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Recall or update? When safety is at stake the difference is more than semantic

6 min read

Tesla is currently in the midst of recalling over 300,000 of its vehicles from all its four major models. Or is it recalling anything? That is the question at the heart of a disagreement between Tesla CEO Elon Musk and the US National Highway Traffic Safety Administration (NHTSA)

The dispute is not a matter of compliance, as Tesla works with NHSTA even when they may disagree on some specifics, but rather one that appears to be over semantics. Mr. Musk has expressed disapproval with the use of the term "recall", because the repairs being made are to the vehicle software and will be done via an over-the-air (OTA) update. No physical good is being brought back to a repair location. 

This difference in perspectives matters. The application of older regulations to newer products and services is necessary and inevitable given the pace of innovation (fast) and the need for legal certainty (slow).  

However, disagreement over the regulations' interpretations should not be allowed to escalate. The consequences of such a path are currently unfolding in internet content provision, with two cases now before the US Supreme Court that could unravel internet governance with no replacement at hand. In safety-critical applications such as transportation a similar unravelling of cooperation and regulation would have serious, even life-threatening implications. 

What happened

In mid-February the NHTSA issued a safety recall for over 300,000 Tesla vehicles. The recall resulted from an NHSTA investigation and was for a safety-related defect in vehicles equipped with the FSD (full-self driving) Beta feature. 

NHSTSA concluded this defect presented an unreasonable risk of accident and thus requested a recall. While Tesla disputed the analysis, they agreed to comply out of an abundance of caution. 

Yet the use of the recall process, and especially the term "recall" proved more controversial. In a social media post questioning the matter, Tesla CEO (and Twitter owner), Elon Musk, agreed it was the wrong word:

Definitely. The word "recall" for an over-the-air software update is anachronistic and just flat wrong!

This dispute is not new. In 2021 Tesla failed to file a recall report with NHTSA for an OTA update, resulting in a sternly worded letter from NHSTA stating in part: 

Any manufacturer issuing an over-the-air update that mitigates a defect that poses an unreasonable risk to motor vehicle safety is required to timely file an accompanying recall notice to NHTSA. 

Now, Tesla has over the years filed many recalls with NHSTA, but clearly there is some unclarity on when an update is a recall. This uncertainty has led to where we are today, with Mr. Musk's direct attack on the "recall". 

Recall versus OTA Update

NHSTA's guideline summary on recalls is fairly comprehensive, but still leaves a lot of room for interpretation.  

In this case, a safety-related defect with a component was found, requiring the manufacturer to either repair or replace that component. The OTA update will thus repair the code, replacing those segments that contributed to the safety defect. 

Typically, such repair requires the vehicle to be returned to a factory or authorized repair location. However, as an owner of a Tesla vehicle has approved it receiving OTA updates, they have authorized software repairs at any location where they choose to install the update. During this time the vehicle cannot be used by the owner, clearly indicating the vehicle is in a repair state. 

Thus, in terms of whether this is a repair or replacement, and the location of that repair, this OTA update could be classified as a recall. 

The crucial word is "returned", a subtext inherent in the word "recall" (to bring back). Because the repairs in this case can happen where the owner chooses, the physical vehicle never returns anywhere. The component itself, the code, also does not return anywhere; at most data passes back and forth.  

However, if we consider the definition of recall often refers to a mental process, recalling is not only a physical process but also a virtual one. Thus, to recall has always had both a physical and virtual meaning.  

Formerly only the physical meaning was considered applicable to products, because that was how products were produced and the only way they could be repaired. Today's information-driven economy is different; from software, to data, to additive manufacturing, value and products can be created anywhere. 

What's really at stake

Musk's case is not against the need for updating code and Tesla takes their responsibility for safety related defects seriously. Rather, Mr. Musk is concerned that the stigma associated with the term "recall" could result in reputational damage (and resulting decline in sales) or legal action from private persons (seeking damages and/or compensation). Conversely, an "update" sounds quite positive, implying even improvement. 

Thus, Musk's disagreement with NHTSA is driven by marketing and legal concerns.  This motivation is warranted and proper, as he has a responsibility (as CEO) to protect Tesla's value for its shareholders. 

The question then is: does Tesla deserve to have the reputational damage and exposure to litigation that being faced with a "recall", rather than an update, entails? 

Taking safety seriously

We at neurocat, being an automotive AI safety company, are not impartial on this question. Yet we would argue that if there is a safety risk, and financial threat is the best means for remedying that risk, then yes, the word recall should be used here. 

Indeed, financial threat is the main lever through which NHSTA typically gets compliance, and most NHSTA investigations do not require court action. Moreover, this arrangement is desirable.  

By aligning its enforcement with market mechanisms, and the automobile manufacturers’ incentives, NHSTA not only gets voluntary compliance (as it often does), but the industry also internalizes safety thinking and will proactively file recall reports (as with the majority of recalls). This is preferred to litigation and court ordered actions that may lead to the situation internet governance finds itself in today. 

Words matter, but meanings change

Perhaps Mr. Musk is right and NHSTA should update its terminology. Automotive technology has evolved to the point where physical recall is not always necessary. 

However, an OTA update can have the same purpose as a physical recall: to correct a safety-related defect in the automobile. It is in spirit the same thing. The software is produced (and repaired) in a different way than in years past, but it is a functionally equivalent evolution of the computer features that have been on automobiles for decades. 

Moreover, whatever term NHSTA decides upon should carry with it the same procedural requirements, legal weight, and reputational threat as the term "recall". Doing so ensures safety is given priority in the face of competing, but also legitimate and valued, interests and priorities. 

As autonomous vehicles continue to add features and increase their level of autonomy, our understanding of what a "car” is, and who a “driver" is, will change. But the safety of that vehicle, and those inside or around it, will remain paramount. The best way to ensure that safety is to continue to recall vehicles for safety related defects, and reserves updates for non-functional quality of life features. 

Interested in ensuring the safety of your autonomous vehicle's perception functions and avoiding recalls? Check out our aidkit software solution and get in touch! 

Tagged: recall · safety · tesla

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