The Environmental Protection Agency (EPA) announced that it is brining a lawsuit against Volkswagen:
The lawsuit is the latest chapter in the fallout since the EPA published a notice of violation in September accusing Volkswagen of installing software on many of its diesel vehicles that would stop the car’s emissions control system from working properly during normal driving, but engage the emissions control system while the car was being tested in a lab, effectively helping Volkswagen cheat air quality regulators in the US.
A press release from the EPA said that approximately 499,000 diesel cars with 2.0 liter engines were found to have defeat devices, and some 85,000 cars with 3.0 liter engines were similarly implicated. The complaint filed by the Department of Justice suggests that the software to defeat the emissions control system in 2.0 and 3.0 liter cars was slightly different, however.
According to the complaint, during federal emissions testing, 2.0 liter engines from Volkswagen “run software logic and/or calibrations that produce compliant emission results” which the car’s onboard system calls the “dyno calibration,” referring to the dynamometer that’s used during emissions testing.
What makes this lawsuit noteworthy is that it demonstrates yet another double standard between private companies and the State. Although the Digital Millennium Copyright Act (DMCA) makes it illegal to bypass means of preventing the copying of data there is no such law for defeating physical systems. If, for example, you take apart your television, wristwatch, or automobile the manufacturer can void the warranty but it cannot sue you. Likewise, if you buy one of those terrible Masterlock padlocks and pick it open Masterlock cannot sue you for bypassing its system. And while Microsoft may be able to sue you for bypassing the copy protection used on the Xbox it cannot sue you for taking the physical system apart. In other words manufacturers cannot sue you for being clever with hardware.
Yet the EPA is free to sue Volkswagen for bypassing its very poorly designed system. Volkswagen didn’t bypass a means of prohibiting the copying of data as is covered by the DMCA. It wrote a piece of software to detect conditions associated with the EPA’s standardized testing system and present the system with what it expected. A more accurate way of explaining this lawsuit would be to note that Volkswagen is being sued because the EPA is too inept to design a test that’s difficult to detect. Volkwagen was clever and the State can sue you for being clever.