Seyfarth's Future of Automotive Series
On November 3, 2020, Massachusetts voters will go to the polls for the second time in less than a decade to consider a “Right to Repair” ballot initiative. Question One would amend Massachusetts law to force auto manufacturers to install a standardized, non-proprietary telematics platform in vehicles beginning with model year 2022 and make telematics system data available to independent repair shops, vehicles owners, and possibly others.
In 2012, over 85% of Massachusetts voters approved a “Right to Repair” ballot initiative requiring OEMs to share vehicle diagnostic and repair information and use a standardized, non-proprietary interface to allow independent repair shops to access vehicles service data. In the face of this overwhelming popular support, a group of trade associations representing repair shops and auto manufacturers in 2014 entered into a Memorandum of Understanding (MOU), in which the OEMs committed to equip vehicles with a standardized interface and make diagnostic information available in all 50 states.
The parties to the MOU agreed that “nothing in this agreement shall apply to telematics services . . . delivered to or derived from the vehicle by mobile communications.” Question One abrogates this understanding by explicitly defining “telematics system” to mean “any system in a motor vehicle that collects information generated by the operation of the vehicle and transmits such information . . . utilizing wireless communications to a remote receiving point where it is stored.”
Supporters of Question One argue that “as new cars become more computerized auto manufacturers are using a loophole to restrict access to data needed to diagnose problems, make repairs, and perform maintenance. Opponents contend that it “has nothing to do with fixing cars” but rather “is a data grab by third parties who want to gather your personal vehicle information and access it remotely, including location data in real time.”
In July 2020, the National Highway Traffic and Safety Administration submitted written testimony to the Massachusetts Legislature expressing concern that “[t]he ballot initiative requires vehicle manufacturers to redesign their vehicles in a manner that necessarily introduces cybersecurity risks, and to do so in a timeframe that makes design, proof, and implementation of any meaningful countermeasure effectively impossible.” The ballot initiative also may raise serious constitutional issues by implicitly seeking to regulate interstate commerce, and by arguably acting as a regulatory taking that requires OEMs to share proprietary information with third parties without compensation.
