June 12, 1998 2:45 PM PDT

Navy, AOL settle privacy case

The settlement this week by the Navy and a sailor accused of being gay based on his America Online membership profile closed a chapter in a landmark privacy case that raised controversial issues online and off, including the convergence of gay rights and security issues in cyberspace.

The attorney for sailor Timothy McVeigh announced today that the Navy agreed to drop its legal appeal and settle the case, which had become a thorn in the sides of both the Pentagon and the world's largest online service.

According to the terms of the settlement, McVeigh will retire Aug. 31 with full benefits at the rank he would have achieved if he had been able to stay in the military--master chief petty officer E9--for his planned 24 years until 2004.

The Navy had ordered McVeigh discharged after AOL violated its own privacy policy by confirming to a naval investigator that an anonymous user profile in which the word "gay" was used to describe a member's marital status belonged to McVeigh. The Navy already had obtained the profile but needed to link legally it to McVeigh to make its case. The investigator, by his own admission, pretended to be a friend of McVeigh.

Nevertheless, even though McVeigh's own attorneys say the customer service representative was "tricked" into disclosing the information, the case turned into a public-relations disaster for AOL. Privacy rights organizations and individuals criticized the online service for being careless with extremely sensitive information.

After initially denying the mistake, AOL acknowledged that a customer service representative had indeed divulged the information. It issued a public apology, strengthened its training program for service representatives, and agreed to an out-of-court settlement in January with McVeigh that neither party will discuss.

For McVeigh, however, much of the damage had already been done. The Navy used AOL's confirmation to start the dismissal proceedings against him, charging that he had violated the military's "don't ask, don't tell, don't pursue" policy.

After admitting its errors, AOL helped McVeigh in his pursuit to have his discharge overturned and fight the Navy's enforcement of its policy, he said today.

"AOL and I have resolved our differences," McVeigh said in a telephone interview today from his home in Hawaii. "Initially their response was very shaky, but very quickly they did an investigation and found out it was human error...And the Navy duped them, and they regretted it. I think that they really helped out."

A federal judge issued a preliminary injunction against the Navy in January, preventing it from discharging McVeigh, ruling that the Navy broke federal law by asking for the information.

The Electronic Communications Privacy Act (ECPA) requires government agencies seeking information about an individual's online communication or subscriber information to go through appropriate legal channels, such as obtaining a subpoena or court order.

The Navy had appealed the case at the end of March. But today's announcement to drop the appeal means that the strongly worded opinion by U.S. District Judge Stanley Sporkin stands.

While a higher appeals court decision might have made a stronger precedent, McVeigh attorney Christopher Wolf said he felt today's settlement would send a strong message to the military.

"With respect to gays in the military it sets a clear limit on how far the military can go in investigating its own," said Wolf, who practices with the firm Proskauer Rose.

It also sent a strong message to online services. "Concerning online privacy, it's an important case because it shows the courts are willing to [pursue] online privacy cases," Wolf said.

However, he added, the case also points to loopholes in the law. While federal communications law prevents government agencies from obtaining private information without going through the legal system, it does nothing to address nongovernment entities.

Many online services--including AOL--have their own strong privacy policies that prevent giving out users' information. Wolf and others would like such protections to be required by law.

AOL disagrees. As the government has increasingly turned its eye toward Internet legislation that covers everything from privacy to encryption, companies have tried to convince legislators that the industry can regulate itself.

"We believe our policy is a good policy, and we don't need legislation," AOL spokeswoman Tricia Primrose said. "To succeed and earn the trust of the consumer, the entire industry has to adopt strong privacy policies for their consumers."

As for McVeigh, he reserves his wrath for the Navy. "I"m still kind of shocked basically that the Navy can not follow regulations and federal law and feel that they can say basically in court that they've done nothing wrong and get away with it. That still shocks me."

He said the fact that the Navy has dropped the case indicates that "they don't want to see this in court anymore. I think the case, overall was an absolute stunning victory. It sends a message to sailors everywhere and all military people that not only are sailors and soldiers required to follow regulations superiors and managers are required to follow those regulations as well. They should be held accountable."

McVeigh said he now plans to go live in Jacksonville, Florida, where he has family and can afford to live, he said. From there, he'll see what develops.

"I may start to work on a book a little bit, then figure out exactly what I would like to do from there. I don't have any set ideas at the moment," he said.

But on his way home this morning from a television interview about the case, he saw a good omen: "I feel pretty good," he said. "In fact, I'm driving home right now from one of the television studios and two different rainbows are over Pearl Harbor right now."

 

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