Voters should weigh trade-offs of Question 1
Privacy considerations and greater competition at issue in car repair debate
WITH MAIL-IN VOTING underway, Massachusetts citizens may be puzzling over Question 1, which aims to require automobile manufacturers that sell vehicles with telematics systems in the Commonwealth to allow owners and independent repair shops to access a vehicle’s “mechanical data.” The proposal’s proponents claim the law is about consumer choice—if passed, they say, it will allow vehicle owners to choose to have their cars repaired at independent shops, rather than relying on dealers, which may often be more expensive.
But the proposal is not quite as straightforward as its proponents maintain. As noted recently in CommonWealth, opponents and supporters of the measure cannot seem to agree on what the law’s requirement would mean in practice. In their official ballot statement, for example, opponents argue that the law would permit third parties to gather “personal vehicle information and access it remotely, including location data in real time.” In response to this argument, proponents insist the measure is only about access to “mechanical information, diagnostic and repair information” and not personal information.
Most judges and lawyers agree that the best place to begin to try and understand how a law works is with the text itself. On an initial reading of the proposal in Question 1, the proponents appear to have a point: By its terms, the new law would mandate only that manufacturers make “mechanical data” accessible. The law goes on, however, to define “mechanical data” to include “any vehicle-specific data, including telematics system data, generated, stored in or transmitted by a motor vehicle used for or otherwise related to the diagnosis, repair or maintenance of the vehicle.” The law defines a “telematics system” as “any system in a motor vehicle that collects information generated by the operation of the vehicle.”
Accordingly, were the voters to approve Question 1, automobile manufacturers in the Massachusetts market would be required to allow access to “information generated by the operation of the vehicle.” This is a broad category of information. It hints at the potential scope of data that telematics systems can collect, which could include information over time about such things as a vehicle’s location, speed, idling, acceleration, braking, and fuel consumption. Indeed, common telematics systems often include features like collision notification, emergency and roadside assistance, and media streaming, the optimal performance of which depend upon a trove of data that reflects the personal decisions of the car’s owner or driver.
To be clear, calling attention to the broader privacy implications of the proposed law is not an effort to take sides. No doubt many voters would happily trade access to information about their driving habits and routines for the opportunity to save some money on the inevitable repairs their vehicles will require. And, to be fair, vehicle manufacturers already have access to telematics data.
Nonetheless, it is important that voters understand the trade-off involved. Thanks to the “internet of things,” we are living at a time in which nearly everything we do leaves some kind of digital trace, as a wide swath of our daily choices can be recorded, analyzed, and monetized. A virtually nonexistent line divides information that makes technologies of convenience more finely tuned to our wants and desires from information that allows us to be profiled and categorized. In a sense, all data collected by the technologies we use has become personal.At a minimum, legal rules that would allow third parties to access information about us should be adopted with full knowledge of the consequences—for information once disclosed can never be recaptured.
Lawrence Friedman teaches information privacy law and constitutional law at New England Law | Boston.