The Right to Repair movement has touched down in Maine with its first success: an overwhelming approval of a citizen’s initiative referendum that will guarantee independent auto repair shops, mechanics and consumers full access to the diagnostic and repair data they need as cars become more advanced.

Maine overwhelmingly approved Question 4, An Act Regarding Automotive Right to Repair. With 98.8% of precincts reporting Wednesday, 84%, or 337,594 people, voted for Question 4, while 16%, or 63,018, voted against it.

The law now requires manufacturers to give vehicle owners and independent shops the same access to their diagnostic tools that they give to their authorized repair shops, including software, information, capabilities, tools, parts and miscellaneous components. An independent oversight board – formed by Attorney General Aaron Frey – will take all of that data and compile it into a “cyber-secure” and “owner-authorized”  “standardized access platform.”

Right to Repair advocates say the new law is a step in the right direction for consumers and independent repair shops, some of whom have long feared they will no longer be able to repair modern vehicles as technology becomes more advanced and data becomes harder to access.

But Massachusetts, which passed a similar referendum question in 2020, can offer some insight into how things will play out next. And based on Massachusetts, Maine’s new law could have a rocky future.

PLAY-BY-PLAY IN MASSACHUSETTS

When 75% of Massachusetts voters approved their auto right-to-repair referendum, the Alliance for Automotive Innovation swiftly got into action. The Alliance for Automotive Innovation, the industry group representing all of the major auto manufacturers, filed a lawsuit against the state of Massachusetts less than three weeks after the election.

The Alliance for Automotive Innovation made similar arguments to those they made in Maine. In the first court filing, the alliance claimed the “Right to Repair Law” Vehicle Data Access Requirement Initiative poses serious cyber-security and privacy risks because it allows “third-party access to nearly all data generated by vehicles.”

The law comes “with negative consequences for consumer privacy, public safety, and manufacturers’ federally protected property rights,” the Alliance for Automotive Innovation wrote in the Nov. 20, 2020, court filing. The lawsuit also focuses on the financial impacts to car manufacturers.

“The extraordinary changes required by the law, combined with the standard industry lead time necessary to develop future model year vehicles, means that most members will be incurring substantial costs immediately in an attempt to comply with the law,” the lawsuit states. “The new Data law reduces the economic value of vehicle systems to Auto Innovators’ members by requiring extensive (and costly) modification of existing
vehicle systems.”

In addition to having to change their systems, car owners and repairs shops can sue auto manufacturers for either triple damages or $10,000 if they don’t comply with the law and provide the stipulated modes of data accessibility.

This lawsuit, which has yet to be decided, has stalled Massachusetts from enforcing the law.

Earlier this year, though, Massachusetts Attorney General Andrea Joy Campbell said she would start enforcing the law in June, according to the Boston Globe. The Alliance for Automotive Innovation again tried to delay enforcement with a suit in federal court seeking a temporary restraining order to block Campbell’s move. U.S. District Judge Douglas Woodlock ultimately denied that request, though he expressed similar concerns about the law.

Alongside the lawsuit, drivers in Massachusetts are seeing real time impacts of the law. Subaru and Kia have been disabling telematics systems, including features like emergency roadside assistance, automatic collision notification, stolen vehicle recovery and remote unlocking in some 2022 models. Some consumers say there were not notified of these changes before buying their cars.

FEDERAL RESPONSE

Meanwhile, the federal government has taken multiple U-turns on where it stands with the law.

The Federal Trade Commission, without directly saying so, has supported right to repair principles through a 2021 study finding that advancing telematics will increasingly contain exclusive repair, maintenance and operational data with unique software systems that are not financially sustainable for auto parts stores, repair shops and consumers to access.

President Biden signed an executive order in 2021 barring manufacturers from restricting owners and independent shops from repairing their own devices by voiding warranties.

The National Highway Traffic Safety Administration, however, has taken stances and issued guidance to auto manufacturers that seems to contradict those principles.

Leading up to Massachusetts’ 2020 vote, the traffic safety administration said it was similarly concerned about how the open-access platform could pose cyber-security risks, such as “hackers” and “malicious actors” causing car accidents.

In June of 2023, the NHTSA said Massachusetts’ law “conflicts with and therefore is preempted” by federal law. The administration told automakers to ignore Massachusetts’ law and continue with business as usual. Massachusetts’ two U.S. senators, Elizabeth Warren and Edward Markey, both Democrats, urged the administration, along with Secretary of Transportation Pete Buttigieg, to reverse course.

The NHTSA ultimately did so in August, expressing the desire to find “a path forward.” Instead, the agency is advising the Massachusetts attorney general to enforce the law in a way that gives vehicle owners and independent shops access to this information “by using short-range wireless protocols, such as via Bluetooth.”

The NHTSA’s reversal has been followed by other public moves to support the Right to Repair movement. The White House hosted a roundtable with government officials, small business owners and private sector leaders about “the importance of the right to repair” just 13 days ahead of Maine’s election.

“By giving consumers more choices on where and how to get their devices fixed, right to repair lowers costs, makes it easier to fix the things you own, and increases competition – a key pillar of Bidenomics,” the White House said in a statement.

DIFFERENCES IN MAINE

There are some key distinctions between how the Automotive Right to Repair movement has played out in Massachusetts versus Maine.

Tommy Hickey, of the Maine Automotive Right to Repair Committee, said the panel intentionally worded Maine’s citizen’s initiative legislation differently than the one in Massachusetts.

The Massachusetts law describes the platform as “an open standardized platform.” But in Maine, the statute describes that system as an “owner-authorized access platform.”

Hickey said that wording could prevent the Alliance for Automotive Innovation from making the same legal argument about third parties having access to all personal data.

“There are some little tiny nuances that are fixed in Maine that could change their tactic,” he said.

The individual campaigns have also played out differently.

The Motor Vehicle Mechanical Data referendum question became Massachusetts’ most expensive ballot initiative to date, according to state campaign financing reports. The Massachusetts Right to Repair Committee – also led by Maine’s right to repair director Hickey – raised nearly $25 million dollars in its four-year campaign.

On the other end of the ring, the Coalition for Safe and Secure Data raised nearly $27 million for its opposition campaign. The coalition has clear links to the Alliance and lists 17 of the major auto manufacturers as its top funders.

Meanwhile the Maine campaign funding pales in comparison. The Maine Automotive Right to Repair Committee raised $5 million for its supporting campaign, while the Automakers and Repairers for Vehicle Repair Choice political action committee raised just $110,000 – all of which was donated by the Alliance for Automotive Innovation.

The figure is a symbol of how the Maine Automotive Right to Repair Committee saw this referendum playing out.

“I didn’t even think about the possibility of it not passing,” Hickey said ahead of the election results. “It’s such a popular issue.”

It could also be a sign of where the Alliance for Automotive Innovation’s priorities were – not with the campaign, but with a potential legal battle to follow.

WHAT MAINE’S FUTURE MIGHT HOLD

“The Question 4 results are disappointing but hardly surprising,” Alliance for Automotive Innovation CEO John Bozzella said in a statement on Tuesday night.

That expectation suggests the Alliance knew this referendum was a losing battle, no matter the amount of funding. It certainly was in Massachusetts, where despite a $27 million investment, 75% of voters still approved the referendum.

Whether the Alliance does invest in suing the state of Maine, as it swiftly did in Massachusetts, remains to be seen. The Alliance declined to comment on what its next course of action will be.

The Alliance also declined to comment on whether its members, like Kia and Subaru, will begin disabling those telematics systems as they did in Massachusetts, though in August, the National Highway Traffic Safety Administration did urge manufacturers not to do so.

As it stands, the Alliance for Automotive Innovation has only publicized its desire for the Maine Legislature to make changes.

“The legislature should examine this referendum in 2024 and consider legislation to codify the national cooperation agreement that already exists – and has worked well for a decade – between independent repairers and automakers,” Bozzella wrote.

And the Legislature easily could. Unlike most citizen’s initiatives, the business committee never acted on “An Act Regarding Automotive Right to Repair.” It was on a long list of bills that the committee chose to carry over to the next session, according to an internal memo.

Elected officials could, theoretically, revive the bill in the next legislative session and pass amendments that weaken or tighten the bill’s stipulations.

But for now, the Maine Automotive Right to Repair Committee’s heaviest lifting is done. Hickey said his next move will be sitting down with Maine’s attorney general to help the state move forward in enforcement.

Ultimately, the ball is now in the Alliance for Automotive Innovation’s court.

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