As I consider potential impacts from Meltdown and Spectre, what strikes me most is not the typical cybersecurity risks, reputational impacts, and operational hits. In the coming weeks and months, we will see lawsuits against the chip manufacturers, operating system providers, and OEM manufacturers whose devices house these chips and are the point of contact between the user and the chipset.

Surprisingly, it was my neighbors' sports car that led me to focus on the legal issues, not the industry evaluation and response to the chip vulnerability. When my neighbor was showing me his new Porsche, he made me think about engineering, performance, and speed, as well as the difference in our expectations when we make purchasing decisions. When a person buys a high-performance vehicle, he or she has certain expectations about speed, acceleration, and craftsmanship. For a sports car, the engine is the most critical part of the vehicle, and really it's what the car is built around.  

If I buy an $800,000 Porsche that is advertised to hit 60 mph in 2.2 seconds, then I expect it to perform reliably and consistently at this level. When I am advised the engine needs a system upgrade because of dangerous combustion timing and that upgrade decreases the performance of the vehicle by 30%, then I must question my purchase and whether the car has been negatively affected in a way that is irrecoverable and if it's no longer enjoyable.

Degraded Performance?
There are many similarities between my sports car analogy and the performance hits that may occur after applying patches or other firmware/system changes to mitigate the effects of Meltdown and Spectre on various processors. When consumers and businesses make purchasing decisions for computers, data center infrastructure, or cloud services, the operations teams focus on architecting systems to run in the most efficient manner, with the highest operational delivery specifications, and in a secure fashion.  

If processors that used to run, for example, on a laptop at 3.4GHz now run at 2.4GHz in bench tests, then the overall performance and/or productivity of the teams may be impacted or make for a less robust computing platform. If server architecture in a data center environment or cloud instance has been purchased and specified to run at a specific speed, transaction flow, or simultaneous user session speed and this is negatively affected, then there may be issues experienced by the end customer.  

Both of these scenarios of degraded processor speed may interfere with employees' ability to perform their job functions (think engineers, number crunching, and graphics), consumers' enjoyment of their newly delivered holiday gift, and production capabilities for websites that have high transaction volume and user utilization. In these cases, the processor still exists and is still working, but it has been degraded in a manner that may affect the overall value of the technology device, business function, or customer appreciation and continued use of the product or service.

Legal Issues
In the days ahead, CISOs will be examining the mitigating controls they can implement to decrease risks to their environments and customers. Chief operating officers will want to stay abreast of performance issues, operational degradations, and customer issues. Similarly, lawyers and contract and procurement officers will start to ask questions. Legal experts will seek information on what they contracted for in their purchase or lease of equipment or services and what they are now receiving in terms of promised speed and system utilization.

To the extent there is a delta between what was purchased and what is now in operation, lawyers may seek a reduction in price, new equipment, or indemnification for affected customers going forward. In many instances these discussions will be held quietly, but we can expect a new round of contract claims, tort claims, and—one of my favorite claims from the early days of CAN-SPAM litigation—trespass to chattels. This last claim is one that has been around for hundreds of years and appears in lawsuits when the property still exists but is being blocked from being used, impacted negatively, degraded, or otherwise unavailable. When property quality, condition, or value has been impaired, then one may have a claim for trespass to chattels.

We will have to examine more closely what the true performance effects are and whether or not they are material in the coming months. We will have to examine what types or remuneration might be possible if indeed the Porsche is now operating like a Yugo. But no matter what, we must patch and secure this fundamental building block in all our technological devices.

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