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.

US 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 on allowing access to data and tools pertaining to vehicles – eg 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.