New US Agency Joins Fray Over Massachusetts Repair Law, Car Data

Automakers in Massachusetts shouldn’t comply with a state law that would require them to share more vehicular telematics data with third parties because it’s preempted by federal law, the National Highway Traffic Safety Administration warned.

The controversial law—which state Attorney General Andrea Campbell began enforcing on June 1—could allow hackers access to remotely access and control cars, the agency said in a Tuesday letter to manufacturers that it also filed with the US District Court for the District of Massachusetts.

The advisement represents the federal government’s most direct foray into a nearly three-year-long court battle over complying with the Massachusetts “right to repair” law and comes as similar measures are being introduced across the country. Massachusetts is the only state with right to repair protections for cars, but a growing volume of laws targeting personal electronics and products like wheelchairs have raised intellectual property and security concerns.

“A malicious actor here or abroad could utilize such open access to remotely command vehicles to operate dangerously, including attacking multiple vehicles concurrently,” the NHTSA’s letter said. “Vehicle crashes, injuries, or deaths are foreseeable outcomes of such a situation.”

The Alliance for Automotive Innovation sued the state in 2020, saying the law’s requirement that automakers share more repair data with third-party maintenance shops was unenforceable and preempted by several federal statutes.

The law expanded to cover vehicle telematics—which power GPS technology and on-board diagnostics as well as enable the transmission of data between vehicles and other devices—after state residents overwhelmingly approved a ballot measure in 2020.

The US Department of Justice filed a notice of interest in the case a year later, but the letter represents the traffic agency’s first public stance on the law. Maryland is currently the only state considering a right to repair law that covers cars, according to the US Public Interest Research Group.

Massachusetts’ right to repair law effectively requires that automakers provide “open remote access” to vehicle telematics, which flies in the face of safety standards established by the National Traffic and Motor Vehicle Safety Act, the letter said.

Such remote access could result in the dangerous manipulation of critical car systems including steering, acceleration, and braking by hackers, according to the agency.

Because the federal vehicle safety law is intended to protect consumers from being injured by known automotive defects before they occur—and not after—it preempts the state law and its “significant safety concerns,” the NHTSA wrote.

Lengthy Litigation

Automakers raised similar safety and preemption issues during a four-day bench trial held by Judge Douglas P. Woodlock in 2021. Two years later, he still hasn’t issued a ruling.

“What really delayed the case was the evidence was reopened when the Attorney General’s Office learned that a couple of OEMs had started to, as a way to sort of comply with the law, to disable the telematics data systems on their vehicles,” said Dallin Wilson, a consumer and commercial litigation associate at Seyfarth Shaw LLP.

The agency advised automakers against disabling vehicles’ telematics in its letter, saying doing so could jeopardize safety features like emergency response services and impede important sources of vehicle performance data the agency uses for oversight.

Automakers might have a higher degree of confidence in continuing to sell vehicles that are out of compliance with Massachusetts now that the NHTSA has weighed in on the matter, Wilson said.

The litigation will likely suffer further delays as a result of NHTSA’s letter, he said.

Woodlock on May 30 denied automakers’ request for an emergency restraining order preventing Campbell, Massachusetts’ attorney general, from enforcing the law starting on June 1. The judge’s office did not return a request for comment.

Campbell’s office, meanwhile, noted the agency’s previous silence regarding the law.

“The National Highway Transportation Safety Administration declined the opportunity to express, and prove, its concerns at trial, choosing to weigh in only by letter two years later,” First Assistant Attorney General Pat Moore said in a statement to Bloomberg Law. “We look forward to NHTSA’s explanation of precisely what has changed, and we will then evaluate our next steps.”

An Alliance for Automotive Innovation spokesperson declined to comment on the pending litigation.

Mayer Brown LLP and Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. represent the alliance. The Massachusetts Office of the Attorney General represents itself.

The case is Alliance for Automotive Innovation v. Campbell, D. Mass., No. 1:20-cv-12090, letter filed 6/13/23.