A U.S. District Court judge in Washington today issued a
preliminary injunction against the
U.S. Navy, preventing it from
discharging Senior Chief Timothy McVeigh under provisions of the "don't
ask, don't tell, don't pursue" policy.
Judge Stanley Sporkin said the Navy violated the policy when it asked
America Online to link
McVeigh's name to an AOL account he had used to send email. The profile
in that account had identified McVeigh as gay and the Navy used the
information to order McVeigh's discharge.
Sporkin added it was likely that the Navy also violated the Electronic
Communications Privacy Act (ECPA), which requires government agencies
seeking information about an individual's online communication or
subscriber information to go through appropriate legal means, such as
obtaining a subpoena or court order.
An AOL customer service representative had given the investigator the
information after the investigator said he was a friend of McVeigh's.
"The...steps taken by the Navy in its 'pursuit' of the plaintiff were
not only unauthorized under its policy, but likely illegal under the
Electronic Communications Privacy Act of 1986," Sporkin stated in the ruling. "The
government knew, or should have known, that by turning over the information
without a warrant, AOL was breaking the law. Yet the Navy, in this case,
directly solicited the information anyway. What is most telling is that the
Naval investigator did not identify himself when he made his request."
Furthermore, "In these days of 'big brother,' where through
technology and otherwise the privacy interests of individuals from all
walks of life are being ignored or marginalized, it is imperative that
statutes explicitly protecting these rights be strictly observed," the ruling says.
McVeigh, in his lawsuit, had accused the Navy of violating both the ECPA and its own policies.
Today's ruling, which McVeigh's attorneys hailed as a victory, prevents the
Navy from discharging McVeigh (no relation to the Oklahoma City bomber) until McVeigh's lawsuit is resolved.
"It's a complete victory for Senior Chief McVeigh," said Alec Farr, one
attorney representing McVeigh. "The court ruled we had demonstrated a
substantial likelihood of success on the merits...that the Navy had
violated the 'don't ask, don't tell' policy--that the Navy asked and
zealously pursued."
"We hope that in the end he will be able to serve his country as honorably
as he has in the past," Farr said. "We think this indicates we have a very good chance
of winning in the end."
A Navy spokeswoman said this afternoon that McVeigh will remain on duty in
Pearl Harbor, but declined to say more. "Because this is still in the process
of litigation, it's inappropriate to comment further," she said.
The judge scheduled a conference on the matter for Thursday.
Online Privacy experts also hailed the ruling. David Sobel, an attorney with the Electronic Privacy Information Center,
called today's ruling "significant" and said it could help spur
Congress to strengthen electronic privacy laws.
"It is the strongest statement I can recall being made by a federal judge
concerning online privacy," he said. "I think it's very significant in that
it's one of the first cases to be decided by a federal court involving
violations of privacy on the Internet."
Not only will it discourage the military from using the online medium to
gain private information about people, but it also could send out a warning
to the world in general that online communications are protected, he said.
"I think it's pretty clear that as time goes on, there are going to be more
and more of these kinds of cases. As investigative agencies become more
savvy that there is a gold mine of information on the Internet there will
be more cases where that information is sought."
The judge also agreed that in this day and age, enforcement of privacy laws
online is becoming increasingly important.
"With literally the entire world on the World Wide Web, enforcement of the
ECPA is of great concern to those who bare the most personal information
about their lives in private accounts through the Internet," he wrote. "In
this case in particular, where the government may well have violated a
federal statute in its zeal to brand the plaintiff a homosexual, the
actions of the Navy must be more closely scrutinized by this court."
The Navy may choose to settle the case, said Kirk Childress, staff
attorney with the Service Members Legal
Defense Network. "I think that this ruling does give the government
more incentive to reverse its decision," he said.
But more importantly, the international publicity this case has received
along with this ruling could have a chilling effect on the military's use
of online information to discharge members of the military, he said.
"It sends the message that this is not acceptable behavior. I think they're
much less likely to do this kind of thing in the future," Childress said.
In the ruling, the judge addressed the specifics in this case and urged the Navy to follow its policy in general.
"It is self-evident that a person's sexual orientation does not affect that
individual's performance in the workplace," he said. "At this point in
history, our society should not be deprived of the many accomplishments
provided by people who happen to be gay. The 'Don't Ask, Don't Tell, Don't
Pursue' policy was a bow to society's growing recognition of this fact. For
the policy to be effective, it has to be implemented in a sensitive,
balanced manner. Under the policy as it stands today, gay service members
must be permitted to serve their country honorably, so long as they are
discreet in pursuing their personal lives."