Just when it looked like the nearly three-year Right to Repair saga in Massachusetts was entering its final chapter, the National Highway Transportation Administration (NHTSA) dropped a bombshell.
NHTSA’s June 13 letter to 22 automakers, filed with the U.S. District Court for the District of Massachusetts, informs vehicle manufacturers that complying with the expanded Right to Repair provisions in Massachusetts would be in direct conflict with “their obligations under the National Traffic and Motor Vehicle Safety Act.”
In the letter, Kerry Kolodziej, NHTSA’s assistant chief counsel for litigation and enforcement, voices the agency’s concerns that open remote access to vehicle telematics could make it easier for cybercriminals – here or abroad – to take control of consumers’ cars, trucks and SUVs and cause mayhem.
“Vehicles crashes, injuries or deaths are foreseeable outcomes of such a situation,” she adds.
Count U.S. Sens. Elizabeth Warren and Edward Markey among those who were gobsmacked by NHTSA’s letter.
In a June 15 letter to U.S. Transportation Secretary Pete Buttigieg, Warren and Markey call the timing of NHTSA’s letter “extraordinary” – given that the agency had “ample opportunity prior to June 1 to raise preemption arguments through the judicial process.”
“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 wrote. “Instead, NHTSA sent the June 13 letter with no warning, circumventing the legal process, contradicting a judicial order, undermining Massachusetts voters, harming competition and hurting consumers and causing unnecessary confusion by raising this novel view two weeks after enforcement of the law began.”
So, where does that leave the data-access law that Massachusetts voters overwhelmingly approved in November 2020?
While it might seem like NHTSA’s invocation of the federal rule of law leaves Right to Repair dead in the water, an editorial in the Boston Globe suggests: “The one organization that might be able to break the stalemate is the state Legislature.”
According to the Boston Globe, state Sen. Michael Moore noted that NHTSA’s concern that federal law preempts the Massachusetts data-access law still leaves the door open for the state law to be rewritten.
“While I understand the NHTSA’s cybersecurity concerns, Bay Staters overwhelmingly voted to approve this ballot measure – it is now on the Massachusetts legislature to amend the legislation to ensure the will of the people can be enacted in the Bay State in a safe and secure manner,” Moore told the Boston Globe.
Moore, who chairs the Joint Committee on Advanced Information Technology, the Internet and Cybersecurity, also told the Globe that lawmakers “will explore all available options to make sure Bay Staters get the results they voted for.”
The Globe editorial board concludes: “That’s a goal worth pursuing.”