30 June 2015

Remember the millennium bug? Meet the leap second.

IT lawyers of a certain age will remember the Millennium Bug with fondness.

Long before the iPhone, when even the humble Blackberry had barely dented our work/life balance, IT lawyers weren't partying like it was 1999.

Oh no, we were saving the world from catastrophic computer meltdown!

Apparently, programmers had never thought to put years in four digit format. At the stroke of midnight 2000, this minor oversight would reset the clock to 1900 ('00'), causing economies to crash, planes to fall from the sky and nuclear power stations to overheat.

But fear not, we had 56k dial-up Internet access. Nothing could stop us - if only the log-in screen would load on time!

As it turned out, the Millennium Bug was little more than the proverbial storm in a teacup. Yes, some date/time formatting changes were needed (a relatively minor software update in most cases), but the only fireworks at midnight were planned well in advance and involved large groups of revellers gathered in capital cities the world over.

The Bug did leave a legal legacy though - the date compliance warranty, which can occasionally still be found in its natural habitat, the expiring 10 year IT services contract, with its lesser known (but possibly, soon to be much more relevant) sibling, Euro currency compliance.

Date compliance put the millennium risk on software vendors. Programs would have to work with any date change. Job done, and partnership assured for several (now rather successful) commercial IT lawyers.

And so normal life returns...or does it?

June 30 2015 (that's today) sees the introduction of a "leap second" when, to ensure our clocks don't become wildly inaccurate, we need to drop in 23:59:60 before the stroke of midnight, July 1. Apparently, this happens quite often (the last was June 30 2012, though on average, every 18 months), and there have been 25 since 1972, when there were two (June 30 and December 31).

Of course, also since 1972 (a leap year, coincidentally) we've become extremely dependent on computers, and opinion is now divided on the merits of the leap second, which unsurprisingly, does cause problems for our virtual infrastructure. 

In 2012, several big Web outfits, including Mozilla and Reddit, suffered problems as Java and Linux software failed to cope with the extra second.

If the same happens tonight, some lawyers are likely to be asked who's at fault.

In all probability, that's going to be the software vendor. Whether date compliance was ever considered or not, the software will have fallen over and performance should be the basic contractual requirement.

But in today's web of interdependency, the chances are high that the root cause failure may be several steps away, somewhere in the backbone infrastructure. 

Is this force majeure? Well, it depends on the contract drafting, but in most cases, probably not. With 25 seconds added in forty years, I'd say it's reasonably foreseeable it could happen again. Leap seconds are also notified six months in advance.

Much more likely, it's a "failure of third party infrastructure providers," a common exclusion which passes the risk back up the chain, and effectively negates exposure for the ultimate customers' losses.

This may not be an acceptable outcome in all circumstances. 

My kids may argue that Instagram going down is life-threatening, but in many medical and military applications, accuracy to the second and guaranteed 24x7x365 (or is that 366?) uptime really do matter. Financial institutions tend to care about these things too.

And then there's reputational damage. Consumers readily vote with their feet when platforms are unstable - at least when the competition's better.

So if time accuracy and uptime really matter, all us lawyers should be taking a closer look at those contracts, while being realistic. 

Deal with the leap second where it matters. 

Make sure the contract fits, and even think about whether ol' grandpa Date Compliance over there might be needed.

Make sure the functionality delivers. The dates need to be manually configurable (leap seconds not being predetermined), and someone needs to do it.

Otherwise, enjoy life's extra seconds, comfortable in the knowledge that law firms probably haven't the recording systems in place to charge for them.

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