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Back in February, Google paused its AI-powered chatbot Gemini’s ability to generate images of people after users complained of historical inaccuracies. Told to depict “a Roman legion,” for example, Gemini would show an anachronistic group of racially diverse soldiers while rendering “Zulu warriors” as stereotypically Black. Google CEO Sundar Pichai apologized, and Demis Hassabis, the co-founder of […]

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In November, federal judge Iain Johnston began an 89-page opinion by noting that the John Deere Historic Site, where John Deere the man invented the steel plow in 1837, is less than an hour’s drive from his courthouse. 

“The takeaway from a visit to this historic site is that John Deere was an innovative farmer and blacksmith who—with his own hands—fundamentally changed the agricultural industry,” Johnston wrote. “This multi-district litigation concerns allegations of non-competitive behavior by Deere & Co., a multi-billion-dollar international corporation. If—and that’s a big if—the claims against Deere & Co. are meritorious, then the Court assumes the man lionized at the historic site would be deeply disappointed in his namesake corporation.”

In that opinion, Johnston allowed a class action lawsuit against John Deere, which has already been winding its way through the courts for years, to continue forth in what he theorized would be “a long and expensive process.” 

For the last decade, farmers have been warning that John Deere, a company celebrated by farmers, country musicians, and politicians, has been doing something else very American: Concentrating power, stripping away the ownership rights of people who buy their products, and adding a bevy of artificial, software-based repair restrictions that have effectively created a regime in which farmers can no longer fix their own tractors, combines, harvesters, and other agricultural equipment. Farmers have resorted to pirating John Deere’s software and firmware on underground forums and torrent sites, and have used software cracked by Ukrainian pirates in order to simply fix the things they own. Farmers often have to wait days or weeks for an “authorized” John Deere dealership to come to their farms to repair their equipment, meanwhile their crops die on the vine. 

For years, very little happened to slow down John Deere’s march toward total control of the repair market. But interviews with farmers, activists, and lawyers, and a review of court records reveal a turn in the story: There is increased scrutiny on Deere’s repair practices not just in this class action lawsuit, but from state legislators, the White House, and a series of federal agencies. The walls on Deere’s repair monopoly may finally be closing in.

Solar Storm Knocks Out Farmers’ Tractor GPS Systems During Peak Planting Season

The accuracy of some critical GPS navigation systems used in modern farming have been “extremely compromised,” a John Deere dealership told customers Saturday.

404 MediaJason Koebler

In newer tractors, “Electronic Control Units … determine how—and if—the tractor functions,” the class action complaint against Deere notes. “Depending on the model, a tractor may have as many as 40 ECUs.” For many repairs, an ECU needs to be reprogrammed or paired with a replacement part, which “is a common and relatively straightforward step of many repairs involving replacement of an ECU which involves uploading software to the new controller. There is no way for a farmer to perform these types of repairs without being required to pay for service at a dealership.” Modern farming’s reliance on technology became clear to many over the weekend, when a solar storm caused GPS outages that made it difficult or impossible for farmers to run their tractors.

Kevin O’Reilly, a board member of the right to repair organization Repair.org who has done numerous reports about Deere’s repair policies, told me the way this plays out in practice for farmers “is frustrating because they’ve paid hundreds of thousands of dollars for this equipment and for some reason, they’ve got to call up the dealer who often comes out, plugs their laptop in, presses a couple of keys and everything starts running again. It’s a huge bottleneck for repair that can lead to delays of days to months to weeks.”

All of this frustration has contributed to the grassroots “right to repair” movement, which originally sought to pass state-level legislation requiring Deere and other manufacturers to loosen repair restrictions and make parts and repair guides available. 

I have covered this movement for a decade, and have repeatedly talked to the farmers, activists, and lawyers who have called out Deere’s repair practices and stressed the damage it causes to farmers. For a while, it felt like these farmers were a thorn in the side of Deere. People read the articles and watched a documentary we did at Motherboard about the issue. The problem got an increasing amount of attention, but little changed. 

However, in the last few years, the same people who originally raised the alarm have managed to go from being a mild annoyance to Deere to a Big Problem for the company: Jared Wilson, for example, filed an FTC complaint after a Deere dealership wouldn’t fix his tractor. He is now one of the lead plaintiffs in the class action lawsuit. Right to repair activists overcame Deere’s lobbying to get a law that covers tractors passed in Colorado last year. And now the White House, the Department of Justice’s Antitrust Division, the Federal Trade Commission (FTC), and the Environmental Protection Agency are all weighing in on Deere’s repair practices. 

“From the start, we’ve been kind of approaching this as ‘Let’s fight this battle in every arena that we can find, let’s pull every lever,’ so we can make sure farmers can fix their tractors and their combines,” O’Reilly said. “The efforts of the class action lawsuit are important because it’s a great way for farmers to get directly involved and bring attention to the injustice that they can’t fix their half-million dollar piece of equipment.”

Wilson told me that through the years, he’s had many issues getting his equipment repaired, and that there are many specific repairs he can’t do without the help of a John Deere dealer or without specific John Deere parts that often have to be shipped to him. Once, in fall of 2022, he had “just finished harvesting corn, and we switched the machine over to begin harvesting soybeans, and real quickly I realized something was wrong with the machine.” 

He eventually determined that his combine wasn’t getting enough power due to an emissions malfunction, and he needed something called a delta pressure sensor. He got one, then another. Then he and a John Deere dealer technician figured the problem wasn’t actually the delta pressure sensor, but an ECU, which took three days to arrive and couldn’t actually be turned on until the dealer’s technician uploaded a payload file to the ECU, which is something Wilson couldn’t get access to.

After replacing the ECU, it still didn’t work. It ended up needing a new valve for the exhaust system. Wilson said he had essentially no ability to diagnose the problem himself without diagnostic equipment or repair guides: “Without having all the data and information that Deere has to troubleshoot these problems, it makes it really hard for me to just randomly replace all the parts on a machine,” he said. “That entire time, I had soybeans that were falling on the ground.” 

Scrutiny From the Feds

Both inside the case and outside of it, different arms of the federal government are examining John Deere’s repair policies. 

Most importantly, lawyers for the DOJ filed a “statement of interest” last year in the case to “ensure that repair aftermarkets are analyzed under the correct legal framework to protect against anticompetitive abuses of market power in repair aftermarkets” and noted that “when [tractors] break or fail to operate and repair markets function poorly, agriculture suffers. Crops waste. Land lies fallow.” 

The DOJ filing specifically attacks some of Deere’s legal arguments, in which it asserted, essentially, that antitrust law should not apply in this case because farmers sign terms of use agreements with the company that outline its policies. The DOJ lawyers wrote “This court should reject Deere’s argument that deception or surprise is required to delineate a repair aftermarket.” 

In March, the DOJ’s Antitrust Division and the FTC filed a joint comment with the U.S. Copyright Office stressing the importance of repair, highlighting the filing in the antitrust case, and noting that “as software has become ubiquitous in everything from tractors to coffeemakers, digital ‘locks’ on devices have become the norm.” 

In 2021, the FTC issued a report to Congress called “Nixing the Fix” that explained various repair monopolies across industries and said it “received comments and empirical research lamenting protracted repairs for military equipment and tractors.” 

Right to repair advocates filed a separate FTC complaint about Deere’s repair practices in 2022. And 404 Media obtained a 2023 letter written by Environmental Protection Agency (EPA) administrator Michael Regan to the National Farmers Union clarifying that “the Clean Air Act and the U.S. Environmental Protection Agency’s implementing regulations clearly support repair by parties other than manufacturers.”

“Nothing in the Clean Air Act or the EPA's regulations limits a manufacturer's ability to provide service tools and information to consumers and independent repair facilities for the purpose of repairing their equipment,” Regan wrote. For years, Deere claimed that part of the reason it restricted repair was because farmers doing independent repair could tamper with emissions outputs. 

“We are required, because it’s a regulated emissions environment, to make sure that diesel engine performs at a certain emission output, nitrous oxide, particulate matter, etc., and so on,” John Deere CTO Jahmy Hindman told The Verge’s Nilay Patel on his Decoder podcast in 2021. “Modifying software changes that. It changes the output characteristics of the emissions of the engine and that’s a regulated device.” John Deere did not respond to a request for comment for this article.

A Memorandum of Understanding

So far, the class action lawsuit has been going on for almost two years and has 177 separate legal filings encompassing thousands of pages of arguments, many of them procedural. 

But several very notable things have arisen so far. Among them is the fact that John Deere pointed to a much-promoted and incredibly controversial January 2023 “Memorandum of Understanding” (MOU) that it signed with the American Farm Bureau, a powerful lobbying group that represents American farmers, as a reason for why the case does not have merit. This MOU is essentially a voluntary agreement in which Deere promised to provide a watered-down version of what farmers are actually asking for, and have since used that to argue that right to repair legislation is not necessary and that the lawsuit is not valid.

“The Memorandum of Understanding is the latest embodiment of Deere’s ongoing commitment to providing repair tools and resources and working alongside its customers and their advocates in the months and years ahead,” Deere argued in court. “Deere has consistently been at the forefront of the industry in working with its customers and their advocates to address repair access, and will continue to do so despite Plaintiffs’ and others’ attempts to malign their efforts. As laid out in the MOU, both Deere and American Farm Bureau believe that this type of direct dialog is the best way to understand and alleviate any concerns with the availability of repair tools and resources … it is questionable whether Plaintiffs believe that continued litigation is in their best interest or those of the proposed class.”

The plaintiffs, meanwhile, called it an “extra judiciary, unenforceable, and illusory compact with a single agricultural trade group” and wrote that “Deere has chosen to editorialize about the merits of the MOU, merits which, in Plaintiffs’ estimation, do not exist.”

All of this is notable because the judge allowed the case to proceed despite the existence of the MOU, which farmers say has been used by Deere since it was signed early last year as a political cudgel to show that Deere has made progress on the issue. The American Farm Bureau acknowledged a request for comment but did not provide one.

“I’m trying to explain the MOU without using four letter words,” Kevin Kenney, a Nebraska farmer who has been pushing for right to repair legislation and open farming data access for years, told me. “It is the most treasonous backstab the American Farm Bureau could have possibly done to a majority of their members, and there is absolutely nothing good that has come out of this.”

The reason Kenney says this is that farmers say they have not seen actual gains from the MOU, it has no force of law if Deere does not comply with it, and it has been used as an argument for why more forceful antitrust measures are not taken. “It is a political document. It is not a legal document,” Kenney said. “You can’t enforce an MOU on anybody for anything, it’s just like, I’m promising not to date your girlfriend, but guess what happened when you were out of town last week?”

“I have seen no effect whatsoever on repair and repairability associated with the MOU,” Willie Cade, senior policy advisor for agricultural right to repair at Farm Action, told me. “I have tried to figure it out by asking a lot of farmers ‘What is actually going on with the MOU?’ And to a person no one knows … It seems like it’s just business as usual.” 

“Companies such as John Deere have direct access to the data collected by the sensors and GPS systems installed in its machines, and increasingly, they also control that data."

O’Reilly told me that “it was common for legislators to point to the MOU and say ‘Hey, look, this problem appears to be fixed.’ I would argue that it was an attempt to co-opt the repair movement and, in some ways, it has been relatively effective in convincing legislators that there’s not a problem here.” In 2018, John Deere issued a “Statement of Principles” from 2018 that promised access to repair parts and guides by 2021. A report by O’Reilly and my reporting at Motherboard found that Deere didn’t hit that deadline and that parts and repair guides remained difficult to obtain.

Pushing for an MOU to avoid actual legislation that has legal force has become a strategy used by big manufacturers across the electronics and car industries, as 404 Media has previously reported.

The John Deere Cloud

The thing I hear from farmers over and over again is that they naturally see themselves as self-sufficient people who know how to fix the things they buy and want to fix the things they buy, just as they always have and how their families for generations before them also did. 

They understand that there are sometimes benefits to having a tractor that is essentially an internet-connected computer, but they worry not just about not being able to repair their tractor, but the fact that they are essentially locked into John Deere’s broader walled garden. 

John Deere offers, for example, a program called the “Operations Center,” which collects various information about crop yield to “create more efficiencies, more productivity, and more profits,” according to a John Deere Operations Center welcome email I obtained. “Manage your machine’s data connection within the Equipment tool in Operations Center. This connection provides continuous machine and agronomic data sharing, seamlessly linking you directly to your entire farming operation.” 

Both Kenney and Wilson said they know farmers who have had to sign contracts with large clients who require access to their John Deere Operations Center account, which essentially allows them to micromanage every aspect of farming. 

“They say it’s mandatory that you have a John Deere Operation Center account and they get to oversee everything you do in the field,” Kenney said. “If you do something wrong, you can lose your contract. It’s worse than Big Brother. It’s like the nasty cousin.” 

Every farmer I have ever talked to worries about what happens to their data on John Deere’s cloud, and worry about the sale of their data, even if it is anonymized and aggregated. A Deere executive said last year that its huge amount of data is “an asset none of our competitors have.” In a paper published in February, researchers at the Humboldt University of Berlin tried to answer the question “how is agricultural data transformed into value by the most powerful agribusinesses and ag-tech firms?”

“Companies such as John Deere have direct access to the data collected by the sensors and GPS systems installed in its machines, and increasingly, they also control that data. Farmers who buy new tractors cannot opt out of collection—crop data is automatically transmitted (along with other data) to a cloud-based infrastructure and used by the company's decision support platform and its proprietary algorithm,” the researchers wrote. “The company combines data from the level of individual farms with broader environmental datasets on weather and soil to generate recommendations that are sold to farmers.”

Deere itself says that it “maintains the security of its customer’s [sic] data through the most up-to-date encryption.” But a pseudonymous researcher called SickCodes has, in the past, found numerous vulnerabilities in John Deere tractors, including some that would have allowed the doxing of John Deere owners. That researcher has even jailbroken tractors to get Doom to run on the machine’s in-cab display.

Kenney also points to “See and Spray,” an AI-powered “upgrade kit” for John Deere sprayers in which “a machine learning model uses multiple images captured by the cameras to differentiate weed from crop. Once a weed is detected, a command is sent to the John Deere ExactApply™ nozzle to spray it. In addition, See & Spray Premium can be used to generate a weed pressure map for the field that was sprayed in the John Deere Operations Center.” This reduces the amount of herbicide needed. It is also a usage-based subscription feature that costs $4 per acre and requires signing a software licensing agreement to use. 

All of this—the difficulty farmers have repairing their tractors, the required embedded software, and a move toward having farming data live on a John Deere-owned cloud—is all part of the same problem. Farmers feel like they no longer own their tractors and, by extension, their own businesses. 

In Nebraska, Kenney is pitching a private 5G network that would let farmers own and control their data. What farmers say they want, essentially, is the ability to buy a piece of hardware (a John Deere tractor) and, if they want, install their own software or operating system. “I want to go up to a farmer and hand him a SIM card and say ‘See that John Deere tractor? Let’s pull their card out and put my SIM card in and keep the data off their cloud,” Kenney said.  

Farmers lament the fact that older tractors that remain easy to repair are increasing in price on the secondary market, and they understand that newer tractors, like newer cars, are essentially computers on wheels. They know that precision agriculture aided by technology can help their farms—they just don’t necessarily want to be locked into one specific manufacturer’s ecosystem forever. 

“I think there is a transition that is happening where we understand that our deference to corporate success really is at the cost of our individual liberties,” Cade, the electronics recycler turned right to repair activist, said. “Though the repair issue is much more observable, I think the data issue is a really, really important issue. I think the real game plan for Deere is [to] retain absolute control of the data.”

‘We’re Attacking One Cartel at a Time’

John Deere is not the only company that makes agricultural equipment, but it is by far the largest, it is hard to switch between them, and other companies have similar practices. “This is a classic oligopoly,” Wilson said, adding that there are three main companies in the agricultural equipment market: John Deere, Case New Holland, and AGCO. “All of these other manufacturers are doing the same stuff as Deere because John Deere, the market leader, is doing it.” 

“We have Deere because that’s what my dad had, I’ve been around it for decades, and I’m just more comfortable with it,” he added. “But I’m familiar enough with the others to know that you can’t get repair information from them the same way you can’t get it from John Deere. I would posit that if the market was functioning properly, we should have a manufacturer that comes out and makes more durable, easier-to-repair machines … I think when you start to look at how big American companies have gotten, the only way to prevent them from acting like this in the future is for them to receive enormous fines that are commensurate with their profits to prevent them from thinking it’s OK to engage in policies like this.” 

The idea that other companies are doing this too, or that it’s easy for farmers to switch, is one that came up in a hearing in the class action lawsuit last August. The court asked the plaintiffs why they are focusing the lawsuit on Deere and not the entire industry, if the repair problems persist across the entire industry, and that maybe they should have all been sued. “I think [the argument] was, well if there was something anticompetitive that one of the competitors was doing, they would have been sued too,” Adam Zapala, a lawyer for the plaintiffs, said. 

“All I would say to that is we are attacking one cartel at a time,” Zapala said. “They may be next.”

Amazon workers at some fulfillment centers can now purchase neck fans at an in-warehouse store using “swag bucks” earned for good behavior to prevent them from overheating on the job. 

The fans are stocked in Amazon’s in-warehouse “Swag Store.” Employees can earn Swag Bucks “for a variety of reasons to include strong safety performance, good teamwork, and more,” an Amazon spokesperson said. Employees who earn enough swag bucks can exchange their “money” for goods at the store. The swag bucks themselves can either be distributed electronically, on the app Amazon workers use to track their shifts, or physically as blue-green strips of paper with the Amazon logo, money bag emojis, and the Amazon mascot Peccy peeking out from behind the words “swag bucks.” The prizes at the Swag Store can range from Amazon backpacks and beanies to Keurig coffee machines and wireless earbuds.

But one recent post on the Amazon fulfillment center subreddit shared a photo of an announcement about the new availability of neck fans, with an image of a neck fan resting on a pile of ice. “Neck fans are now available in the SWAG Store,” the poster reads. “Please note: These are NOT to be charged by plugging them into any computer and/or equipment. We are currently in the process of getting charging stations in the 1st and 3rd floor main break rooms.”

The fan in the photo appears to be a USB-rechargeable Prubensic portable neck fan, available on Amazon for around $26. 

“Man screw the neck fans I’m sweating from my pits damnmit [sic],” reads the title of the post. “Turn the AC up you frugal bastards.” One person in the Amazon Discord server responded to the same image with a distressed frog emoji, saying, “Yes, ‘buy’ the cooling we’re too stingy to pay for as a trillion dollar company.”

When asked for comment, an Amazon spokesperson directed 404 Media to a blog post last June about how Amazon was helping its workers to beat the heat. “We’ve installed a variety of cooling measures in our buildings, including climate control systems and our state-of-the-art Building Management Systems, which constantly measure the temperature and heat index (temperature plus humidity) in our facilities and proactively alert employees when climate conditions change,” the post states. “Amazon is one of only a few companies in the industry to install climate-control systems in our fulfillment centers. Our industrial fans provide cooling comfort for work areas, and we also have air-conditioned crew vans at all of our Amazon Air hubs.” 

In February, the California Occupational Safety and Hazard Administration issued three citations against an Amazon Air hub for not providing adequate shade and water in accordance with California law. Instead, the citation alleges, Amazon “utilized the shadow under the Boeing 767-300” where the employees were working.

A Reddit post from several months ago shared a list of Swag Store items which includes neck fans of various colors. A black neck fan was listed at $28, a solid white neck fan at $25, and a “white graffiti” neck fan at $41. The poster called the prices “disappointing.”

Special Counsel Robert Hur described President Biden as a "well-meaning, elderly man with a poor memory." The White House did not invoke executive privilege to block the release of the transcript of Hur's interview with Biden. The House Oversight and Judiciary Committees requested the audio recording of Hur's interview. Now the White House has invoked executive privilege to block the release of the audio.

White House Counsel Ed Siskel gave the House's request two-thumbs down:

The President has a duty to safeguard the integrity and independence of Executive Branch law enforcement functions and protect them from undue partisan interference that could weaken those functions in the future. As you know, the Attorney General has warned that the disclosure of materials like these audio recordings risks harming future law enforcement investigations by making it less likely that witnesses in high-profile investigations will voluntarily cooperate. In fact, even a past President and Attorney General from your own party recognized the need to protect this type of law enforcement material from disclosure.

The absence of a legitimate need for the audio recordings lays bare your likely goal—to chop them up, distort them, and use them for partisan political purposes. Demanding such sensitive and constitutionally-protected law enforcement materials from the Executive Branch because you want to manipulate them for potential political gain is inappropriate.

Siskel's letter, as well as another letter by Attorney General Garland, dances around a key issue: given that the transcript has already been released, what is the risk of releasing the audio?

Consider the difference between reading the transcript of a Supreme Court proceeding and listening to the oral argument audio. For years, the Supreme Court resisted live-streaming oral argument, or even a same-day release. Why? Several justices acknowledged they were worried that audio from the proceeding could be spliced up and used for political purposes. Fast-forward to the present day, and all of the cases are live-streamed. As far as I can tell, the fears about chopping up audio have not materialized.

Back to President Biden. The White House is clearly worried that the audio may make him sound like a "well-meaning, elderly man with a poor memory." And that audio will be mercilessly used by the Trump campaign. It is possible that future witnesses may hesitate to voluntarily participate in high-profile investigations if both the transcripts and audio are released. But in the present moment, the protection of President Biden is paramount.

I see politics on both sides. The Republicans don't actually need the audio to learn more about the investigation. They want to embarrass Biden. And the White House has no real justification to withhold the audio, other than to protect Biden from embarrassment. Once again, politics and presidential power overlap. There is nothing new under the sun.

The post Why did President Biden invoke executive privilege over the recording of his special counter interview, but not the transcript? appeared first on Reason.com.