Wired Strategies Email Update

We Win! Court Quotes Email Update January 26, 1998  


Today, the Navy got torpedoed.  The folowing are direct quotes from Judge Sporkin's 15 page opinion in McVeigh v. Cohen.

"Plaintiff in this case demonstrates a likely success to prevail on the merits."

"In 1993, leaders of Congress and the President reached a compromise designed to recognize the important role that officers who happen to be gay play in the defense of our nation."

"The facts as stated above clearly demonstrate that the Plaintiff did not openly express his homosexuality in a way that compromised this "Don't Ask, Don't Tell" policy.  Suggestions of sexual orientation in a private, anonymous email account did not give the Navy a sufficient reason to investigate to determine whether to commence discharge proceedings.  In its actions, the Navy violated its own regulations."

"All that the Navy had was an email message and user profile that it suspected was authored by plaintiff.  Under the military regulation, that information alone should not have triggered any sort of investigation.  When the navy affirmatively took steps to confirm the identity of the email respondent, it violated the very essence of "Don't Ask, Don't Pursue" by launching a search and destroy mission."

"The subsequent steps taken by the Navy in its 'pursuit' of the Plaintiff were not only unauthorized under its policy, but likely illegal under the Electronic Communications Privacy Act of 1986 (ECPA)."
"In soliciting and obtaining over the phone personal information about the Plaintiff from AOL, his private on-line service provider, the government in this case invoked neither of these provisions [of ECPA] and thus failed to comply with ECPA."

"The government knew, or should have known, that by turning over the information without a warrant, AOL was breaking the law.  Yet the Navy, in this case, directly solicited the information anyway.  What is most telling is that the Naval investigator did not identify himself when he made his request."

"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."

"In Plaintiff's case, this Court finds that the Navy has gone too far.  The "Don't Ask, Don't Tell, Don't Pursue" policy was clearly aimed at accommodating gay men and women in the military.  In effect, it was intended to bring our nation's armed forces in line with the rest of society, which finds discrimination of virtually every form intolerable.  It is self-evident that a person's sexual orientation does not affect that individual's performance in the workplace.  At this point in history, our society should not be deprived of the many accomplishments provided by people who happen to be gay."

"Nothing has been produced before this court which would in any way suggest that his [McVeigh's] sexual orientation has adversely affected his job performance.  Senior Chief McVeigh's place in the Navy might even be characterized by some to be the very essence of what was hoped to be achieved by those who conceived the policy.  The plaintiff is no less an officer today than he was on January 5, 1998, the day before he was told his imminent discharge from the Navy because of his sexual orientation."

"As this Court stated in Elzie v. Aspin, 897F.Supp 1,3 (1995), it cannot understand why the Navy would seek to discharge an officer who has served his country in a distinguished manner just because he might be gay."
"The Court must note that the defense mounted against gays in the military have been tried before in our nation's history - against blacks and women.  Surely, it is time to move beyond this vestige of discrimination and misconception of gay men and women."

"Certainly, the public has an inherent interest in the preservation of privacy rights as advanced by the Plaintiff in this case.  With literally the entire world on the world-wide web, enforcement of the ECPA is of great concern to those who bare the most personal information about their lives in private accounts through the Internet.  In this case in particular, where the government may well have violated a federal statute in its zeal to brand the Plaintiff a homosexual, the actions of the Navy must be more closely scrutinized by the Court."

"...while Plaintiff complied with the requirements imposed upon him under "Don't Ask, Don' Tell, Don't Pursue," the Defendant went further than the policy permits.  Although Officer McVeigh did not publicly announce his sexual orientation, the Navy nonetheless impermissibly embarked on a search and 'outing' mission."


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