Is the Volkswagen Emission Scandal a Computer Crime?

September 28, 2015

VolkswagenThe U.S. Environmental Protection Agency has cited Volkswagen for automobile emission violations and has ordered the company to recall approximately 500,000 of its cars for software modifications.  The EPA contends, and Volkswagen has reportedly acknowledged, that the company installed software into the emission control systems of many of its diesel cars that shutdown those controls during normal operations.  This action is currently being treated as an administrative law violation by the EPA and some states, including California.  It also seems likely that Volkswagen’s conduct could constitute violation of the U.S. Computer Fraud and Abuse Act and similar state laws.

According to the EPA, Volkswagen installed software into the emission control systems of many of the diesel versions of several of its cars, including Jettas, Golfs, Beetles, Passats and Audi A3s.  That software blocked some of the emission controls during normal operation of the cars, resulting in emissions far exceeding EPA approved levels.  The software was designed to permit full operation of the emission controls only when the system was being tested for regulatory compliance.

Apparently, the Volkswagen software was intended to provide users of the car better operational performance, while hiding the violation by re-engaging the emission controls when those systems were tested for compliance.  The software was discovered only when academic researchers tested some of the Volkswagen vehicles during actual road operations, and found that their emissions were far in excess of permissible levels.

Federal and state regulatory authorities are currently treating Volkswagen’s actions as a violation of environmental protection rules.  It seems, however, that those actions could also constitute violation of the federal Computer Fraud and Abuse Act and similar computer crime statutes at the state level.

The federal law protects computing devices that affect interstate commerce.  It protects those devices against actions that are conducted with the intent to defraud.  The apparent facts of the Volkswagen situation suggest that Volkswagen’s development and use of this software could qualify as a violation of the federal law and of the various state laws patterned after the federal law.

This incident also raises questions regarding legal and ethical obligations of software developers.  The developers who created the code to shut down the mandatory emission controls and to re-engage those controls only for the purpose of deceiving compliance testing bear some level of responsibility for this violation.  One can readily argue that the software developers involved in this deceptive operation should bear some level of legal responsibility for their actions.

If an outside party had developed and introduced computer software that shut down emission control systems in cars, that conduct would likely be viewed by the automaker as a violation of copyright law and by legal authorities as a form of computer crime.  The fact that such conduct was apparently engaged in by the automaker itself should not alter the fact that it seems clearly to be a violation of computer crime statutes at both the federal and state levels.