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Federal Highway Safety Regulator Torpedoes Massachusetts Right-to-Repair
Legislation

The federal regulator cites concerns over hacking, but that argument is
an industry pretext.

On June 13, the National Highway Traffic Safety Administration's
(NHTSA) assistant chief counsel for litigation and enforcement, Kerry
Kolodziej, authored a letter
<[link removed]> to
the general counsels of 22 automotive companies around the world. Some
of those companies included BMW, Ford, General Motors, Kia,
Mercedes-Benz, Subaru, Tesla, and Volkswagen, among many others. The
letter informed automotive manufacturers that federal law preempted a
Massachusetts right-to-repair initiative by voters in 2020 by a 3-to-1
margin, known as the Data Access Law.

The argument from NHTSA is that the Data Access Law compromises
individual privacy because independent shops are more likely to lose
user data to hackers. Ironically, another federal agency has already
debunked this claim. The Federal Trade Commission issued a report
<[link removed]>
on right to repair in May 2021 that stated: "The record contains no
empirical evidence to suggest that independent repair shops are more or
less likely than authorized repair shops to compromise or misuse
customer data."

Alas, the federal government is large and its various agencies often
work at cross-purposes. But NHTSA's argument is little more than a
pretext advanced by auto manufacturers, who want their customers to have
no choice but to return to them for repairs and maintenance.

The specific technical questions surrounding the 2020 Massachusetts Data
Access Law revolve around an earlier right-to-repair law passed in the
state back in 2013. This earlier law required automotive manufacturers
to provide independent mechanics with the ability to access repair
information through the on-board diagnostics (OBD) for a vehicle.
Accessing that information required mechanics to buy diagnostics tools
from manufacturers, which is still expensive. However, at least there
was a channel for independent vehicle repairers.

But as newer vehicles increasingly rely on proprietary software updates,
the ability to access electronics through the OBD is no longer relevant.
Technology's infrastructure migrating to the cloud took automobile
electronics with it too, known as "over-the-air" updates
<[link removed]>. This
digital leap exposed the shortcomings of the original 2013 law, which
the 2020 law sought to rectify by ensuring that auto shops and laypeople
could wirelessly access the data.

The 2020 law was supposed to be a crucial advance for right-to-repair
advocates. Even though Massachusetts's 2013 law only held in that
state, the ability to access OBDs set a national industry standard for
auto shops and people who wanted to fix their cars. It would be too
onerous to offer access to automotive electronics in one state but not
another. Since there is no federal right-to-repair legislation, only
state-level rules protect this standard. Effectively, the 2020 law was
regulation trying to keep pace with the automotive industry's
technological growth.

The loudest voices against the legislation came from a coalition of
automotive trade groups called the Coalition for Safe and Secure Data.
They devised a parodically exaggerated
<[link removed]> fear-mongering campaign
that claimed access to wireless diagnostics information empowered
domestic abusers, stalkers, and other criminals, and cited supposed
concerns over redlining and racism without explaining them. Those
talking points were scrubbed from the website after YouTuber and
right-to-repair advocate Louis Rossmann uploaded a video
<[link removed]> criticizing the lobbying
effort.

[link removed]

Now, three years later, after automakers lost at the ballot and have
gummed up the implementation process through lawsuits, Kolodziej's
letter signaled a massive win for the industry. Now automakers can
ignore the Massachusetts law because the National Traffic and Motor
Vehicle Safety Act preempted the state one. As noted above,
Kolodziej's main concerns were over cybersecurity and the possibility
of hacking.

In early 2020, before voters in Massachusetts voted on the initiative,
NHTSA raised potential concerns
<[link removed]>
that the language as written would "prohibit manufacturers from
complying with both existing Federal guidance and cybersecurity hygiene
best practices."

Rossmann further explained how before Kolodziej entered public service
in January 2012, according to her LinkedIn profile
<[link removed]>, she worked for
the corporate law firm Mayer Brown for about six years. Wouldn't you
know it, Mayer Brown is the firm representing
<[link removed]>
the Alliance for Automotive Innovation against the state of
Massachusetts.

Within the lawsuit
<[link removed]>,
the Alliance for Automotive Innovation warned the state of federal
preemption over NHTSA enforcement of the Safety Act. However, a federal
judge denied
<[link removed]>
the auto group's later motion, thus allowing the state's attorney
general Andrea Joy Campbell to implement the law starting June 1, 2023.

The

**Prospect** asked the Department of Transportation if Secretary Pete
Buttigieg supported Kolodziej's letter and if it was appropriate that
NHTSA delayed clarifying federal preemption until after the law went
into effect. The agency responded with a statement: "NHTSA is aware of
and evaluating the automotive repair data sharing commitment letter
between the Automotive Service Association, Society of Collision Repair
Specialists, and Alliance for Automotive Innovation. The Agency strongly
supports the right to repair and is eager to find solutions that promote
consumers' ability to choose independent or DIY repairs without
compromising safety."

This statement is less than convincing, and it is representative of how
officials in federal offices can undermine what are supposed to be broad
agendas under an administration. As the

**Prospect** previously reported
<[link removed]>,
this has happened before. When the Antitrust Division of the Department
of Justice tried blocking a merger of two sugar giants, Agriculture
Department chief economist Barbara Fesco testified
<[link removed]> on behalf of
the sugar industry.

In the statement above, NHTSA is referring to a July 11 letter
<[link removed]>
from trade groups representing automakers and repair specialists sent to
lawmakers across both chambers serving on relevant committees. At first
glance, the letter seems progressive. Two groups that are typically on
opposite sides of the right-to-repair debate are coming together on a
"commitment between representatives of the independent repair community
and automobile manufacturers."

However, an automotive aftermarket publication reported that one of the
most respected advocacy groups in the right-to-repair community, Auto
Care Association, was not consulted
<[link removed]>
about the letter, nor did they support its content. The association's
criticism was that there was nothing binding about the agreement, thus
leaving no means of pulling automotive original equipment manufacturers
into participating or complying with its terms.

In addition, the agreement focused on maintaining the

**ability** to access, rather than provide direct access for independent
repair shops. The association suggested that the letter was really an
attempt to head off pending in the House, the Right to Equitable and
Professional Auto Industry Repair (REPAIR) Act.

So far, the only lawmakers to ask for an explanation for NHTSA's
timing and conclusions on the Massachusetts law have been the state's
U.S. senators, Elizabeth Warren and Ed Markey. As the two wrote
<[link removed]>:
"It is disappointing that NHTSA's letter relies on the argument pushed
by major automobile manufacturers that there is, in this case, an
irresolvable conflict between maintaining data security and providing
independent repair shops with the data they need to conduct repairs."

~ JAROD FACUNDO, WRITING FELLOW

Follow Jarod Facundo on Twitter <[link removed]>

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