The Washington PostDemocracy Dies in Darkness

Tesla may have violated federal rules by releasing information about fatal California crash

In this March 23 photo provided by KTVU, emergency personnel work the scene where a Tesla electric SUV crashed into a barrier on U.S. Highway 101 in California. Tesla said in a blog post that the vehicle was in “Autopilot” mode when the crash occurred. (KTVU via AP)

Tesla may have run afoul of federal rules governing safety investigations when it released information over the weekend about a fatal crash involving one of its Model X SUVs in California last month.

The release of investigative information was the latest instance of Silicon Valley bucking long-standing norms in dealing with government officials.

The National Transportation Safety Board voiced its displeasure Sunday, saying it was “unhappy” that Tesla had released information about the March 23 crash that killed 38-year-old Walter Huang when his Tesla slammed into a highway barrier on U.S. 101.

In a blog post Friday, Tesla attributed the severity of the crash to a missing crash “attenuator,” a barrier meant to act as a sort of shock absorber during collisions. It also said the Tesla was operating in semiautonomous “Autopilot” mode, but that Huang had not followed guidelines intended to make sure drivers are fully attentive while the vehicle is in Autopilot.

The statements appear to place at least some of the blame on the driver. However, both the attenuator and Autopilot remain central to the NTSB investigation, which also is examining reports from Huang’s family members that he had complained previously about the performance of Autopilot on the same stretch of highway. Federal investigators have not drawn any conclusions, but said a preliminary report is expected in a few weeks.

Meanwhile, Tesla’s decision to disclose its findings could have further implications — up to being removed as a party to the investigation — according to the rules governing investigations.

Before the NTSB’s adoption of the final report, only appropriate NTSB personnel are authorized to publicly disclose investigative findings, and, even then, the release shall be limited to verified factual information identified during the course of the investigation. In addition, party participants or their respective organizations must refrain from providing opinions or analysis of the accident outside of the participants in the investigation. Failure to abide by these requirements may lead to removal of a party from the investigation.

The NTSB did not say Monday whether it was considering such a punishment for Tesla.

“We take each unauthorized release of information seriously,” NTSB spokesman Chris O’Neil said.

NTSB ‘unhappy’ with Tesla release of investigative information in fatal crash

Tesla, through a spokeswoman, declined to explain why it felt compelled to share the information, or why it did not inform the NTSB beforehand. But chief executive Elon Musk hinted at his thinking in a Monday morning tweet responding to a story about the NTSB’s concerns.

“Lot of respect for NTSB, but NHTSA regulates cars, not NTSB, which is an advisory body,” he said, referring to the National Highway Traffic Safety Administration. “Tesla releases critical crash data affecting public safety immediately & always will. To do otherwise would be unsafe.”

Removal from an NTSB investigation is rare but not unprecedented. In 2014, the safety body booted United Parcel Service and its pilots union as parties to a probe after, NTSB said, UPS and the union made public statements about the cause of an Aug. 14, 2013, cargo plane crash that killed two pilots. Prior removals to that, The Washington Post reported, included:

In December [2013], the NTSB bounced a New York rail union from partnership in the investigation of a derailment that killed four people in the Bronx. In 2010, American Airlines was removed from an investigation into a plane that slid off the runway in Jackson Hole, Wyo. In 2009, the National Air Traffic Controllers Association was banished from an investigation into the collision of two aircraft over the Hudson River that killed nine people.

The Post story on the UPS case sheds further light on the significance of violating the agreement.

Understanding the gravity of the contretemps requires a glimpse into the fastidious fashion in which the NTSB does its job. In the case of an airplane crash, the NTSB calls in all the “parties” to the incident. For example, that might include the airline, the company that built the plane, the company that made the plane’s engines, various unions and any manufacturer who made a relevant system aboard the plane.
All take a vow of silence until the NTSB delivers its final report on the accident. So secret is the process that for some portions of the inquest the partners gather in a secure section of the NTSB building that is equipped with a unique computer system that allows no communication outside the room. Partners at those sessions take notes on color-coded paper that is collected before they leave the room.

Parties to such investigations enter a good-faith agreement to shed light on larger safety concerns through a rigorous, objective and independent analysis, officials said. Probable causes and contributing factors are for the NTSB to determine, they said, not parties to the investigation themselves. Tesla’s decision appeared to give it an unfair advantage over other parties to the investigation.

Still, the tech companies’ cooperation is necessary in a world of increasingly new and sophisticated equipment and technology that investigators sometimes cannot directly access. Airplane “black box” data recorders are standardized, for example, and investigators have significant experience working with them. The same is true when dealing with train crashes. But autonomous vehicle technology is proprietary and differs by company; there is no industry standard.

This is the third NTSB investigation into Tesla vehicles. The information disconnect could foreshadow new problems for federal authorities in their dealings with emerging tech companies, whose investors and potential shareholders react swiftly to such incidents.

Some noted NTSB’s uncharacteristic public admonishment of Tesla following the company’s blog post.

Tesla asserts Autopilot ‘unequivocally makes the world safer’ — days after fiery, fatal crash

Amid mounting scrutiny over the crash and an unrelated recall of 123,000 vehicles, Tesla stock fell sharply. It was unknown whether investor confidence factored into the company’s decision to provide an explanation for the California crash. In the UPS case, the company said it was “unfairly reprimanded for attempting to set the facts straight and defending our brand.”

Tesla’s ‘transformative year’ is hitting a brick wall

Tesla offered no such defense Monday, however, declining to comment on its decision and any questions related to it.