Hacking and bugs: Intel Inside digging its own grave

Last week it had been reported that almost all the processors in the world are vulnerable to two major bugs – Meltdown and Spectre. These bugs allow hackers to steal data from billions of devices – desktops, laptops, smartphones, tablets – making misuse of data possible for financial gains, intrusion into privacy, compromising safety and security, and a number of other abuses.

Shockingly, these bugs have been reported not only in the processors manufactured by the market leader Intel, but also by its competitor AMD and ARM. These companies have been quick to respond by coming up with patches to take care of the bug, however, AMD has stated that almost none of its processors suffers from the said bugs. The biggest problem is being faced by Intel, which has been miles ahead of its competitors and according to the researchers the bug problem can be traced back to mid-1990s, which simply means that almost all the devices currently being used in the entire world are not safe.

From a legal perspective, it is interesting to understand that Intel has been at the helm of affairs since mid-1980s, the time when the scientists, researchers, and business companies could very well anticipate that the use of computers is going to be enormous and increase exponentially.

Intel had been instrumental in getting the laws made by the US legislature to protect the intellectual property rights in the chip layouts and chip topographies. That gave birth to Semiconductor Chip Protection Act (SCPA) of 1984. Intel along with its competitors through the Semiconductor industry Association (SIA) had tried its best to have a legal remedy against what it called “chip piracy”. Copying a chip and making it illegally – which was prior to the SCPA not illegal – had been fairly lucrative and provided tremendous opportunities for inquisitive and restless super intelligent geeks to tweak and play around with the legal versions.

The IP protection to semiconductor chips created an environment where the so-called legal and legitimate developers were segregated from the developers who were doing it without authority from the IP owners. Thus, silos were often created making it difficult for knowledge sharing between the legally certified developers from others, who usually were grouped with hackers and considered to be doing illegal and unethical work.

Later, the industry recognised the importance of the hackers who could pinpoint the flaws and loopholes and started working on the suggestions to take care of them tightening the security layer. This gave rise to the concept of ethical hacking – the hackers who could play around with systems and misuse the known loopholes, at the sweet will.

In 1995, when the TRIPS Agreement was signed by the WTO members, semiconductor layout design was included as an important aspect of intellectual property protection, which was neither covered by copyright nor by patent law. Most of the member countries of WTO, including India, made sui generis law on this subject. 

Top companies in the world have been using these semiconductor chips for more than two decades without knowing the problem. In the eyes of law, if the company knew about the problem and did not care to share the details with the users and customers, it is in real trouble. 

However, if the company was not aware, the question arises as to whether the company had really made sufficient and reasonable efforts to find if anything was amiss. Processor technology has been developing by leaps and bounds and the technology frontier is being pushed further fast.

Thus, it will not be surprising to see a spate of litigation against almost all these companies, but primarily against Intel. Knowing the penchant of the American judiciary for awarding excessively high damages, Intel must have ready itself for a huge dent.

These two bugs may truly be like Intel digging its own grave for the last so many years, and presently if it is not agile and astute in handling the situation deftly, it may find itself inside the grave with the epitaph “Intel Inside.”

The author is a professor at IIM-A