Nightmare on AOL
When "don't ask, don't tell" policy threatens privacy rights online

COMMENTARY by Meeks N. Brock

    WASHINGTON A series of events has burst onto the cyber landscape and left a Navy career ruined, privacy-rights advocates reeling, America Online scrambling to do damage control and the White House wringing its hands over just how far the "don't ask, don't tell" policy toward gays in the military should be taken. It's a tale that justifies every paranoid statement you've ever heard about cyber-snooping by the feds and the dangers of data collection online. Welcome to the nightmare on AOL.

    WHEN SENIOR Chief Petty Officer Timothy McVeigh (no relation to the convicted Oklahoma City bomber) created a fictitious screen name on AOL and put the word "gay" into the "marital status" slot of his AOL profile, he thought he was safe. He gave no other identifying information. He referred to himself only as "Tim" in "Honolulu, Hawaii." It would eventually be the basis for drumming him out of the Navy.

    AOL allows members to create fictitious screen names. The company states quite clearly in its terms of service agreement that it will never, ever release your real name or any other information that could be tied to your AOL screen name. There is one exception: If the company is presented with a court order by a law-enforcement agency, the real identity behind the screen name is released. The FBI has used this procedure to rightly crack down on child pornographers and predators operating on AOL.

    But something went horribly wrong with AOL's own promise. A naval investigator called an AOL technical-support person identified in court testimony only as "Owen" and asked for the real name associated with McVeigh's screen name. Court testimony shows that the investigator simply said that he was a "third party in receipt of a fax" and that he wanted to "ensure that this was from the individual we thought it was." The naval investigator never identified himself as a law-enforcement agent. Based on that request alone, Owen said "not a problem" and identified McVeigh and his location "from the billing account," according to testimony.

    HELL BREAKING LOOSE

    The Navy used that information to eventually charge McVeigh with violating the military's "don't ask, don't tell" policy regarding homosexuals. On January 5th, the Navy ordered McViegh, a decorated Naval submariner, having served 17 years, be discharged on the 15th, cutting short his career and leaving him without a pension. The only testimony the Navy presented during his hearing was the AOL profile with the word "gay" in it. The Navy has never said what started its investigation into McVeigh in the first place. A Pentagon spokesman would only say the Navy views the case as a justifiable application of its existing "dont ask, don't tell" policy.

    A career ruined by a stunning violation of a sacred trust that AOL has promised its customers. This breach of confidentiality should send shudders through people who think they are safe behind the anonymity of an AOL screen name.

    For its part, AOL maintains that it did nothing wrong. "Our policy regarding the release of personal information is very clear," an AOL spokeswoman told the Washington Post. "We don't release this information unless we are presented with a court order, a search warrant or a subpoena. That policy is very clear to our employees," she told the Post. Someone forgot to tell Owen.

    Some have claimed AOL might have even committed a crime by violating portions of the Electronic Communications Privacy Act, or ECPA, which prohibits the release of someone's electronic communications to anyone without a court order. But from the information available, it's not clear that AOL has violated the law, says Mike Cavanagh, a Virginia-based consultant that helped draft the 1986 bill.

    "Reasonably, AOL needs to make a detailed statement in terms of how [this incident] relates to its policy,"Cavanagh says. "But I think in several different steps it doesn't work as an ECPA violation."

    DANGEROUS PRECEDENT

    AOL continues to deny it did anything wrong. More likely, it believes Owen simply screwed up. Owen has left the company, according to AOL sources.

    But let's say this is an aberration, a goof, a one-time screw-up. No one can feel safe anymore. If it happened to McVeigh, it can happen to you. There will be another Owen somewhere, sometime.

    More disturbing is the signal this sends to other law-enforcement agents who simply might pick up the phone and go information trolling on the AOL tech help lines.

    "This incident is setting a dangerous precedent," says John Aravosis, an Internet consultant acting as an adviser for McVeigh's online P.R. strategy.

    "Now we've basically given the green light for other agencies, like the IRS and FBI, to go cyber-snooping on American citizens," he says.

    At the very least it's given a decidedly anti-gay military establishment a ready source of targets. I did a quick search of AOL profiles myself and in no more than 10 minutes found dozens of gays and lesbians who identified themselves as military aviators, military police, marines, sailors and soldiers.

    And that has the White House worried about how the McVeigh case is affecting its weak compromise "don't ask, don't tell" policy. "Memos are flying back and forth" at the White House, according to Aravosis.

    Publicly, a gay appointee by President Bill Clinton already has spoken out. "U.S. law protects your privacy whether you're straight or gay," said Bob Hattoy, White House liaison to the Department of Interior. "I don't think cyber-espionage is what the president had in mind when he endorsed "don't ask, don't tell" , the administration has to help this man."

    IN THE MIX

    Three things must happen quickly. First, AOL has to step up to the plate, make an honest statement about the mishap and redouble its efforts to ensure its subscribers it can protect their privacy.

    The White House must issue an order to the Pentagon that AOL is off-limits as trolling ground for gays. Regardless of your feelings about gays in the military, these people, simply by putting the word "gay" in their AOL profiles, aren't flaunting their sexual orientation in the face of the policy. Indeed, they are going to lengths to not tell, by using phony screen names.

    Finally, the Navy should drop its case against McVeigh on the basis that it conducted an illegal investigation. The naval investigator never identified himself as such and should have gone through the proper procedure of getting a court order. This is backed up by a statement made by George Vradenburg, AOL's senior vice president, on Tuesday's ABC "World News Tonight."

    ^ÓIf the United States government wants personal information about one of our members, there's a lawful process and a lawful procedure to follow , it was not followed in this instance," he said.