A federal judge has ruled the Navy violated a sailor's privacy rights and the military's "don't ask, don't tell" policy by obtaining information from an online service that led to the sailor's dismissal on allegations of homosexual conduct.
Judge Stanley Sporkin of the U.S. District Court for the District of Columbia placed an injunction on the Navy preventing the service from honorably discharging Senior Chief Petty Officer Timothy R. McVeigh, a 17-year veteran stationed in Pearl Harbor, Hawaii. McVeigh is not related to the convicted Oklahoma City bomber. A spokesman said the Navy will comply with the order.
In a ruling that could have repercussions for other agencies that investigate their employees, Sporkin said the Navy violated the Electronic Communications Privacy Act, which requires the government to obtain a warrant or court order before obtaining computerized information during an investigation.
"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," Sporkin wrote in his decision. Sporkin also decried the Navy's zealous pursuit of evidence that McVeigh is homosexual. The Navy broke the "don't ask, don't tell" rule by trying to connect a profile page on America Online that described the author's marital status as "gay" with McVeigh, the judge ruled.
"Although McVeigh did not publicly announce his sexual orientation, the Navy nonetheless impermissibly embarked on a search and 'outing' mission," Sporkin wrote.
The Navy's investigation began after a civilian Navy employee, Helen Hajne, received an electronic mail message asking for the ages of children of the sailors on the USS Chicago, which McVeigh served on, so that the sender could help plan a holiday toy giveaway. Hajne did not recognize the email address from which the message had come, so she looked up the America Online profile of the sender. The profile listed the sender's name as Tim, his marital status as gay and his location as Hawaii.
The e-mail was eventually forwarded to an investigator, who contacted America Online to determine the author's identity. The investigator did not tell America Online that he was with the government or that he was conducting an investigation. Nevertheless, the online service told the Navy investigator that the author was McVeigh. America Online has since said it should not have provided the information.
McVeigh was then brought before an administrative discharge board, which ruled that he had committed homosexual conduct and ordered his honorable discharge. Sporkin's decision temporarily bars the Navy from dismissing McVeigh, pending the final outcome of the case.
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