However, these statutes and regulations are not doing enough. There are two main issues: loopholes in the current legislation and regulation, and the lack of uniformity to address the violation of Constitutional rights. The most pressing concern with facial recognition technology is the lack of restrictions by the federal government.[17] In fact, many tech companies have advocated for federal regulation of this technology, but Congress has yet to pass any laws regulating police use of facial recognition.[18]

 

[1] Kashmir Hill, The Secretive Company That Might End Privacy as We Know It, N.Y. Times (Jan. 18, 2020) https://www.nytimes.com/2020/01/18/technology/clearview-privacy-facial-recognition.html.

[2] Id.

[3] Id.

[4] Id.

[5] Amanda Levendowski, Resisting Face Surveillance with Copyright Law, 100 N.C.L. (forthcoming 2022) (manuscript at 3).

[6] Id.

[7] Id.

[8] Clare Garvie & Laura M. Moy, America Under Watch: Face Surveillance in the United States, Geo. L. Ctr. for Priv. & Tech. (May 16, 2019), https://www.americaunderwatch.com/.

[9] See id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Hill, supra note 1.

[15] Levendowski, supra note 5 (manuscript at 24).

[16] Id. (manuscript at 20).

[17] See Garvie, supra note 8.

[18] Lauren Feiner & Annie Palmer, Rules Around Facial Recognition and Policing Remain Blurry, CNBC (June 12, 2021, 9:30 AM), https://www.cnbc.com/2021/06/12/a-year-later-tech-companies-calls-to-regulate-facial-recognition-met-with-little-progress.html.

Image Source: https://www.nytimes.com/2020/01/18/technology/clearview-privacy-facial-recognition.html