Government Surveillance on Small Business?

A small medical laboratory named LabMD is in litigation with the Federal Trade Commission and some private parties.  The litigation concerns an infosec incident.  In connection with that incident, I perform legal services for LabMD.

In this blog post, I am deliberating the ethics of me engaging in publicity.

LabMD and its CEO Michael Daugherty are publicizing the litigation and the larger story.  Daugherty is publishing and promoting a book.



Lawyer Code of Conduct

As I deliberate my ethical responsibility, I am mindful that the professional code of conduct for Texas lawyers states:

“Rule 3.07 Trial Publicity. (a) In the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding.”

Freedom of Speech

The official commentary associated with Rule 3.07 cautions that the rule must be restrained by the important, First Amendment right of free speech.

The fact that the drafters of this particular rule would even mention the right of free speech – which is so patriotically powerful and fundamental to our democracy – means by necessity that they are emphasizing it.  But the drafters do more than mention free speech.  They expound upon it at length in the official commentary:

"[T]here are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy.

“2. Because no body of rules can simultaneously satisfy all interests of fair trial and all those of free expression, some balancing of those interests is required. It is difficult to strike that balance. The formula embodied in this Rule, prohibiting those extrajudicial statements that the lawyer knows or reasonably should know have a reasonable likelihood of materially prejudicing an adjudicatory proceeding, is intended to incorporate the degree of concern for the first amendment rights of lawyers, listeners, and the media necessary to pass constitutional muster. The obligations imposed upon a lawyer by this Rule are subordinate to those rights."

Balancing Interests

The LabMD litigation and infosec incident are very unusual.  They involve specialized topics of law and technology.  They are of little interest to the typical person who might serve as a juror should any of the litigation go to a jury trial.  They are unlikely to be covered in the mass media.

The LabMD story raises important topics regarding infosec and government authority.  These topics merit public discussion.

Advice and Comments Requested

I seek your input.  Am I wrong to publicize the LabMD story?


--Benjamin Wright

IMPORTANT NOTICE:  I do not know all the facts of this story.  Michael Daugherty is responsible for his words (such as his words in the video above), not me.  The fact that I bring public attention to Daugherty's words does not mean that I know all of those words to be true.  I bring attention to his words because they are worthy of public debate in the information security law community.  

LabMD's adversaries, like the Federal Trade Commission, are in dispute with LabMD and have made public statements that contradict some of Daugherty's words.

The parties in this story have made many statements.  If the reader wishes to know the truth of any particular fact, then the reader must do more than merely rely on statements that I repeat or publicize.  The reader must do research, such as contact LabMD's adversaries.

Michael Daugherty is writing and publishing a book about this story.  The book will probably reference me.  I am not responsible for the words or ideas linked to me in that book.  Mr. Daugherty is the author.  He is responsible for any and all words or ideas linked to me in that book.

If any person believes I am doing something wrong or making a misstatement, I ask that person to notify me promptly at 1-214-403-6642. Promptness helps me to correct my errors and to mitigate damage.

Update:  I enabled Mr. Daugherty to tell his story at a SANS Institute conference.  If any party to this dispute wishes equal time at SANS or on my blogs or my Twitter, then that party should contact me at 214-403-6642.

Update November 2015: In administrative law court, LabMD won a landmark decision against the FTC.