Internet Library of Law
and Court Decisions

Timothy R. McVeigh, v. William Cohen, et al

Plaintiff, a Navy serviceman, sent an anonymous e-mail via AOL under the alias "boysrch." The recipient searched through AOL's member profile directory, which indicated that "boysrch" was a homosexual. The member profile did not identify "boysrch" as plaintiff. The receipent forwarded this information to the Navy. In response to a subsequent inquiry from the Navy, AOL identified "boysrch" as plaintiff. Defendant thereafter held an administrative hearing at which it determined that plaintiff should be discharged for engaging in homosexual conduct.

On plaintiff's motion, the Court issued a preliminary injunction enjoining the Navy from discharging plaintiff.

"Suggestions of sexual orientation in a private anonymous e-mail account [do] not give the Navy a sufficient reason to investigate to determine whether to commence ... discharge proceedings. In its action, the Navy violated" its Don't Ask, Don't Tell, Don't Pursue policy.

The Court further found that the Navy's request that AOL identify the true identity of "boysrch" was "likely illegal" under the Electronic Communications Privacy Act of 1996, 18 U.S.C. §2703. "The ECPA ... allows the government to obtain information from an online service provider ... only if a) it obtains a warrant issued under the Federal Rules of Criminal Procedure or state equivalent; or b) it gives prior notice to the online subscriber and then issues a subpoena or receives a court order authorizing disclosure of the information in question." Having failed to follow either path, the Navy ran afoul of the ECPA. The court rejected the government's argument that §2703(c) only prohibits the actions of Internet Service Providers, and not the Government.