A Navy spokesman said today that the Navy had enough evidence to discharge a sailor for violating the military's policy on homosexuality--even if an investigator had never spoken with an America Online employee.
The Navy on January 5 had ordered the discharge of Timothy McVeigh (no relation to the convicted Oklahoma City bomber), a 17-year veteran, for allegedly violating the Navy's "don't ask, don't tell" policy, which prohibits military personnel from declaring their homosexuality. Although McVeigh never said he was gay and has not publicly revealed his sexuality, he had written "gay" under "marital status" in an online user profile on AOL.
The Navy linked him to that profile by calling AOL and asking a customer service representative to identify the owner of the screen name. A Navy investigator said in a sworn statement that a representative divulged the name, a violation of AOL policy. The Navy investigator may have violated federal law.
Yesterday, McVeigh filed a lawsuit in U.S. District Court in Washington, charging that Naval investigators violated the federal Electronic Communications Privacy Act (ECPA) when they requested the information.
In response to the suit, the Navy agreed to delay McVeigh's discharge until Wednesday to prepare its case, said a Navy spokesman, who spoke on the condition that he not be identified by name.
Judge Stanley Sporkin will reside over Wednesday's hearing, said Kirk Childress, staff attorney with the Service Members Legal Defense Network, which is helping to defend McVeigh.
But today, the Navy spokesman said that investigators could have made the case without calling AOL, based solely on the screen name associated with an AOL account McVeigh was using to send email to his submarine's ombudsman.
McVeigh never denied using the account or sending the email or identifying himself within the email. But privacy experts and his attorneys have said that without AOL's confirmation, the Navy would have had a weak case.
"The Navy had enough information provided directly by Senior Chief McVeigh both in the content of the email message and in the public AOL profile to clearly and positively identify by whom the email was sent and to whom it belonged," the spokesman said.
"The Navy felt it had enough information to warrant starting an investigation," he added. "There was no question that the evidence was enough to initiate and sustain separation proceedings--even without further information provided by AOL."
But Childress disagreed, saying that the basis of the Navy's case relies on the AOL admission and that the Navy is simply trying to back up a weak case.
"They're going to construct an argument that they would have a case against him anyhow," Childress said. "My guess is that if they thought they had an iron-clad case, they wouldn't have called AOL in the first place."
According to testimony not publicly released but given to CNET's NEWS.COM, a Navy investigator apparently thought she needed the confirmation.
"I planned to establish by whatever means I could think of whether or not this profile belonged to the screen name or not and whether or not the screen name belonged to Senior Chief McVeigh," said Lt. Karen Morean. "I didn't know what it was going to take. I didn't know if AOL was going to give me the information that I was looking for or if it was going to take some other kind of research. I didn't know at that point what it was going to involve, but I suggested obviously that the first step was to call AOL, and that's obviously as far as I needed to go."
If, however, the Navy really did not need AOL's confirmation, then it made an even bigger mistake by asking for it, Childress said.
"If they didn't need it to make their case and they went ahead and violated the law anyhow, it either shows it was a colossal mistake or a profound disregard for the rules governing investigations," Childress said.
Legally speaking, McVeigh's lawsuit could wind up setting an important precedent when it comes to the enforcement of ECPA, said David Sobel, an attorney with the Electronic Privacy Information Center (EPIC).
"This case is extremely significant in that it is the first legal test of federal privacy law as it applies to the Internet," Sobel said. "The outcome will have a major impact on all subscribers of online services."
McVeigh, in his action yesterday, had asked for a temporary restraining order against the Navy to prevent his discharge, slated for midnight Thursday.
McVeigh is alleging that Navy investigator Joseph Kaiser broke the law when Kaiser asked for the information without identifying himself and without a court order or subpoena.
Kaiser said in a sworn statement that an AOL customer service representative told him that McVeigh owned the account in question.
If the customer service representative, identified only as "Owen," did hand over the information as Kaiser alleges, he violated AOL's own rules and possibly violated the law. AOL is investigating the issue, but officials have repeatedly said they are confident that no one gave out confidential information.
Meanwhile, sources say "Owen" left AOL a few months ago.
"If McVeigh loses this case, in a way, what the court will be saying is it's OK for the government to access sensitive subscriber information from online services without complying with the law," Sobel said. "The intent of ECPA is to protect the privacy of subscriber information. This case is going to test the adequacy of that legal protection."
John Aravosis, an online consultant who helped bring the case to the press, called today's delay a victory.
"The Navy blinked in the face of the law," he said. "You do not offer to hold off unless you're going to lose. The Navy thought they were going to erase Tim McVeigh in another eight hours. Now they have to deal with us for another week and it's going to be one big week. They ain't seen nothing yet."