On Tuesday, Oct. 12, the U. S. National Highway Traffic Safety Administration (NHTSA) sent a letter to the automaker Tesla telling it to issue a recall notice if a software upgrade to its vehicles involves a safety issue. This is the latest development in an escalating conflict between federal regulators and the electric-car maker, whose flamboyant CEO, Elon Musk, seems to enjoy twitting regulators of all kinds. But beyond personalities, what we are seeing here is a conflict between a traditional legal system and a technology that has advanced beyond it.
The immediate issue that prompted the letter was an "over-the-air" software upgrade that Tesla made in late September. The NHTSA had started investigating a number of crashes of Tesla vehicles into emergency vehicles that were parked and had their flashers operating. The upgrade was intended to improve the ability of Tesla vehicles to avoid hitting emergency vehicles in low-light conditions.
What annoyed the NHTSA was not that Tesla addressed the problem they were looking into, but the fact that they didn't issue a recall notice along with all the formalities and paperwork that are required along with it.
On the one hand, Tesla's position makes a certain amount of sense. Back in the pre-software days when every automotive defect required a trip to the repair shop, the only way to get something fixed was to issue a recall to every traceable owner of every involved vehicle and try to get them all repaired within a reasonable time frame. But now that software comprises a growing part of the overall system that we still call an automobile, upgrades can be done remotely and silently over the Internet without the owner even being aware of it. So why go through all the hassle and bother of a recall when the thing can be done without anybody but the automaker knowing about it?
On the other hand, the NHTSA seems to think that such so-called "stealth recalls" can lead to problems. How do car owners know the upgrade has really been done? How will purchasers of used cars know they're getting a car with all pertinent upgrades? What if an accident happens before the upgrade is done and there's no public record of whether the particular car involved was upgraded before the accident? It's issues like these that are presumably behind the NHTSA's insistence that even over-the-air upgrades have to be accompanied by recall notices if they affect safety issues.
Of course, which upgrades affect safety is not always an easy matter to determine. But the upgrade issued to improve the discrimination of emergency-vehicle lights certainly falls in that category. This is not a trivial matter for Tesla, because if the NHTSA decides the firm has not complied with recall regulations by Nov. 1, they can fine the company $114 million. Even to Elon Musk, one of the richest men in the world, that is not chump change. And there are the people called shareholders to consider.
Concerns like these are not confined to the NHTSA's dealings with Tesla, as cars from all makers are starting to resemble rolling software platforms rather than the all-mechanical vehicles of old. The AP report describing the conflict attributes the agency's tougher stance to a general trend on the part of the Biden administration to clamp down on automated-vehicle safety issues, rather than tread lightly for fear of crippling the new technology in its cradle, so to speak.
A dyed-in-the-wool libertarian might criticize the NHTSA for insisting on its bureaucratic rules being followed despite the fact that Tesla was doing the right thing, namely, fixing the emergency-vehicle-light problem that was attracting public attention. But decades of experience with government regulation of auto safety includes numerous examples, ranging from introducing double-layer safety glass to defective-air-bag recalls, in which it is pretty clear that left to their own devices, the automakers would not have acted to protect the public from the hazards caused by their own products.
The problem I see is not whether to regulate, but how to regulate in light of "over-the-air" recalls that do not require physical trips to a repair shop that are hard to document. Clearly, the old-fashioned recall regulations need revisiting in the light of current technology, and it's always easier for a bureaucracy to use the regulations it has rather than to rethink them on the fly.
But suppose there had been some kind of National Internet Security Administration in place at the dawn of the Internet, and in the 1990s they'd passed a regulation requiring all web-browser designing firms to write letters (not emails, but letters) to all users whenever an upgrade to their web browser was made that affected security. That might have made a little sense back when web browsers were upgraded once a year, but anyone using Microsoft products knows upgrades are done almost daily, affecting all kinds of things, including security. If such a regulation were still in place about notifying users, we'd all be buried in a blizzard of mail from software companies. This would be a boon for the U. S. Postal Service, but not for anyone else.
So clearly, new technologies call for new regulatory processes. One can imagine some kind of software certification for purchasers of used cars, verifying that the cars they buy have all the software upgrades made up to the date of purchase. That would require cooperation among the automakers, used-car dealers, state and federal regulators, and customers, but these parties have worked together in the past, and it can happen again. As for written notifications any time safety-related software is upgraded, it sounds to me a little like the NHTSA is hounding Tesla just for hounding's sake.
In a related concern, there are genuine issues regarding how easy it is for drivers to fool Tesla's autopilot into thinking the driver is paying attention to the roadway when in fact the driver is playing a video game or even sitting in the back seat. And Tesla needs to be taken to task for that issue. But it's not good sense to punish a company for doing the right thing, which the NHTSA appears to have done in this case.
Sources: Many news outlets published the Oct. 13 AP story by Tom Krisher which was entitled on the AP website "US regulators seek answers from Tesla over lack of recall," at https://apnews.com/article/technology-business-software-881ef270cbfdc6e4f62b88400588686f, to which I referred.
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