Despite being a non-party to the ongoing lawsuit over the Massachusetts Data Access Law, involving state Attorney General Andrea Campbell, the Auto Care Association (ACA) has written in opposition to the National Highway Traffic Safety Administration (NHTSA)’s take that federal law trumps the state law.

The Alliance for Automotive Innovation (Auto Innovators) filed the lawsuit in 2020 following referendum approval by Massachusetts voters of the Data Access Law. The law is an extension of the state’s right to repair act and requires automakers to create and implement an onboard, standardized diagnostic system that would be accessible to everyone with or without OEM permission. Auto Innovators argues that OEMs can’t safely and consistently comply with the legislation — backed up by NHTSA in a June 15 letter.

While Auto Innovators reached a non-enforcement stipulation agreement with former AG Maura Healey, Campbell said shortly after taking office this year that she would begin enforcement of the law on June 1. Just days prior to that, Auto Innovators asked U.S. District Judge Douglas P. Woodlock for an emergency temporary restraining order (TRO) to put off enforcement. It was denied.

In its June 19 letter to NHTSA, ACA wrote it is “disappointed that NHTSA misapprehends the requirements of the Data Access Law and, therefore, erroneously concluded that the Data Access Law ‘poses significant safety concerns.'”

ACA represents more than 500,000 automotive aftermarket products and services businesses and “supports the rights of consumers and fleet owners to safely and securely access vehicle data to allow them choices regarding where they repair and maintain their vehicles,” according to the letter.

“NHTSA’s summary conclusion is based on its belief that the Data Access Law requires ‘open remote access to vehicle telematics,’ whereby vehicle data would be unencrypted and allow anyone to remotely send commands to a vehicle to manipulate safety-critical functions.” ACA President and CEO William J. Hanvey wrote in the letter. “This is not the case. NHTSA appears to have adopted the Alliance for Automotive Innovation’s (the “Alliance”) overly broad interpretation of the Data Access Law that is belied by the Massachusetts Attorney General’s more reasonable interpretation and the language of the law itself.”

ACA contends that the Data Access Law states access to vehicle telematics would be done securely and with authorization from the vehicle owner, quoting a portion of the law that reads, “limited to the time to complete the repair or for a period of time agreed to by the vehicle owner for the purposes of maintaining, diagnosing, and repairing the motor vehicle.”

The association said it backs Campbell’s interpretation of the law that the open access platform would have security measures to protect consumer safety and privacy and wouldn’t allow access to all vehicle systems but rather data needed for diagnosis, maintenance, or repair.

In addition to its argument that the stance Auto Innovators and NHTSA have taken is overly broad, ACA also says their interpretation of the Data Access Law goes against the “plain text” of the statute and the “reasonable interpretation” of the law by Campbell. ACA notes as well that Auto Innovators’ expert witnesses said during the 2021 trial that automakers would be able to safely comply with the law.

Hanvey concluded the letter by asking for a meeting with NHTSA “to discuss this matter further and provide additional detail regarding the ability of vehicle manufacturers to safely comply with the Data Access Law.”

Last year, Auto Innovators asked Woodlock to compel testimony from ACA, which it described as a proponent of the legislation in Massachusetts and Maine — another state looking to enact “right to repair” data access legislation and backed by ACA — to explain the “curious differences” between the two.

Auto Innovators contends that significant differences between the law approved by Massachusetts voters in November 2020 and the Maine initiative submitted in August, both promoted by ACA, show those who drafted the Maine legislation recognized that the Massachusetts legislation is flawed.

As of Wednesday afternoon, no case hearings had been scheduled nor had any additional court documents been filed.

On June 16, three days after the letter was sent by NHTSA, U.S. Sens. Edward J. Markey (D-Massachusetts) and Elizabeth Warren (D-Massachusetts) sent a letter to Secretary of Transportation Pete Buttigieg and NHTSA Deputy Administrator Sophie Schulman asking NHTSA to “reverse its course” on asking automakers “not to comply with Massachusetts’ Right to Repair law.” They noted that “big auto manufacturers” spent $25 million to oppose the initiative.

“NHTSA’s decision to give auto manufacturers a green light to ignore state law appears to favor Big Auto, undermine the will of Massachusetts voters and the Biden Administration’s competition policy, and raise questions about both the decision process and the substance of the decision by NHTSA’s leadership,” the senators wrote. “We are asking NHTSA to explain its rationale for its harmful actions and respect Massachusetts state law by reversing course…

“The timing of this letter was extraordinary: NHTSA had ample opportunity prior to June 1 to raise preemption arguments through the judicial process, including: (1) in the multiple filings it submitted to the court since the litigation commenced nearly three years ago; (2) as a response to Attorney General Campbell’s announcement over three months ago that the state would begin enforcing the law on June 1, and (3) even during the plaintiffs’ eleventh hour attempt to stop enforcement of the law. Although the state and outside experts introduced
evidentiary proof of the possibility of compliance at trial, NHTSA declined multiple requests from the judge to participate.”

The senators accuse NHTSA of sending the letter with no warning — effectively circumventing the legal process, contradicting a court order, undermining Massachusetts voters’ decision, harming competition and hurting consumers, and causing unnecessary confusion by voicing its stance nearly two weeks after enforcement of the law began, they 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,” the letter says. “Auto manufacturers have routinely raised safety concerns as a way to ‘change the subject’ and distract consumers from the fact that ‘vehicle repair and maintenance services from independent repair shops keeps the cost of service and repair down.'”

Markey and Warren asked NHTSA in the letter to reconsider its position on the matter and requested that Buttigieg and Schulman respond to their questions about NHTSA’s letter.

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