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Don't ask, don't log on.

Timothy McVeigh isn't the only

soldier to be hunted down in cyberspace

Navy senior chief petty officer Timothy

McVeigh is hardly a novice when it

comes to cyberspace. He had

an account with America Online, sending

E-mail under the screen name "BOYSRCH."

He even has his own Web page, complete

with links to other sites. As it turns out, the

one thing McVeigh did not have in

cyberspace was privacy.

In a case that became something of a

cause celebre for gay activists and

advocates for on-line privacy, McVeigh,

36, faced discharge from the Navy after

17 years because of

a single E-mail message. McVeigh (no

relation to the convicted Oklahoma City

bomber of the same name) apparently E-mailed

a civilian Navy employee for

information about a fund-raiser. The

employee, not recognizing the screen

name, then looked at the profile, saw the

word gay, and tipped off authorities.

In a series of steps that McVeigh called

"homophobic paranoia at its peak, " the

military used the tip to identify McVeigh

through his screen name and to start

discharge proceedings against him because

he listed his marital status on his on-line

profile as "gay." Under hobbies the profile

included "driving, boywatching, collecting

pictures of other young studs.

(McVeigh has declined to answer questions

about his sexual orientation.)

On January 29 U.S. district court judge

Stanley Sporkin ruled that the

Navy had "gone too far," and

he permanently reinstated McVeigh. The

military, the judge said, had failed to follow

its own guidelines for the "don't ask, don't

tell" policy. Moreover, the judge indicated

that investigators probably broke federal

privacy laws by getting information from

AOL, McVeigh's Internet service provider,

under false pretenses. Sporkin said the

military had been on a "search and

destroy" mission.

Although Sporkin's ruling did

not challenge the underlying

premise of "don't ask, don't tell," it

proved embarrassing to the

Pentagon. While

promising to appeal Sporkin's

ruling, military officials indicated

privately that they may be willing to strike

a deal with McVeigh in which he would be

able to retire with full benefits three years

before he would be entitled to them. "I

think many of us would like to see this case

go away," one unnamed defense department

official told The New York Times.

Gay activists say Sporkin's ruling

proved the military was unfairly

zealous in pursuing the slightest

suggestion that a service member

might be gay. "This is the first time

the district court has ruled the Navy

violated the limits of the policy,"

says C. Dixon Osburn, co-executive

director of the Servicemembers

Legal Defense

Network, which provides legal

counsel to individuals accused under the

policy. "We have told the Pentagon that if

they didn't clean up their act, they would

spawn an entirely new generation of

litigation as to whether they are following

their own rules. "

The ruling was also a public relations

debacle for the military, says New York

Law School professor Arthur Leonard.

"Every one of these cases that comes to the

public's attention reinforces the absurdity of

the policy, and that can only help us in the

long run," he says. "It's just a shame some

people are turned into martyrs, but it looks

as if in this case McVeigh won't be a martyr."

Still, David Sobel, general counsel of the

Electronic Privacy Information Center, an

advocacy group, describes

the McVeigh case as "an important

test case that will determine whether

the government can violate our privacy

on the Internet with

impunity." Even proponents of the

Pentagon's "don't ask, don't tell" policy have

criticized the military's investigation of

McVeigh as unwarranted. "It's the clearest

case of stepping out of bounds," says Charles

Moskos, a military

sociologist at Northwestern

University who helped formulate the

1993 policy. "This case is clearly breaking

both the spirit and probably the letter of

the law."

Complicating McVeigh's case were

allegations that naval investigators

violated federal law prohibiting invasion of

on-line privacy by using false means to

verify McVeigh's identity with AOL.

Violating its own rules, the company

provided the information to an

investigator who allegedly posed as a

recipient of a fax. "I simply said ... I

wanted to ensure this was from the

individual we thought it was," Navy

investigator Joseph Kaiser testified at a

hearing last year. Under federal law

investigators are required to seek a warrant

or subpoena.

In a January 21 statement, AOL

admitted that it erred in disclosing

confidential information about McVeigh.

"This clearly should not have happened

and we regret it," the statement read.

However, the company went on to blast

the Navy, charging that its investigators

"deliberately ignored both federal law and

well-established procedures for handling

inquiries about AOL members."

McVeigh's case attracted more attention

than any other recent battle

over the Pentagon's policy. But the

case is unique only insofar as it is

highprofile. In fact, the military seems

to be relying increasingly on cyber

evidence to charge that personnel are

gay or lesbian. SLDN has logged a

dozen cases over the past 15 months in

which computers and the Internet played

key roles in accusations leveled against

suspected personnel.

"I can't say it's routine, but it is

disturbing," says the SLDN's Osburn. "It

has made us raise our eyebrows and ask

what is going on." The McVeigh case,

he says, is merely "the first case where

we were interested in bringing attention

to what was going on." Because of

McVeigh's lawsuit to stop his discharge--as

well as the controversy about AOL's

role in the case--the naval officer's example

was bound to catch the media's eye.

Other cases involving similar Issues

have sailed quietly through the military

bureaucracy, beneath the media's radar.

Among the instances of military use

of on-line evidence that have been

chronicled by SLDN:

* In an effort to determine whether a

West Point cadet was a lesbian, officials

at the institution demanded 250 pages of

E-mail from her. She eventually left

West Point voluntarily rather than face

charges.

* Investigators examining an Army

corporal seized his computer, including

the hard drive, seeking information

about his off-duty habits. (Among the

other items they took as evidence was a

pair of platform shoes.) In another case

the military seized an individual's work

computer in an effort to back up its

charges.

* To make sure they had not missed any

evidence, investigators in one case used

programs to retrieve files that the

suspected individual had deleted from

his computer.

Of the 12 cases, six have ended in the

accused's being discharged, while charges

in the other six are still pending. Osburn

says the investigators' interest in

computers is part of a wider quest for

anything they can use as evidence. "The

broader context of privacy goes beyond

computer and electronic issues," he says.

"Investigators seize diaries. Psychiatrists

are ordered to turn in gay people. I think

it's overstepping the bounds of what the

policy is intended to do."
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Article Details
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Title Annotation:Special Cyber Report; military's attempt to discipline gay sailor Timothy McVeigh
Author:Gallagher, John
Publication:The Advocate (The national gay & lesbian newsmagazine)
Date:Mar 3, 1998
Words:1146
Previous Article:Good cop gay cop: from the beat patrol to the precinct house, gay and lesbian police officers are shattering the blue wall of silence.
Next Article:What a connection.
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