Fed Agency: “Malicious Actor” Could Exploit Vehicle Repair Law

Federal Judge Must Weight Latest NHTSA Missive

STATE HOUSE, BOSTON, JUNE 14, 2023…..Federal transportation officials dealt a major blow to a voter-approved Massachusetts law boosting access to motor vehicle telematic data, warning that the measure on the state’s books “poses significant safety concerns.”

The National Highway Traffic Safety Administration on Tuesday effectively told major automobile manufacturers not to comply with the state’s “right to repair” update because it conflicts with federal vehicle safety law, which takes precedence.

The law, which sailed to success in 2020 with 75 percent of voters in support, requires manufacturers of cars sold in Massachusetts to make telematic maintenance and repair data available to owners and independent shops.

Supporters view it as an update to a 2012 right to repair law that will give individual consumers and smaller repair businesses access to modern vehicle diagnostics, thereby providing owners more options than going directly to an authorized dealer — which is often more expensive — when they need vehicle work done.

But NHTSA Assistant Chief Counsel for Litigation and Enforcement Kerry Kolodziej told nearly two dozen companies that the Massachusetts law explicitly requires them to provide “the ability to send commands” in their data access, which federal regulators said could allow for remote manipulation of steering, acceleration, braking and air bags.

“A malicious actor here or abroad could utilize such open access to remotely command vehicles to operate dangerously, including attacking multiple vehicles concurrently,” Kolodziej wrote in a letter filed in federal court. “Vehicle crashes, injuries, or deaths are foreseeable outcomes of such a situation.”

Complying with the Massachusetts requirement to open remote access to telematic data would “conflict” with obligations manufacturers already face under federal law, which preempts the state law, Kolodziej said, adding that MHTSA “expects vehicle manufacturers to fully comply with their Federal safety obligations.”

NHTSA’s involvement might alter the fate of the law, which has been mired in legal battles since it secured victory at the ballot box. The final decision rests with U.S. District Court Judge Douglas Woodlock.

Manufacturers challenged the law in federal court soon after the measure passed, and Woodlock in June 2021 held a bench trial. That month, attorneys for the federal government said in a court filing that “the United States takes no position at this time” on whether the Massachusetts law was “preempted” by the National Traffic and Motor Vehicle Safety Act.

For more than two years since then, parties have been waiting for Woodlock to make a ruling on whether the law can stand.

Attorney General Maura Healey at first agreed not to enforce the law while it remained in limbo, and her successor Andrea Campbell in March signaled she planned to begin enforcement on June 1.

Dealerships are now required to inform buyers if a new vehicle uses telematics systems, and the AG’s office has begun accepting complaints.

“The National Highway Traffic Safety Administration declined the opportunity to express, and prove, its concerns at trial, choosing to weigh in only by letter two years later,” said Pat Moore, the first assistant attorney general in Campbell’s office. “We look forward to NHTSA’s explanation of precisely what has changed, and we will then evaluate our next steps.”

NHTSA had mostly been a spectator during the court proceedings, but the agency had previously gotten involved to voice concerns when the law was still just a proposal.

In July 2020, about four months before the question went before voters, NHTSA wrote to Massachusetts lawmakers reviewing the initiative petition and said the remote vehicle access it outlined “may potentially pose an unreasonable risk to safety.”

Tommy Hickey, executive director of the Right to Repair coalition that led the successful ballot question campaign, blasted NHTSA’s latest intervention as “unsolicited, unwarranted, and counterproductive.”

“NHTSA’s letter is irresponsible, having been transmitted without any new evidence and after the conclusion of the federal trial, despite having been asked by the judge to participate in the court proceeding and declining,” Hickey said in a statement. “NHTSA’s letter fails to acknowledge the evidence and testimony presented at the trial that demonstrated the viability and security of an open access platform. This is yet another delay tactic the manufacturers are using to thwart the will of their customers, Massachusetts voters who voted 75-25 in favor of their right to get their car repaired where they choose. The FTC, the Biden Administration, and many members of Congress have all come out in support of Right To Repair.”