Steven Senne/AP Photo
Brian Hohmann, mechanic and owner of Accurate Automotive, in Burlington, Massachusetts, attaches a diagnostics scan tool, center left, to a vehicle and a laptop computer, February 1, 2022.
On June 13, the National Highway Traffic Safety Administration’s (NHTSA) assistant chief counsel for litigation and enforcement, Kerry Kolodziej, authored a letter 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 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. 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 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 criticizing the lobbying effort.
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 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, she worked for the corporate law firm Mayer Brown for about six years. Wouldn’t you know it, Mayer Brown is the firm representing the Alliance for Automotive Innovation against the state of Massachusetts.
Within the lawsuit, the Alliance for Automotive Innovation warned the state of federal preemption over NHTSA enforcement of the Safety Act. However, a federal judge denied 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, 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 on behalf of the sugar industry.
In the statement above, NHTSA is referring to a July 11 letter 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 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: “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.”
