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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