In the ongoing “right to repair” lawsuit in Massachusetts, in which the National Highway Traffic Safety Administration (NHTSA) recently agreed with the plaintiff Alliance for Automotive Innovation (Auto Innovators) about alleged safety risks, the Massachusetts Right to Repair Committee has fired back at NHTSA.

The suit was filed by Auto Innovators against the Massachusetts Attorney General’s Office in 2020 after the passage of the Data Access Law, which was approved by referendum on the state’s November 2020 ballot. The law is an expansion of the state’s right to repair law and requires OEMs to create and implement an onboard, standardized diagnostic system that would be accessible to everyone with or without OEM permission. Auto Innovators argues in its lawsuit that OEMs can’t safely and consistently comply with the legislation.

In a letter sent to 22 automakers earlier this month, NHTSA warned that federal law preempts the newly-enforced Data Access Law in Massachusetts and laid out safety concerns if the state law is followed. The law was approved by referendum on the state’s 2020 ballot.

Stating in its June 21 letter that it’s responsible for the 2020 right to repair ballot question, the Massachusetts Right to Repair Committee contends that the law doesn’t pose safety risks.

“We are very disappointed that NHTSA either (a) does not comprehend the terms and conditions of the Data Access Law and opined, incorrectly, that the Data Access Law ‘poses significant safety concerns’ or (b) was manipulated into giving its opinion by the automobile manufacturers,” the committee’s letter states. “Of particular concern is NHTSA’s adoption of the manufacturers’ allegation that the Data Access Law requirement of ‘open remote access to vehicle telematics’ would allow ‘malicious actors’ to send remote commands into vehicle safety systems.”

The letter was filed in Massachusetts U.S. District Court on June 23 as part of the ongoing lawsuit against the Attorney General by Auto Innovators. The committee wrote that NHTSA is complicit in automakers’ commercial interests, and chose to ignore specific parts of the statute as well as Attorney General Andrea Campbell’s interpretation of the law.

In an opposition memorandum filed by Campbell in May, she argued that some OEMs have already taken steps to come into compliance with the law essentially disproving Auto Innovators’ argument that compliance isn’t possible.

“…the evidence at trial showed that OEMs can securely comply with the Data Access Law without violating federal law,” she wrote. “Some OEMs are already in compliance, and others can comply with the law if they devote the resources and time to make appropriate changes to their vehicles’ architectures.”

The state’s right to repair committee said last week in its letter that if NHTSA understood Campbell’s interpretation “it would objectively conclude that the law can be implemented in a safe and secure manner.”

“In fact, the Data Access Law expressly states that the ‘open access platform’ ‘shall be capable of securely communicating all mechanical data emanating directly from the motor vehicle,’ and only ‘upon authorization of the vehicle owner’ may access to vehicle data be given to an independent repair facility,” the committee wrote.

“One can only wonder what led NHTSA to opine that the Data Access Law is preempted by the Motor Vehicle Safety Act two years after the trial, where the evidence was to the contrary.”

The committee asks in the letter that it be able to meet with NHTSA “to explain the safe and secure method in which the law will be implemented.”

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More information

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