A federal judge has stopped Timothy R. McVeigh's discharge from the military following a Navy investigation that revealed his membership information on America Online included the word "gay."
In a strongly worded ruling Monday, Judge Stanley Sporkin blocked the highly decorated, 17-year veteran's discharge, pending the outcome of his lawsuit against the Navy for allegedly violating his electronic privacy rights. Sporkin also condemned the Navy for violating its own "don't ask, don't tell, don't pursue" policy and going on a "search and 'outing' mission" against McVeigh. The judge found that the Navy's inquiry - which included a phone call to AOL - was "likely illegal" under the Electronic Communications Privacy Act.
AOL has been roundly criticized for leaking McVeigh's member information to a Navy investigator who didn't have a court order. The online giant apologized to its users through a letter from CEO Steve Case that pledged an educational campaign in confidentiality and privacy rights for AOL workers.
Monday's ruling stressed the importance of defending the right to privacy in the age of the Web and electronic surveillance.
"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," Sporkin wrote.
"With literally the entire world on the World Wide Web," he continued, "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."
One of McVeigh's attorneys, Christopher Wolf, called the ruling a milestone, adding that "the judge knew a witch hunt when he saw one."
Dixon Osburn, co-executive director of the Servicemembers Legal Defense Network - which assists service members facing punitive action under "don't ask, don't tell" - hailed Sporkin's ruling as "right on the mark, strong and eloquent."
Calling the decision "very significant," Osburn said the ruling "laid bare the reality" of treatment of homosexuals under the current policy.
"There was a perception that the policy under 'don't ask, don't tell' was going to be a gentleman's agreement. The reality is that each of the armed services has continued to pursue and harass gay people in very aggressive ways."
In one of the most forceful sections of the 15-page ruling, Sporkin took the Navy to task for violating the spirit of "don't ask, don't tell," which the judge said "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."
Sporkin also compared arguments against homosexuals serving in the military with arguments against the participation of blacks and women in the service. Although Sporkin's decision is not the final one in the case - which could stretch on for months - the judge predicted that McVeigh "demonstrates a likely success to prevail."
The court's decision was not only one of the first to test the limits of the military's policy on gays and lesbians, it was also one of the first to delineate what is permissible under the federal electronic privacy law, which has broad implications for the use of information obtained from online services in future investigations.
"Suggestions of sexual orientation in a private, anonymous email account," the judge wrote, "did not give the Navy sufficient reason to investigate to determine whether to commence discharge proceedings."
