In July, the EPA officially opposed proposed copyright rules which would have made it easier for independent researchers to catch Volkswagen’s emissions cheating. Last month, the EPA and CARB accused Volkswagen of cheating on emissions tests by programming VW and Audi 2.0 liter TDI Diesel cars to detect when they’re undergoing an emissions test, and to manipulate the emissions control system to pass the test. In all other cases these cars emitted certain pollutants, such as NOx, at 10-40x the legal limit, contributing to a worsening of air pollution that’s thought to have killed some people.
The “defeat device” is encoded in the software controlling the emissions control system in the EA 189 TDI Diesel engine. It’s not a physical device the EPA or other regulator or independent researcher could find in a visual inspection. Instead, there are two ways to detect the fraud:
- Test the emissions in various scenarios, comparing results
- Examine the software to find illegal functionality
When the EPA opposed the “Proposed Class 22” exemption to the Digital Millennium Copyright Act (DMCA) earlier this year, they tried to close the door to independent research into vehicle security and safety vulnerabilities. Given what we now know, there’s also a need for independent research into emissions control to validate environmental claims.
DMCA Background as it applies to cars
Every three years the Copyright Office considers proposed exemptions to the DMCA. This is exactly how we “won” the right to jailbreak smart phones, because of an exemption to the DMCA.
While the DMCA was initially meant to protect the entertainment industry from the flagrant sharing of music and video through file sharing services, its use has broadened over the years. The software inside gizmos like cell phones or cars — cars contain a growing mountain of embedded software — has become protected by the DMCA. Just as the entertainment industry wanted to use software technology like encryption to prevent flagrant copying, the gizmo makers of the world can use tricks to prevent independent researchers from reverse engineering embedded software in the gizmo.
In other words – the embedded software in cars is probably protected by various software tricks from reverse engineering. And in any case, the DMCA says anybody who reverse engineers such embedded software is violating the DMCA. Even if doing so serves the greater good.
Serving the greater good by violating the DMCA
Therefore, an independent evaluation of on-board software in, say, cars means the researcher could go to jail. In August, a pair of researchers demonstrated security vulnerabilities in specific Chrysler JEEP’s allowing anyone to remotely control steering, speed and other characteristics. This was very important work, demonstrating something we should all be afraid of, but to do this the researchers had to violate the DMCA.
In other words, these researchers did us all a great service by violating the DMCA and demonstrating this problem.
Some other researcher looking into emissions control systems may also have to violate the DMCA in order to demonstrate an emissions control problem.
Copyright Office considers DMCA exemptions for vehicle software
This year the agenda of the Copyright Office’s Sixth Triennial 1201 Rulemaking Hearing included two proposals relating to cars:
- Proposed Class 22: Vehicle software – security and safety research This proposed class would allow circumvention of TPMs protecting computer programs that control the functioning of a motorized land vehicle for the purpose of researching the security or safety of such vehicles. Under the exemption as proposed, circumvention would be allowed when undertaken by or on behalf of the lawful owner of the vehicle.
- Proposed Class 21 – vehicle software – diagnosis, repair, or modification This proposed class would allow circumvention of TPMs protecting computer programs that control the functioning of a motorized land vehicle, including personal automobiles, commercial motor vehicles, and agricultural machinery, for purposes of lawful diagnosis and repair, or aftermarket personalization, modification, or other improvement. Under the exemption as proposed, circumvention would be allowed when undertaken by or on behalf of the lawful owner of the vehicle.
The EPA sent a letter opposing Proposed Class 22 (replicated below). The case they presented centers on public safety, as well as ensuring the integrity of emissions control in the face of people who would intentionally disable emissions control devices. Hotrodders looking to boost performance, in other words.
According to the EPA the desire to research security or safety, or the desire to perform “lawful diagnosis and repair, or aftermarket personalization, modification, or other improvement” is laudable. But. The EPA predicts other sorts of modifications as well, not all of which occur for the best of intentions. The Clean Air Act in particular prohibits tampering with emissions control devices. A DMCA exemption allowing Proposed Class 21 or Proposed Class 22 would, according to the EPA, hamper its ability to enforce regulations against tampering with emissions control.
Irony abounds. In the Dieselgate case, it was the manufacturer, not a 3rd party, who violated the Clean Air Act by subverting the emissions control system. And the manufacturer is hiding behind the DMCA going nyah nyah at independent researchers who might study the on-board systems to look for emissions control (or other) problems.
EPA’s letter to the Copyright Office
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