Mobile devices within the Internet of Things (IoT) are continuously benefitting from rapid technological advancements. And once those devices are sold to consumers, over-the-air (OTA) software updates ensure they can be modified to stay current with new capabilities. Consumer electronics companies can remotely change product features, deliver messages or warnings, identify safety-related activities, gather data, and solve issues.

But OTA software updates also need to comply with existing and emerging regulations and laws. Companies are wondering whether the availability and ease of OTA updates could also lead to a legal requirement for them to monitor and act on issues — especially those involving safety — over the lifespan of the product. And when software updates can be installed automatically, will there be a need to obtain owner consent?

In this hoganlovells.com interview, Dr. Sebastian Polly, a partner in the Hogan Lovells Munich office, explores how OTA software updates are creating opportunities and challenges for companies in the product liability, safety, and compliance space.
What are OTA software updates and why are they unique?
Polly: OTA means wireless communications. It can be mobile, WiFi, radio — you name it. IoT devices pretty much all have capabilities that allow some form of OTA communications. OTA software updates are a way to allow a manufacturer, supplier, service provider, or another company to remotely access and change the product’s programming. The unique feature is that they can change it, theoretically, whenever and wherever they want, even when the product is long gone — with a customer or user, out there in the field.

Many engineering, quality, and legal departments are just starting to explore opportunities. Remotely updating a product’s software can solve many technical and legal issues. Moreover, OTA software updates can also deliver messages or send warnings directly on the devices to inform customers they’re part of a safety campaign.

Also, once a product has already been on the market for a while, you can theoretically add new features to it or even change the entire way it behaves, or change existing functions and make them better or safer. And you can deactivate certain functions retrospectively. That, of course, goes along with certain legal challenges.

OTA software updates must comply with several areas of law. What are the concerns regarding civil law?