Barely Legally

Confessions of a Moot Court Bailiff

Consider the Source

Volkswagen’s diesel cars aren’t nearly as fuel-efficient as the company claimed for the last decade or so. The New York Times talked with Eben Moglen, who’s been evangelizing open-source software for several centuries, and he points out that this scandal could have been discovered before it started if not for closed-source software:

“Software is in everything,” [Moglen] said, citing airplanes, medical devices and cars, much of it proprietary and thus invisible. “We shouldn’t use it for purposes that could conceivably cause harm, like running personal computers, let alone should we use it for things like anti-lock brakes or throttle control in automobiles.” […] “If Volkswagen knew that every customer who buys a vehicle would have a right to read the source code of all the software in the vehicle, they would never even consider the cheat, because the certainty of getting caught would terrify them.”

Moglen’s definitely not wrong, though I wouldn’t hold my breath on the “open-source software in anti-lock brakes” bit. I think the fact that it’s a felony to tinker with your car’s software is absurd, and that it’s impossible to actually regulate the functioning of closed-source software. But Volkswagen didn’t trick the E.P.A. with closed-source software.

From the Times article again:

When the test was done and the car was on the road, the pollution controls shut off automatically, apparently giving the car more pep, better fuel mileage or both, but letting it spew up to 35 times the legal limit of nitrogen oxide. This cheating was not discovered by the E.P.A., which sets emissions standards but tests only 10 to 15 percent of new cars annually, relying instead on “self certification” by auto manufacturers.

Federal regulators and their European counterparts were bamboozled because the car companies were the ones doing the testing. That’s beyond ridiculous. Think of Volkswagen like a student who got ahold of the answer key and spent all night memorizing the answers to the final exam, only to be asked to grade his own test paper and report his grade to the teacher.

What Volkswagen did was pretty awful, but it’s not surprising. If Volkswagen’s engines pollute too much, they don’t get to sell cars in America. That’s objectively a good thing; I rather enjoy that cars are under strict(?) regulations on the amount of poisonous material they can produce. But if you have those kinds of stakes and then let companies grade their own performance, they’re going to cheat. Full stop.

If we’re being honest, the idea that the E.P.A didn’t have the resources to check the math itself is the really insane part. Open-sourcing Volkswagen’s software would have been an instant fix for this, but regardless of whether that happens, the E.P.A should absolutely be able to afford to drive a car around in circles and measure what comes out of the tailpipe.