Wired Strategies Editorial Board Mailing

Email Editorial Board Mailing January 17, 1998



TO: Editorial Page Editor 
FROM: John Aravosis, 202/328-5707   Online counsel to Timothy R. McVeigh (not *that* Timothy McVeigh) 
RE:  Proposed Editorial on Navy/AOL Cyber-spying Scandal 

I would respectfully ask that you consider writing an editorial about the Timothy McVeigh cyber-espionage case that was one of the top international news stories this week - New York Times, USA Today, ABC, CBS, NBC, CNN, AP, Reuters, Washington Post, Wall Street Journal, National Public Radio, Good Morning America, BBC, Philadelphia Inquirer, San Francisco Chronicle, US News & World Report, and many others, all in the last 8 days.  This is a landmark Internet privacy/government cyber-espionage case that has burst onto the landscape in little more than a week, and will come to an expected climax next Wednesday January 21. 

I've attached talking points on the case, and two illustrative articles from USA Today and the New York Times (yesterday's and today's).  If you have any questions or need further information, please contact me at 202/328-5707. 

Thank you very much. 


January 17, 1998 

In a landmark case for Cyber-law and civil liberties on the Internet, a decorated 17-year Navy submariner has sued the Department of Defense, alleging cyber-espionage. 

The sailor, Timothy R. McVeigh (no relation to the Oklahoma City bomber) charges that the US Navy and America Online (AOL), the nation's largest Internet provider, shared confidential information about his Internet account in violation of federal electronic privacy laws, and resulting in his imminent discharge.

In sworn testimony in Navy documents, Navy legal investigators freely admit to calling AOL - without a court order - and getting McVeigh's account information.  AOL's information was the critical link the Navy needed to connect McVeigh with an anonymous AOL "member profile" that investigators thought looked "gay."   Based on that profile, the Navy is preparing to discharge McVeigh next Wednesday January 21, 1998. 

Internet legal experts - David Sobel of the Electronic Privacy Information Center, and Deirdre Mulligan of the Center for Democracy and Technology -- call this a clear violation by the Navy and AOL of the Electronic Communications Privacy Act (ECPA), which requires the government to have a court order before such private consumer information can be released. 

If Tim McVeigh is discharged next week, without a full investigation of the Navy and AOL's wrong-doing, this case will give a green light to any government agency interested in using the Internet to spy on America citizens in violation of law. 

The Administration that coined the phrase "information superhighway" (it's VP Gore's original phrase) must intervene and drop the charges against McVeigh.  No less than the future of the Internet is at stake. 

***Latest Stories - USA Today, New York Times*** 
These two stories are an excellent description of the case, and its implications for privacy and the Internet. 
USA Today - 01/16/98 

"Watchdogs worry about online privacy" 
WASHINGTON - Did the government bend the law to get sensitive information about a citizen from an Internet access company? That's the latest question provoked by the military's controversial "Don't ask, don't tell, don't pursue" policy toward homosexuals, and it is a far-reaching one. 

Computer privacy watchdogs say the stakes in the lawsuit filed by Timothy R. McVeigh, a sailor fighting discharge, are as high as the right to be free of government surveillance and intrusion into your private life. 
The Navy declined to answer questions about the case. 

McVeigh's lawsuit is the first to challenge government access to subscriber information at an on-line service and is "an important test of federal privacy law," says David Sobel, legal counsel to the Electronic Privacy Information Center. 

The Navy moved to discharge McVeigh after asking America Online to identify "Tim," who had posted a biographical profile listing his marital status as "gay," according to testimony at McVeigh's disciplinary hearing. The profile did not give a last name or say Tim was in the Navy. Since the Navy questioned McVeigh, he has declined to say whether he is gay. 

AOL, which guarantees subscribers it won't disclose any information about them unless required by law, has not confirmed that the exchange with the Navy occurred as reported in the testimony. But the case has some people worried about whether the promise of protection really means anything. 
If the Navy succeeds in booting McVeigh, they fear, the case could become a precedent for government use of e-mail and other potentially damaging personal documents. Whistleblowers and others who want anonymity would be at risk. 

"A lot of people assume that only people who are doing something wrong or illegal want the ability to remain anonymous. That is a real misconception," says Sobel. 

The Supreme Court has upheld the right to speak anonymously. More than 200 years ago, the Federalist Papers were written under pseudonyms. 

John Aravosis, an Internet expert helping McVeigh, this week sent e-mails to news reporters with the return address Navysex1. It was a spoof. 

The point, Aravosis says, was that AOL e-mail addresses and member profiles "are not always what they appear. For the Navy to assume so in the McVeigh case, and use such an assumption to destroy a man's career, is criminally negligent." 

McVeigh is suing only Defense Secretary William Cohen and Navy Secretary John Dalton. But his lawyer, Christopher Wolf, says he has not ruled out suing AOL. 

Among the matters to be discussed at a federal court hearing Wednesday is whether the investigator who called AOL mentioned being with the Navy. Release of electronic information to a government official requires a court order, search warrant, subpoena or the subject's permission. But AOL's contractual guarantee of privacy could leave it vulnerable even if it was unclear the caller was from the government. 

"On-line services promise privacy to their subscribers, and a contract is a law," Wolf says. 

But he says his first objective is to help the Honolulu-based McVeigh keep his job. He has been in the Navy 17 years and is three years short of a pension. 

"It was only the government calling AOL and getting information which linked him to the profile which allowed them to conclude he was gay," Wolf says. "The Navy shouldn't have asked for the information and AOL shouldn't have given it out." 

By Jill Lawrence and Steven Komarow, USA TODAY 
New York Times 
January 17, 1998 

The 2 Tim McVeighs 

Here's a scenario that could be out of Kafka, or at least Alfred Hitchcock -- except that it's really happening and hasn't been sold to Hollywood. Yet. Its protagonist is Timothy McVeigh -- not that Timothy McVeigh, but a 36-year-old sailor who, through bad luck, not genealogy, found himself with the same name as the biggest mass murderer in American history. 

And that's the good news. Last fall, while on duty as the senior enlisted man on a nuclear submarine, he exchanged America Online E-mail with a civilian Navy employee with whom he was organizing a Christmas charity toy drive for kids back at his Honolulu base. His good deed did not go unpunished. His correspondent checked out his "member profile" -- the autobiographical sketch any AOL member can voluntarily post on line -- and discovered that Mr. McVeigh had listed his marital status as "gay." She promptly notified the Navy that it just might have a declared homosexual in its midst. 

But if the Navy wanted to dismiss the sailor for having violated "Don't ask, don't tell," it had no case. The AOL profile identified this "gay" man as only Tim of Honolulu, with no last name. According to subsequent sworn testimony, a Navy investigator solved this problem simply by asking AOL over the phone for Tim's identity -- and promptly got an answer. Once back on shore, Mr. McVeigh was put under investigation and then ordered discharged, three years short of his pension. Merry Christmas! 

The sailor is fighting back in court, however, and in the virtual court of Internet opinion, where his case has been raging for the past week. By the time real judges weigh in he could be easily the second most famous Timothy McVeigh in history. If the Navy investigator did pursue Mr. McVeigh's cyberidentity without either identifying himself or obtaining a court order, it's a likely violation of the Electronic Communications Privacy Act. If AOL did blithely unmask one of its 10 million members (many of whom use anonymous screen names), it too is in legal jeopardy -- and will face a meltdown of consumer confidence that will dwarf its past P.R. disasters over service outage. 

So far the Navy is defending its snooping and AOL is pleading innocent. Mr. McVeigh, for his part, has pointedly never declared that he is gay, noting that AOL member profiles routinely fib and fictionalize. His aggressive legal tactics have already sent Government lawyers scrambling; his discharge has been delayed until next Wednesday. By the time he's done, Mr. McVeigh may be the poster boy for the whole country's growing concerns about all kinds of cyberspying. 

He may also prove to be the man who finally brings home the absurdity and bigotry of "Don't ask, don't tell." Mr. McVeigh is as clear-cut a victim of a witch hunt as could be imagined, and that witch hunt could expand exponentially if the military wants to add on-line fishing to its invasion of service members' privacy. Multitudes of military personnel identify themselves as gay on the Internet, rank and base often included. 

Even if Mr. McVeigh were to prove one such gay sailor, what has he done wrong? He has served his country for 17 years with a spotless record, earning four Good Conduct Medals and the Navy Commendation Medal, among other decorations; his performance reviews cite him as an "outstanding role model" and a leader in crew training on equal-opportunity issues. 

Contrast that record with the other Timothy McVeigh's. In his Army stint before, during and after the Persian Gulf war, the Oklahoma bomber was known for fomenting racial polarization by slurring his black peers and assigning them the dirtiest tasks in the motor pool. He openly trafficked in anti-Semitic and racist literature and participated in the activities of off-base organizations toying with armed resistance to the Government. In a published letter to a newspaper editor, he argued that it might be necessary to "shed blood" to achieve his political aims. 
What does it say about American fairness and justice -- let alone our priorities in national security -- that the military looked the other way at that Timothy McVeigh's ostentatious public psychosis while it torments the second, exemplary Timothy McVeigh for the "crime" of having a private life that should be nobody's business but his own?


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