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
—
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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-
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