Navy Breaks 'Don't Ask, Don't Tell' Privacy Law

Judge Blocks Sailor's Dismissal Emphasizing the Importance of Privacy Rights Online

Jan. 13, 1998 (updated January 28,1998) --The U.S. Navy's decision to discharge a sailor with an exemplary 17-year military career on the basis of information it obtained in violation of the Electronic Communications Privacy Act from America Online (AOL) underscores how vital it is that federal privacy laws be enforced, Deirdre Mulligan, Staff Counsel for the Washington, D.C.-based Center for Democracy and Technology, said today.

In addition to violating the 'Don't Ask, Don't Tell' policy that the U.S. military now follows for gay service men and women, the Navy violated the Electronic Communications Privacy Act's 'Don't Ask, Don't Tell' policy too, Mulligan said. 'The law tells the Navy, 'Don't ask unless you have specific legal authority,' and it tells online service providers 'Don't tell the government unless they show you the legal papers',' she added.

'Both government agencies and online services must comply with the law,' she added.

The case at hand involves Senior Chief Petty Officer Timothy R. McVeigh, 36, who, according to recent news reports, most recently served as the top enlisted man aboard the attack submarine USS Chicago. Chief McVeigh was due to be discharged from the Navy because, according to the news reports, the Navy discovered several months ago that his AOL member profile contained the word 'gay.' (Chief McVeigh is no relation to the Timothy McVeigh recently convicted of the Oklahoma City bombing.)

All AOL members are given 'screen names' which identify them in the online world without revealing their real identity. Each individual has the option of placing information about his or her screen name in a member profile, which other AOL users can use to identify those members of the online community with similar interests, hobbies, or lifestyles.

According to news reports, a Navy ombudsman who received email from the screen name 'Boysrch' then went to the AOL member profile associated with that screen name and found that the author identified himself as 'Tim' from Honolulu. In the category of marital status, 'Tim' had written 'gay.'

In a transcript of a hearing on McVeigh's case held at the U.S. Naval Station at Pearl Harbor, Hawaii, in November, a Navy paralegal testified that he called AOL and asked for the real identity of 'Tim.' The paralegal testified that the AOL employee who answered the call told him that the screen name in question belonged to Timothy R. McVeigh.

The Electronic Communications Privacy Act (ECPA) was passed in 1986, and amended in the Communications Assistance for Law Enforcement Act (CALEA) in 1994, to protect individual privacy. It prohibits any federal government agency, including the Navy, from seeking, and online service providers like AOL from releasing, information about their members to the government without appropriate legal process, Mulligan said.

America Online said in a statement that it has a very clear policy in place to protect the privacy of member information. 'We also have a clear policy for working with law enforcement when the need arises and we have procedures in place for dealing with their requests. We're disturbed that the Navy may have circumvented these established channels in an attempt to get information about one of our members,' the company said in its statement.

McVeigh's case highlights why privacy laws that limit the disclosure of information are important, Mulligan said. 'But these laws only work if they are implemented and enforced,' she added. 'If we want privacy laws to be effective the Navy or any other government agency should not be allowed to take adverse action on the basis of personal information gathered in violation of federal law. Clearly, the law should have protected this man.'