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 voters approved an expanded auto right to repair measure in November 2020, a follow-on to an earlier landmark 2013 initiative under which manufacturers agreed to share repair information with third-party auto repair services nationwide (see Right to Repair Redux: Massachusetts Ballot Questions and Right to Repair Round-Up: One Step Back, One Leap Forward).
Alas, although originally slated to go into effect in 2022, the latest measure has yet to be enforced, stymied in the first instance by an ongoing federal lawsuit filed by the Alliance for Automotive innovation to block sharing telematics data with third party repair services. Further, pending Massachusetts state legislation would delay sharing such information for three years, according to The Boston Globe, Lawmakers propose changes in stalled right-to-repair law). Most auto repairs now require access to this telematics information, and blocking data sharing effectively excludes third-party repair services from competing with new car dealerships in supplying repair services.
Both Kia and Subaru have opted to switch off rather than share vehicular data with either owners or third parties,a decision which has drawn scrutiny from Judge Douglas Woodlock, who is presiding over the federal lawsuit. Repairer Driven News reports in Judge in Massachusetts ‘right to repair’ case expects to issue ruling March 7:
The federal judge in a case brought by automakers over Massachusetts’ expanded “Right to Repair” law said he expects to issue a ruling on March 7.
U.S. Massachusetts District Court Judge Douglas Woodlock met virtually Tuesday afternoon with representatives of the Alliance for Automotive Innovation, the plaintiff in the lawsuit, and the state Attorney General’s Office, which is defending the voter-approved law.
Woodlock scheduled the one-hour conference to discuss post-trial evidence showing that Subaru of America had reacted to the law by directing the disabling of telematics in its vehicles sold in Massachusetts, and the AAI’s subsequent disclosure that Kia of America had taken a similar action.
Under Section 3 of the Massachusetts Data Access Law, approved by voters in November 2020, any OEM that sells a vehicle in the state “that utilizes a telematics system shall be required to equip such vehicles with an inter-operable, standardized and open access platform across all of the manufacturer’s makes and models.”
The legislation, which amends the state’s existing right-to-repair law, became effective with the 2022 model year. It has not been enforced, pending the AAI’s legal challenge, which asks Woodlock to permanently enjoin enforcement.
Attorney General Maura Healey has argued that the actions by Kia and Subaru show that OEMs can comply with the law, by disabling the telematics systems in vehicles sold to Massachusetts customers.
AAI maintains that such an action is nothing more than avoidance of the law, and that true compliance would require the manufacturers to build, test and adopt the open access platform described in the statute, something not possible by the 2022 model year deadline.
Judge Woodward was, to say the least, not amused, as to details regarding disclosure of the disabling of telematics systems by Kia and Subaru. Per Repairer Driven News:
Woodlock on Tuesday repeatedly expressed irritation that Kia’s action, taken in February 2021, was not revealed until AAI responded to post-trial interrogatories from Healey.
“As I read the materials, the plaintiff knew more than a month before the motion to reopen [evidence] was filed that the proposed findings of fact and conclusions of the law were in error,” Woodlock said.
“The plaintiff, in its submissions, told me that it was a practical impossibility, in themes and variations,” to comply with the law, the judge said. The AAI’s response to Healey’s interrogatories, which the judge allowed as part of reopening the evidence, showed that for at least one member of the Alliance, “it was apparently possible, because they did it.”
“If the record supports the idea that the plaintiff was aware that at least one of its members was acting in a fashion that demonstrated the inaccuracy of the proposed findings of fact, I want to know why I wasn’t informed of it.”
He also chided AAI for its response to the interrogatories, which he found to be “buffeted with objections of all sorts … claim[ing] every objection available and then offer[ing] the minimum amount of information.”
Shut Off Services Rather Than Share Repair Information
The decision by both Kia and Subaru to shut off company telematics services on new cars sold in Massachusetts rather than share data with third parties has caused considerable inconvenience to new customers, according to Wired in A Fight Over the Right to Repair Cars Turns Ugly:
CHIE FERRELLI LOVED her Subaru SUV, which she bought in 2020 because it made her feel safe. So when it was time for her husband, Marc, to purchase his own new car last summer, they returned to the Subaru dealer near their home in southeast Massachusetts. But there was a catch, one that made the couple mad: Marc’s sedan wouldn’t have access to the company’s telematics system and the app that went along with it. No remote engine start in the freezing New England winter; no emergency assistance; no automated messages when the tire pressure was low or the oil needed changing. The worst part was that if the Ferrellis lived just a mile away, in Rhode Island, they would have the features. They bought the car. But thinking back, Marc says, if he had known about the issue before stepping into the dealership he “probably would have gone with Toyota.”
Subaru disabled the telematics system and associated features on new cars registered in Massachusetts last year as part of a spat over a right-to-repair ballot measure approved, overwhelmingly, by the state’s voters in 2020. The measure, which has been held up in the courts, required automakers to give car owners and independent mechanics more access to data about the car’s internal systems.
But the “open data platform” envisioned by the law doesn’t exist yet, and automakers have filed suit to prevent the initiative from taking effect. So first Subaru and then Kia turned off their telematics systems on their newest cars in Massachusetts, irking drivers like the Ferrellis. “This was not to comply with the law—compliance with the law at this time is impossible—but rather to avoid violating it,” Dominick Infante, a spokesperson for Subaru, wrote in a statement. Kia did not respond to a request for comment.
Under the earlier 2013 repair data sharing agreement, repair information was accessed by via a vehicle’s data port. According to Wired:
… today anyone can buy a tool that will plug into a car’s port, accessing diagnostic codes that clue them in to what’s wrong. Mechanics are able to purchase tools and subscriptions to manuals that guide them through repairs.
Now, however, original equipment manufacturers routinely collect and access diagnostic information wirelessly via telematics. Again, over to Wired:
But new vehicles are now computers on wheels, gathering an estimated 25 gigabytes per hour of driving data—the equivalent of five HD movies. Automakers say that lots of this information isn’t useful to them and is discarded. But some—a vehicle’s location, how specific components are operating at a given moment—is anonymized and sent to the manufacturers; sensitive, personally identifying information like vehicle identification numbers are handled, automakers say, according to strict privacy principles.
These days, much of the data is transmitted wirelessly. So independent mechanics and right-to-repair proponents worry that automakers will stop sending vital repair information to the diagnostic ports. That would hamper the independents and lock customers into relationships with dealerships. Independent mechanics fear that automakers could potentially “block what they want” when an independent repairer tries to access a car’s technified guts, Glenn Wilder, the owner of an auto and tire repair shop in Scituate, Massachusetts, told lawmakers in 2020.
The dispute over who should have access to these data extends beyond the auto industry, to any device that continues to transmit data to its manufacturer after a customer has purchased that device:
The fight could have national implications for not only the automotive industry but any gadget that transmits data to its manufacturer after a customer has paid money and walked away from the sales desk. “I think of it as ‘right to repair 2.0,’” says Kyle Wiens, a longtime right-to-repair advocate and the founder of iFixit, a website that offers tools and repair guides. “The auto world is farther along than the rest of the world is,” Wiens says. Independents “already have access to information and parts. Now they’re talking about data streams. But that doesn’t make the fight any less important.”
Within the automobile context alone, most consumers seem currently unaware of the amount of their data that is being collected, and who has access to the information that manufacturers are currently withholding from sharing with consumers as well as third party repair services, according to Wired. Less apparent is just what wider use manufacturers are making of these telematics data:
For Siegel, the controversy points to a bigger and woolier question about whether consumers understand just how much data is flowing from their vehicles and where it goes. There’s money to be made from a car’s GPS location, temperature data, biometric info, and data on key parts. A few years ago, Siegel and his colleagues estimated that the US connected-car data market could be worth up to $92 billion, with everyone from manufacturers and parts suppliers to dealers and insurers racing for a share. “The most important thing is to show people their own breadcrumbs,” Siegel says.
For Marc Ferrelli, the Massachusetts Subaru owner, the lesson is clear. “Sucks to be us,” he says. Just before he bought the car, he says, the dealer asked him, “Don’t you have any friends in Rhode Island whose address you can use?
The Bottom Line
During 2021, both the Biden administration and the Federal Trade Commission have weighed in and endorsed the concept of a right to repair – although details of how extensive this might be, and how it could be enforced remain to be worked out (FTC Votes 5-0 to Crack Down on Companies For Thwarting Right to Repair). In particular, exactly how the feds might weigh in in on allowing access to data and tools pertaining to vehicles – e.g. the telematics data at issue in both the Massachusetts ballot initiative and the subsequent ongoing federal lawsuit – isn’t altogether yet clear. Per Wired:
Last summer, the Biden administration directed the Federal Trade Commission to write rules making it easier for consumers to access their own data and repair tools; advocates hope the rules will apply to vehicles.
The 2013 Massachusetts success provides precedent for the right to repair in the automotive context. The battle over the scope and applicability of the 2020 Massachusetts telematics initiative will be watched closely as a harbinger for further federal and state right to repair measures.
Thanks for this post. (I’ll leave my editorial comments about the auto industry’s PR aside for now. )
There’s a lot of misinformation here. All modern cars have tire pressure sensors by federal law and will show a light on the dashboard if low. You don’t need the dealer to call and tell you about it. All cars also have a data connector inside that can inform any mechanic or owner the code that may have turned on the check engine light. They do this with a cheap generic device. You cannot on the other hand do things the dealer can do like reprogram the engine but do you really want third party mechanics having that kind of power? These articles never explain exactly what information the non dealer mechanics feel they are missing out on but to the degree it involves cell tower communication from your car I have my doubts. My late model Hyundai (they also own Kia) has an Onstar like service that I can pay to subscribe to and that I most definitely don’t want. Routine repairs I can do myself (I have the factory manual–it is out there). For more complicated problems on this or any car there tends to be tons of information on the web. The dealer has a special computer that can conveniently do much more than that cheap generic device and perhaps should be openly sold (used to be with Nissan and Hyundai but not now I think). But cell towers are not involved.
Perhaps the dealers are blocking necessary information and happy to be corrected if the above is incorrect. But you do not need “telematics” for your car to warn you about tire pressure.
I love my car and it does not have a pressure sensor, so there! And I will always prefer a car with less spyware than more.
You can look at the friggin’ tires, fer Chrissakes. Or do people have their noses so much in their phones they don’t ever look at their cars before getting in?
Well it’s a mixed bag as the battery that runs the pressure sensor inside current car tires will eventually wear out and need replacing. The sensor has a radio that sends the pressure to a receiver inside the car. I think this is federally required equipment since late noughts since low pressure tires reduce mileage as well as create possible safety issues. Much of the electronic gizmos now in cars are in response to mileage and pollution standards.
And I think what I was trying to say in my comment is that we should be deeply suspicious of telematics and if Kia or Subaru are turning them off in Mass that may be a good thing for all. If the dealer needs drive data for a repair they can do it the old fashioned way by driving it. In any case on my 2017 Hyundai the cell phone service to the dealer is an option, not standard equipment.
The internet of things in our cars–do we want that?
You know the answer to your rhetorical question.
06 is my cutoff year. Nothing newer.
All my cars have a pressure sensor, usually in a door pocket. Its called a tire pressure gauge. You should have one too if you don’t already. Unless a tire is really low, looks can deceive.
As for TPMS (tire pressure monitoring system) when a new set of tires is installed, unless the tire shop is diligent, the sensors become mixed up and hilarity ensues. Dash shows front left low when it’s really another tire that is low.
Somewhere in scholarly books (I think it was in one of Zuboff’s) I remember reading that some tires have RFID in them. If it’s passive RFID, I think you would have to drive over a sensor for the chip to register.
There are very few tires with RFID in them. The only one I know off the top of my head is the Michelin Pilot Sport Cup 2 Connect.
It’s a track day tire. The info can be read from an RFID activator in the wheel well of certain hi-po cars.
No, you can’t. Substantial degradation in performance comes with a tire as little as 5 psi low. That’s nearly impossible to see.
The problem is compounded by the ABS system which makes certain assumptions about consistent properties of the tires.
Then there’s the problem of running over debris while driving. Generally uncommon with modern tires, but it does happen. It’s happened to me twice in the last ten years, once I was saved by the TPMS, the other time I noticed when swapping the tires.
I for one am glad the other idiots on the road now have federally mandated idiot lights to warn them of low tire pressure.
Yes, I want access to that. And I want my 3rd party mechanic to have it to.
I bought a Ford a few years back without a cruise control. It’s fully drive-by-wire, just didn’t have the buttons on the wheel (part of an expensive package with other features I didn’t want).
So for the price of a $70 ebay steering wheel, 10 minutes to swap it out, and 5 minutes with my laptop to program it, I enabled the cruise.
I’ve done other things as well, all allowed in software. IF you have the software. Fog lights and high beams at the same time? Easy.
Maybe I’d like to run a different tire size, with a different preferred tire pressure. And I’d like to reprogram the sensors to alert based on that new pressure.
Or actually turn the traction control ALL the way off, or remap shift points, or disable that stupid auto-shutoff at traffic lights, or thousands of other things.
It depends on the car, but third parties can and do reprogram the ECU using the OBD II port. I’ve done it many times to my Subaru. Using the open source tool RomRaider, no less.
I don’t have direct evidence, but I do have history, and I suspect the manufacturers and their dealer enablers are doing exactly that. You see, the OBD II standard, federally mandated since the 1996 model year, specifies certain generic “trouble codes”, but allows much more. The “much more” are manufacturer proprietary trouble codes for the engine, but also for things like the ABS, airbag and tire pressure systems.
All of these proprietary codes are readable through the OBD II port, but manufacturers have fought like hell to prevent the makers of generic code readers from knowing what they mean. The aftermarket code readers which do read those codes have been reverse engineered. The least expensive aftermarket code reader is likely to only read the federally mandated codes, a more expensive reader is required for the proprietary engine codes and a really really expensive one is required to read the ABS, airbag and tire pressure codes.
Now with the advent of wireless, I suspect the manufacturers have used that as an excuse to move these codes from the generic CAN-bus to proprietary, possibly encrypted, wireless signals, making it much harder for the makers of generic diagnostic tools to reverse engeineer.
If I lied to a Court in writing something tells me I would get more than a sternly worded question why I did so. But I’m not a corporation.
Thanks for the updated post with summaries. I’ve been following the question closely and expect that the right will be maintained given the size of the independent and chain third party mechanics. Cutting of the data would kill so many businesses, I can’t see it happening, but one never knows.
Yves had stated something similar, but they will pry my 2009 Sonata from my cold…
The only thing showing on my dashboard screen is which track is playing on the CD. I can fall forward or spring back by punching a button below the clock. No need to attend a one hour class to learn how.
Driving a 200X Toyota and the future shock when I rent a car is extreme. And except for the integration with my phone, which is a minor thing, I don’t see the advantage to all the complexity.
It results in greater campaign contributions.
Ah, but did you receive an airbag recall notice and get your airbag replaced? I’m not saying they shouldn’t be replaced (the recalled bags can apparently have deadly defects), but I have read quite a bit on surveillance capitalism, smart city technologies, etc. I remember seeing somewhere that the airbag replacement repairs embed RFID into the older cars.
There seems to be a conflation between the telematics (radio transmission of surveillance data) and access to OBD II data decodes (so that fault codes can be referred to a more detailed description), plus configuration interface(s) to set and reset car parameters. That’s the repair function.
Interesting to see why the West Springfield and Seekonk representatives are bringing these bills forward — I thought there were a lot of auto dealers in Seekonk, but Google isn’t showing _that_ many….
Plus, Scituate is two towns over from me!
Speaking of craven and inadequate measures from the Mass. Legislature (the Great and General Court), my current representative wants to take some tough measures against nuclear wastewater being dumped in Cape Cod Bay by corporate criminals Holtec International….. by fining them $5,000! Not per gallon, but per incident (I believe the initial fine may be closer to $20,000, and 5k thereafter). Given that Holtec has $440 million annual in sales, that is 1/100,000th of a percent of their annual sales.
I am going to question him about it at tomorrow’s Selectman’s meeting (exec. of a New England Town). Full disclosure: he was my boss at the local paper of record 20 years ago, having inherited it from his father, who inherited it from his father….. he still owns it, too! Ah, the egalitarian, leveling democracy of seaboard Massachusetts! /sarc
If anyone has a car new enough to experience needing to have a new battery installed and “paired” to the car, understand that is the tip of the iceberg.
$100 to “pair” the battery. Screw these criminals.
I have read that digital cooties are “necessary” to allow modern internal combustion car engines to run fuel efficiently.
Yet I remember once reading in Popular Science an intriguing article about an Indian race car mechanic who claimed to have designed a way to get a car engine to burn fuel just as efficiently as the digital-cootie engines by carving the right kind of turbulence-inducing grooves into the cylinder head to get the fuel-air mixture so uniform that it combusts with almost total efficiency. Could Popular Science have been taken in by a pure hoax?
Here are a couple of links.
I am not a mechanic. I don’t know if this is real or wish. But if this is real, then it shows a possibility to build cars with far less digital cooties in them than what cars have now. And a more analog car would be more owner-repairable.
If you make a car so complex that no owner could possibly repair any aspect of it, and then you legislate that the owner has a legal right to do what the technology has been designed to make impossible, then the right is a risible joke and the law becomes despised.
I hope these articles are correct because if they are, they offer hope of significantly crippling and hurting the digital coloialists who have invaded and occupied our cars.
There are already companies that will rebuild an old car to basically a brand new state though at present it is usually some model that has vintage appeal for one reason or another. Also, the cost is pretty much the same or more than buying a brand new car. That said, it is beginning to look like an attractive option to avoid the coming/present data stealing, insurance sniffing, parts pairing nightmare. Of course broadcasting terabytes of personal data will I suppose become law pretty soon purely to protect the consumer and the public of course.
The more millions of people who make sure to own analog cars, the bigger a lobby they may make to get their analog cars grandfathered into “functional exemption” from any such forced Digital CootieCar Law.
And even if not, they can still keep the digital cooties out of the transport functionality of the car itself, and keep the legally forced digital cooties contained to the forcible tracker add-on tacked onto their car by force of law. But that wouldn’t stop them from being able to get their own analog cars analogically fixed by analog master mechanics.