NHTSA Sides With Automakers, Informs Court That Massachusetts Data Access Law Preempted By Federal Law

In a June 13, 2023 filing in the Alliance for Automotive Innovation v. Campbell case pending in Massachusetts federal court, the National Highway Traffic Safety Administration (NHTSA) gave notice that it had sent a letter to motor vehicle manufacturers notifying them that a Data Access Law adopted by Massachusetts voters in a 2020 ballot initiative “conflicts with and is therefore pre-empted by the National Traffic and Motor Vehicle Safety Act.”  This unequivocal declaration from the federal government provides clear direction to OEMs as to their obligations under federal law, and is likely to have a major impact on the outcome of the pending litigation, in which an industry trade association has challenged changes to the Massachusetts Right to Repair Law, codified at Mass. Gen. Laws chapter 93K.

NHTSA cautioned in its letter to OEMs that the law’s requirement of open remote access to vehicle telematics systems that allow the ability to send commands to the vehicle could be used by malicious actors to command vehicles to operate dangerously, and that “[v]ehicle crashes, injuries, or deaths are foreseeable outcomes of such a situation.” NHTSA also warned that disabling telematics systems installed in vehicles sold in Massachusetts—a compliance measure suggested by the Massachusetts Attorney General—“has its own adverse impacts on safety,” including impeding emergency response in the event of a crash and interfering with “the ability [of OEMs] to fix safety problems by remedying recalls through vehicle telematics, which will be lost if those systems are disabled.” Concluding, NHTSA declared that because federal law “conflicts with and therefore preempts the Data Access Law, NHTSA expects vehicle manufacturers to fully comply with their Federal safety obligations.”

NHTSA’s latest action comes just two weeks after a hearing in the Alliance for Automotive Innovation v. Campbell case, during which Judge Douglas Woodlock refused OEMs’ request for a temporary restraining order barring enforcement of the Data Access Law after the Massachusetts Attorney General’s office announced that it would begin enforcing the law on June 1, 2023. At that hearing, the judge referenced a Statement of Interest filed by NHTSA in June 2021, in which it expressed concerns about the potential impact of the Data Access Law but took no position on OEMs’ preemption argument. The day after the hearing, the Massachusetts Attorney General’s office published a notice Massachusetts dealers are required by the Data Access Law to provide to consumers, notifying them of their rights to telematics data generated by model year 2022 or later vehicles.

NHTSA’s unequivocal declaration that the Data Access Law conflicts with and is preempted by federal law is likely to have a profound impact, both in the pending litigation and more generally. The final round of closing arguments in Alliance for Automotive Innovation v. Campbell was held on July 21, 2021, but the court’s decision has been delayed multiple times, including to reopen evidence to consider the decision by some OEMs to disable telematics in vehicles sold in Massachusetts to comply with the law.  The judge recently said that he would take “as long as it is necessary to reach the right result.”  In the meantime, auto manufacturers have received clear guidance from NHTSA as to their obligations under federal law and can invoke that guidance in any lawsuit seeking to enforce the Data Access Law.