Mass. Broadens Vehicle Data Access Despite Privacy Worries

(November 5, 2020, 10:08 PM EST) -- Voters in Massachusetts have overwhelmingly backed a measure that will expand access to vehicles' mechanical data, Michigan residents endorsed a push to require law enforcement to obtain warrants for electronic data; and those living in Portland, Maine, agreed to allow individuals to sue over violations of the city's facial recognition software ban.

While the passage of a closely watched ballot initiative in California that broadened the state's landmark consumer privacy law occupied most privacy pros' attention after polls closed on Tuesday night, voters in Massachusetts, Michigan and Maine's most populous city were also asked to grapple with questions that presented significant privacy implications. 

In Massachusetts, Ballot Question 1 — a proposal to update the state's Right to Repair law to require car manufacturers beginning with the 2022 model year to equip vehicles with technology that would let drivers and repair shops access through a mobile app mechanical data that is currently transmitted wirelessly to a remote server — was approved 75% to 25%, with more than 3.3 million voters weighing in on the question. 

The Massachusetts Right to Repair Coalition, which led the campaign in support of the measure and which counted the Auto Care Association, Auto Zone and O'Reilly Auto Parts among its top donors, argued that the change was necessary to stop manufacturers from restricting access to the data and to ensure that consumers retained the ability to bring their vehicles to independent repair shops of their choice. 

"The people have spoken — by a huge margin — in favor of immediately updating right to repair so it applies to today's high-tech cars and trucks," Tommy Hickey, director of Massachusetts Right to Repair Coalition, said in a statement released after the results were confirmed late Tuesday. 

Hickey told Law360 on Thursday that he had already been contacted by officials in New Hampshire and Rhode Island, which are considering similar measures. 

The Coalition for Safe and Secure Data, backed by major car manufacturers including General Motors, Toyota Motor North America Inc., Ford Motor Co. and American Honda Motor Co., opposed the initiative. The coalition had argued that mandating that cars with telematics systems, which collect information generated by the operation of a vehicle and transmit the data to remote servers, be equipped with an open access data platform would throw the door open to hackers' and strangers' being able to obtain a wealth of personal driving data, including real-time location. 

"As we have said from the beginning, the right to repair and the ability of local repair shops to access vehicle repair information are already enshrined in Massachusetts law," the group said in a statement. "[This] vote will do nothing to enhance that right – it will only grant real time, two-way access to your vehicle and increase risk."

In Michigan, voters decisively backed Proposal 20-2, with 88.8% of the more than 5 million votes cast across the state favoring the legislatively referred constitutional amendment to require a search warrant to access a person's electronic data and electronic communications.

The measure adds language to the Michigan Constitution that extends Fourth Amendment protections that currently apply to unreasonable searches and seizures of physical property and documents to their electronic equivalents, including personal data stored on cellphones and computers. 

The U.S. Supreme Court has already backed this approach, unanimously holding in its 2014 ruling in Riley v. California that digital information on cellphones deserve heightened privacy protections because of the sensitive nature of this information and that police generally need warrants to access data stored on these devices. Michigan state police have said they already follow this precedent and obtain warrants for such data, but the new amendment cements this practice.

The Michigan measure received broad support from stakeholders including the American Civil Liberties Union of Michigan and Republican State Rep. Jim Runestad, who floated the amendment in the legislature. 

"The Fourth Amendment still matters," Runestad said in a June floor speech. "We don't know what technological advances will come next, but one thing is for sure – that after 246 years ... our right to privacy still matters."

In Portland, Maine, residents voted 66% to 34% to approve Ballot Question B, which proposed to bar the city and its departments and officials from using or authorizing the use of any facial surveillance software on any groups or members of the public. The measure also provides a right to members of the public to sue if facial surveillance data is illegally gathered or used. 

The city council had already voted in August to ban the use of facial surveillance technology by city employees, joining a growing number of municipalities around the country that have moved to prohibit such practices, but the measure included no enforcement provisions. The newly approved measure makes a violation of the ordinance grounds for a lawsuit and possible termination of employees. 

People First Portland, the campaign behind the facial recognition initiative and three other ballot questions related to wages, carbon footprint reduction and renter protections, touted its "historic victories" at the ballot box.

"We expect the mayor and council to begin immediately acting on the will of the people by taking transparent steps to fully implement these ordinances," Kate Sykes of People First Portland said in a statement Wednesday.

--Additional reporting by Sue Reisinger. Editing by Peter Rozovsky.

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