Event Data Recorders (“EDR”) are regulated in the United States under 49 CFR § 563, which ensures that all EDRs record and collect data in a readily usable manner, and that car manufacturers provide commercially available mechanisms to retrieve crash and pre-crash data from EDRs.  But who owns that data?

The federal Driver Privacy Act of 2015 limits data retrieval from EDRs and expressly rests ownership of EDR data with the owner or lessee of the vehicle. Specifically, it provides that “[a]ny data retained by an event data recorder (as defined in section 563.5 of title 49, Code of Federal Regulations), regardless of when the motor vehicle in which it is installed was manufactured, is the property of the owner, or in the case of a leased vehicle, the lessee of the motor vehicle in which the event data recorder is installed.” Driver Privacy Act of 2015 Sec. 24302(a)(“Limitations on Data Retrieval from Vehicle Event Data Recorders”).

According to the National Conference of State Legislatures, as of 2021:

at least 17 states—Arkansas, California, Colorado, Connecticut, Delaware, Maine, Montana, Nevada, New Hampshire, New Jersey, New York, North Dakota, Oregon, Texas, Utah, Virginia, and Washington—have enacted statutes relating to event data recorders and privacy.  Among other provisions, these states provide that any data collected from a motor vehicle event data recorder may only be downloaded with the consent of the vehicle owner or policyholder, with certain exceptions.

Exceptions include in the event of a court order or to aid in a law enforcement investigation.

In at least three additional states—Florida, Missouri, and Tennessee—the issue of EDR data ownership has not been legislatively addressed but has been addressed, at least to a degree, by the courts. In Florida, a court found that data recorded by an EDR may not be accessed by anyone other than the owner of the vehicle in which the EDR is installed. See State v. Worsham, 227 So. 3d 602 (Fla. Dist. Ct. App. 2017). In State v. West, albeit in a footnote, a Missouri appellate court cited to the federal Driver Privacy Act of 2015 and recognized that EDR data is owned by the owner of the vehicle and cannot be accessed by someone else without the driver’s consent. See State v. West, 548 S.W. 3d 406 (Mo. Ct. App 2018). In a criminal case in Tennessee, the court found that the owner of the vehicle had a reasonable expectation of privacy in EDR data, suggesting the data is the property of the vehicle owner. See State v. Holladay, 2006 WL 304685 (Tenn. Crim. App. Feb. 8, 2006).

With domestic lawmakers seemingly in agreement on the ownership of EDR data, we see little reason to debate ownership of connected vehicle data (or “VPD”).  As partner Mike Nelson recently mused in a publication on this very point:  “I don’t see the difference between VPD and EDR data. . . .  Think about some judge in a Tesla case 10 years from now. ‘Wait a minute, there’s a homicide and this driver wants the data on the car to defend himself, and you’re telling him he can’t have it because you own it? That’s baloney,’ he said, imagining the judge’s reaction to the facts at hand.”  Carrier Management, “Who Owns Tesla Vehicle Performance Data?” (Mar. 9, 2022).

Legislative momentum also appears to be building behind this notion, including with the “Right to Equitable and Professional Auto Industry Repair (REPAIR) Act” introduced by Congressman Bobby Rush (D. Ill.) in February.  As introduced, the REPAIR Act would prohibit vehicle manufacturers from withholding data or imposing barriers to limit the ability of “a motor vehicle owner or the motor vehicle owner’s designee to access vehicle-generated data.” While “vehicle-generated data” is defined in the Act to include data necessary for diagnostics and repair, the Act also leaves open the possibility that the definition could be expanded to “add additional types of data . . . regardless of whether those types of data are related to motor vehicle repair, taking cybersecurity and privacy into consideration, to allow consumers and their designees to directly access additional types of vehicle-generated data, and for additional purposes.”

For more information, check out Part 1 of this series (“What’s the Big Difference? EDR v. Data Logger v. “VPD”), and stay tuned for Part 3 on international laws related to vehicle data recordings.

“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.