Congressional Dish

An independent podcast examining what the U.S. Congress is doing with our money and in our names. www.congressionaldish.com Follow @JenBriney on Twitter

CD328: November Laws & Vaccine Chaos 12/18/2025

CD327: 23AndMe and the Sale of Your DNA 11/29/2025

CD326: October 2025 — Slippery Barnacles 11/18/2025

CD325: Politics Trump Science at the CDC 10/29/2025

CD324: Sept 2025: Destruction of Norms 10/12/2025

CD323: Shutdown Bad 09/25/2025

CD322: Last Quarter in Congress — Indefinite Detention, Regulation Murders & Empowered Trump Minions 08/30/2025

CD321: One Big Beautiful Bill — the Money 08/16/2025

CD320: One Big Beautiful Bill — a Dangerous Law 07/31/2025

CD319: Beware the Drones 06/29/2025

CD318: AI Regulation Moratorium 06/14/2025

CD317: Elimination Essentials in the “Big Beautiful Bill” 06/01/2025

CD316: The DCA Plane Crash 05/19/2025

CD315: Judicial Power 04/12/2025

CD314: Greenland 04/11/2025

CD313: Democratic Deception 03/24/2025

CD312: Threatening Panama's Canal 03/09/2025

CD312: Threatening Panama's Canal President Trump has been threatening to “take back” the Panama Canal since he regained power. In this episode, listen to testimony from officials serving on the Federal Maritime Commission who explain why the Panama Canal has become a focus of the administration and examine whether or not we need to be concerned about an impending war for control of the canal. Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support Congressional Dish via (donations per episode) Send Zelle payments to: Send Venmo payments to: @Jennifer-Briney Send Cash App payments to: $CongressionalDish or Use your bank’s online bill pay function to mail contributions to: Please make checks payable to Congressional Dish Thank you for supporting truly independent media! Background Sources Recommended Congressional Dish Episodes Current Events around the Panama Canal March 5, 2025. the Associated Press. Sabrina Valle, Suzanne McGee, and Michael Martina. March 4, 2025. Reuters. Matt Murphy, Jake Horton and Erwan Rivault. February 14, 2025. BBC. May 1, 2024. World Weather Attribution. World Maritime News Staff. March 15, 2019. World Maritime News. July 29, 2018. Reuters. Panama Canal Treaty of 1977 U.S. Department of State. The Chinese “Belt and Road Initiative” Michele Ruta. March 29, 2018. World Bank Group. The Trump-Gaza Video February 26, 2025. Sky News. Laws Audio Sources Senate Committee on Commerce, Science, and Transportation January 28, 2025 Witnesses: Louis E. Sola, Chairman, Federal Maritime Commission (FMC) Daniel B. Maffei, Commissioner, FMC , Professor, Scalia Law School, George Mason University Joseph Kramek, President & CEO, World Shipping Council Clips 17:30 Sen. Ted Cruz (R-TX): Between the American construction of the Panama Canal, the French effort to build an isthmus canal, and America's triumphant completion of that canal, the major infrastructure projects across Panama cost more than 35,000 lives. For the final decade of work on the Panama Canal, the United States spent nearly $400 million, equivalent to more than $15 billion today. The Panama Canal proved a truly invaluable asset, sparing both cargo ships and warships the long journey around South America. When President Carter gave it away to Panama, Americans were puzzled, confused, and many outraged. With the passage of time, many have lost sight of the canal's importance, both to national security and to the US economy. 18:45 Sen. Ted Cruz (R-TX): But the Panama Canal was not just given away. President Carter struck a bargain. He made a treaty. And President Trump is making a serious and substantive argument that that treaty is being violated right now. 19:10 Sen. Ted Cruz (R-TX): President Trump has highlighted two key issues. Number one, the danger of China exploiting or blocking passage through the canal, and number two, the exorbitant costs for transit. 19:20 Sen. Ted Cruz (R-TX): Chinese companies are right now building a bridge across the canal at a slow pace, so as to take nearly a decade. And Chinese companies control container points ports at either end. The partially completed bridge gives China the ability to block the canal without warning, and the ports give China ready observation posts to time that action. This situation, I believe, poses acute risks to US national security. 19:50 Sen. Ted Cruz (R-TX): Meanwhile, the high fees for canal transit disproportionately affect Americans, because US cargo accounts for nearly three quarters of Canal transits. US Navy vessels pay additional fees that apply only to warships. Canal profits regularly exceed $3 billion. This money comes from both American taxpayers and consumers in the form of higher costs for goods. American tourists aboard cruises, particularly those in the Caribbean Sea, are essentially captive to any fees Panama chooses to levy for canal transits, and they have paid unfair prices for fuel bunkering at terminals in Panama as a result of government granted monopoly. Panama's government relies on these exploitative fees. Nearly 1/10 of its budget is paid for with canal profit. 21:25 Sen. Ted Cruz (R-TX): Panama has for years flagged dozens of vessels in the Iranian ghost fleet, which brought Iran tens of billions of dollars in oil profits to fund terror across the world. 21:40 Sen. Ted Cruz (R-TX): And Chinese companies have won contracts, often without fair competition, as the infamous Belt and Road Initiative has come to Panama. China often engages in debt trap diplomacy to enable economic and political coercion. In Panama, it also seems to have exploited simple corruption. 32:40 Louis Sola: The Panama Canal is managed by the Panama Canal Authority, ACP, an independent agency of the Panamanian government. The ACP is a model of public infrastructure management, and its independence has been key to ensure a safe and reliable transit of vessels critical to the US and global commerce. 33:25 Louis Sola: In contrast, the broader maritime sector in Panama, including the nation's ports, water rights, and the world's largest ship registry, falls under the direct purview of the Panamanian government. 33:35 Louis Sola: Unfortunately, this sector has faced persistent challenges, including corruption scandals and foreign influence, particularly from Brazil and China. These issues create friction with the ACP, especially as it works to address long term challenges such as securing adequate water supplies for the canal. 33:55 Louis Sola: Although the ACP operates independently, under US law both the ACP and the government of Panama's maritime sector are considered one in the same. This means that any challenges in Panama's maritime sector, including corruption, lack of transparency, or foreign influence, can have a direct or indirect impact on the operations and long term stability of the canal. This legal perspective highlights the need for diligence in monitoring both the ACP's management and Panama government's policies affecting maritime operations. 34:30 Louis Sola: Since 2015, Chinese companies have increased their presence and influence throughout Panama. Panama became a member of the Belt and Road Initiative and ended its diplomatic relations with Taiwan. Chinese companies have been able to pursue billions of dollars in development contracts in Panama, many of which were projects directly on or adjacent to the Panama Canal. Many were no bid contracts. Labor laws were waived, and the Panamanian people are still waiting to see how they've been benefited. It is all more concerning that many of these companies are state-owned, and in some cases, even designated as linked to the People's Liberation Army. We must address the significant growing presence and influence of China throughout the Americas and in Panama, specifically. 35:20 Louis Sola: American companies should play a leading role in enhancing the canal's infrastructure. By supporting US firms, we reduce reliance on Chinese contractors and promote fair competition. 36:55 Daniel Maffei: Because the canal is essentially a waterway bridge over mountainous terrain above sea level, it does depend on large supplies of fresh water to maintain the full operations. Panama has among the world's largest annual rainfalls. Nonetheless, insufficient fresh water levels have occurred before in the canal's history, such as in the 1930s when the Madden Dam and Lake Alajuela were built to address water shortages. Since that time, the canal has undertaken several projects to accommodate larger, more modern ships. In the last couple of years, a trend of worsening droughts in the region, once again, has forced limits to the operations of the canal. Starting in June of 2023 the Panama Canal Authority employed draft restrictions and reduced the number of ships allowed to transit the canal per day. Now the Panama Canal limitations, in combination with the de facto closure of the Suez Canal to container traffic, has had serious consequences for ocean commerce, increasing rates, fees and transit times. 39:30 Daniel Maffei: Now, fortunately, Panama's 2024 rainy season has, for now, alleviated the most acute water supply issues at the canal, and normal transit volumes have been restored. That said, while the Panamanian government and Canal Authority have, with the advice of the US Army Corps of Engineers, developed credible plans to mitigate future water shortages, they also warned that it is likely that at least one more period of reduced transits will occur before these plans can be fully implemented. 41:55 Eugene Kontorovich: We shall see that under international law, each party to the treaty is entitled to determine for itself whether a violation has occurred. Now, in exchange for the United States ceding control of the canal which it built and maintained, Panama agreed to a special regime of neutrality. The essential features of this regime of neutrality is that the canal must be open to all nations for transit. That's Article Two. Equitable tolls and fees, Article Three. An exclusive Panamanian operation, Article Five. The prohibition of any foreign military presence, Article Five. Article Five provides that only Panama shall operate the canal. Testifying about the meaning of the treaty at the Senate ratification hearings, the Carter administration emphasized that this prohibits foreign operation of the canal, as well as the garrisoning of foreign troops. Now, Article Five appears to be primarily concerned about control by foreign sovereigns. If Panama signed a treaty with the People's Republic of China, whereby the latter would operate the canal on Panama's behalf, this would be a clear violation. But what if Panama contracted for port operations with a Chinese state firm, or even a private firm influenced or controlled in part by the Chinese government? The Suez Canal Company was itself, before being nationalized, a private firm in which the United Kingdom was only a controlling shareholder. Yet this was understood to represent British control over the canal. In other words, a company need not be owned by the government to be in part controlled by the government. So the real question is the degree of de jure or de facto control over a Foreign Sovereign company, and scenarios range from government companies in an authoritarian regime, completely controlled, to purely private firms in our open society like the United States, but there's many possible situations in the middle. The treaty is silent on the question of how much control is too much, and as we'll see, this is one of the many questions committed to the judgment and discretion of each party. Now turning to foreign security forces, the presence of third country troops would manifestly violate Article Five. But this does not mean that anything short of a People's Liberation Army base flying a red flag is permissible. The presence of foreign security forces could violate the regime of neutrality, even if they're not represented in organized and open military formations. Modern warfare has seen belligerent powers seek to evade international legal limitations by disguising their actions in civilian garb, from Russia's notorious little green men to Hamas terrorists hiding in hospitals or disguised as journalists. Bad actors seek to exploit the fact that international treaties focus on sovereign actors. Many of China's man made islands in the South China Sea began as civilian projects before being suddenly militarized. Indeed, this issue was discussed in the Senate ratification hearings over the treaty. Dean Rusk said informal forces would be prohibited under the treaty. Thus the ostensible civilian character of the Chinese presence around the canal does not, in itself, mean that it could not represent a violation of the treaty if, for example, these companies and their employees involved Chinese covert agents or other agents of the Chinese security forces. So this leads us to the final question, Who determines whether neutrality is being threatened or compromised? Unlike many other treaties that provide for third party dispute resolution, the neutrality treaty has no such provision. Instead, the treaty makes clear that each party determines for itself the existence of a violation. Article Four provides that each party is separately authorized to maintain the regime of neutrality, making a separate obligation of each party. The Senate's understanding accompanying to ratification also made clear that Article Five allows each party to take, quote, "unilateral action." Senator Jacob Javits, at the markup hearing, said that while the word unilateral is abrasive, we can quote, "decide that the regime of neutrality is being threatened and then act with whatever means are necessary to keep the canal neutral unilaterally." 46:35 Joseph Kramek: My name is Joe Kramek. I'm President and CEO of the World Shipping Council. The World Shipping Council is the global voice of liner shipping. Our membership consists of 90% of the world's liner shipping tonnage, which are container vessels and vehicle carriers. They operate on fixed schedules to provide our customers with regular service to ship their goods in ports throughout the world. 47:15 Joseph Kramek: As you have heard, using the Panama Canal to transit between the Atlantic and Pacific saves significant time and money. A typical voyage from Asia to the US or East Coast can be made in under 30 days using the canal, while the same journey can take up to 40 days if carriers must take alternate routes. From a commercial trade perspective, the big picture is this. One of the world's busiest trade lanes is the Trans Pacific. The Trans Pacific is cargo coming from and going to Asia via the United States. Focusing in a bit, cargo coming from Asia and bound for US Gulf and East Coast ports always transits the Panama Canal. Similarly, cargo being exported from US and East Coast ports, a large share of which are US Agricultural exports, like soybeans, corn, cotton, livestock and dairy also almost always transits the Panama Canal. The result is that 75% of Canal traffic originates in or is bound for the United States. 48:55 Joseph Kramek: We've talked about the drought in 2023 and the historic low water levels that it caused in Lake Gatún, which feeds the canal locks, a unique system that is a fresh water feed, as contrasted to an ocean to ocean system, which the French tried and failed, but which is actually active in the Suez Canal. These low water levels reduced transits from 36 transits a day to as low as 22 per day. Additionally, the low water levels required a reduction in maximum allowable draft levels, or the depth of the ship below the water line, which for our members reduced the amount of containers they could carry through the canal. This resulted in a 10% reduction in import volumes for US Gulf and East Coast ports, with the Port of Houston experiencing a 26.7% reduction. 51:10 Sen. Ted Cruz (R-TX): Are you aware of allegations from some vessel operators of disparate treatment such as sweetheart deals or favorable rebates by Panama for canal transits? Louis Sola: Thank you for the question, Mr. Chairman, we have become aware through some complaints by cruise lines that said that they were not getting a refund of their canal tolls. When we looked into this, we found a Panamanian Executive Order, Decree 73, that specifically says that if a cruise line would stop at a certain port, that they could be refunded 100% of the fees. And as far as I know, that's the only instant where that exists. 53:05 Sen. Ted Cruz (R-TX): So Panama was the very first Latin American country to join China's Belt and Road Initiative, and right now, China is building a fourth bridge across the Panama Canal for car traffic and light rail. Chairman Sola, why should Chinese construction of a bridge near Panama City concern the United States? Louis Sola: Mr. Chairman, we all saw the tragedy that happened here in the Francis Scott Key Bridge incident and the devastation that had happened to Baltimore. We also saw recently what happened in the Suez Canal, where we had a ship get stuck in there. It's not only the construction of the bridge, but it's a removal of a bridge, as I understand it, called the Bridge of the Americas. It was built in 1961 and that would paralyze cargo traffic in and out of the canals. 53:55 Sen. Ted Cruz (R-TX): Panama also recently renewed the concessions for two container ports to a Chinese company, Hutchison Ports PPC. Of course, Chinese companies are controlled by the Communist Party. How does China use control of those ports for economic gain? Louis Sola: Mr. Chairman, I am a regulator, a competition regulator. And the Chinese ports that you're referring to, let me put them into scope. The one on the Pacific, the Port of Balboa, is roughly the same size as the Port of Houston. They do about 4 million containers a year. They have about 28 game tree cranes. The one on the Atlantic is the same as my hometown in Miami, they do about 1 million containers. So where Roger Gunther in the Port of Houston generates about $1 billion a year and Heidi Webb in Miami does about $200 million, the Panama ports company paid 0 for 20 years on that concession. So it's really hard to compete against zero. So I think that's our concern, our economic concern, that we would have. Sen. Ted Cruz (R-TX): Commissioner Maffei, anything to add on that? Daniel Maffei: Yeah, I do too also think it is important. I would point out that you don't have to stop at either port. It's not like these two ports control the entrance to the canal. That is the Canal Authority that does control that. However, I think it's of concern. I would also point out that the Panamanian government thinks it's of concern too, because they're conducting their own audit of those particular deals, but we remain very interested as well. 56:25 Sen. Ted Cruz (R-TX): Would the facts discussed here be considered violations of the neutrality treaty in force right now between the United States and Panama? Eugene Kontorovich: So I think Senator, I think potentially they could, but it's impossible to say definitively without knowing more, in particular, about the degree of Chinese control and involvement in these companies. I think it's important to note that these port operation companies that operate the ports on both sides, when they received their first contract, it was just a few months before Hong Kong was handed over to China. In other words, they received them as British companies, sort of very oddly, just a few months before the handover. Now, of course, since then, Hong Kong has been incorporated into China, has been placed under a special national security regime, and the independence of those companies has been greatly abridged, to say nothing of state owned companies involved elsewhere in in the canal area, which raised significantly greater questions. Additionally, I should point out that the understandings between President Carter and Panamanian leader Herrera, which were attached to the treaty and form part of the treaty, provide that the United States can, quote, "defend the canal against any threat to the regime of neutrality," and I understand that as providing some degree of preemptive authority to intervene. One need not wait until the canal is actually closed by some act of sabotage or aggression, which, as we heard from the testimony, would be devastating to the United States, but there is some incipient ability to address potential violations. 58:10 Sen. Ted Cruz (R-TX): If the United States determines that Panama is in violation of the treaty, what is the range of remedies the United States would have for that treaty violation? Eugene Kontorovich: So I think it may be shocking to people to hear today, but when one goes over the ratification history and the debates and discussions in this body over this treaty, it was clear that the treaty was... /episode/index/show/congressionaldish/id/35589820

CD311: The Laken Riley Act 02/22/2025

CD310: Red Flags at Air Traffic Control 02/02/2025

CD309: Trumped Up Immunity 01/18/2025

CD308: A Chaotic Finale 01/07/2025

CD307: Immaculate Constellation 12/21/2024

CD306: The Food Police 12/15/2024

CD305: Freaky Food 11/21/2024

CD304: Trump Returns 11/10/2024

CD303: Interviewing the Insiders 10/30/2024

CD302: The Border Bills 10/23/2024

CD302: The Border Bills This election has featured a lot of talk about ‘immigration’ and ‘the border’ but has been short on specifics. In this episode, you’ll get those specifics. Specifically, you’ll learn what was in H.R. 2, a Republican bill passed by the House, and you’ll learn what was in the so-called bipartisan border bill which was killed by Donald Trump’s loyalists in the Senate and which Kamala Harris has promised to revive as President. Which bill would actually solve the problems? Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support Congressional Dish via (donations per episode) Send Zelle payments to: Donation@congressionaldish.com Send Venmo payments to: @Jennifer-Briney Send Cash App payments to: $CongressionalDish or Donation@congressionaldish.com Use your bank’s online bill pay function to mail contributions to: Please make checks payable to Congressional Dish Thank you for supporting truly independent media! Background Sources Recommended Congressional Dish Episodes Current Immigration Process Visas Accessed October 22, 2024. U.S. Department of State, Bureau of Consular Affairs. Accessed October 22, 2024. Boundless. Accessed October 22, 2024. Boundless. October 22, 2024. USAGov. September 3, 2024. U.S. Department of State, Bureau of Consular Affairs. Asylum August 1, 2024. USAFacts. Ted Hesson and Mica Rosenberg. June 5, 2024. Reuters. Accessed October 22, 2024. Migration Policy Institute. Unauthorized Immigration John Gramlich. October 1, 2024. Pew Research Center. Jeffrey S. Passel and Jens Manuel Krogstad. July 22, 2024. Pew Research Center. Backlog December 18, 2023. TRAC Immigration. Immigrant Detention Eunice Cho. August 7, 2023. American Civil Liberties Union. Irwin County Detention Center November 15, 2022. Senate Committee on Homeland Security and Governmental Affairs, Permanent Subcommittee on Investigations. Jonathan Raymond. November 15, 2022. 11 ALIVE. May 20, 2021. WABE. Molly O’Toole. May 20, 2021. The LA Times. C. Carlos Carreiro Immigration Detention Center in Bristol County, MA Ben Berke. May 21, 2021. The Public’s Radio. December 15, 2020. Office of the Massachusetts Attorney General Civil Rights Division. Etowah County Detention Center in Gadsden, Alabama Erin Wise. April 15, 2022. ABC 33 40 News. Ted Hesson and Mica Rosenberg. March 25, 2022. Reuters. March 25, 2022. BirminghamWatch. March 25, 2022. U.S. Immigration and Customs Enforcement. Paul Moses. June 8, 2018. The Daily Beast. Glades County Detention Center in Moore Haven, Florida February 2, 2022. Freedom for Immigrants. Debbie Wasserman Schultz et al. February 1, 2022. South Texas Family Residential Center Accessed October 22, 2024. OpenSecrets. Sandra Sanchez. Updated June 24, 2024. Border Report. Ted Hesson. June 10, 2024. Reuters. Penalties for Illegally Entering Countries World Population Review. Bipartisan Border Bill Failure Ariana Figueroa. May 24, 2024. Missouri Independent. Catherine Rampell. May 23, 2024. The Washington Post. Mary Clare Jalonick and Stephen Groves. February 7, 2024. AP News. Mary Clare Jalonick and Stephen Groves. February 7, 2024. AP News. The Bills H.R. 2 Outline Division A - Border Wall Would require the Secretary of Homeland Security to resume “all activities” related to constructing a border wall between the US and Mexico that were planned by the Trump administration. Wall would have to be at least 900 miles long, and include not only a physical wall, but also surveillance towers, radars, seismic acoustic detection sensors, and 24 hour drone monitoring. Would require killing all carrizo cane and salt cedar plants along the Rio Grande River by releasing non-stinging wasps imported from Spain and France into the area. Would waive “all legal requirements” that would stand in the way of of building the wall. Division B - Immigration Enforcement and Foreign Affairs Would make it illegal to process asylum claims of individuals who: do not enter at official ports of entry. crossed through another country on their way to the US and did not apply to live there and receive an official denial in each country they entered before entering the US. have been convicted of misdemeanor offenses, allowing the Secretary of Homeland Security or Attorney General to add disqualifying acts without approval from Congress and no court reviews allowed. Would allow the Secretary of Homeland Security to take away the authorization for an individual who has been accepted into the US through the asylum process to work legally in the US. Work permits would only be authorized for 6 months at a time. Would reopen detention centers that were closed by the Biden Administration. Title V - Protection of Children Would require the DHS Secretary to return unaccompanied children back to their home countries if they are not trafficking victims and do not have a fear of Return. Would authorize immigration officers to withdraw a child’s application to be admitted into the United States regardless of the child’s ability or desire to do so. Would require the DHS to collect information - name, social security number, DOB, address, contact info, and immigration status - of people who will be taking custody of immigrant children. Within 30 days of receiving that information, if they determine that individual is not legally in the United States, must initiate removal proceedings. Would change the law so that these people have “access” to lawyers instead of having lawyers to represent them. Title VI - Visa Overstay Penalties Would Increase fines for illegally entering the United States from $50-250 to $500-1000 Would create new penalties for overstaying visas: First offense: fines up to $1,000 or up to 6 months in prison, or both Repeat offenses: fines up to $2,000 or up to 2 years in prison, or both S.4361 Outline Division A - Border Security & Combatting Fentanyl Supplemental Appropriations $6.3 billion to border patrol. $6 billion to Immigration and Customs Enforcement. ~$2.4 billion for deportations. ~$1.6 billion for prisons (the goal in the bill is for ICE to be able to detain 46,500 humans at all times). ~$1.2 billion for services to help people navigate the immigration and asylum system, and to help people leave the country if denied visas (). ~$415 million to hire more ICE agents (goal is to hire 800 more agents). ~$200 million for counter fentanyl investigations. ~$4 billion to US Citizenship and Immigration Services with most going towards hiring more staff. ~ $1.2 billion to the State Department $850 million for “humanitarian needs in the Western Hemisphere” to reduce migration (with the idea being that if their home countries are less dangerous, then people won’t want to come here as often) $230 million to pay other countries to accept deported individuals. $440 million, most of which would be spent on Immigration Judge Teams which include lawyers, court administrators, staff, and court costs. Would expand the number of border patrol and ICE officers authorized to issue a notice to appear, reducing the workload of the judges. Would allow protection determination proceedings to take place in any federally owned or leased building that is not property owned, leased or managed by ICE or border patrol and is “a reasonable distance” from the migrants current residence, expanding the locations where the cases can be heard beyond the already too crowded court buildings. Division B - Border Act Title I - Capacity Building For five years: would give the Secretary of Homeland Security the authority to appoint people to positions within the Refugee, Asylum, and International Operation Directorate, the Field Operations Directorate, and the Service Center Operations Directorate of US Citizenship and Immigration Services if the Secretary determines that a critical hiring need exists. would give the Secretary of Homeland Security the authority to appoint ICE deportation officers if the Secretary determines that a critical hiring need exists. Would provide a permanent authority for the DHS Secretary to re-hire a former employee to any position in ICE, Border Patrol, or US Citizenship & Immigration Services. Would give asylum officers a 15% pay raise. Would require annual training for border patrol officers about the law, de- escalation techniques, and migrant and agent safety measures. Title III - Securing America For three years, the Secretary of Homeland Security would be given the authority “in the Secretary’s sole and unreviewable discretion” to declare a “border emergency” and remove any migrant who doesn’t have pre-determined permission to enter the United States or doesn’t present themselves at a port of entry in accordance with a process approved by the DHS Secretary. Title IV - Promoting Legal Immigration Would set up a special process to more easily admit no more than 10,000 refugees who worked with the United States from Afghanistan. Would allow the spouse, fiancé, or child of an admitted migrant to join them in the United States and receive employment authorizations. Would slightly increase the number of visas for family members that would be issued in years 2025 through 2029 (512,000 instead of 480,000 = ~ 6% increase). Audio Sources August 22, 2024 29:45 Vice President Kamala Harris: And let me be clear. After decades in law enforcement, I know the importance of safety and security, especially at our border. Last year, Joe and I brought together Democrats and conservative Republicans to write the strongest border bill in decades. The Border Patrol endorsed it. But Donald Trump believes a border deal would hurt his campaign. So he ordered his allies in Congress to kill the deal. Well, I refuse to play politics with our security. Here is my pledge to you: As President, I will bring back the bipartisan border security bill that he killed. And I will sign it into law. July 18, 2024 April 18, 2018 Senate Judiciary Committee, Subcommittee on Border Security and Immigration Witness: James McHenry, Director, Executive Office for Immigration Review, U.S. Department of Justice Clips 2:42 Sen. John Cornyn (R-TX): Earlier administrations, both Republican and Democrat, have struggled with how to reduce the case backlogs in the immigration courts. And, unfortunately, Congress has never provided the full extent of immigration judges and support staff truly needed to eliminate the backlogs. As a result, backlogs continue to grow, from 129,000 cases in fiscal 1998 to a staggering 684,000 as of February 2018. 3:27 Sen. John Cornyn (R-TX): Aliens in removal proceedings sometimes wait for years before they ever appear before an immigration judge. For example, as of February 2018 courts in Colorado have the longest time for cases sitting on their docket more than 1,000 days -- almost three years. In my home state of Texas, the current wait is 884 days -- almost two and a half years. 28:45 James McHenry: A typical immigration court proceeding has two stages, or two parts. The first is the determination of removability. The Department of Homeland Security brings charges and allegations that an alien has violated the immigration laws. The judge, the immigration judge, first has to determine whether that charge is sustained, and that will be based on the factual allegations that are brought, so the judge will make determinations on that. If there is a finding that the alien is removable, then the case proceeds to a second phase. If the judge finds the alien is not removable, then the case is terminated. At the second phase, the immigration judge gives the alien an opportunity to apply for any protection or relief from removal that he or she may be eligible for under the Immigration and Nationality Act. This will involve the setting of a separate hearing at which the respondent may present evidence, they may present witnesses, they have the right to cross-examine witnesses brought by the department, and they will bring up whatever factual bases there is for their claim of relief or protection. At the end of that hearing, the immigration judge will assess the evidence, will assess the testimony, will look at the law, and will render a decision. The judge may either grant the application, in which case the respondent will get to remain in the United States. The judge may deny the application but give the respondent an opportunity to voluntarily depart at their own expense and sometimes after paying a bond, or the immigration judge may order the alien removed. 41:50 Senator Mike Lee (R-UT): I believe you recently testified in front of the House Judiciary Committee that it would take about 700 immigration judges in order to be able to address the backlog and address the current case load. Is that correct? James McHenry: Yeah, last fall the president proposed adding additional immigration judges, up to a number of 700. If we can get 700 on board, especially with our performance measures, we could complete over 450,000 cases a year. That would eviscerate the backlog. Sen. Mike Lee (R-UT): So, 700 would do it…. End of Episode Announcements Andrew Heaton’s New Book: Music by Editing Production Assistance /episode/index/show/congressionaldish/id/33585692

CD301: 2024 Election Study Guide 09/28/2024

CD301: 2024 Election Study Guide We’re making it easy for you to judge the job performances of your members of Congress! In this episode, Jen tells you about a list of single issue votes that were taken in the House and Senate during the 118th Congress. Most importantly, we gave you all the information you need to find your members’ voting records in this episode’s show notes. You can find your 2024 Congressional Election Study guide in the episode 301 show notes on www.congressionaldish.com. Happy voting! Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support Congressional Dish via (donations per episode) Send Zelle payments to: Donation@congressionaldish.com Send Venmo payments to: @Jennifer-Briney Send Cash App payments to: $CongressionalDish or Donation@congressionaldish.com Use your bank’s online bill pay function to mail contributions to: Please make checks payable to Congressional Dish Thank you for supporting truly independent media! Enacted Laws Congressional Dish Episode: ← find how your Representative voted here ← find how your Senator voted here Effects of H.R. 7888: Expands the number of people allowed to be legally spied on by the U.S. government and the number of people with information stored in the FISA database (which has information about Americans whose data has been collected along with information about foreigners). It does so by… Giving the Department of Justice (DOJ) permission to search the FISA database to vet foreigners who are applying for tourist visas to visit the United States and Expanding the definition of ‘foreign intelligence’ to include counter narcotics targets. Expands the number of companies who get legal immunity for turning our information over to the government by expanding the definition of “electronic communications service provider”. The Federal Bureau of Investigation (FBI) is no longer legally allowed to search the FISA database solely to find evidence of a crime. The Federal Bureau of Investigation (FBI) is prohibited from using uncorroborated information from political groups or anonymous sources in press reports to get FISA warrants. Limits the number of people within the government who are allowed to search through the database. Background Sources for H.R. 7888: INTEL.gov. Michael Horowitz. April 27, 2023. U.S. Department of Justice, Office of the Inspector General. Jonathan Turley. December 14, 2019. The Hill. Conor Clarke. February 2014. Stanford Law Review. “The Biggs Amendment” to H.R. 7888 [failed] ← find how your Representative voted here Intended Effect of the Biggs Amendment: Would require U.S. government officials to get a warrant before searching through the FISA database for information about U.S. citizens or companies, with emergency exceptions. Congressional Dish Episode: ← find how your Representative voted here Effects of H.R. 7521: It is now illegal for companies to provide internet hosting services, distribute, and/or update “foreign adversary controlled applications”, websites, or games, which are partially owned by a foreign person and are determined by the President - with no proof required - to pose “a significant threat to the national security of the United States.” Establishes a process that allows companies to host, distribute, and/or update if the app, website, or game changes ownership. If companies host, distribute, and/or update the targeted apps, websites, or games, the companies are subject to fines that - depending on the user base of the targeted app, website, or game - can be hundreds of billions of dollars. ← find how your Representative voted here Intended Effects of H.R. 8034: Provide almost $26 billion to Israel. 64% of the money would be for war expenses 35% of the money would be for humanitarian purposes Less than 1% of the money would be for diplomatic expenses Provide $400 million for FEMA Background Sources for H.R. 8034: April 17, 2024. Al Jazeera. Fatima Al-Kassab. January 26, 2024. NPR. ← find how your Representative voted here Intended Effects of H.R. 8035: Provide over $60 billion for Ukraine (and other neighboring countries) 83% of the money would be for war expenses 16.5% of the money would be for humanitarian expenses Less than 0.5% of the money would be for diplomatic expenses Provide $341 million for production of nuclear weapons materials and nuclear nonproliferation programs House Bills ← find how your Representative voted here Intended Effects of H.R. 7023: Double the length of permits to discharge pollutants in waterways from 5 years to 10 years Removes the EPA administrators ability to prohibit discharges in specific disposal sites if he determines that the discharge of materials will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational areas after a disposal permit has been issued. Creates nationwide permits to allow for transmission projects for people, water, wastewater, carbon dioxide, fuel, and oil and gas pipelines that do not result in a “loss greater than 1/2 acre of waters of the United States for each single and complete project” In reissuing these nationwide permits, the EPA would not be required to consult with a state nor any other Federal agency and these permits will get to short cut environmental assessments that are required by the National Environmental Policy Act. Limits judicial review Puts a 60 day time limit after the permit is issued for a judicial review Doesn’t allow anyone who didn’t file a comment during the public comment period to file a lawsuit. If someone did file a comment, they may not file a lawsuit about anything that they didn’t address in their comment. Prohibits the court from vacating, revoking, or limiting the permit unless the court finds that the activities authorized “present an imminent and substantial danger to human health or the environment for which there is not other equitable remedy available under the law’ Approves an end-of-Trump administration EPA approval for Florida to administer Clean Water Act permitting. Background Sources for H.R. 7023: Becky Bohrer and Patrick Whittle. January 31, 2023. PBS News. July 19, 2016. Earthjustice. Earthjustice. ← find how your Representative voted here Intended Effects of H.R. 1435: Prohibit states from banning fossil fuel burning internal combustion engines in cars and trucks. Effectively revokes the EPA waiver that allows California to ban the sale of fossil fuel burning cars. Background Sources for H.R. 1435: Jeff St. John. September 23, 2020. Greentech Media. ← find how your Representative voted here Intended effects of H.R. 7176: Give the Federal Energy Regulatory Commission the “exclusive authority” to approve or deny applications to export natural gas from the United States to a foreign country, which eliminates requirements for Department of Energy approval and provisions to address free trade agreements. Deems exportation or importation of natural gas to be in the public interest. Background Sources for H.R. 7176: September 26, 2024. National Drought Mitigation Center. Zachary-Taylor Wright. September 17, 2024. MySA. Steven Santana. July 23, 2024. MySA. ← find how your Representative voted here Intended Effects of H.R. 6543: Requires providers of short term lodging (hotels and AirBnBs) and Internet platforms that advertise and sell short term lodging to display the total price including all mandatory fees, except for government taxes and fees. ← find how your Representative voted here Intended Effects of H.R. 3950: Requires ticket issuers and secondary market ticket issuers to clearly display the total ticket price, including all fees, at the time the ticket price is first displayed and provides an itemized list of charges before the ticket purchasing process is complete. Prohibits ticket issuers and secondary market ticket issuers from selling tickets that they do not physically possess at the time of sale. Prohibits secondary ticket issuers from using the word ‘official’ or similar words implying a partnership in their marketing and search engine wording unless they have the consent of the venue, team, or artist. Requires ticket issuers to provide a refund or a similar ticket to a rescheduled event, with the approval of the customer, if an event is canceled or postponed (except for in case of a natural disaster or other event beyond the ticket issuer’s control). ← find how your Representative voted here Intended Effects of H.R. 4639: Prohibits law enforcement or the intelligence community from buying customer or subscriber information directly from companies or from data brokers. Any information “illegitimately obtained” is not allowed to be used against us in court. Has exceptions for FISA surveillance of foreigners. Limits immunity for companies that comply with surveillance orders and do not stop the surveillance when a court order is denied. Background Sources for H.R. 4639: Carly Page. July 18, 2022. TechCrunch. Senior Advisory Group Panel on Commercially Available Information. January 27, 2022. Office of the Director of National Intelligence. Byron Tau. June 19, 2020. The Wall Street Journal. Senate Bills ← find how your Senator voted here Intended Effects of S. 316: Repeal the authorizations for US military operations in Iraq that were passed in 1991 and 2002. Background Sources for S. 316: Meghann Myers. January 25, 2024. Military Times. ← find how your Senator voted here Intended Effects of S. 4072: To prevent the enforcement of the , which would set stricter standards for fossil fuel burning cars and trucks that would be phased in between model year 2027 and 2032. Prohibits enforcement of any similar rule that could be written in the future. The standards could be met via the production of cleaner fossil fuel powered vehicles, hybrids, plug-in hybrids, and electric vehicles. EPA estimates the air pollution reductions would provide ~$13 billion in reduced annual health care costs by preventing the emission of thousands of tons of particulate matter, nitrogen oxides, and volatile organic compounds. EPA estimates the new standards would save Americans $46 billion per year in fuel costs and $16 billion per year due to reduced maintenance and repair costs for drivers, totaling ~$6,000 over the course of a new vehicle’s lifetime. ← find how your Senator voted here Intended Effects of S. 4445: Guarantees an individual’s rights to receive fertility treatment, make decisions regarding the donation, use, storage, and disposal of oocytes, sperm, fertilized eggs and embryos, and enter contracts with health care providers to enact those decisions. Guarantees a health provider’s right to provide fertility treatments and provide for testing, use, storage, shipping, and disposal of genetic material including oocytes, sperm, fertilized eggs, and embryos. Guarantees a health insurance provider’s right to cover fertility treatments. Guarantees a manufacturer’s right to manufacture, import, market, sell, and distribute drugs and devices that are used for fertility treatments. Allows lawsuits against any State or individual who interferes with the right to fertility treatments by the Attorney General, health care providers, and individuals adversely affected. This would supersede any State law regardless of when it was enacted and prohibits enforcement of any state law that is in conflict with these rights. Requires the Department of Defense to provide fertility treatments (specifically three egg retrievals and unlimited embryo transfers) to active duty military members and their spouses. Requires health plans, Medicaid, and Medicare that cover obstetrical (child birth related) services to also provide coverage for fertility treatments. Background sources for S. 4445: Maya C. Miller. September 17, 2024. The New York Times. Alander Rocha. April 3, 2024. Alabama Reflector. Alander Rocha. February 19, 2024. Alabama Reflector. Audio Sources March 21, 2024 Clips Rep. Rick Larsen (D-WA): My colleagues have criticized EPA’s use of its Clean Water Act review or veto authority. Yet, the record shows EPA’s use of this authority has been consistent with congressional intent. I see no reason for removing this authority. Since enactment of the Clean Water Act in 1972, EPA has only exercised this authority 14 times—most recently in relation to large-scale mining proposals in Alaska and West Virginia. EPA’s use of this authority has, in fact, been bipartisan. EPA used it 2 times during Democratic administrations and 12 times during Republican administrations. Rep. Eric Burlison (R-MO): This bill will cut red tape, strengthen the permitting process in favor of those seeking the permits, provide clarity to the EPA to ensure that they are following what the law intends, and, most importantly, fight back against the militant climate agenda. Rep. Eric Burlison (R-MO): Our court system is already being attacked from every angle. Let’s not let the environmentalists continue to manipulate the courts to push their climate religion. It should be an efficient and speedy process so businesses can build the infrastructure that our country depends on. Rep. David Rouser (R-NC): Mr. Chairman, in closing, I encourage my colleagues on both sides of the aisle to support this bill, which provides energy predictability and certainty that our utilities, energy, manufacturing, and agricultural industries need to succeed, which are so critical to American greatness in energy, food production, and the manufacturing necessary to improve the standard of living of every American. That is what this is about, Mr. Chairman. Music by Editing Production Assistance /episode/index/show/congressionaldish/id/33245982

CD300: Right to Repair 09/17/2024

CD300: Right to Repair You do not have the right to repair your own belongings because of intellectual property rights granted to corporations by Congress in 1998. In this episode, listen to the debate happening in Congress about if and how they should grant customers the right to repair and get a status update on the multiple efforts under way in the current Congress, including one with a good chance of becoming law. Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support Congressional Dish via (donations per episode) Send Zelle payments to: Donation@congressionaldish.com Send Venmo payments to: @Jennifer-Briney Send Cash App payments to: $CongressionalDish or Donation@congressionaldish.com Use your bank’s online bill pay function to mail contributions to: Please make checks payable to Congressional Dish Thank you for supporting truly independent media! Background Sources Recommended Congressional Dish Episodes McDonald’s Ice Cream Machines Andy Greenberg. December 14, 2023. Wired. Joseph Fawbush. March 29, 2022. FindLaw. John Deere Luke Hogg. January 8, 2024. Reason. Internet of Things Updates and Maintenance Márk Szabó. August 27, 2024. WeLiveSecurity. Massachusetts Auto Repair Law Massachusetts Office of the Attorney General. DoD’s Revolving Door OpenSecrets. OpenSecrets. Karl Evers-Hillstrom and Reid Champlin. June 18, 2019. OpenSecrets. OpenSecrets. Salary.com. Military Right to Repair Issues Kyle Mizokami. February 11, 2020. Popular Mechanics. Max Finkel. February 8, 2020. Jalopnik. Elle Ekman. November 20, 2019. The New York Times. Lucas Kunce and Elle Ekman. September 15, 2019. Technological Protection Measures (TPMs) Jennifer Zerkee. November 8, 2023. Simon Fraser University. Cyber Risks Sam Curry et al. January 3, 2023. samcurry.net. Apple Lawsuit Brandon Vigliarolo. December 18, 2023. The Register. NDAA Sec. 828 Jason Koebler. August 28, 2024. 404 Media. AdvaMed et al. July 30, 2024. DocumentCloud via 404 Media. Laws Bills Sec. 828 : REQUIREMENT FOR CONTRACTORS TO PROVIDE REASONABLE ACCESS TO REPAIR MATERIALS. Fair Repair Act Audio Sources May 16, 2024 Senate Armed Services Committee Witnesses: Carlos Del Toro, Secretary of the Navy Clip Sen. Elizabeth Warren: So the Navy acquires everything from night vision goggles to aircraft carriers through contracts with big defense contractors, but the contractors often place restrictions on these deals that prevent service members from maintaining or repairing the equipment, or even let them write a training manual without going back through the contractor. Now the contractors say that since they own the intellectual property and the technical data underlying the equipment, only they have the right to repair that equipment. These right to repair restrictions usually translate into much higher costs for DOD, which has no choice but to shovel money out to big contractors whenever DOD needs to have something fixed. So take the Navy's littoral combat ship, General Dynamics and Lockheed Martin considered much of the data and equipment on the ship to be proprietary, so the Navy had to delay missions and spend millions of dollars on travel costs, just so that contractor affiliated repairmen could fly in, rather than doing this ourselves. Secretary Del Toro, when a sailor isn't allowed to repair part of their ship at sea, and a marine isn't allowed to access technical data to fix a generator on a base abroad. One solution is for the Navy to buy the intellectual property from the contractors. So can you say a little bit about what the benefits are of the Navy having technical rights for the equipment that it has purchased. Sec. Carlos Del Toro: The benefits are enormous, Senator, and we've actually had tremendous success, I'd say, in the last year and a half to two years, through the taxpayer advocacy program that we initiated when I came in. There have been three examples, one, gaining the intellectual property rights for the new ACV class of ships that will replace the AAVs. The F-35 negotiations really proved themselves out in a significant way as well, too. And lastly, the 20 F-18s that the Congress authorized in ‘22 and ‘23, we were able to make significant gains in terms of the government finally getting the intellectual property rights that were necessary for us to be able to properly sustain those moving forward. Sen. Elizabeth Warren: So I am very, very glad to hear this. I like the taxpayer advocacy project and how you're training contract officers to secure technical equipment that the Navy buys, but I think you should have the support of Congress on this. Senator Braun and I have introduced the Stop price gouging the military act to give DoD more tools to get cost and pricing data so that you will be in a better position to negotiate better deals with contractors. There's also more that we can do to ensure that the Navy and the rest of the services have the rights they need to bolster readiness. So let me ask you, Secretary Del Toro, would having a stronger focus on right to repair issues during the acquisition process, like prioritizing contract bids that give DoD fair access to repair materials, and ensuring that contract officers are looking into buying technical rights early on, would that help the Navy save costs and boost readiness at the same time? Sec. Carlos Del Toro: Very much. Senator, in fact, one of the things that we have prioritized since I came in as Secretary of the Navy, given my acquisition background, is actually those negotiations need to happen as early as possible before that we even as we develop the acquisition strategy for that contract to go out to bid, and by doing so, we will reap tremendous returns. July 18, 2023 House Judiciary Committee Witnesses: Aaron Perzanowski, Thomas W. Lacchia Professor of Law, University of Michigan Law School , Legal Fellow, Hudson Institute’s Forum for Intellectual Property Kyle Wiens, Co-founder and CEO, iFixit Paul Roberts, Founder, SecuRepairs.org; Founder and Editor-in-Chief, the Security Ledger Scott Benavidez, Chairman, Automotive Service Association; Owner, Mr. B’s Paint & Body Shop Clips 41:25 Scott Benavidez: My name is Scott Benavidez. I'm the Chairman of the Automotive Service Association's Board of Directors. I am also a second generation shop owner from Albuquerque, New Mexico, Mr. B's Paint and Body Shop. Scott Benavidez: We do have concerns when some insurers insist on repairs that are simply cheaper and quicker, without regard to quality and safety. Repairers understand better than anyone the threat of replacement crash parts or lesser quality. We can and should have a competitive marketplace that doesn't compromise quality or safety, deciding to only cover the cheapest option without understanding implications for quality leaves collision shops and their customers in a tough position. Very few consumers have the knowledge about these types of crash parts used on their vehicles as numerous crash parts in the marketplace, such as OEM (original equipment manufactured) parts, certified aftermarket parts, aftermarket parts, reconditioned crash parts, and recycled crash parts. Repairers can make recommendations, but their customers are unlikely to hear if the insurance won't cover them. 46:45 Paul Roberts: My name is Paul Roberts, and I'm the founder of Secure Repairs. We're an organization of more than 350 cyber security and information technology professionals who support the right to repair. 46:55 Paul Roberts: I'm speaking to you today on behalf of our members to make clear that the fair access to repair materials sought by right to repair laws does not increase cyber risk, and in fact, it can contribute to a healthier and more secure ecosystem of smart and connected devices. Paul Roberts: Proposed right to repair legislation considered by this Congress, such as the Repair Act, or last session, the Fair Repair Act, simply asks manufacturers that already provide repair information and tools to their authorized repair providers to also provide them at a fair and reasonable price to the owners of the devices and to third parties that they may wish to hire to do their work. 47:35 Paul Roberts: By definition, the information covered by right to repair laws is not sensitive or protected, as evidenced by the fact that the manufacturers already distribute it widely to hundreds, thousands, or even tens of thousands of workers for their authorized repair providers. This could be everyone from mechanics working at auto dealerships to the folks staffing the Geek Squad at Best Buy. 48:00 Paul Roberts: Also, we have yet to find any evidence that the types of information covered by right to repair laws like schematic diagrams, service manuals, diagnostic software and replacement parts act as a portal to cyber attacks. The vast majority of attacks on internet connected devices - from broadband routers to home appliances to automobiles - today exploit weaknesses in the embedded software produced and distributed by the manufacturers, or alternatively, weak device configurations so they're deployed on the internet in ways that make them vulnerable to attack. These security weaknesses are an epidemic. A recent study of the security of Internet of Things devices, by the company Phosphorus Labs, or a cybersecurity company, found that 68% of Internet of Things devices contained high risk or critical software vulnerabilities. As an example, I'd like to call attention to the work of a group of independent researchers recently led by Sam Curry, who published a report, and you can Google this, "Web Hackers vs. the Auto Industry" in January 2023. That group disclosed wide ranging and exploitable flaws in vehicle telematics systems from 16 different auto manufacturers. At a leading GPS supplier to major automakers, the researchers claimed to obtain full access to a company-wide administration panel that gave them the ability to send arbitrary commands to an estimated 15.5 million vehicles, including vehicles used by first responders, police, fire and so on. Hacks like this take place without any access to repair materials, nor is there any evidence that providing access to repair software will open the doors to new attacks. 50:05 Paul Roberts: For the last 25 years, Section 1201 of the Digital Millennium Copyright Act has given manufacturers an incentive to deploy software locks widely and to limit access to security researchers. That's kind of a model what we call in cybersecurity, security through obscurity. In other words, by keeping the workings of something secret, you're making it secure. But in fact, that doesn't work, because cyber criminals are very resourceful and they're very determined, and they don't really care what the law says. 50:35 Paul Roberts: Section 1201 has also enabled what one researcher has described as dark patterns in the design and manufacture of hardware that includes everything from locking out customers from access to administrative interfaces, administrative features of the products that they own, as well as practices like part pairing, which Kyle will talk to you more about, in which manufacturers couple replaceable components like screens and sensors and cameras to specific device hardware. Such schemes make manufacturers and their authorized repair providers gatekeepers for repairs, and effectively bar competition from the owners of the devices as well as independent repair providers. 54:45 Kyle Wiens: You think about what is local? What is American? Main Street you have a post office and a repair shop. And unfortunately, we've seen the whittling down of Main Street as the TV repair shops went away when the manufacturers cut off access to schematics, as the camera repair shops went away when Nikon and Canon decided to stop selling them parts. We've seen this systematically across the economy. In the enterprise space, you have Oracle and IBM saying that you can't get security updates to critical cyber infrastructure unless you buy a service contract with them, so they're tying long term service contracts with the security updates that are necessary to keep this infrastructure secure. 56:45 Kyle Wiens: Over the last decade plus, I've been working on Section 1201, trying to get exemptions for the ability to repair products. The challenge that we've had in the section 1201 process every triennial I go back and we ask for permission to be able to fix our own things is that the exemptions we've gotten really only apply to individual consumers. They aren't something that I could use to make a tool to provide to one of you to fix yourself. So in order for someone to take advantage of a 1201 exemption that we have, they have to be a cybersecurity researcher and able to whittle their own tools and use it themselves, and that just doesn't scale. 57:45 Devlin Hartline: My name is Devlin Hartline, and I'm a legal fellow at the Hudson Institute's forum for intellectual property. 57:50 Devlin Hartline: I'd like to start with a question posed by the title of this hearing, is there a right to repair? And the answer is clearly no. A right is a legally enforceable claim against another, but the courts have not recognized that manufacturers have the duty to help consumers make repairs. Instead, the courts have said that while we have the ability to repair our things, we also have the duty not to infringe the IP rights in the process. So it is in fact, the manufacturers who have the relevant rights, not consumers. 58:30 Devlin Hartline: Right to repair supporters want lawmakers to force manufacturers to make the tools, parts, and know-how needed to facilitate repairs available to consumers and independent repair shops. And the assumption here is that anything standing in the way of repair opportunities must necessarily harm the public good, but these tools, parts and know-how, are often protected by IP rights such as copyrights and design patents. And we protect copyrighted works and patented inventions because, as the Constitution recognizes, this promotes the public good. We reward creators and innovators as an incentive for them to bring these things to the marketplace and the public benefits from the introduction of new products and services that increase competition. Thus, the right to repair movement isn't based on a pre-existing right. It's instead asking lawmakers to create a new right at the expense of the existing rights of IP owners. 1:00:45 Devlin Hartline: IP owners are merely exercising their federally protected IP rights, and this is not actionable anti-competitive conduct. It is instead how the IP system is supposed to work. We grant IP owners exclusive rights so they can exclude others, and this, in turn, promotes the investments to create and to commercialize these creative innovations in the marketplace, and that promotes the public good. Aaron Perzanowski: My name is Aaron Perzanowski. I am a professor of law at the University of Michigan, and for the last 15 years, my academic research has focused on the intersection of personal and intellectual property rights in the digital economy. During that time, the right to repair has emerged as a central challenge to the notion that we as consumers control the devices that we buy. Instead consumers, farmers, small businesses, all find that manufacturers exert post-sale control over these devices, often in ways that frustrate repair. Aaron Perzanowski: Repair is as old as humanity. Our Paleolithic ancestors repaired hand axes and other primitive tools, and as our technologies have grown more complex, from the Bronze Age through the Renaissance, to the high tech devices that we all have in our pockets here today, repair has always kept pace. But today, manufacturers are employing a range of strategies that restrict repair, from their hardware and software design choices to clamp downs on secondary markets, and we also troublingly see attempts to leverage IP rights as tools to restrict repair. These efforts are a major departure from the historical treatment of repair under the law, the right to repair is not only consistent with nearly two centuries of IP law in the United States, it reflects half a millennium of common law property doctrine that rejects post-sale restrictions on personal property as early as the 15th century. English property law recognized that once a property owner sells an item, efforts to restrain how the new owner of that item can use it are inconsistent with the essential nature of private property and obnoxious to public policy. As the Supreme Court has repeatedly recognized, IP laws' respect for the property interests of purchasers of copyrighted and patented goods was profoundly shaped by this common law tradition. In 1850, the Supreme Court recognized that the repair of a patented machine reflected "no more than the exercise of that right of care, which everyone may use to give duration to that which he owns." A century later, the Court held that the repair of a convertible car roof was justified as an exercise of "the lawful right of the property owner to repair his property." And just a few years ago, the court reaffirmed the rejection of post-sale restrictions under patent law in Impression Products vs. Lexmark, a case about refurbishing printer ink cartridges. Copyright law, not surprisingly, has had fewer occasions to consider repair restrictions. But as early as 1901, the Seventh Circuit recognized "a right of repair or renewal under US copyright law." When a publisher sued to prevent a used book dealer from repairing and replacing damaged components of books, the court said that "the right of ownership in the book carries with it and includes the right to maintain the book as nearly as possible in its original condition." A century after that, Congress itself acknowledged repair as a right that owners enjoy, regardless of copyright restrictions, when it enacted section 117 C of the Copyright Act. That provision was designed to undo a Ninth Circuit decision that allowed copyright holders to prevent third party repairs of computers. Section 117 C explicitly permits owners of machines to make copies of computer programs in the course of maintenance or repair. And finally, the US Copyright Office over the last decade has repeatedly concluded that diagnosis, repair, and maintenance activities are non-infringing when it comes to vehicles, consumer devices, and medical equipment. So the right to repair is firmly rooted in basic principles of US IP law. Aaron Perzanowski: Section 1201 of the DMCA makes it practically impossible for consumers to exercise their lawful right to repair a wide range of devices, from tractors to home electronics, even though the copyright office says those activities are not infringing, and the weakening of standards for design patents allow firms to choke off the supply of replacement parts needed to repair vehicles, home appliances, and other devices. Aaron Perzanowski: One way to think about a right is as an affirmative power to force someone else to engage in some behavior, and in some cases, that is what we're talking about. We're talking about imposing, especially on the state level, regulations that impose requirements on manufacturers. I think that's true of the Repair Act on the federal level as well. But, I think part of what we also need to keep in mind is that sometimes what you need to effectuate a right is to eliminate barriers that stand in the way of that right. So we can think about this, I think, helpfully in the context of tools that enable people to engage in repair. The state level solution has been to require manufacturers to give their own tools to repair shops, sometimes compensated under fair and reasonable terms. The other solution would be to change section 1201 to say, let's allow independent repair shops to make their own tools. I think both of those... /episode/index/show/congressionaldish/id/33099472

CD299: DNC 2024 08/28/2024

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