Why Do We Care About “Right to Repair?”

“Right to repair” is receiving increased attention as the Biden Administration has made it a regulatory priority. In mid-2021, the President signed an Executive Order on Promoting Competition in the American Economy with the stated purpose of promoting “the interests of American workers, businesses, and consumers.” Among the many directives in the Order, the President directed the Chair of the Federal Trade Commission to consider exercising the Commission’s “statutory rulemaking authority” to address “unfair anticompetitive restrictions on third-party repair or self-repair of items.” Exec. Order § 5(h)(ii) (July 9, 2021). 

While the Executive Order did not expressly implicate the automotive industry, “right to repair” in the automotive industry has been an issue and the subject of legislative activity for over a decade, and has come back into focus as many states and the federal government look to amend existing or enact new automotive “right to repair” laws. 

The first state to formally enact automotive “right to repair” was Massachusetts, when its Legislature passed the State’s Motor Vehicle Owners Right to Repair Act in 2012; the Act became law in 2013 after it was overwhelmingly approved by public vote. The purpose of the Act was to force “carmakers to allow independent mechanics to access the diagnostic tools in cars. . . . Essentially, if your check engine light comes on, the law makes it possible to take the vehicle to just about any mechanic to figure out why”—rather than being locked into a dealer repair facility. Thorin Klosowski, “What You Should Know About Right to Repair,” NY Times Wirecutter (July 15, 2021). The Massachusetts law led to a 2014 Memorandum of Understanding among various industry associations to adopt the protections of the law as national standards. 

Massachusetts was at the center of developments yet again in 2020 when voters there approved amendments to the 2012 law—with a “yes vote” to require “manufacturers that sell vehicles with telematics systems in Massachusetts to equip them with a standardized open data platform beginning with model year 2022 that vehicle owners and independent repair facilities may access to retrieve mechanical data and run diagnostics through a mobile-based application.” “Massachusetts Question 1, ‘Right to Repair Law’ Vehicle Data Access Requirement Initiative (2020),” Ballotpedia (last accessed Mar. 2, 2022). Massachusetts also has been the center of controversy, as its amendments presently are the subject of federal litigation, and as automakers like Subaru have chosen to disable their telematics networks in the State citing inability to comply. Yet, none of this appears to be slowing momentum in favor of right to repair, as more than half of states now have similar laws on the books or in the works. “Right to Repair,” U.S. PIRG (last accessed Mar. 2, 2022). 

Federal lawmakers also have introduced various nationwide right to repair measures, with Congressman Bobby Rush (D. Ill.) introducing the “Right to Equitable and Professional Auto Industry Repair (REPAIR) Act” on February 3, 2022. According to his press release:

By way of a 2014 Memorandum of Understanding (MOU), vehicle owners and technicians are supposed to have the same access to information, tools, and software that car companies make available to their franchised dealers. However, as cars become more technologically advanced, vehicle data is increasingly being transmitted wirelessly and sent only to vehicle manufacturers, who then have the ability to determine who can access the data and at what cost. Independent repair shops—which are cheaper than dealerships and preferred by the vast majority of car owners—are effectively locked out.

The resulting landscape has reduced choice and raised costs for consumers, who spend an average of 36 percent more on vehicle repair at dealerships than at independent repair shops. Limited access to data has already impacted repairs for 37% of vehicles in the U.S., and this number is set to increase dramatically in the coming years—by 2030, 95% of new vehicles sold around the world by 2030 will have wireless data transmission capabilities.

Right to repair legislation appears to have widespread support across the United States. Eric Griffith, “Most People Support the ‘Right to Repair,’” PC Magazine (Apr. 20, 2020).

So why do we care? As Congressman Rush’s statement makes clear, although right to repair is the rubric of the debate, the real nub is data access and ownership. While intellectual property right and interests, cybersecurity, and privacy all must be respected and taken into account, these concerns also must be balanced against the rights and interests of consumers in their own data. We applaud the lawmakers who recognize this need for balance, and look forward to watching this issue unfold.

Copyright Nelson Niehaus LLC

The opinions expressed in this blog are those of the author(s) and do not necessarily reflect the views of the Firm, its clients, or any of its or their respective affiliates. This blog post is for general information purposes and is not intended to be and should not be taken as legal advice.