The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. - 4th Amendment
The United States is "enter[ing] new and unchartered territory by breaking down traditional barriers between law enforcement and foreign intelligence." - Sen Patrick Leahy, 147 Cong Rec S10992 (daily ed. Oct 25, 2001)
The American Revolution proposed several radical notions; one was the idea that the sovereign lacks the capacity to, at its whim, impose on the citizen searches or the taking into possession the citizen’s property. It cannot be overstated what a dramatic departure this was from conservative European monarchical governments. In time, modern governments such as the Nazis sought a return to strongly centralized totalitarian regimes, eliminating or marginalizing civil rights as extremists consolidated power. These American notions of an accountable and curtailed government are cornerstones of government by the people.
Senior Chief Timothy McVeigh was the senior-most man aboard the USS Chicago, a nuclear submarine. He had served his country continuously for 19 years and was highly decorated. He also happened to be a subscriber to AOL.
(According to the case:) In 1997, in the spirit of the season, there was a toy drive for the children of the USS Chicago's crew. Helen Hajne, the coordinator of the drive, received an email about the drive. The alias to the email address was "boysrch" and the message was signed by "Tim." Examining the AOL member profile directory, Helen was able to determine that "Tim" lived in Hawaii, worked in the military, and had the marital status of "gay." He also listed his interests as "collecting pics of young studs" and "boy watching." There was not, however, any specific personal identifying information in the personal profile such as a full name, address, or phone number.
Eventually, the emails from "boysrch" came to the attention of the Judge Advocate General for the USS Chicago. Legalman Joseph Kaiser, a member of the JAG corp, proceeded to call AOL but not identify himself as a government official. Legalman Kaiser simply indicated that he had in his position a fax and that he "wanted to confirm the profile sheet and who it belong it." The AOL representative informed him that "boysrch" was, in fact, Senior Chief Timothy McVeigh.
The Navy proceeded to initiate a discharge proceeding against McVeigh on the grounds that he was a homosexual.
McVeigh appealed. He appealed to a three-member Naval board, and lost. Instead the Navy accelerated his discharge. He then appealed to federal court. When the Court requested that the Navy postpone the discharge of McVeigh for a few days, the Navy declined. One day before discharge, the Navy graciously agreed to postpone the discharge for 4 days. In that time, Judge Sporkin of the DC Circuit Court was able to render his opinion. He found that the Navy had violated its "Don’t Ask, Don’t Tell" policy and the Electronic Communications Privacy Act, and barred the Navy from discharging McVeigh. In his ruling, Judge Sporkin stated, "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."
It is perhaps the nightmare of any computer network to be caught in the crossfire of such situations. On the one hand, you have your most valuable assets, your subscribers, to whom you offer your best service and may even promise, in your contracts or AUP, that you will maintain their privacy. On the other, you have government officials knocking at your door, demanding information, and saying, with a smile, "you want to cooperate with your government, don’t you?" It is not a pleasant position to be in.
