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Thursday, January 1, 1998

Privates Privacy and Policy

by Clinton Fein

The wave of publicity surrounding the rather unfortunately named and about-to-be discharged Timothy McVeigh is shining a welcome spotlight on an issue that has gone ignored by both mainstream media and First Amendment advocates for years. It all began with a privacy violation which arose when America Online violated both its policy and privacy law in response to the Navy's violation of the military's "Don't Ask, Don't Tell, Don't Pursue" policy.

The military has never been particularly fond of laws that apply to mere civilians, and indeed, courts have always given deference to military policy over civil liberty which tends to strengthen the military's defiance of the law.

While the Internet's explosive growth has forced us to reassert in cyberspace the principles contained in the Bill of Rights, we need only look at the implementation of the administration's military policy to see some significant parallels between their brazen disregard for the law, and their understanding of the First Amendment, privacy and electronic media. One of the first cowardly acts implemented by congress and signed into law by President Clinton in 1994, following a high profile public relations disaster after he took office, was none other than the infamous "Don't Ask, Don't Tell, Don't Pursue" policy. If ever there was a precursor to the Communication Decency Act of 1996, this was it.

Mainstream media, with it's abysmally hopeless, yet typical understanding of First Amendment issues, focussed intensely on Bill Clinton's wet-behind-the-ears understanding of both military and Washington culture and bought, hook, line and sinker, into the shrieking hysterics of then Chief of Staff, Colin Powell, Senator Sam Nunn, and Senator Dan Coats. While "Don't Ask" best defines the essence of privacy, "Don't Tell" best defines the notion of censorship. These red flag issues were lost amidst the television coverage of Sam Nunn, sandwiched between beefy servicememebers on submarines with titillating inferences reinforced by the proximity of sleeping quarters. The press was lost.

In 1993, ApolloMedia acquired the CD-ROM rights to investigative journalist, Randy Shilts' detailed expose of gays in the United States military, Conduct Unbecoming. While Shilts had completed the book prior to the actual implementation of the "Don't Ask, Don't Tell, Don't Pursue" policy, ApolloMedia began production in conjunction with it. And when the time came for the release of the CD-ROM, (which included interviews with scores of straight and gay servicemembers, policy makers, members of congress and attorneys), the military panicked.

In the course ApolloMedia's research, the company received a copy of a 1972-recruiting poster from the first ever black man to be used by the Navy to highlight the military's new era of racial sensitivity. Unbeknownst to them however, the man was gay, and later discharged. ApolloMedia sought the appropriate clearances, in retrospect, over-cautiously, in anticipation of the scrutiny expected due to the release of such controversial subject matter. The Navy refused ApolloMedia permission to reproduce the poster, with no explanation. When pressed by ApolloMedia to provide one, the military eventually cited copyright over the Navy seal as a justification for their refusal, threatening litigation in the event the company did not comply.

ApolloMedia became the first CD-ROM publisher in the country to be threatened with First Amendment violations. Since the particular CD-ROM constitutes both a reference work and a visual commentary that is relevant and important to the debate regarding sexual orientation and U.S. military policy, and is speech entitled to the greatest and strictest protection under the First Amendment, ApolloMedia refused to pull the image. "Don't Tell" does not apply to civilians, and ApolloMedia planned to "tell" in a big way. Not only was ApolloMedia "telling" about the folly and abusive nature of the new policy, but bringing to light the issues faced by electronic publishers in a new medium that to this day is still fundamentally undefined.

To begin with, the poster had been in the public domain since 1972. It is not copyrighted and copyright protection "is not available for any work of the United States Government," i.e., "a work prepared by an officer or employee of the United States Government as part of that person's official duties." As the United States Court of Appeals for the Ninth Circuit recently held in the context of investigative reporting, "The journalist's privilege is designed to protect investigative reporting, regardless of the medium used to report the news to the public." The Supreme Court has stated emphatically that "the press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion."

So compelling was our defense of these fundamental protections, that the Navy was forced to back down, and ApolloMedia released the CD-ROM uncensored, setting a de facto precedent that afforded electronic publishers the same First Amendment protections available to traditional media.

The concept of "Don't Tell" allows a culture fundamentally scornful of anything feminine, from its training to its command structure, to pretend that gays are not flying bombers and winning Purple Hearts, but rather cruising the military showers. These big brave macho men defending America's borders are supposedly scared of being objectified in the showers in the same way as objectification of woman in the military is encouraged, condoned and sanctioned, earnest denials and the occasional public relations court martial to the contrary. "Don't Ask, Don't Tell" is a policy that dictates that servicemembers lie in order to uphold it. "Don't Tell". If asked, lie. Don't Tell. The same kind of lying that resulted in the discharge of Lieutenant Kelley Flynn. A policy which, by its very nature and very title, encourages dishonesty and desecrates civil liberties. Never mind honor codes, never mind truth. If integrity and trust are not crucial to unit cohesion, morale and military preparedness, what is? Lying? And yet this is the justification the military uses to abuse an already flawed policy to persecute and ferret out gays in the military.

This is why annoy.com has decided to challenge the military, by mocking its policy. And by using its own ammunition. We have published an image of a gay servicemember, who essentially violated the policy by letting us know that he is gay. "Telling" us. And we have removed any identifying information, and challenge the military to try and guess who it is. Not only will we demonstrate what privacy means, but also will pretend that we too are bound by the military policy, and WE WILL NOT TELL. Not only because the military has a flawed understanding of First Amendment and privacy issues, but because as electronic publishers, it is our duty to highlight the issues that impact our industry. We will ensure that those responsible for violating the laws that protect our corporate and individual freedoms are held accountable and taken to task. Annoy.com was conceived with this purpose in mind, and will continue to chart the untested and frontierless reaches of cyberspace. And to the military's Naval Investigative Service and Criminal Investigation Department or Naval Criminal Investigative Agency, or whatever the hell you're calling yourselves today. A hearty good luck!


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