Email Press Release: Internet Lawyer Writes
January 14, 1998
FOR IMMEDIATE RELEASE
Contact: David Sobel, (202) 544-9240
January 14, 1998
This letter was just sent by David Sobel, general counsel
of the Electronic Privacy Information Center, to the Secretary of the Navy with
regards to the Tim McVeigh/AOL case. In this letter, Mr. Sobel details why "the
hearing testimony clearly establishes that the evidence presented against Mr. McVeigh
was illegally obtained by the
Electronic Privacy Information Center
666 Pennsylvania Avenue, S.E., Suite 301
Washington, DC 20003
January 14, 1998
URGENT -- TIME SENSITIVE
Hon. John Dalton
Secretary of the Navy
1000 Navy Pentagon
Washington, DC 20350-1000
Re: ETCS(SS) Timothy Robert McVeigh, USN
Dear Secretary Dalton:
I am writing with regard to the
proposed discharge of ETCS(SS) Timothy Robert McVeigh, which I understand is now pending
in your office. While this case appears to raise serious questions under the
military's "Don't Ask, Don't Tell" policy, it is the privacy aspect of the
proceeding against Mr. McVeigh that compels me to write. In light of the unusual
circumstances surrounding this case, I urge you to postpone the pending discharge and
initiate a comprehensive investigation into the conduct of Naval personnel involved in the
prosecution of the case.
Having reviewed the transcript of Mr. McVeigh's discharge hearing, I believe this case raises serious questions concerning the Navy's compliance with federal privacy law. Specifically, the service appears to have violated the Electronic Communications Privacy Act ("ECPA") during the course of its investigation of Mr. McVeigh.
In sworn testimony given at Mr. McVeigh's discharge hearing, Squadron Legalman LN1 Joseph Kaiser detailed the manner in which he obtained information concerning Mr. McVeigh from America Online, Inc. ("AOL"). According to his testimony, LN1 Kaiser placed a telephone call to AOL and, without identifying himself as a Navy investigator, obtained information linking Mr. McVeigh to a particular AOL "screen name," or pseudonym. The testimony also revealed that LN1 Kaiser was not in possession of a subpoena or search warrant at the time he sought and obtained that identifying information from AOL.
The legal requirements governing access to the information obtained by the Navy are clear. ECPA provides, in pertinent part, that
. . . a provider of electronic communication service or
remote computing service may disclose a record or other
information pertaining to a subscriber or customer of
such service . . . to any person *other than a
18 U.S.C. Sec. 2703(c)(1)(A) (emphasis added). When such information is sought by a governmental entity, the information may only be disclosed if the governmental entity has obtained a warrant, a court order or the consent of the subscriber. Id., Sec. 2703(c)(1)(B).
When read in light of ECPA's requirements, the hearing testimony clearly establishes that the evidence presented against Mr. McVeigh was illegally obtained by the Navy. Indeed, AOL's General Counsel, George Vradenburg, suggested in an appearance on "ABC's World News Tonight" that the Navy misled the online service
and violated federal law. The military services, like other governmental entities, must comply with ECPA's requirements; evidence obtained in violation of those provisions may not be used in proceedings against servicemembers. See, e.g., Chandler v. United States Army, 125 F.3d 1296 (9th Cir. 1997). Any other result would make a mockery of federal privacy law and subject the American people to intrusive and unlawful governmental surveillance.
ECPA is among the most recent legal provisions designed to protect privacy. The American legal system has long recognized and protected the right of personal privacy. As Justice Brandeis wrote, the drafters of the Constitution "conferred, as against the Government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized man. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation" of fundamental constitutional principles. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). As we move into an age of electronic communication and use of the Internet becomes commonplace, ECPA defines the bounds of permissible governmental action.
The record demonstrates that Mr. McVeigh was the subject of an "unjustifiable intrusion by the Government upon the privacy of the individual." Under the unusual and troubling facts of this case, the only appropriate course of action is to postpone the proposed discharge of Mr. McVeigh and closely examine the circumstances surrounding the Navy's prosecution of this matter. Fundamental fairness and the rule of law require nothing less.
David L. Sobel
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