Last edited: February 22, 2005

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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