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EPIC Alert

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January 14, 1998

URGENT -- TIME SENSITIVE

BY FACSIMILE

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 governmental entity.

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, 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.

Sincerely,

/s/

David L. Sobel
Legal Counsel


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