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Computer underground Digest Wed Jan 14, 1998 Volume 10 : Issue 03
ISSN 1004-042X
Editor: Jim Thomas (cudigest@sun.soci.niu.edu)
News Editor: Gordon Meyer (gmeyer@sun.soci.niu.edu)
Archivist: Brendan Kehoe
Shadow Master: Stanton McCandlish
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
Field Agent Extraordinaire: David Smith
Cu Digest Homepage: http://www.soci.niu.edu/~cudigest
CONTENTS, #10.03 (Wed, Jan 14, 1998)
File 1--Sailor Who Has Become a Symbol Wins Delay (NYT Excerpt)
File 2--AOL Accused of Privacy Violation
File 3--The Internet Anti-Fascist: (#53): Tim the Gay Sailor
File 4--Cu Digest Header Info (unchanged since 7 May, 1997)
CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.
---------------------------------------------------------------------
Date: Tue, 14 Jan 1998 11:18:33 EST
From: jthomas@VENUS.SOCI.NIU.EDU(Jim Thomas)
Subject: File 1--Sailor Who Has Become a Symbol Wins Delay (NYT Excerpt)
Sailor Who Has Become a Symbol Wins Delay
By LISA NAPOLI
(New York Times)
When he opened his account on American Online four years ago,
Timothy R. McVeigh didn't think he would be opening up a
digital can of worms that could be precedent setting. But the
submarine crew chief today stands as a symbol for electronic
privacy and gay rights advocates alike.
On Thursday, in the first such case of its kind, Senior Chief
Petty Officer McVeigh of Honolulu, who is no relation to the
convicted Oklahoma City bomber, filed a suit against the
Pentagon, accusing the government of violated the Electronic
Privacy Communications Act by illegally requesting and receiving
confidential information about him from the online service.
That information cost him his job as a submarine crew chief
aboard the USS Chicago, and was about to get him discharged from
the Navy after more than 17 years of service on the grounds that
he violated a military law which bars homosexuality.
<snip>
AOL officials maintain that, in support of the federal law and
their members terms of service agreement, their employees are
trained to follow strict identification procedures in verifying
the identity of a caller. Earlier this week, an AOL spokeswoman,
Wendy Goldberg, said, "It's upsetting that the Navy appears to
have gone around established channels." The online service,
which is based in Dulles, Va., said it has launched an internal
investigation into the matter.
<snip>
"This case is likely to define the bounds of government
investigations on the Internet," said David Sobel of the
Electronic Privacy Information Center, who has been closely
monitoring the case. "The question really is, Can the government
violate this law and seek information with impunity? The outcome
will have a major impact on everyone using the medium."
<snip>
Two related sites
http://www.geocities.com/Pentagon/9241/ -- Timothy R. McVeigh's
Home Page http://www.sldn.org/ -- Serviceman's Legal Defense
Network
------------------------------
Date: Tue, 13 Jan 1998 15:13:57 EST
From: TELECOM Digest Editor <ptownson@telecom-digest.org>
Subject: File 2--AOL Accused of Privacy Violation
((MODERATORS' NOTE: For those not familiar with Pat Townson's
TELECOM DIGEST, it's an exceptional resource. From the header
of TcD:
"TELECOM Digest is an electronic journal devoted mostly but
not exclusively to telecommunications topics. It is
circulated anywhere there is email, in addition to various
telecom forums on a variety of public service systems and
networks including Compuserve and America On Line. It is also
gatewayed to Usenet where it appears as the moderated
newsgroup 'comp.dcom.telecom'. Subscriptions are available to
qualified organizations and individual readers. Write and tell
us how you qualify:
* ptownson@massis.lcs.mit.edu * ======" ))
==================
Source - TELECOM Digest Tue, 13 Jan 98 Volume 18 : Issue 8
Attention AOL apologists: I'll be expecting to hear from you today
or tomorrow at your earliest convenience, reminding me once again
of how poor AOL gets picked on unfairly. I *still* contend that
AOL seems far, far to cozy and comfortable with law enforcement
officials hanging around all the time. The message which follows
was forwarded to me. PAT]
---------- Forwarded message ----------
Date--Fri, 9 Jan 1998 15:40:07 -0800 (PST)
From--William Knowles <erehwon@dis.org>
Subject--AOL accused of privacy violation
America Online (AOL) may have violated its own policy and perhaps the
law when it allegedly revealed the identity of a member to a Navy
investigator.
The United States Navy is recommending that a U.S. sailor be
discharged for "Homosexual Conduct Admittance" because he typed the
word "gay" on his member profile under "Marital Status."
But the sailor, Timothy McVeigh of Hawaii (no relation to the Timothy
McVeigh convicted of bombing the federal building in Oklahoma), and
his attornies said that the Navy may never have been able to legally
link him with the profile if an AOL employee hadn't provided his
identity to a Naval investigator, violating AOL's own privacy policy.
The Navy linked the profile to McVeigh after the military investigator
called AOL and said he wanted to find out the identity of the person
who had sent him a fax that belonged to the screen name. Without
identifying himself, he said an employee named "Owen" revealed the
name of the account owner as McVeigh along with his state of
residence, according to transcripts of sworn military testimony
provided by McVeigh's advocates.
But AOL spokeswoman Wendy Goldberg said AOL does not release the
identity of a user unless it is "presented with a search warrant,
a court order, or subpoena. Federal law prohibits release of any
personal information. We take this in our members' policy very
seriously."
When asked if AOL had, in fact, released the user's identity,
she replied, "There is nothing in the transcript to suggest we
gave out private information."
However, others who have read the transcript think otherwise.
"AOL appears to have violated its much-touted privacy policy and
destroyed a subscriber's life," said David Sobel, an attorney with
the Electronic Privacy Information Center."Every AOL subscriber
needs to be concerned about this incident."
The investigator said he called AOL and asked for the identity
of the person who owned the screen name, according to the transcripts.
The investigator, who did not identify himself, said that on Sept. 12
an employee in "tech services" revealed to him that the owner of the
account was named "Timothy R. McVeigh" and that he lived in Hawaii.
That information was enough to get McVeigh drummed out of the
military, and privacy experts now are concerned about the privacy of
other AOL members.
AOL's policy states it will "not to disclose identity information
to third parties that would link a member's screen name(s) with a
member's actual name, unless required to do so by law or legal
process served on AOL, Inc. (e.g., a subpoena)."
Deirdre Mulligan, a staff attorney with the Center for Democracy
and Technology, said that when the Navy investigator called AOL
seeking to connect the screen name with McVeigh, it also violated
a federal law: the Electronic Communications Privacy Act, which
requires that a government agency seeking information about an
individual's online communication or subscriber information must
go through an "appropriate legal process in which, at the very
least, they seek an administrative subpoena."
"The military clearly violated the law," she said. "They are not
just allowed to call up and say who they are and seek information
about an individual."
She added that AOL may also have violated the law, which
prohibits private companies from giving that information to
a government agency. According to the hearing transcripts
provided by McVeigh's advocates, the Navy investigator said
he called AOL and asked for the identity of the person who had
sent an email message without identifying himself.
That may not matter when it comes to the question of the law, she
said.
"From the transcript, this person said he asked for information and it
was provided without any check of who he was and his right to get
information," she said.
==
The information standard is more draconian than the gold
standard, because the government has lost control of the
marketplace. -- Walter Wriston
==
http://www.dis.org/erehwon/
[TELECOM Digest Editor's Note: As I said, I do hope the folks at
AOL who write me from time to time complaining that treat AOL
unfairly here will respond with the version of the facts as they
see them. I see this as just another example of AOL's hospitality
to the government; their willingness to violate the privacy rights
of their subscribers whenever it suits them to do so. PAT]
------------------------------
Date: Sat, 17 Jan 1998 12:05:14 -0500
From: Paul Kneisel <tallpaul@nyct.net>
Subject: File 3--The Internet Anti-Fascist:(#53): Tim the Gay Sailor
______________________________________________________________________
The Internet Anti-Fascist: Friday, 16 Jan 1998
FTP Supplement #2 (#53): Tim the Gay Sailor
______________________________________________________________________
Introduction
Please note that this story involes McVeigh the gay sailor from AOL,
not McVeigh the sad bomber from hell.
1) "Appeal by Timothy R. McVeigh, USN," via Henry Messner, 2 Jan 98
2) Rajiv Chandrasekaran, Washington Post "Navy Targets Sailor's Use of
`Gay' on AOL: Case Raises Issue of Online Privacy Protection ," 12
Jan 97
3) John Aravosis and Barbara Bode, "Fears of Cyber-Spying Escalate, as
Navy Prepares to Discharge Sailor," via cyber-rights list of
Computer Professionals for Social Responsibility, 12 Jan 98
4) David L. Sobel (EPIC), "Letter to Hon. John Dalton, Secretary of the
Navy," via cyber-rights list, 14 Jan 98
5) CNN (no author), "Navy delays discharge of sailor said to be gay,"
15 Jan 98
6) Reuters (no author), "Navy Delays Discharging Sailor in Online
Case," 16 Jan 98
----------------------------------------------------------------------
1) "Appeal by Timothy R. McVeigh, USN,"
Hello:
Let me introduce myself. My name is Tim and I have recently been
recommended for discharge from the United States Navy for merely having
the word "gay" in one of my America Online profiles and someone else's
interpretation of that profile. Because of the word gay in the
profile, I was read my rights and questioned, with sodomy and indecent
acts being the charges that were being investigated. With no other
evidence, I was relieved from my job as the senior enlisted man on a
nuclear powered submarine and transferred to Submarine Squadron Three.
A print out of my AOL profile is the only evidence the government
presented at the discharge proceedings. They contend that my profile
is a statement of homosexuality and intent to engage in homosexual
acts. I contend that a profile on AOL is not a statement of anything
and that the proceedings are based on homo-phobic reaction and were
discriminatory in nature.
I am currently fighting this action with the help of my Navy appointed
attorney, LCDR Derek Cole, and Mr. Kirk Childress of Servicemembers
Legal Defense Network. I am also asking for your help and support to
get this word to President Clinton and several members of Congress. To
do this, I ask that you provide this information to as many people as
you can that are concerned with human rights and the military's strict
adherence to the "Don't Ask, Don't Tell, Don't Pursue" policy.
While addressing the Human Rights Campaign on November 8th, President
Clinton said "We have to broaden the imagination of America. When we
deny opportunity because of ancestry or religion, race or gender,
disability or sexual orientation, we break the compact. It is wrong
and it should be illegal". I am confident that, with your help, this
letter can make it across the U.S. and be overwhelmingly heard in the
White House and Halls of the Capital Building. If you can forward it
to just one person, you will help double this mailing. That will get
the word out. If you have previously received this message, then you
can be proud of the efforts of persons like yourself.
NOTE: I am in no way connected or related to Timothy James McVeigh who
was convicted in the Oklahoma City bombing!
Then, I ask you to send the following message:
* * * * *
Dear Mr. President, Mr. Vice President and Members of Congress:
I am an informed and concerned citizen of the United States and am
appalled to hear that ETCS(SS) Timothy R. McVeigh, United States Navy,
has been removed from his job as Chief of the Boat on USS Chicago
(SSN-721) and is being recommended for discharge from the U.S. Navy
simply because the word "gay" appeared in one of his America Online
profiles. Not a statement, and no acts, but merely the word gay.
Isn't there enough for the military to do without wasting our time,
money, and resources on "witch-hunts" for "suspected" homosexuals; a
practice the military now adamantly denies it engages in after its long
and well documented history of carrying out such abuses of people's
rights. I am especially appalled that the investigation against
ETCS(SS) McVeigh appears to violate the rules established by "don't
ask, don't tell, don't pursue." This entire matter, due to the
wholesale weakness of the evidence against ETCS(SS) McVeigh, appears to
be yet another "witch-hunt" to perpetuate the existence of a "homo-
phobic" mind-set in today's military. Please stop this travesty and
correct this injustice and similar injustices which occur every day in
our military.
Discrimination of any sort should be eliminated in our country, and
especially in our military. Let's find better things to do with our
military, other than seeking to discharge some of our best and
brightest, all because the military insists on conducting a
clandestine and "homo-phobic" campaign to discharge those members it
believes to be homosexual. The military should not be engaged in
McCarthy-like tactics to identify and end the careers of its own
members. We, the people, were promised that such actions would end -
once and for all - by the implementation of "Don't Ask, Don't Tell."
I have provided my name and address below, and I request to be provided
with a written response, under the Freedom of Information Act, 5 U.S.C.
Sec. (1982) explaining why as a taxpayer, my tax dollars are being used
to process cases like this. I understand that under the Freedom of
Information Act, I must be provided with a response to this message
from your office.
Finally, Mr. ________, I desire to know, what your stance on this
issue is, and what you intend to do about it. With an election coming
up, there will be many thousands of voters throughout the country who
will be interested in your response.
Sincerely,
Address:
* * * * *
Some handy e-mail addresses:
NavyPress@aol.com
mcpon@bupers.navy.mil
navnews@mediacen.navy.mil
subpacpa@hula.net
u00pa2@cpf.navy.mil
bob_graham@graham.senate.gov
senator@inouye.senate.gov
President@whitehouse.gov
Vicepresident@whitehouse.gov
neil@abercrombie.house.gov
SEN. CARL LEVIN senator@levin.senate.gov
SEN. SPENCER ABRAHAM michigan@abraham.senate.gov
Michigan Members of Congress with e-mail addresses:
HON. DAVE CAMP DAVECAMP@HR.HOUSE.GOV
HON. JOHN CONYERS, Jr JCONYERS@HR.HOUSE.GOV
HON. VERNON J. EHLERS CONGEHLR@HR.HOUSE.GOV
HON. PETER HOEKSTRA tellhoek@hr.house.gov
HON. LYNN RIVERS lrivers@hr.house.gov
HON. NICK SMITH REPSMITH@HR.HOUSE.GOV
HON. BART STUPAK STUPAK@HR.HOUSE.GOV
HON. FRED UPTON TALK2FSU@HR.HOUSE.GOV
Other members do not have e-mail. [Henry]
Thank you for your time in this matter. I am certain with enough
response, a victory for all can be achieved and you will have played a
large part. I will update home page in an effort to try to keep you
informed of the status of this case.
ETCS(SS) Timothy R. McVeigh, USN
- - - - -
2) Navy Targets Sailor's Use of `Gay' on AOL: Case Raises Issue of
Online Privacy Protection
by Rajiv Chandrasekaran, Washington Post
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.
- - - - -
3) "Fears of Cyber-Spying Escalate, as Navy Prepares to Discharge
Sailor: America Online and Navy May Have Violated Law, Experts
Say"
by John Aravosis and Barbara Bode
FOR IMMEDIATE RELEASE
Contacts: John Aravosis, 202/328-5707
Barbara Bode, 202/588-9598
WASHINGTON, DC - Fears of cyber-spying are escalating in the wake of
the Navy's plans to discharge a sailor this week. According to sworn
testimony in Navy documents, the Navy successfully solicited what
appears to be confidential subscriber information from America Online
(AOL), the nation's largest Internet service, in an effort to identify
the sexual orientation of a servicemember. This exchange of
information has led to the expected discharge of the decorated 17-year
veteran this week.
Online legal experts see a potentially serious violation of the
federal Electronic Communications Privacy Act, which requires that a
government agency seeking information about a citizen's online
communications or subscriber information go through an appropriate
legal process.
"The Navy appears to have obtained the information under false
pretenses, and at the very least violated the spirit of the federal
Electronic Communications Privacy Act," said David Sobel, General
Counsel for the Electronic Privacy Information Center (EPIC) (
http://www.epic.org ).
"And there appears to be strong evidence that AOL violated its own
contractual terms of service, and possibly federal law as well."
Senior Chief Petty Officer Timothy R. McVeigh (no relation to the
Oklahoma City bomber) was serving as the top enlisted man on board the
nuclear attack submarine, USS Chicago, when he returned to port in
Hawaii last September and was confronted by Navy investigators. They
claimed to have evidence linking McVeigh to an AOL "member profile"
that they believed to be "gay." That profile was subsequently the key
piece of evidence used by the Navy in McVeigh's discharge proceedings.
According to sworn testimony, Navy staff legalman Joseph M. Kaiser
called AOL seeking information on what he suspected was McVeigh's AOL
email account. "I called AOL and talked to a gentleman named Owen at
Tech Services," Kaiser testified. "I said that I am the third party in
receipt of a fax and 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.
Kirk Childress, staff attorney with Servicemembers Legal Defense
Network, which is helping with McVeigh's defense, was quoted on CNet (
http://www.news.com ) on Friday as saying that without the link
between McVeigh and the AOL screen name, the government's case would be
much weaker, and they might not have been able to make it at all. "It
is doubtful to me that a court would have issued a subpoena under these
circumstances," said Childress.
"This sailor is roadkill on the information superhighway," said John
Aravosis, founder of Wired Strategies ( http://www.wiredstrategies.com
), a political Internet consulting firm in Washington, DC, and adviser
to McVeigh. "It is not acceptable for the government to use the
Internet to spy on its citizens and destroy their lives."
Gay leaders are also alarmed over this attempt to move the military's
anti-gay policy into the online realm. "US law protects your privacy
whether you're straight or gay," said gay Clinton appointee Bob
Hattoy. "I don't think cyber-espionage is what the President had in
mind when he endorsed 'Don't Ask, Don't Tell'" the Administration has
to help this man."
McVeigh has been publicizing his case on the Internet with a Web site
and email campaign, and had already received nearly 2,000 messages of
support from around the world when America Online canceled his email
account early last Friday morning, reportedly for "abuse."
Online competitor Prodigy responded by offering McVeigh a free
lifetime Internet account in which they "absolutely assure his utmost
confidentiality in any and all matters." McVeigh has accepted
Prodigy's offer.
"I have been trained to be a leader, fair and by the book," McVeigh
says on his Web site
(http://www.geocities.com/Pentagon/9241/index.html). "And if the Navy
wants to throw the book and fairness out, I will still go by the book
and in human fairness lead the fight against them for the benefit of
all."
McVeigh is a highly decorated 17-year Navy veteran, having earned the
Navy Commendation Medal, three Navy Achievement medals, four Good
Conduct medals, three Battle E's, four sea service ribbons, and
recognition for his service in Southeast Asia and the Arctic. In his
most recent performance review he was described as an "outstanding role
model."
* * * * *
Press stories to-date include: The New York Times, Washington Post, San
Francisco Chronicle, USNews & World Report, Cnet, PlanetOUT.
John Aravosis, 202/328-5707
Barbara Bode, 202/588-9598
- - - - -
4) "Letter to Hon. John Dalton, Secretary of the Navy,"
by David L. Sobel (EPIC)
Electronic Privacy Information Center
666 Pennsylvania Avenue, S.E., Suite 301
Washington, DC 20003
(202) 544-9240
http://www.epic.org
January 14, 1998
URGENT -- TIME SENSITIVE
BY FACSIMILE
Hon. John Dalton
Secretary of the Navy
1000 Navy Pentagon
Washington, DC 20350-1000
Re: ETCS(SS) Timothy Robert McVeigh, USN
Dear Secretary Dalton:
I am writing with regard to the proposed discharge of ETCS(SS) Timothy
Robert McVeigh, which I understand is now pending in your office.
While this case appears to raise serious questions under the military's
"Don't Ask, Don't Tell" policy, it is the privacy aspect of the
proceeding against Mr. McVeigh that compels me to write. In light of
the unusual circumstances surrounding this case, I urge you to postpone
the pending discharge and initiate a comprehensive investigation into
the conduct of Naval personnel involved in the prosecution of the case.
Having reviewed the transcript of Mr. McVeigh's discharge hearing, I
believe this case raises serious questions concerning the Navy's
compliance with federal privacy law. Specifically, the service appears
to have violated the Electronic Communications Privacy Act ("ECPA")
during the course of its investigation of Mr. McVeigh.
In sworn testimony given at Mr. McVeigh's discharge hearing, Squadron
Legalman LN1 Joseph Kaiser detailed the manner in which he obtained
information concerning Mr. McVeigh from America Online, Inc. ("AOL").
According to his testimony, LN1 Kaiser placed a telephone call to AOL
and, without identifying himself as a Navy investigator, obtained
information linking Mr. McVeigh to a particular AOL "screen name," or
pseudonym. The testimony also revealed that LN1 Kaiser was not in
possession of a subpoena or search warrant at the time he sought and
obtained that identifying information from AOL.
The legal requirements governing access to the information obtained by
the Navy are clear. ECPA provides, in pertinent part, that
... a provider of electronic communication service or remote
computing service may disclose a record or other information
pertaining to a subscriber or customer of such service ... to
any person *other than a governmental entity*.
18 U.S.C. Sec. 2703(c)(1)(A) (emphasis added). When such information
is sought by a governmental entity, the information may only be
disclosed if the governmental entity has obtained a warrant, a court
order or the consent of the subscriber. Id., Sec. 2703(c)(1)(B).
When read in light of ECPA's requirements, the hearing testimony
clearly establishes that the evidence presented against Mr. McVeigh was
illegally obtained by the Navy. Indeed, AOL's General Counsel, George
Vradenburg, suggested in an appearance on "ABC's World News Tonight"
that the Navy misled the online service and violated federal law. The
military services, like other governmental entities, must comply with
ECPA's requirements; evidence obtained in violation of those provisions
may not be used in proceedings against servicemembers. See, e.g.,
Chandler v. United States Army, 125 F.3d 1296 (9th Cir. 1997). Any
other result would make a mockery of federal privacy law and subject
the American people to intrusive and unlawful governmental
surveillance.
ECPA is among the most recent legal provisions designed to protect
privacy. The American legal system has long recognized and protected
the right of personal privacy. As Justice Brandeis wrote, the drafters
of the Constitution "conferred, as against the Government, the right to
be let alone -- the most comprehensive of rights and the right most
valued by civilized man. To protect that right, every unjustifiable
intrusion by the Government upon the privacy of the individual,
whatever the means employed, must be deemed a violation" of fundamental
constitutional principles. Olmstead v. United States, 277 U.S. 438, 478
(1928) (Brandeis, J., dissenting). As we move into an age of
electronic communication and use of the Internet becomes commonplace,
ECPA defines the bounds of permissible governmental action.
The record demonstrates that Mr. McVeigh was the subject of an
"unjustifiable intrusion by the Government upon the privacy of the
individual." Under the unusual and troubling facts of this case, the
only appropriate course of action is to postpone the proposed discharge
of Mr. McVeigh and closely examine the circumstances surrounding the
Navy's prosecution of this matter. Fundamental fairness and the rule of
law require nothing less.
Sincerely,
/s/ David L. Sobel Legal Counsel
- - - - -
5) "Navy delays discharge of sailor said to be gay"
via CNN, no author
WASHINGTON: The Navy has delayed until next week the controversial
discharge of a sailor suspected of being homosexual based on
information obtained from an Internet online service.
The decision came as lawyers for Senior Chief Petty Officer Timothy R.
McVeigh sued the government for violating McVeigh's privacy and
violating the Pentagon's "don't ask, don't tell" policy on gays in the
military.
Under the agreement, which top aides to Defense Secretary William Cohen
reached with the Justice Department, McVeigh's honorable discharge was
put off until next Wednesday while a review of the case continues.
McVeigh was to have been discharged Friday.
At issue is whether McVeigh's right to privacy was violated when a Navy
investigator obtained information about McVeigh's America Online
account from AOL.
A resident of Mililani, Hawaii, McVeigh -- who is not related to the
convicted Oklahoma City bomber -- was the senior enlisted man aboard
the nuclear-powered attack submarine USS Chicago.
AOL rep allegedly provided information
Navy investigators took action against him under the policy against
homosexuality in the military after they learned of a profile page he
had set up on America Online that indicated a sexual interest in other
men.
McVeigh later acknowledged that the page was his but has declined to
comment on his sexual orientation. The case has gay advocacy and
privacy groups involved because the investigator apparently got
confidential information -- the identity of the author of the profile
page -- from a representative of America Online.
A Defense official, speaking on condition of anonymity, said Navy
Secretary John Dalton approved the delay in the discharge. Outside
advocates, however, said they worked directly with aides to Cohen in
gaining the delay.
Attorney C. Dixon Osburn of the Servicemembers Legal Defense Network, a
group working on McVeigh's behalf, and Kim Mills of the Human Rights
Campaign, a gay rights advocacy group, confirmed details of the delay
in McVeigh's discharge from active duty.
A formal letter was sent to McVeigh's attorneys by the civil rights
division of the Department of Justice advising them of the delay
pending the arrival of a copy of the complaint the attorneys intend to
file on McVeigh's behalf.
- - - - -
6) "Navy Delays Discharging Sailor in Online Case"
via Reuters, no author
WASHINGTON: The U.S. Navy says it's delaying the planned discharge of a
sailor it believes is homosexual because he listed "gay" on a computer
user profile.
The Navy, in a brief statement issued late on Thursday, said its action
came as a result of a lawsuit filed by the sailor in U.S. District
Court and was aimed at giving the Justice Department time to develop a
response to the lawsuit.
Christopher Wolf, the sailor's Washington-based lawyer, said the
postponement would put off the dismissal until at least Wednesday so a
court could weigh the sailor's claims that his rights were violated
during a Navy investigation.
The Navy had ordered the discharge, effective Friday, of Senior Petty
Officer Timothy McVeigh -- who is not related to the convicted Oklahoma
City bomber Timothy McVeigh -- on the grounds that he breached the
military's "Don't ask, don't tell" policy on homosexuality.
The planned honorable discharge was based entirely on information
obtained by the Navy from America Online (AOL), the nation's largest
online computer service, Wolf said.
McVeigh filed suit Thursday charging the Navy violated the federal
Electronic Communications Privacy Act by requesting and receiving
confidential subscriber information from AOL. The suit was filed in
U.S. District Court in Washington.
"We can't let the government use the fruit of that poisonous tree to
discharge a decorated sailor," Wolf said in a telephone interview with
Reuters.
The Navy declined to comment beyond saying it would put off McVeigh's
dismissal. It has declined to say how it obtained McVeigh's America
Online personal profile on the grounds that this information was part
of an ongoing investigation.
McVeigh, 36, is a 17-year Navy veteran stationed in Hawaii. His AOL
profile did not identify him by name or indicate he was in the Navy.
The Electronic Privacy Information Center, which monitors civil
liberties issues on the Internet, said McVeigh's lawsuit was the first
to challenge governmental access to sensitive subscriber information
maintained by an online service.
"This case is an important test of federal privacy law," he said. "It
will determine whether government agents can violate the law with
impunity or whether they will be held accountable for illegal conduct
in cyberspace."
______________________________________________________________________
-- tallpaul
Fascism: We have no ethical right to forgive,
no historical right to forget.
back issues archived via:
<ftp://ftp.nyct.net/pub/users/tallpaul/publish/tinaf/>
(No permission required for noncommercial reproduction.)
------------------------------
Date: Thu, 7 May 1997 22:51:01 CST
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