Army E-Mails Launch Privacy Suit in N. Carolina

WASHINGTON – National Guardsman David Culbreth (search) knew the military monitored the e-mail of soldiers overseas for operational security, but he never thought he could lose his job for an e-mail he sent from North Carolina to a friend stationed in Kuwait.

"I’m losing my career here," said Culbreth, 39, a former full-time National Guardsman in North Carolina who was expecting a promotion to lieutenant colonel when he was fired in February 2004.

His bosses called him in November 2003, holding an e-mail he sent from his personal computer at home to his friend, Col. Fred Aikens, a fellow North Carolina guardsman who was stationed under Central Command (search) in Kuwait. Aikens was using an AOL address on a government computer.

Culbreth said he wrote about not getting an expected promotion, which he believed was in retaliation from an administrative complaint he and Aikens had made about their adjutant general, the head of the state National Guard. He says he was told that he was being let go because of that e-mail.

"Not only did I lose my promotion, but I lost my job," he said.

Culbreth filed a lawsuit in U.S. District Court in Raleigh against Col. William T. Boyd, chief of staff of the North Carolina National Guard (search), and Maj. Gen. William Ingram Jr., the adjutant general of the North Carolina National Guard. Culbreth claims they orchestrated the e-mail monitoring and used his own e-mails against him.

The case is expected to set precedence on the expectation of privacy that inactive, off-duty soldiers have when using e-mail. It also calls into question whether any employer looking to fire a subordinate may do so by reading their e-mails, veterans said.

"I support the Army and the Department of Defense process of maintaining security," Culbreth said. "That’s right — we don’t want troop movements or sizes to be known.

"But when an individual sends a message from here, they need to know they have privacy."

The North Carolina National Guard did not return repeated calls for comment.

The North Carolina Attorney General’s office, which represents the state, declined to comment on the case but has called for a dismissal, saying Culbreth did not exhaust his appeals through the Army, under whose command the e-mail monitoring occurred. The state also says that once Culbreth’s e-mails were sent over Central Command servers overseas, they were no longer considered private.

William Webb, Culbreth’s lawyer, said soldiers in Aikens’ unit who were friendly with Ingram back home were accessing the e-mails over the servers in Kuwait and sending them back to Ingram in the States, where they were used against his client. This, he believes, is not part of the military protocol.

"We contend that my client and Col. Aikens both have expectations of privacy in this regard, and he [Ingram] furthermore violated his constitutional rights," said Webb. "Obviously, to me, this is a very bad precedent."

Aikens, now returned from duty, is an African-American and a deputy secretary of the state department of corrections. He said be believes his race played a role in his treatment at the National Guard, leading him to file a complaint with the National Guard Bureau’s equal opportunity office.

"There is proof that the North Carolina guard had a stack of my e-mails as high as my TV set," said Aikens, who always used both his military e-mail addresses and personal accounts when sending mail back home. He says all his e-mail was snatched. "Culbreth, he’s the collateral damage," he said.

He said he knows and believes in military policy that all active-duty servicemember's e-mails are monitored for security. "If my wartime command wanted to do that, I wouldn’t care," he said. "[But] some guys in my unit were kicking my e-mails back to North Carolina," he said.

A spokeswoman for Central Command said Centcom does not have authorized access to personal e-mail accounts – like Hotmail or AOL accounts – without a court order or cooperation by the Internet service provider. But soldiers are warned that all activity on government computers, including the e-mail traffic that travels over their servers, is monitored. She did not comment on the Culbreth case specifically.

Since all service members use government computers in the field, their e-mail and Internet activity is completely transparent and monitored for operational security. Centcom said that traditional "snail mail" is not opened, but it is screened for things like Anthrax (search).

Veterans from the Iraq war and others say this is an acceptable policy, considering that one slip of the tongue could put coalition forces in jeopardy. They wouldn’t be surprised if some snail mail was opened, too, as it was in previous wars.

"It only takes one letter, sent to the wrong person, saying where we are," said Charles Sheehan-Miles, a Persian Gulf War Veteran and executive director of Veterans for Common Sense, a national security-focused group of about 12,000 members.

Paul Rieckhoff, director of the Iraq War-based organization Operation Truth, said personal Weblogs and other activity, including any Web sites a service member accesses, are also monitored.

"I think that in part it's necessary, you want to make sure that some 18-year-old doesn’t accidentally tell his wife that their convoy is leaving the next morning," said Rieckhoff, who served in Iraq from 2003 to 2004 as an infantry platoon leader. Reporters who have soldiers as sources often find other ways of communicating with them other than e-mail, he added.

Rieckhoff said he was unaware of the Culbreth case, but said it would not seem right if he was fired for the content of his letters. Rieckhoff said when he was in Iraq, soldiers had sent e-mails to their congressmen and others all the time, complaining of the lack of equipment or wondering when they will be sent home – and no one that he knows of was taken to task.

"I think we would have a Supreme Court issue here – you’re talking about freedom of speech, essentially," he said. "It means that no one in America could bitch about their bosses. If that were so, everyone in the military would be in jail."

Sheehan-Miles believes that Culbreth has a tough case to win, because the military does not want to lose its leverage over the communications issue, no matter how removed it may be from the battlefield.

"I would be really shocked if this guy won the court case, I would be stunned," said Sheehan-Miles. "The courts have typically ruled in favor of the military."