It was the wallet comment in the response brief filed by the Federal Trade Commission (FTC) in the U.S. Court of Appeals for the 11th Circuit that prompted me to write this post. In its February 9, 2017 filing, the FTC argues that the likelihood of harm to individuals (patients who used LabMD’s laboratory testing services) whose information was exposed by LabMD roughly a decade ago is high because the “file was exposed to millions of users who easily could have found it – the equivalent of leaving your wallet on a crowded sidewalk.”
However, if one is to liken the LabMD file (referred to throughout the case as the “1718 File”) to a wallet and the patient information to cash or credit cards contained in that wallet, it is more accurate to describe the wallet as having been left on the kitchen counter in an unlocked New York City apartment. Millions of people could have found it, but they would have had to go looking for it, and would have had to walk through the door (or creep through a window) into a private residence to do so.
I promised to continue my discussion of LabMD’s appeal in the U.S. Court of Appeals for the 11th Circuit of the FTC’s Final Order back in January (see prior post here), planning to highlight arguments expressed in briefs filed by various amici curiae in support of LabMD. Amici include physicians who used LabMD’s cancer testing services for their patients while LabMD was still in business, the non-profit National Federation of Independent Business, the non-profit, nonpartisan think tank TechFreedom, the U.S. Chamber of Commerce, and others. Amici make compelling legal arguments, but also emphasize several key facts that make this case both fascinating and unsettling:
The FTC has spent millions of taxpayer dollars on this case – even though there were no victims (not one has been identified in over seven years), LabMD’s data security practices were already regulated by the HHS under HIPAA, and, according to the FTC’s paid litigation expert, LabMD’s “unreasonableness” ceased no later than 2010. During the litigation, … a whistleblower testified that the FTC’s staff … were bound up in collusion with Tiversa [the cybersecurity firm that discovered LabMD’s security vulnerability, tried to convince LabMD to purchase its remediation services, then reported LabMD to the FTC], a prototypical shakedown racket – resulting in a Congressional investigation and a devastating report issued by House Oversight Committee staff.” [Excerpt from TechFreedom’s amicus brief]
An image of Tiversa as taking advantage of the visible “counter-top wallet” emerges when reading the facts described in the November 13, 2015 Initial Decision of D. Michael Chappell, the Chief Administrative Law Judge (ALJ), a decision that would be reversed by the FTC in the summer of 2016 when it concluded that the ALJ applied the wrong legal standard for unfairness. The ALJ’s “Findings of Fact” (which are not disputed by the FTC in the reversal, notably) include the following:
“121. On or about February 25, 2008, Mr. Wallace, on behalf of Tiversa, downloaded the 1718 File from a LabMD IP address …
- The 1718 File was found by Mr. Wallace, and was downloaded from a peer-to-peer network, using a stand alone computer running a standard peer-to-peer client, such as LimeWire…
- Tiversa’s representations in its communications with LabMD … that the 1718 File was being searched for on peer-to-peer networks, and that the 1718 File had spread across peer-to-peer networks, were not true. These assertions were the “usual sales pitch” to encourage the purchase of remediation services from Tiversa… .”
The ALJ found that although the 1718 File was available for peer-to-peer sharing via use of specific search terms from June of 2007 through May of 2008, the 1718 File was actually only downloaded by Tiversa for the purpose of selling its security remediation services. The ALJ also found that there was no contention that Tiversa (or those Tiversa shared the 1718 File with, namely, a Dartmouth professor working on a study and the FTC) used the contents of the file to harm patients.
In short, while LabMD may have left its security “door” unlocked when an employee downloaded LimeWire onto a work computer, only Tiversa actually walked through that door and happened upon LabMD’s wallet on the counter-top. Had the wallet been left out in the open, in a public space (such as on a crowded sidewalk), it’s far more likely its contents would have been misappropriated.