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About Just out. (Portland, OR) 1983-2013 | View Entire Issue (Feb. 6, 1998)
NATIONAL ffBTO O ver the L ine A judge rules that the Navy went too far in seeking to dismiss a sailor based on an AOL profile — 1 by Bob Roehr .S. District Judge Stanley ment from requiring compliance with the Sporkin said Jan. 26 the Navy request without a court order. “embarked on a search and Sporkin disagreed. In his ruling, he said, “In ‘outing’ mission” in ordering these days of ‘big brother,’ where through tech the dismissal of Senior Petty nology and otherwise the privacy interests of individuals from all walks of life are being Officer Timothy R. McVeigh, who was accused of homosexuality based on information ignored or marginalized, it is imperative that statutes explicitly protecting these rights be obtained from America Online. Sporkin issued a preliminary injunction, strictly observed.” ruling that McVeigh should remain on active The electronic privacy law, said Sporkin, duty pending the final outcome of the case, requires investigators to obtain search warrants which has McVeigh contending that the Navy or court orders before seeking information violated the “don’t ask, don’t tell” policy on from online services. After an internal review, AOL admitted gay men and lesbians in the military as well as that it had violated its own policy of privacy in a federal electronic privacy law. Three days later, Sporkin made permanent his preliminary revealing the sailor’s name and apologized. “This was a case of human error under very injunction. The Navy plans to appeal. unusual circumstances.... This clearly should “This court finds that the Navy has gone too far,” Sporkin wrote in his 15-page decision. not have happened, and we regret it,” said “Although Officer McVeigh did not publicly AOL officials, who also charged that "the Navy had misrepresented itself’ in obtaining announce his sexual orientation, the Navy the information and “deliberately ignored both nonetheless impermissibly embarked on a search and ‘outing’ mission.” federal law and well-established procedures for The Navy is trying to kick out McVeigh, a handling government inquiries about AOL 17-year-veteran, because an America Online members.” profile has the word “gay” in it. According to The Associated Press, McVeigh wound up in hot water last fall when the Navy found a “profile page” posted on America Online “in which a ‘Tim’ from Honolulu described himself as gay and expressed a sexual interest in young men. A Navy investigator called AOL anony mously and obtained the author’s full name, a disclosure AOL later said it regretted and was a violation of its own confidentiality policies.” Christopher Wolf, McVeigh’s lawyer, says his client has demonstrat ed “superior leadership” and “the core Navy values that guarantee success.” Wolf read those words during a Jan. 21 court proceeding before Sporkin. His source? A September fitness report written by McVeigh’s commanding officer, who was assessing the sailor’s performance. Timothy R. McVeigh Wolf also argued that McVeigh never stated publicly he was gay and thus the Those procedures include working through an AOL-designated liaison for the Navy. Navy had no right to ask about his sexual ori Similar procedures have been followed in pros entation. Wolf also says the Navy violated the ecuting child pornographers and predators. 1986 Electronic Communications Privacy Act “The government knew, or should have by obtaining information without a warrant or known, that by turning over the information court order. without a warrant, AOL was breaking the Sporkin, 65, is a Reagan appointee with a law,” Sporkin wrote. “Yet the Navy, in this reputation for even-handedness. During the Jan. 21 proceeding he seemed unfamiliar with case, directly solicited the information anyway. What is most telling is that the Naval investi the fluid nature of online profiles. gator did not identify himself when he made As regular America Online users know, his request.” Thus the Navy, not just AOL, each account may have up to five different profiles, which may be fact, fantasy or a mix of “failed to comply” with the privacy law. Sporkin also said McVeigh had not, in fact, the two. Merely because something has been “told” anyone of his sexual orientation, thus keyed into a profile does not make it true. But the Navy had no right to “ask” anyone about the government’s case seems based on the idea that the word “gay” in McVeigh’s profile is all it. “Suggestions of sexual orientation in a pri that is necessary to prove he is gay. vate, anonymous e-mail account did not give Sporkin asked Department of Justice attor the Navy a sufficient reason to investigate to ney David Glass, “Is [an online profile) enough determine whether to commence discharge of a ticket for getting kicked out?” proceedings,” Sporkin wrote. “Yes,” said Glass, “[because a] statement According to the AP, a “Navy official, who implies conduct.” spoke on condition of anonymity, said Glass also argued the electronic privacy law McVeigh would remain in his current assign in question does not prohibit the government ment to Submarine Squadron 3 in Pearl from calling AOL and asking for certain infor Harbor, Hawaii.” mation. He said it merely restricts the govem- | es 1 J P* 1 1 r ip 7L! 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