Right to Repair Redux: Massachusetts Ballot Questions

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By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

Massachusetts has been ground zero for spearheading state efforts to enshrine a right to repair into state law, starting with its passage by 87% in 2012 of a ballot question that resulted in landmark 2013 legislation.

This initiative mandated sharing dealer-generated repair information with third-party auto repair services.

Now, the question is whether vehicle owners and independent repair facilities should have expanded access to mechanical data related to vehicle access and repair. As Southcoast Today tells the story,QUESTION 1: Massachusetts Right to Repair returns, eyes telematics data:

Adoption of Question 1 on the Tuesday, Nov. 3 ballot could over time shift a large section of the auto-repair business from manufacturer-run dealerships toward third-party chains and independent car-repair garages.

A “yes” vote supports giving independent repair shops access to what is called telematics data, information generated by sensors in newer vehicles and wirelessly transmitted to isolated servers that only automakers can access. Telematics systems cull the vital signs of motor vehicles and, among other capabilities, alert automakers when they require maintenance.

“Telematic systems have the capability to give you a breakdown of how your car is operating and performing in real time,” said Tommy Hickey, the director of Massachusetts Right to Repair, the group behind the Yes on 1 campaign.

A “no” vote maintains the status quo whereby auto manufacturers exclusively keep the telematic data for themselves and their authorized dealerships.

The Massachusetts Right to Repair Coalition, backed by national repair chains and independent repair groups, argues passage levels the playing field of an unfair monopoly on repair, maintenance and diagnostic testing once telematics systems become ubiquitous.

Metrowest Daily News in JAM SESSION: Right to Repair asked several potential voters their position on the question. All six of them gave reasons for voting yes.

Here are just three answers:

Rick Caproni

The Right to Repair initiative is a no brainer.

Eighty-seven percent voted yes to the original law in 2012 and a similar plurality should be realized in 2020.

It is common sense that our local repair shops should be able to access the telematics in order to service and/or repair our cars.

The fact that our legislators have not passed a right to repair law is another example of the dysfunction and dishonesty taking place daily on Beacon Hill. Only a wave of the hand from Speaker DiMasi would be needed to get this done. He and his gang of five top committee members control the agenda, which is constantly in logjam mode. All should be investigated to see how much money they are receiving from the auto dealers and manufacturers to defeat this common sense privilege for the citizens of the commonwealth.

The constant stream of TV commercials is disturbing with the “no” people claiming that foreign powers would access our personal data . An outrageous claim.

How absurd, threatening and unprofessional is the behavior of the opponents of this question.

Yes, yes and yes is our duty and opportunity to support this initiative.

Rick Caproni is a Town Meeting representative from Precinct 15, a retired equipment leasing executive and a self described political activist.

….

Heidi Mayo

Having proprietary systems on vehicles makes no sense at all. It’s inconvenient and expensive to be forced to get your car serviced by a dealer when there are trusted, knowledgeable and capable mechanics in your own locale, or you might even prefer doing it yourself. People should be able to service their vehicles – and access data of the vehicle they own – without having to pay the exorbitant costs at the dealership. Open-source systems are fair (and dare I say, democratic), while closed systems are exclusive and costly. Car manufacturers can set prices any way they like if there’s no competition, and that’s anti-capitalistic and thwarts a free and competitive market. This has nothing to do with protecting data, and everything to do with forcing you to use a dealership for repairs. Note the top donors of the No on 1 campaign: General Motors, Toyota, Ford, Honda and Nissan. Enough said. Support local mechanics and an owner’s right to access their own data. Don’t be fooled by the naysayers; they just want your money.

Heidi Mayo is an artist, teacher, author, and activist with Indivisible Plymouth, Plymouth Area League of Women Voters, and Ocean Protection Advocacy Kids. Her book ” Nelson Telson – The Story of a True Blue Blood,” is a Readers’ Favorite Gold Medal winner. Views expressed are solely the author’s, and not necessarily reflective of policies and practices of associate organizations.

….

Ed Russell

I will vote Yes on the Right to Repair question. I like my independent repair garages and most of the time I don’t use dealers for repairs because of the extra cost. The $25.8 million opposition is led by GM, Toyota, Ford, Honda, and Nissan to protect their monopoly repair prices. Some of their clams are so outrageous that I have a reaction I would have to a bully. If they have scared you to think that a murderer will come to your house, be reassured that you do not have to give the garage permission to access this data. However, using the diagnostic system saves time and that means my money. With repair people that I like and trust I can discuss what’s wrong and what’s the best fix is for my budget and my driving peace of mind. You don’t often get a chance to talk to the technician at the dealer. Don’t be bullied.

Ed Russell is an attorney and a Precinct 12 Town Meeting representative, and he serves on a number of town committees.

What impressed me about the answers quoted is the understanding these voters have of the importance of small, independent, local repair services, compared to dealerships beholden to some form of national control. There’s also an inherent suspicion of proprietary systems. At the grassroots level at least, people still easily see through neoliberal rhetoric.

The Industry Position

As for voices on the industry side, Forbes features, one Bryan Reiner, “a Research Scientist at the Massachusetts Institute of Technology Center for Transportation and Logistics where I cofounded and lead two industry-academic research partnerships involving automakers, suppliers, insurers, technology companies, and research organizations”, Right To Repair Or A Fight For Survival?:

In 2012 when proponents were negotiating what became the landmark 2013 Massachusetts automotive right to repair legislation, today’s leading producer of electric vehicles, Tesla, sold just over 3,000 cars. This year, estimates suggest that Tesla may deliver over 500,000 vehicles. Potentially accelerating the shift to advanced technology vehicles further, California announced last month an effort to phase out the sale of new gas-powered passenger vehicles by 2035. How does any of this relate to the 2020 Massachusetts Question 1 ballot initiative looking to augment right to repair?

Readers lament what many cars have now become. And it is only relatively recently that the right to repair has become an issue. It would be a foreign concept to my father, for example, who passed away in 2000. (My beloved father was certainly known for his unique approach to do-it-yourself repairs – and I will some day share  some of what we in the family still chuckle about: Harry’s Home Repairs– with the NC community. Just one example that I cannot resist. He once  painted the living room, without bothering to take down any of the framed pictures first; he just painted around them. That was one response to Mom’s demand that the living room needed to be painted NOW – even in the midst of some televised professional sporting event. But I digress.)

The days when the mechanically minded could pull apart – and repair the largely mechanical innards of the family car- are long gone. Instead, cars now embody software in most functions, and a visit back to the dealer (or a good independent repair shop) is necessary to fix problems. Why should the dealership have exclusive access to the telematics that pinpoint where difficulties might be?

According to Reiner in Forbes:

Over the past several decades, vehicles have moved from being primarily mechanical systems, with thousands of moving parts, to systems that draw together fewer mechanical pieces with a broad array of electronic componentry and networks linked by computer software embedded with artificial intelligence. Electric vehicles have dramatically fewer moving parts, potentially accelerating a tipping point towards a largely smart consumer electric device on wheels. The promise of connected, automated electric mobility will further amplify the trends towards higher technology cars in the decades to come. Software, unlike hardware, is increasingly updated through wireless networks and manufacturer provided vehicle service to enhance performance and functionality throughout the vehicle’s lifecycle. As Tesla is demonstrating, cars of all types might actually improve as they age.

In this context, Massachusetts Question 1 is a referendum on how traditional independent automotive repair shops and aftermarket part suppliers are going to function as part of tomorrow’s automotive ecosystem. The ballot initiative aims to enact a law that opens connectivity to any vehicle-specific data “for the purposes of maintaining, diagnosing and repairing the motor vehicle.” The law would require that “access shall include the ability to send commands to in-vehicle components if needed for purposes of maintenance, diagnostics and repair.”

Unsafe at Any Speed; Ralph Nader and Auto Safety Regulation

Now, it’s cliche I hesitate to mention: America’s love affair with the car.

How we should regulate issues  related to our vehicles has been part of the public policy debate at least since Ralph Nader burst into the public scene with his seminal Unsafe at Any Speed in 1965. So this is not a new regulatory problem that may be laid at the feet of the Tump administration. But one where all his recent predecessors are sadly responsible for the sorry federal state of affairs. 1965 takes us squarely back to the Johnson administration – where LBJ has just trounced arch-conservative Barry Goldwater in the 1964 election and which was far from a low point of federal attitudes towards regulation.

As I wrote in this 2017 post, Unsafe at Any Speed Redux: Pinto and Takata Recalls Compared:

Now, auto safety has long been a big problem in the US.  As many older readers might recall, Nader first burst onto the national political scene with publication of his book, Unsafe at Any Speed: The Designed-In Dangers of the American Automobile, in 1965. I don’t have my copy of the book to hand, so I’m relying on my memory and permit me to quote from this New York Times account,  50 Years Ago, ‘Unsafe at Any Speed’ Shook the Auto World:

But most of the book focused on a long list of neglected safety issues ranging from brake performance to drivers’ being impaled by noncollapsible steering wheels and poor crash protection. The sharp-edged theme was that there was a “gap between existing design and attainable safety” and the auto industry was ignoring “moral imperatives” to make people safer.

The book became a best seller, and in 1966, Nader was invited to testify before a Senate subcommittee on automotive safety. Later that year, Congress passed 1966 National Traffic and Motor Vehicle Safety Act. This legislation established  the auto recall system, and created the Department of Transportation, as well as various precursor agencies that in 1970 became the National Highway Traffic Safety Administration (NHTSA), as part of the 1970 Highway Safety Act).

Now, these reforms were certainly a significant step forward– much better than what went before. Yet they also bequeathed two problems that certainly contributed to the current Takata impasse.

First, as originally designed, the 1966 auto safety legal framework eschewed criminal penalties for culpable auto companies and their executives, and instead relied heavily on civil liability. Consumer advocates have spent the last 50 + years trying to fix that, with little success, and it’s extremely unlikely that the current Congress is going to change anything in this regard. While the 2000 Transportation Recall Enhancement, Accountability and Documentation (TREAD) Act, established a limited basis for holding auto executives criminally liable for failing to disclose a safety defect, this has been sorely inadequate as either a deterrent, or a means to promote rapid correction of problems. Under TREAD, prosecutors must satisfy a far more stringent standard than the looser ones they can be used under regulatory statutes that establish the basis for criminal liability in other industries. Auto executives benefit from a generous safe harbour provision that allows an executive considerable leeway to fix the original safety violation.

I should point out that  several automakers began recalling vehicles in the US with defective airbags in 2014. So, the combination of a weak statutory basis for automaker liability and the Department of Justice’s adherence to the Holder doctrine (followed by the Yates memorandum– which translated into plain English means that the DoJ generally pursued civil rather than criminal actions against corporations and their executives– meant that prosecutors were not exactly zealous in pursuing corporate transgressions.

Regular readers are well-aware that DoJ policy led to a failure to pursue any too big to fail banks– or anyone in their C-suites– for legally culpable activity that led to the great financial crisis. I’ve discussed this issue here, The Obamamometer’s Toxic Legacy: The Rule of Lawlessness among other places. The takeaway for this post is it’s not just bankers that got away with minuscule monetary penalties, relative to damage caused– mere slaps on the wrist– but other companies as well.

I don’t want to belabor this point, so allow me to return to discussing the second relevant defect in the creaky vintage-1966 auto recall system: the failure to update procedures.  Now, alert readers will probably say that these characteristics are not bugs but features, and with that assessment I would have to agree. For starters, many recalls are ‘voluntary’– undertaken by the company after it becomes aware of a safety defect– while others are triggered by an NHTSA investigation.  The system requires companies to repair the defect free of charge, and one might imagine that companies might not be rushing to inform consumers that they’re eligible for a recall. Yet get this: Guess how companies inform customers of problems? They use first-class mail! Wow, I guess this is another strong argument for keeping the US Postal Service going (not as strong as would be creating a Postal Savings Bank, but I digress).

The  laughably antiquated system makes monitoring the status of  a recall difficult, not to mention informing consumers of potentially lethal defects and that they should and can be fixed– at no cost to the consumer (other than lost time and their lack of access to the vehicle while the repair is being undertaken). Some have suggested that it might be high time to make use of technologies that might allow a manufacturer to access a vehicle’s electronic system to inform consumers of recalls (I leave aside for the time being surveillance concerns such a system might raise).

At this point, alert readers who are still with me are wondering why I have chosen to reprise this passage on federal auto safety regulation in a piece on state auto regulation of the right to repair?

Good question.

Answer: federal regulation of auto safety has proven to be such a shambles, never reaching the promise first hoped for when Ralph Nader first raised the issue in 1965. This is a basic conclusion of my 2017 post.

So, when Reiner, whose biography certainly suggests his openness to the auto industry point of view, devotes space to explaining the defects in the pending Massachusetts approach and calls instead for a federal solution, we should note how lacking federal attention to that arguably much more aspect of auto regulation – basic safety – has been. Over to Forbes again:

A vision for the future of vehicle warranty and repair is needed. This is not a simple topic and one that state legislatures are not traditionally equipped to address. As such, I would argue it is a topic for federal leadership. Why you might ask? Quite simply, the National Highway Traffic Safety Administration (NHTSA) is responsible for writing Federal Motor Vehicle Safety Standards (FMVSS) which specify design, performance, and other related requirements for motor vehicle safety.

Federal leadership is needed to ensure that the 50 states are not moving in 50 different directions and that vehicles on our roads, and their on-board systems and connected data, are safe and secure. Aligned with its oversight responsibility, NHTSA has offered testimony on concerns over safety-related cybersecurity risks of the measures called for in the Massachusetts ballot initiative. The testimony notes that the “terms of the ballot initiative would prohibit manufacturers from complying with both existing Federal guidance and cybersecurity hygiene best practices.”

And I suggest when Reiner calls for Massachusetts voters to reject the state’s bird in the hand solution, his plea for a deeper, more comprehensive federal solution is really just a means of burying the issue. Or that will certainly be the net effect, although I cannot prove of course that is his intention. But I can say, especially with the national lobbing muscle I know the auto industry will deploy, that will be the ultimate effect.

Again according to Forbes:

With the bulk of the funding advocating for and against Massachusetts Question 1 coming from out of state, one has to remember that the proponents picked the Commonwealth’s traditionally sympathetic right to repair voters to avoid a national litmus test. When voters make their decision around this seemingly simple ballot question, they need to understand that they are helping proponents avoid a needed national discussion around the foundations and evolving complexities of vehicle repair.

A vote for Question 1 tries to double down on what arguably was a historically consumer friendly move, without taking the time for a critical dialog around the future of repair in an evolving connected, automated, electric mobility system. Perhaps it is time for Massachusetts Voters to resist what is for many a well-intended impulse, vote no on Question 1, and keep the door open for an serious and open debate on what actually is the most efficient, safe, and secure role for manufacturers and independent repair to coexist in a rapidly changing automotive landscape.

The six points of view featured in Metrowest Daily News are squarely from Massachusetts. They’re not out of state voices. And they demonstrate a healthy skepticism to dealers, funded and beholden to large international companies, such as GM, Toyota, Ford, Honda, and Nissan, rather than the smaller, independent, local, mom & pop entities these Massachusetts voters champion.

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19 comments

  1. timbers

    But if we allow telematic data to be shared, Russia could more likely obtain it to sow chaos on the roads amongst motorists thus creating discord in the nation that causes Trump or Putin’s preferred candidate to win the election.

    Reply
    1. Jerri-Lynn Scofield Post author

      Believe it or not, this is the type of argument the auto industry is pushing to keep hold of the data.

      Reply
    2. Carolinian

      It’s actually not a joke. Do we really want dealers–or anyone–having Internet of Things access to our cars? I don’t.

      All cars have a plug now near the steering wheel where the dealer and to varying extent third parties (even owners) can plug a wired device into the car to read internal trouble codes. My understanding is that the further sharing via cell networks only happens if you subscribe to an Onstar type service (which costs money). But maybe that’s not true. If it isn’t I’d be more interested in legislation making sure it is. Telematics is not just about car repair but also about tracking people. It’s very Big Brother–potentially.

      Reply
        1. Carolinian

          Why would I want telematic data? I’m driving the car. I know where I’ve been.

          If the car has a problem that only reveals itself while driving then those plug devices can record performance and statistics. This may require a more expensive plug in device or a subscription to the car company’s software.

          Reply
          1. Carolinian

            Just to add there’s a very real issue with car mechanics having access to the needed information for these increasingly electronic cars. I now have a fairly recent model and everything in it is controlled by microprocessors.

            But I believe that’s completely different from “telematics” for the reasons stated above. I have no problem with car companies keeping this proprietary and opt in. We really don’t want third parties getting information about our cars without our consent. It would be like open medical records.

            Reply
  2. MF

    Metrowest is one of the few newspaper sites in the Northeast that even allow commenting. The rest all shut their versions down or don’t have a section. You can probably guess why.

    The best thing about New England Democrats is that they are still opposed to big business, big government, etc. and have always had that healthy dose of skepticism.

    The worst thing about New England Democrats is that they have likely been taken over by the extremists and will vote blue no matter what :/

    Either way I don’t even know why this is being brought up again unless the auto industry is pulling the same tricks it used to. Repair data is repair data and it should be known. The *old* way was when you tweaked a part or it broke. The *new* way is the same, just through software and sensors. Or of course…through an “app” /facepalm

    Reply
  3. Hayek's Heelbiter

    An aside, a friend who used to repair tube television sets and now mostly repairs tube amplifiers for rock musicians, but also repairs electronic control units (ECUs) for cars, tractors and other industrial equipment.
    He lives in a very posh area of the UK, and a year or so ago, someone called up with a £1m bespoke Ferrari where the ECU had packed up. There were only four of this model built, and there were no spare ECUs. The last my friend heard, the Ferrari owner had a £1m paperweight.
    My friend also mentioned that in ten to fifteen years, this is going to a real problem, especially with luxury cars where there is no aftermarket. He suggests that you should buy a Ford Fiesta, as you will ALWAYS be able to find a replacement ECU.
    Anybody have any ideas whether open source telematics as mandated by Right-to-Repair will increase the longevity of ECUs?

    Reply
    1. albrt

      I’ll be happy to buy an electric car, or maybe even a Ford Fiesta, just as soon as they make one that’s as simple, functional, and non-software dependent as my 1987 Toyota truck.

      Reply
  4. Swamp Yankee

    Point of clarification: the Jam Session is originally from Plymouth newspaper the Old Colony Memorial. It was reprinted by its parent company in the Metrowest News. Caproni is quite the right winger, too, so it’s interesting to see his support for Question 1.

    Reply
    1. Jerri-Lynn Scofield Post author

      Thanks. I found it online and the link reads Metrowest News and I was unaware of these details. Although I lived in Massachusetts for a total of 7 years, during two stints, I left in ’91, and there is much I have forgotten. Interesting about Caproni. Thanks for sharing that.

      Reply
      1. Another Scott

        They’re both owned by Gannett (formerly Gatehouse) so a lot of the websites and materials are consolidated. It’s difficult to tell whether articles like this were written for a specific newspaper and published in multiple ones or if it was a consolidated effort for all papers. My guess is that they published it on the MetroWest because that covers more of the western suburbs and has a larger readership (I think)

        Reply
        1. Swamp Yankee

          Caproni and Mayo as well as Russell are regular commenters for Plymouth’s version of Jam Session, all live in Plymouth, so I imagine it’s from the Old Colony Memorial. However, I see Metrowest stuff on the OCM site all the time, so you’re right, it’s about Gannett owning them all.

          Reply
  5. chuck roast

    Cars…we are completely brainwashed about cars. I don’t own a car, and I purposefully live in a place where owning a car is not necessary for living a decent life. If I did buy a car, why would I buy a brainiac digital car? Recall that recently all Tesla owners were locked out of their cars for a while because of a cramp in the central Tesla brain facility located somewhere-or-other. I can’t buy a new car with roll-up windows. Most of them don’t even have keys anymore. How is this an improvement for the happy motoring public? The average price of a new car is $36K. This is such a large chunk of change that you may now need a 5 or 6 year mortgage to pay the damn thing off. I should be payed for not owning a car and not exhibiting abuse on my neighbors in the form of air and noise pollution and host of other social costs. Lately I have been admiring the old photos of Paris by Henri Cartier-Breeson…urban life without a car to be seen. My wife’s folks were Danes. When the war ended they got married and honeymooned in Paris. Her dad liked to mess around with cameras. She has an elevated photo he took of the arc-de-triomphe and it’s environs in 1945 or 46. There is one car in the picture of at least one square mile. Kill your car! OK…back to the cave…

    Reply
  6. Matthew G. Saroff

    Right to repair is good, but I would support a ban on telematics entirely.

    Excluding the obvious, radios and the like, the electronics systems of automobiles should be air-gapped.

    One only need look at the case of the hacker who took over the entire Tesla network. (Thankfully, he was white hat, and just put in a ticket for a bug reward)

    Reply
  7. Mimolette

    Mr. Reiner may not fully understand that Federal pre-emption is a thing, and that conversation (at least) around a national-level solution would actually become more likely, not less likely, should we pass Proposition 1. (See, e.g., the long history of federal efforts to Do Something about California’s vehicle emission requirements.) But one would expect the editors at Forbes to understand it.

    If they reasonably believed a Federal solution was desirable and possible, you’d expect them to at least mention the possibility that the bad effects arising from a single state adopting an ad-hoc solution like this one just might finally motivate Congress to act, don’t you think?

    Reply

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