Mass. ‘right to repair' law faces new court fight

The renewed fight over "right to repair" has taken another turn just weeks after Massachusetts voters overwhelmingly approved a ballot initiative that expands access to vehicle data.

The measure updates the state's law by requiring automakers to equip vehicles that use telematics — which collect and wirelessly transmit information such as crash notifications and remote diagnostics — with a standardized open-access data platform that is accessible to vehicle owners or third parties such as repair shops starting with the 2022 model year.

But now major automakers allege in a federal lawsuit that the revised law poses cybersecurity and vehicle safety risks and the short timeline sets an "impossible task" for compliance.

The Alliance for Automotive Innovation — which represents General Motors, Ford, Toyota, Volkswagen and other automakers — filed the suit Nov. 20 in U.S. District Court for the District of Massachusetts, requesting that it find the law "unenforceable because it is unconstitutional" and conflicts with federal laws.

The group also is asking the court to "temporarily and permanently" block the law, which is scheduled to take effect by Thursday, Dec. 3.

A spokesperson for American Honda Motor Co. said the automaker "is evaluating how to comply while continuing to protect our customers' privacy and safety." GM, Ford, Toyota and Hyundai deferred comment to the alliance.

The alliance said it does not comment on pending litigation.

Robert O'Koniewski, executive vice president of the Massachusetts State Automobile Dealers Association, said it is "virtually impossible" for automakers and franchised dealerships to comply with the revised law at this time.

"From the perspective of the manufacturers, I don't know how they're going to comply from the timeline because it's just not realistic," he told Automotive News. "It takes anywhere upwards of three to five years on development of a model-year vehicle."

Automakers can begin selling 2022 model-year vehicles as early as Jan. 2. Dealers will almost certainly have some 2022 models on their lots by at least March, said O'Koniewski, who has strongly opposed the ballot initiative.

When Massachusetts' right-to-repair law was enacted in 2013 and adopted a year later as a national standard by automakers and independent repair shops, the law applied to vehicles starting with the 2018 model year.

"I advised legislators and other interested parties on that fact: that manufacturers just don't put together a model-year vehicle the year before," O'Koniewski said. "There is three to five years of research, development, planning, engineering and manufacturing that goes into it."

O'Koniewski said he and other dealers are talking to Massachusetts legislators about a potential amendment to the law that would delay compliance until the 2025 model year — "at a minimum," he noted.

In its complaint, the alliance argues the law requires automakers "to create and implement its first-of-its-kind 'open access' system on a grossly unrealistic time frame," as many have already completed development of their 2022 model-year lineups.

The lead time to create an open-access system is "close to five years," the alliance said in the suit, with additional years needed to standardize the system across models.

The group says the short time frame "presents serious practical problems that will impact cybersecurity and vehicle safety."

While cybersecurity expert Ryan Barrett agreed the compliance timeline is "not realistic" for the automakers, he said most of the security information that could be gleaned from a vehicle such as a home address is already available.

"They will use this as a cybersecurity incident to say that there'll be more information, but I don't believe the cost of more information getting out there, as most of it's already out there," said Barrett, CEO of Oram Corporate Advisors in Newton, Mass. "The juice is not worth the squeeze on this one."

Aaron Jacoby, managing partner of Arent Fox's Los Angeles office, where he leads the firm's automotive practice, said the timing issue for compliance is one aspect of the lawsuit the alliance could win.

"I think they could get more time," Jacoby said. "I don't know that it would invalidate the law. It might just invalidate the timing provision."

When asked whether the revised law could once again become a national standard to avoid a 50-state patchwork of bills, Jacoby said: " 'I don't know' is the real answer. It remains to be seen."

"But if they do develop an open telematics platform and they do implement it, I guess there's no reason for them not to do it" nationwide, he added.

O'Koniewski said the alliance's lawsuit stands a chance because it was filed in a federal court where it will get "an objective review," and automakers made consistent arguments in the months leading up to the Nov. 3 vote on the ballot initiative.

"I'm not one to predict what the court is going to do," he said.

"But clearly, in order for the manufacturers to comply to some degree with the law, they're going to need a timeout from the court so that the law can be amended."