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McVeigh v. Cohen, 983 F.Supp. 215 (D.D.C. 1998)


In this case, a federal court enjoined proceedings by the United States Navy to discharge a Naval Officer for violating the "Donít Ask, Donít Tell" policy. The proceedings were based on information the Navy obtained from AOL in violation of the Electronic Communications Privacy Act. The court effectively suppressed this evidence and also suggested that the Navyís initiation of its investigation based on statements appearing on the Internet and attributed to the officer was not appropriate. According to the court, such statements were of limited value because the Internetís "virtual" nature invites fantasy and affords anonymity.


Navy Officer Timothy McVeigh brought this action against the Navy to prevent his discharge under the "Donít Ask, Donít Tell, Donít Pursue" policy regarding sexual orientation of military personnel. A Navy paralegal called AOL seeking the identity of an AOL member known to be a sailor who went by the online alias "boysrch" and identified his marital status as "gay" in AOLís member profile. The paralegal did not identify himself as a Navy official and did not follow the Electronic Communications Privacy Actís (ECPA) requirement that government officials either obtain a warrant or notify the subscriber and issue a subpoena in order to obtain information from an online service provider, a requirement that only applies to government officials, and not to private parties. The District of Columbia U.S. District Court enjoined the Navyís proceeding to discharge McVeigh.

The Navy tried to argue that the ECPA, by its terms, only creates a cause of action against the online service provider, AOL, not against the Navy for requesting the information. 18 U.S.C. sec. 2703(c)(1)(b). Judge Stanley Sporkin quickly dismissed that argument: "[I]t is elementary that information improperly obtained can be suppressed where an individualís rights have been violated. 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." 983 F.Supp. 215, 220. In deciding whether an injunction should issue, one factor the court considers is where the public interest lies. The court held that 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." Id. at 221.

In deciding whether statements by McVeigh in his online profile (e.g., interests such as "collecting pics of other young studs" and "boy watching") justified the Navyís initiating an investigation under the "Donít Ask, Donít Tell" regulations, the court had to determine whether the statements indicated "a likelihood actually to carry out homosexual acts." Judge Sporkin thought not. "Particularly in the context of cyberspace, a medium of Ďvirtual realityí that invites fantasy and affords anonymity, the comments attributed to McVeigh do not by definition amount to a declaration of homosexuality. At most they express an abstract preference or desire to engage in homosexual acts" which would not warrant investigation.

Holding online speech to a different standard than speech in other media is a significant step for a court to take. Certainly, there are going to be defamation and other speech cases where litigants will want to downplay harsh language by claiming it was within Internet norms of reasoned discourse, and this holding is some authority for making a distinction between Internet content and other speech.

Copyright SRBC 1998 up