Navy Targets Sailor's Use of 'Gay' on AOL Case Raises Issue of Online Privacy Protection
Washington Post,
January 12, 1998
1150 15th Street NW
Washington, DC 20071
By Rajiv Chandrasekaran
Washington Post Staff Writer
When Navy sailor Timothy R. McVeigh created a "user profile" on America
Online, he didn't think his use of the word "gay" to describe his marital status
would violate the Clinton administration's "don't ask, don't tell" policy on
homosexuals in the military. He said he was careful not to include his full name or his
occupation, referring to himself only as "Tim" in "Honolulu, Hawaii."
But last week, in an unusual case that has outraged gay-rights groups and
electronic-privacy advocates, the Navy's deputy personnel chief ordered that McVeigh --
who is not related to the convicted bomber of the Oklahoma City federal building -- be
dismissed from the service for violating the policy, after a naval investigator testified
that he obtained McVeigh's identity with a telephone call to America Online Inc.
The investigator said at a November discharge hearing that a technical- support
employee at the Dulles-based online service did not ask for a court order before imparting
McVeigh's full name and state of residence, according to a transcript of the proceeding.
Privacy advocates contend that AOL, which has 10 million subscribers, flouted its own
privacy policy and that both the Navy and AOL may have violated a federal law.
"People are given an assurance that when they use AOL, they are doing it with a
pretty strong sense of anonymity," said David L. Sobel, the legal counsel at the
Electronic Privacy Information Center, a Washington-based advocacy group. "This case
raises serious questions about AOL's protection of subscriber privacy."
An AOL spokeswoman would not comment on the case other than to say that the company
"saw nothing in the transcript [of the discharge hearing] to suggest that we gave out
private member information." "Our policy regarding the release of personal
information is very clear," the spokeswoman, Wendy Goldberg, said. "We don't
release this information unless we are presented with a court order, a search warrant or a
subpoena. That policy is very clear to our employees."
The case against McVeigh has been seized upon by gay rights activists, who see it as
the latest example of what they say is unfair and discriminatory prosecution of
homosexuals by the military. They insist the Navy was unjustified in pursuing McVeigh
simply because of an AOL profile that he maintains did not include his last name.
"Under `don't ask, don't tell,' there are supposed to be limits on
investigations," said C. Dixon Osburn, the co-executive director of the
Servicemembers Legal Defense Network, a Washington-based group that assists military
personnel charged with violating the policy. McVeigh "didn't work hard to get on the
radar screen," said Osburn, who is providing legal advice to McVeigh.
A Navy official at the Pentagon, who requested anonymity, defended the investigation
into McVeigh. "The Navy views this case as a straightforward application of existing
policy." The Navy viewed the AOL profile "as a straightforward indication of
McVeigh's statement that he is gay," the official said.
McVeigh, 36, a senior chief petty officer who has been in the Navy for 17 years, said
the discharge proceedings began after he sent a civilian Navy employee an electronic mail
message in September asking for the ages of children of sailors on his submarine to
organize a holiday toy giveaway. McVeigh said he sent the request via the AOL account
because he was heading off to sea and did not have time to see the civilian Navy employee
in person.
As is true of all AOL messages, McVeigh's "screen name" appeared as the
return address. Using that screen name, the employee searched AOL's public directory and
discovered a profile screen, created by McVeigh, that included the designation
"gay" for marital status. It is unclear from the testimony in the case what
prompted the employee to search the profile.
At the November hearing, naval investigator Joseph Kaiser said he called AOL and talked
to "a gentleman named Owen at tech services," according to the transcript.
Kaiser testified that he "wanted to confirm the profile sheet, who it belonged to.
They said it came from Hawaii and that it was `Timothy R. McVeigh' on the billing."
Kaiser testified that the AOL representative did not provide any other data about
McVeigh.
Sobel and other privacy advocates question whether the McVeigh case is an isolated
incident of privacy violations by AOL. "How many other similar disclosures have been
made like this that we -- or the actual account holder -- don't know about?" he
asked.
Others suggest that the Navy's apparent success in obtaining the information from AOL
without a court order will encourage investigators to operate in a similar fashion in the
future. "It's giving a green light for the government to start cyber-snooping on
American citizens," said John Aravosis, an Internet consultant in Washington who has
been trying to raise awareness of the case.
The 1986 Electronic Communications Privacy Act bars service providers such as AOL from
knowingly giving subscriber information to law enforcement officials without a court
order. In the McVeigh case, however, it is not clear from the transcript that the
investigator identified himself to AOL.
"There seems to be a legal loophole here that needs to be closed," Sobel
said. "There's nothing to prevent investigators from getting this information without
disclosing who they are."
McVeigh said the only evidence given at the hearing was the profile, which he does not
deny writing. In an interview with The Washington Post, he would not say whether he is
gay.
He disputes the Navy's contention that the word "gay" on his profile means he
is homosexual. "You can put in male or female, that you are green or blue or
purple," he said. "That doesn't make it true."
The Navy personnel office on Jan. 5 directed that McVeigh be given an honorable
discharge within 10 days, entitling him to some benefits but not a pension. McVeigh joined
the Navy after high school, rising to become the chief enlisted officer on the USS
Chicago, a nuclear-powered submarine.
The Servicemembers Legal Defense Network has submitted an appeal to Navy Secretary John
Dalton, asking to delay the discharge pending an examination of whether the service
properly followed the "don't ask, don't tell" policy.
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