Navy barred from ousting sailor

A federal judge issues a permanent order barring the Navy from discharging a sailor for allegedly admitting he was gay on America Online.

3 min read
A federal judge today issued a ruling permanently barring the United States Navy from discharging a sailor for allegedly admitting he was gay on America Online.

Attorneys for the sailor, Senior Chief Timothy McVeigh (no relation to the convicted Oklahoma City bomber), hailed the ruling as a victory for online privacy and for those opposing the Navy's "don't ask, don't tell, don't pursue" policy on gays in the military.

The Navy plans to appeal the case, a spokesman said this afternoon.

The permanent injunction came after the Navy told U.S. District Court Judge Stanley Sporkin it did not intend to fight a strongly worded temporary injunction he issued Monday. The Navy, represented by a Justice Department attorney, said it would rather the judge simply issue a decision based on the evidence on hand rather than go to a hearing or trial, where more evidence would be presented, the spokesman said.

The Navy has 60 days to appeal.

"I think what Judge Sporkin did was 100 percent correct," said McVeigh attorney Alec Farr. "This is a great day for McVeigh and for all users of online services. Sporkin's decision will be a milestone both for online privacy and for the 'don't ask, don't tell' policy."

The case has received widespread attention not only because it involves the military's controversial position on gay personnel, but also because it demonstrates what can go wrong in ensuring individuals' rights to privacy and restricting access to customer information in cyberspace.

In his ruling Monday, the judge said the Navy violated its "don't ask, don't tell" policy when it asked AOL 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. Based on that profile and AOL's confirming that it belonged to McVeigh, the Navy "concluded that he had a propensity to engage in homosexual conduct" and used it to order McVeigh's discharge, the spokesman said.

Sporkin also said it was likely that the Navy 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.

Privacy advocates and others expected McVeigh to file a lawsuit against AOL for violating its terms of service when a customer service representative released his information.

AOL, which initially denied any wrongdoing, admitted last week that it had wrongfully released McVeigh's private information after a Navy investigator lied to a customer service representative and identified himself as a friend of McVeigh's.

Farr said today that "McVeigh has satisfactorily resolved his differences with America Online" and would not comment further on the issue.

Meanwhile, McVeigh's troubles are not over yet. He is facing a hostile working environment and has been assigned menial duties at Pearl Harbor, Farr said.

When he was told that the Navy planned to discharge him, McVeigh was the senior enlisted man on a nuclear submarine. Today he is making $740 per month less than he did before the investigation began.

Farr said the conditions could be in violation of Sporkin's ruling. "One of the issues we discussed with the judge today is that we believe there are serious compliance issues with the order as written. When Tim got back to base, they gave him tasks that are not consistent with his grade and training."

For instance, he supervised people taking out the trash, Farr said. "He is a nuclear submariner and was the senior supervisor aboard the Navy attack submarine."

The Navy spokesman, who asked not to be identified by name, said, "Navy officials are reviewing permanent assignments that will place Senior Chief McVeigh in positions that are commensurate with his experience and training.

"As far as the concerns that were heard in the court hearing, the Navy is reviewing the concerns brought up by his lawyer and we're looking into the merits of each of them," he added.