Computer underground Digest Wed Jan 14, 1998 Volume 10 : Issue 03 ISSN 1004-042X Editor: Jim Thomas (cudigest@sun.soci.niu.edu) News Editor: Gordon Meyer (gmeyer@sun.soci.niu.edu) Archivist: Brendan Kehoe Shadow Master: Stanton McCandlish Shadow-Archivists: Dan Carosone / Paul Southworth Ralph Sims / Jyrki Kuoppala Ian Dickinson Field Agent Extraordinaire: David Smith Cu Digest Homepage: http://www.soci.niu.edu/~cudigest CONTENTS, #10.03 (Wed, Jan 14, 1998) File 1--Sailor Who Has Become a Symbol Wins Delay (NYT Excerpt) File 2--AOL Accused of Privacy Violation File 3--The Internet Anti-Fascist: (#53): Tim the Gay Sailor File 4--Cu Digest Header Info (unchanged since 7 May, 1997) CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN THE CONCLUDING FILE AT THE END OF EACH ISSUE. --------------------------------------------------------------------- Date: Tue, 14 Jan 1998 11:18:33 EST From: jthomas@VENUS.SOCI.NIU.EDU(Jim Thomas) Subject: File 1--Sailor Who Has Become a Symbol Wins Delay (NYT Excerpt) Sailor Who Has Become a Symbol Wins Delay By LISA NAPOLI (New York Times) When he opened his account on American Online four years ago, Timothy R. McVeigh didn't think he would be opening up a digital can of worms that could be precedent setting. But the submarine crew chief today stands as a symbol for electronic privacy and gay rights advocates alike. On Thursday, in the first such case of its kind, Senior Chief Petty Officer McVeigh of Honolulu, who is no relation to the convicted Oklahoma City bomber, filed a suit against the Pentagon, accusing the government of violated the Electronic Privacy Communications Act by illegally requesting and receiving confidential information about him from the online service. That information cost him his job as a submarine crew chief aboard the USS Chicago, and was about to get him discharged from the Navy after more than 17 years of service on the grounds that he violated a military law which bars homosexuality. AOL officials maintain that, in support of the federal law and their members terms of service agreement, their employees are trained to follow strict identification procedures in verifying the identity of a caller. Earlier this week, an AOL spokeswoman, Wendy Goldberg, said, "It's upsetting that the Navy appears to have gone around established channels." The online service, which is based in Dulles, Va., said it has launched an internal investigation into the matter. "This case is likely to define the bounds of government investigations on the Internet," said David Sobel of the Electronic Privacy Information Center, who has been closely monitoring the case. "The question really is, Can the government violate this law and seek information with impunity? The outcome will have a major impact on everyone using the medium." Two related sites http://www.geocities.com/Pentagon/9241/ -- Timothy R. McVeigh's Home Page http://www.sldn.org/ -- Serviceman's Legal Defense Network ------------------------------ Date: Tue, 13 Jan 1998 15:13:57 EST From: TELECOM Digest Editor Subject: File 2--AOL Accused of Privacy Violation ((MODERATORS' NOTE: For those not familiar with Pat Townson's TELECOM DIGEST, it's an exceptional resource. From the header of TcD: "TELECOM Digest is an electronic journal devoted mostly but not exclusively to telecommunications topics. It is circulated anywhere there is email, in addition to various telecom forums on a variety of public service systems and networks including Compuserve and America On Line. It is also gatewayed to Usenet where it appears as the moderated newsgroup 'comp.dcom.telecom'. Subscriptions are available to qualified organizations and individual readers. Write and tell us how you qualify: * ptownson@massis.lcs.mit.edu * ======" )) ================== Source - TELECOM Digest Tue, 13 Jan 98 Volume 18 : Issue 8 Attention AOL apologists: I'll be expecting to hear from you today or tomorrow at your earliest convenience, reminding me once again of how poor AOL gets picked on unfairly. I *still* contend that AOL seems far, far to cozy and comfortable with law enforcement officials hanging around all the time. The message which follows was forwarded to me. PAT] ---------- Forwarded message ---------- Date--Fri, 9 Jan 1998 15:40:07 -0800 (PST) From--William Knowles Subject--AOL accused of privacy violation America Online (AOL) may have violated its own policy and perhaps the law when it allegedly revealed the identity of a member to a Navy investigator. The United States Navy is recommending that a U.S. sailor be discharged for "Homosexual Conduct Admittance" because he typed the word "gay" on his member profile under "Marital Status." But the sailor, Timothy McVeigh of Hawaii (no relation to the Timothy McVeigh convicted of bombing the federal building in Oklahoma), and his attornies said that the Navy may never have been able to legally link him with the profile if an AOL employee hadn't provided his identity to a Naval investigator, violating AOL's own privacy policy. The Navy linked the profile to McVeigh after the military investigator called AOL and said he wanted to find out the identity of the person who had sent him a fax that belonged to the screen name. Without identifying himself, he said an employee named "Owen" revealed the name of the account owner as McVeigh along with his state of residence, according to transcripts of sworn military testimony provided by McVeigh's advocates. But AOL spokeswoman Wendy Goldberg said AOL does not release the identity of a user unless it is "presented with a search warrant, a court order, or subpoena. Federal law prohibits release of any personal information. We take this in our members' policy very seriously." When asked if AOL had, in fact, released the user's identity, she replied, "There is nothing in the transcript to suggest we gave out private information." However, others who have read the transcript think otherwise. "AOL appears to have violated its much-touted privacy policy and destroyed a subscriber's life," said David Sobel, an attorney with the Electronic Privacy Information Center."Every AOL subscriber needs to be concerned about this incident." The investigator said he called AOL and asked for the identity of the person who owned the screen name, according to the transcripts. The investigator, who did not identify himself, said that on Sept. 12 an employee in "tech services" revealed to him that the owner of the account was named "Timothy R. McVeigh" and that he lived in Hawaii. That information was enough to get McVeigh drummed out of the military, and privacy experts now are concerned about the privacy of other AOL members. AOL's policy states it will "not to disclose identity information to third parties that would link a member's screen name(s) with a member's actual name, unless required to do so by law or legal process served on AOL, Inc. (e.g., a subpoena)." Deirdre Mulligan, a staff attorney with the Center for Democracy and Technology, said that when the Navy investigator called AOL seeking to connect the screen name with McVeigh, it also violated a federal law: the Electronic Communications Privacy Act, which requires that a government agency seeking information about an individual's online communication or subscriber information must go through an "appropriate legal process in which, at the very least, they seek an administrative subpoena." "The military clearly violated the law," she said. "They are not just allowed to call up and say who they are and seek information about an individual." She added that AOL may also have violated the law, which prohibits private companies from giving that information to a government agency. According to the hearing transcripts provided by McVeigh's advocates, the Navy investigator said he called AOL and asked for the identity of the person who had sent an email message without identifying himself. That may not matter when it comes to the question of the law, she said. "From the transcript, this person said he asked for information and it was provided without any check of who he was and his right to get information," she said. == The information standard is more draconian than the gold standard, because the government has lost control of the marketplace. -- Walter Wriston == http://www.dis.org/erehwon/ [TELECOM Digest Editor's Note: As I said, I do hope the folks at AOL who write me from time to time complaining that treat AOL unfairly here will respond with the version of the facts as they see them. I see this as just another example of AOL's hospitality to the government; their willingness to violate the privacy rights of their subscribers whenever it suits them to do so. PAT] ------------------------------ Date: Sat, 17 Jan 1998 12:05:14 -0500 From: Paul Kneisel Subject: File 3--The Internet Anti-Fascist:(#53): Tim the Gay Sailor ______________________________________________________________________ The Internet Anti-Fascist: Friday, 16 Jan 1998 FTP Supplement #2 (#53): Tim the Gay Sailor ______________________________________________________________________ Introduction Please note that this story involes McVeigh the gay sailor from AOL, not McVeigh the sad bomber from hell. 1) "Appeal by Timothy R. McVeigh, USN," via Henry Messner, 2 Jan 98 2) Rajiv Chandrasekaran, Washington Post "Navy Targets Sailor's Use of `Gay' on AOL: Case Raises Issue of Online Privacy Protection ," 12 Jan 97 3) John Aravosis and Barbara Bode, "Fears of Cyber-Spying Escalate, as Navy Prepares to Discharge Sailor," via cyber-rights list of Computer Professionals for Social Responsibility, 12 Jan 98 4) David L. Sobel (EPIC), "Letter to Hon. John Dalton, Secretary of the Navy," via cyber-rights list, 14 Jan 98 5) CNN (no author), "Navy delays discharge of sailor said to be gay," 15 Jan 98 6) Reuters (no author), "Navy Delays Discharging Sailor in Online Case," 16 Jan 98 ---------------------------------------------------------------------- 1) "Appeal by Timothy R. McVeigh, USN," Hello: Let me introduce myself. My name is Tim and I have recently been recommended for discharge from the United States Navy for merely having the word "gay" in one of my America Online profiles and someone else's interpretation of that profile. Because of the word gay in the profile, I was read my rights and questioned, with sodomy and indecent acts being the charges that were being investigated. With no other evidence, I was relieved from my job as the senior enlisted man on a nuclear powered submarine and transferred to Submarine Squadron Three. A print out of my AOL profile is the only evidence the government presented at the discharge proceedings. They contend that my profile is a statement of homosexuality and intent to engage in homosexual acts. I contend that a profile on AOL is not a statement of anything and that the proceedings are based on homo-phobic reaction and were discriminatory in nature. I am currently fighting this action with the help of my Navy appointed attorney, LCDR Derek Cole, and Mr. Kirk Childress of Servicemembers Legal Defense Network. I am also asking for your help and support to get this word to President Clinton and several members of Congress. To do this, I ask that you provide this information to as many people as you can that are concerned with human rights and the military's strict adherence to the "Don't Ask, Don't Tell, Don't Pursue" policy. While addressing the Human Rights Campaign on November 8th, President Clinton said "We have to broaden the imagination of America. When we deny opportunity because of ancestry or religion, race or gender, disability or sexual orientation, we break the compact. It is wrong and it should be illegal". I am confident that, with your help, this letter can make it across the U.S. and be overwhelmingly heard in the White House and Halls of the Capital Building. If you can forward it to just one person, you will help double this mailing. That will get the word out. If you have previously received this message, then you can be proud of the efforts of persons like yourself. NOTE: I am in no way connected or related to Timothy James McVeigh who was convicted in the Oklahoma City bombing! Then, I ask you to send the following message: * * * * * Dear Mr. President, Mr. Vice President and Members of Congress: I am an informed and concerned citizen of the United States and am appalled to hear that ETCS(SS) Timothy R. McVeigh, United States Navy, has been removed from his job as Chief of the Boat on USS Chicago (SSN-721) and is being recommended for discharge from the U.S. Navy simply because the word "gay" appeared in one of his America Online profiles. Not a statement, and no acts, but merely the word gay. Isn't there enough for the military to do without wasting our time, money, and resources on "witch-hunts" for "suspected" homosexuals; a practice the military now adamantly denies it engages in after its long and well documented history of carrying out such abuses of people's rights. I am especially appalled that the investigation against ETCS(SS) McVeigh appears to violate the rules established by "don't ask, don't tell, don't pursue." This entire matter, due to the wholesale weakness of the evidence against ETCS(SS) McVeigh, appears to be yet another "witch-hunt" to perpetuate the existence of a "homo- phobic" mind-set in today's military. Please stop this travesty and correct this injustice and similar injustices which occur every day in our military. Discrimination of any sort should be eliminated in our country, and especially in our military. Let's find better things to do with our military, other than seeking to discharge some of our best and brightest, all because the military insists on conducting a clandestine and "homo-phobic" campaign to discharge those members it believes to be homosexual. The military should not be engaged in McCarthy-like tactics to identify and end the careers of its own members. We, the people, were promised that such actions would end - once and for all - by the implementation of "Don't Ask, Don't Tell." I have provided my name and address below, and I request to be provided with a written response, under the Freedom of Information Act, 5 U.S.C. Sec. (1982) explaining why as a taxpayer, my tax dollars are being used to process cases like this. I understand that under the Freedom of Information Act, I must be provided with a response to this message from your office. Finally, Mr. ________, I desire to know, what your stance on this issue is, and what you intend to do about it. With an election coming up, there will be many thousands of voters throughout the country who will be interested in your response. Sincerely, Address: * * * * * Some handy e-mail addresses: NavyPress@aol.com mcpon@bupers.navy.mil navnews@mediacen.navy.mil subpacpa@hula.net u00pa2@cpf.navy.mil bob_graham@graham.senate.gov senator@inouye.senate.gov President@whitehouse.gov Vicepresident@whitehouse.gov neil@abercrombie.house.gov SEN. CARL LEVIN senator@levin.senate.gov SEN. SPENCER ABRAHAM michigan@abraham.senate.gov Michigan Members of Congress with e-mail addresses: HON. DAVE CAMP DAVECAMP@HR.HOUSE.GOV HON. JOHN CONYERS, Jr JCONYERS@HR.HOUSE.GOV HON. VERNON J. EHLERS CONGEHLR@HR.HOUSE.GOV HON. PETER HOEKSTRA tellhoek@hr.house.gov HON. LYNN RIVERS lrivers@hr.house.gov HON. NICK SMITH REPSMITH@HR.HOUSE.GOV HON. BART STUPAK STUPAK@HR.HOUSE.GOV HON. FRED UPTON TALK2FSU@HR.HOUSE.GOV Other members do not have e-mail. [Henry] Thank you for your time in this matter. I am certain with enough response, a victory for all can be achieved and you will have played a large part. I will update home page in an effort to try to keep you informed of the status of this case. ETCS(SS) Timothy R. McVeigh, USN - - - - - 2) Navy Targets Sailor's Use of `Gay' on AOL: Case Raises Issue of Online Privacy Protection by Rajiv Chandrasekaran, Washington Post When Navy sailor Timothy R. McVeigh created a "user profile" on America Online, he didn't think his use of the word "gay" to describe his marital status would violate the Clinton administration's "don't ask, don't tell" policy on homosexuals in the military. He said he was careful not to include his full name or his occupation, referring to himself only as "Tim" in "Honolulu, Hawaii." But last week, in an unusual case that has outraged gay-rights groups and electronic-privacy advocates, the Navy's deputy personnel chief ordered that McVeigh -- who is not related to the convicted bomber of the Oklahoma City federal building -- be dismissed from the service for violating the policy, after a naval investigator testified that he obtained McVeigh's identity with a telephone call to America Online Inc. The investigator said at a November discharge hearing that a technical- support employee at the Dulles-based online service did not ask for a court order before imparting McVeigh's full name and state of residence, according to a transcript of the proceeding. Privacy advocates contend that AOL, which has 10 million subscribers, flouted its own privacy policy and that both the Navy and AOL may have violated a federal law. "People are given an assurance that when they use AOL, they are doing it with a pretty strong sense of anonymity," said David L. Sobel, the legal counsel at the Electronic Privacy Information Center, a Washington-based advocacy group. "This case raises serious questions about AOL's protection of subscriber privacy." An AOL spokeswoman would not comment on the case other than to say that the company "saw nothing in the transcript [of the discharge hearing] to suggest that we gave out private member information." "Our policy regarding the release of personal information is very clear," the spokeswoman, Wendy Goldberg, said. "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." The case against McVeigh has been seized upon by gay rights activists, who see it as the latest example of what they say is unfair and discriminatory prosecution of homosexuals by the military. They insist the Navy was unjustified in pursuing McVeigh simply because of an AOL profile that he maintains did not include his last name. "Under `don't ask, don't tell,' there are supposed to be limits on investigations," said C. Dixon Osburn, the co-executive director of the Servicemembers Legal Defense Network, a Washington-based group that assists military personnel charged with violating the policy. McVeigh "didn't work hard to get on the radar screen," said Osburn, who is providing legal advice to McVeigh. A Navy official at the Pentagon, who requested anonymity, defended the investigation into McVeigh. "The Navy views this case as a straightforward application of existing policy." The Navy viewed the AOL profile "as a straightforward indication of McVeigh's statement that he is gay," the official said. McVeigh, 36, a senior chief petty officer who has been in the Navy for 17 years, said the discharge proceedings began after he sent a civilian Navy employee an electronic mail message in September asking for the ages of children of sailors on his submarine to organize a holiday toy giveaway. McVeigh said he sent the request via the AOL account because he was heading off to sea and did not have time to see the civilian Navy employee in person. As is true of all AOL messages, McVeigh's "screen name" appeared as the return address. Using that screen name, the employee searched AOL's public directory and discovered a profile screen, created by McVeigh, that included the designation "gay" for marital status. It is unclear from the testimony in the case what prompted the employee to search the profile. At the November hearing, naval investigator Joseph Kaiser said he called AOL and talked to "a gentleman named Owen at tech services," according to the transcript. Kaiser testified that he "wanted to confirm the profile sheet, who it belonged to. They said it came from Hawaii and that it was `Timothy R. McVeigh' on the billing." Kaiser testified that the AOL representative did not provide any other data about McVeigh. Sobel and other privacy advocates question whether the McVeigh case is an isolated incident of privacy violations by AOL. "How many other similar disclosures have been made like this that we -- or the actual account holder -- don't know about?" he asked. Others suggest that the Navy's apparent success in obtaining the information from AOL without a court order will encourage investigators to operate in a similar fashion in the future. "It's giving a green light for the government to start cyber-snooping on American citizens," said John Aravosis, an Internet consultant in Washington who has been trying to raise awareness of the case. The 1986 Electronic Communications Privacy Act bars service providers such as AOL from knowingly giving subscriber information to law enforcement officials without a court order. In the McVeigh case, however, it is not clear from the transcript that the investigator identified himself to AOL. "There seems to be a legal loophole here that needs to be closed," Sobel said. "There's nothing to prevent investigators from getting this information without disclosing who they are." McVeigh said the only evidence given at the hearing was the profile, which he does not deny writing. In an interview with The Washington Post, he would not say whether he is gay. He disputes the Navy's contention that the word "gay" on his profile means he is homosexual. "You can put in male or female, that you are green or blue or purple," he said. "That doesn't make it true." The Navy personnel office on Jan. 5 directed that McVeigh be given an honorable discharge within 10 days, entitling him to some benefits but not a pension. McVeigh joined the Navy after high school, rising to become the chief enlisted officer on the USS Chicago, a nuclear-powered submarine. The Servicemembers Legal Defense Network has submitted an appeal to Navy Secretary John Dalton, asking to delay the discharge pending an examination of whether the service properly followed the "don't ask, don't tell" policy. - - - - - 3) "Fears of Cyber-Spying Escalate, as Navy Prepares to Discharge Sailor: America Online and Navy May Have Violated Law, Experts Say" by John Aravosis and Barbara Bode FOR IMMEDIATE RELEASE Contacts: John Aravosis, 202/328-5707 Barbara Bode, 202/588-9598 WASHINGTON, DC - Fears of cyber-spying are escalating in the wake of the Navy's plans to discharge a sailor this week. According to sworn testimony in Navy documents, the Navy successfully solicited what appears to be confidential subscriber information from America Online (AOL), the nation's largest Internet service, in an effort to identify the sexual orientation of a servicemember. This exchange of information has led to the expected discharge of the decorated 17-year veteran this week. Online legal experts see a potentially serious violation of the federal Electronic Communications Privacy Act, which requires that a government agency seeking information about a citizen's online communications or subscriber information go through an appropriate legal process. "The Navy appears to have obtained the information under false pretenses, and at the very least violated the spirit of the federal Electronic Communications Privacy Act," said David Sobel, General Counsel for the Electronic Privacy Information Center (EPIC) ( http://www.epic.org ). "And there appears to be strong evidence that AOL violated its own contractual terms of service, and possibly federal law as well." Senior Chief Petty Officer Timothy R. McVeigh (no relation to the Oklahoma City bomber) was serving as the top enlisted man on board the nuclear attack submarine, USS Chicago, when he returned to port in Hawaii last September and was confronted by Navy investigators. They claimed to have evidence linking McVeigh to an AOL "member profile" that they believed to be "gay." That profile was subsequently the key piece of evidence used by the Navy in McVeigh's discharge proceedings. According to sworn testimony, Navy staff legalman Joseph M. Kaiser called AOL seeking information on what he suspected was McVeigh's AOL email account. "I called AOL and talked to a gentleman named Owen at Tech Services," Kaiser testified. "I said that I am the third party in receipt of a fax and wanted to confirm the profile sheet, who it belonged to. They said it came from Hawaii and that it was 'Timothy R. McVeigh' on the billing," Kaiser testified. Kirk Childress, staff attorney with Servicemembers Legal Defense Network, which is helping with McVeigh's defense, was quoted on CNet ( http://www.news.com ) on Friday as saying that without the link between McVeigh and the AOL screen name, the government's case would be much weaker, and they might not have been able to make it at all. "It is doubtful to me that a court would have issued a subpoena under these circumstances," said Childress. "This sailor is roadkill on the information superhighway," said John Aravosis, founder of Wired Strategies ( http://www.wiredstrategies.com ), a political Internet consulting firm in Washington, DC, and adviser to McVeigh. "It is not acceptable for the government to use the Internet to spy on its citizens and destroy their lives." Gay leaders are also alarmed over this attempt to move the military's anti-gay policy into the online realm. "US law protects your privacy whether you're straight or gay," said gay Clinton appointee Bob Hattoy. "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." McVeigh has been publicizing his case on the Internet with a Web site and email campaign, and had already received nearly 2,000 messages of support from around the world when America Online canceled his email account early last Friday morning, reportedly for "abuse." Online competitor Prodigy responded by offering McVeigh a free lifetime Internet account in which they "absolutely assure his utmost confidentiality in any and all matters." McVeigh has accepted Prodigy's offer. "I have been trained to be a leader, fair and by the book," McVeigh says on his Web site (http://www.geocities.com/Pentagon/9241/index.html). "And if the Navy wants to throw the book and fairness out, I will still go by the book and in human fairness lead the fight against them for the benefit of all." McVeigh is a highly decorated 17-year Navy veteran, having earned the Navy Commendation Medal, three Navy Achievement medals, four Good Conduct medals, three Battle E's, four sea service ribbons, and recognition for his service in Southeast Asia and the Arctic. In his most recent performance review he was described as an "outstanding role model." * * * * * Press stories to-date include: The New York Times, Washington Post, San Francisco Chronicle, USNews & World Report, Cnet, PlanetOUT. John Aravosis, 202/328-5707 Barbara Bode, 202/588-9598 - - - - - 4) "Letter to Hon. John Dalton, Secretary of the Navy," by David L. Sobel (EPIC) Electronic Privacy Information Center 666 Pennsylvania Avenue, S.E., Suite 301 Washington, DC 20003 (202) 544-9240 http://www.epic.org 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, a 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 - - - - - 5) "Navy delays discharge of sailor said to be gay" via CNN, no author WASHINGTON: The Navy has delayed until next week the controversial discharge of a sailor suspected of being homosexual based on information obtained from an Internet online service. The decision came as lawyers for Senior Chief Petty Officer Timothy R. McVeigh sued the government for violating McVeigh's privacy and violating the Pentagon's "don't ask, don't tell" policy on gays in the military. Under the agreement, which top aides to Defense Secretary William Cohen reached with the Justice Department, McVeigh's honorable discharge was put off until next Wednesday while a review of the case continues. McVeigh was to have been discharged Friday. At issue is whether McVeigh's right to privacy was violated when a Navy investigator obtained information about McVeigh's America Online account from AOL. A resident of Mililani, Hawaii, McVeigh -- who is not related to the convicted Oklahoma City bomber -- was the senior enlisted man aboard the nuclear-powered attack submarine USS Chicago. AOL rep allegedly provided information Navy investigators took action against him under the policy against homosexuality in the military after they learned of a profile page he had set up on America Online that indicated a sexual interest in other men. McVeigh later acknowledged that the page was his but has declined to comment on his sexual orientation. The case has gay advocacy and privacy groups involved because the investigator apparently got confidential information -- the identity of the author of the profile page -- from a representative of America Online. A Defense official, speaking on condition of anonymity, said Navy Secretary John Dalton approved the delay in the discharge. Outside advocates, however, said they worked directly with aides to Cohen in gaining the delay. Attorney C. Dixon Osburn of the Servicemembers Legal Defense Network, a group working on McVeigh's behalf, and Kim Mills of the Human Rights Campaign, a gay rights advocacy group, confirmed details of the delay in McVeigh's discharge from active duty. A formal letter was sent to McVeigh's attorneys by the civil rights division of the Department of Justice advising them of the delay pending the arrival of a copy of the complaint the attorneys intend to file on McVeigh's behalf. - - - - - 6) "Navy Delays Discharging Sailor in Online Case" via Reuters, no author WASHINGTON: The U.S. Navy says it's delaying the planned discharge of a sailor it believes is homosexual because he listed "gay" on a computer user profile. The Navy, in a brief statement issued late on Thursday, said its action came as a result of a lawsuit filed by the sailor in U.S. District Court and was aimed at giving the Justice Department time to develop a response to the lawsuit. Christopher Wolf, the sailor's Washington-based lawyer, said the postponement would put off the dismissal until at least Wednesday so a court could weigh the sailor's claims that his rights were violated during a Navy investigation. The Navy had ordered the discharge, effective Friday, of Senior Petty Officer Timothy McVeigh -- who is not related to the convicted Oklahoma City bomber Timothy McVeigh -- on the grounds that he breached the military's "Don't ask, don't tell" policy on homosexuality. The planned honorable discharge was based entirely on information obtained by the Navy from America Online (AOL), the nation's largest online computer service, Wolf said. McVeigh filed suit Thursday charging the Navy violated the federal Electronic Communications Privacy Act by requesting and receiving confidential subscriber information from AOL. The suit was filed in U.S. District Court in Washington. "We can't let the government use the fruit of that poisonous tree to discharge a decorated sailor," Wolf said in a telephone interview with Reuters. The Navy declined to comment beyond saying it would put off McVeigh's dismissal. It has declined to say how it obtained McVeigh's America Online personal profile on the grounds that this information was part of an ongoing investigation. McVeigh, 36, is a 17-year Navy veteran stationed in Hawaii. His AOL profile did not identify him by name or indicate he was in the Navy. The Electronic Privacy Information Center, which monitors civil liberties issues on the Internet, said McVeigh's lawsuit was the first to challenge governmental access to sensitive subscriber information maintained by an online service. "This case is an important test of federal privacy law," he said. "It will determine whether government agents can violate the law with impunity or whether they will be held accountable for illegal conduct in cyberspace." ______________________________________________________________________ -- tallpaul Fascism: We have no ethical right to forgive, no historical right to forget. back issues archived via: (No permission required for noncommercial reproduction.) ------------------------------ Date: Thu, 7 May 1997 22:51:01 CST From: CuD Moderators Subject: File 4--Cu Digest Header Info (unchanged since 7 May, 1997) Cu-Digest is a weekly electronic journal/newsletter. Subscriptions are available at no cost electronically. CuD is available as a Usenet newsgroup: comp.society.cu-digest Or, to subscribe, send post with this in the "Subject:: line: SUBSCRIBE CU-DIGEST Send the message to: cu-digest-request@weber.ucsd.edu DO NOT SEND SUBSCRIPTIONS TO THE MODERATORS. The editors may be contacted by voice (815-753-6436), fax (815-753-6302) or U.S. mail at: Jim Thomas, Department of Sociology, NIU, DeKalb, IL 60115, USA. To UNSUB, send a one-line message: UNSUB CU-DIGEST Send it to CU-DIGEST-REQUEST@WEBER.UCSD.EDU (NOTE: The address you unsub must correspond to your From: line) Issues of CuD can also be found in the Usenet comp.society.cu-digest news group; on CompuServe in DL0 and DL4 of the IBMBBS SIG, DL1 of LAWSIG, and DL1 of TELECOM; on GEnie in the PF*NPC RT libraries and in the VIRUS/SECURITY library; from America Online in the PC Telecom forum under "computing newsletters;" On Delphi in the General Discussion database of the Internet SIG; on RIPCO BBS (312) 528-5020 (and via Ripco on internet); CuD is also available via Fidonet File Request from 1:11/70; unlisted nodes and points welcome. In ITALY: ZERO! BBS: +39-11-6507540 UNITED STATES: ftp.etext.org (206.252.8.100) in /pub/CuD/CuD Web-accessible from: http://www.etext.org/CuD/CuD/ ftp.eff.org (192.88.144.4) in /pub/Publications/CuD/ aql.gatech.edu (128.61.10.53) in /pub/eff/cud/ world.std.com in /src/wuarchive/doc/EFF/Publications/CuD/ wuarchive.wustl.edu in /doc/EFF/Publications/CuD/ EUROPE: nic.funet.fi in pub/doc/CuD/CuD/ (Finland) ftp.warwick.ac.uk in pub/cud/ (United Kingdom) The most recent issues of CuD can be obtained from the Cu Digest WWW site at: URL: http://www.soci.niu.edu/~cudigest/ COMPUTER UNDERGROUND DIGEST is an open forum dedicated to sharing information among computerists and to the presentation and debate of diverse views. CuD material may be reprinted for non-profit as long as the source is cited. Authors hold a presumptive copyright, and they should be contacted for reprint permission. It is assumed that non-personal mail to the moderators may be reprinted unless otherwise specified. Readers are encouraged to submit reasoned articles relating to computer culture and communication. Articles are preferred to short responses. Please avoid quoting previous posts unless absolutely necessary. DISCLAIMER: The views represented herein do not necessarily represent the views of the moderators. Digest contributors assume all responsibility for ensuring that articles submitted do not violate copyright protections. ------------------------------ End of Computer Underground Digest #10.03 ************************************