Did the President Win Re-Election by Violating the Computer Fraud and Abuse Act?

by - August 01, 2013

It’s widely agreed that Mitt Romney lost the race because the President’s base turned out in surprisingly large numbers, thanks in large part to the Obama campaign’s effective use of technology. That much we already knew.  But now, thanks to Dan Balz’s “Collision 2012,” we’re beginning to learn exactly how the campaign used technology.  And, as Michael Vatis, an alumnus of the Clinton Justice Department, persuasively argues, its key tactic was violating the Computer Fraud and Abuse Act. Here’s how the tactic apparently worked. Obama supporters logged on to both a campaign network and their Facebook account, allowing the campaign to search their Facebook network for likely Obama voters whom the campaign believed to be unmotivated or unregistered. Those voters would then get tailored messages from their Facebook friends urging them to register and turn out. It’s clever. It’s the future. And it’s a violation of the CFAA. Facebook doesn’t let users share access to their accounts, and anything Facebook doesn’t authorize is very likely a federal crime. (Because Facebook is limiting access to information, not just use of information, the conduct was very likely criminal even under the more limited construction of the CFAA adopted in the Ninth Circuit.) The Obama campaign doesn’t seem to have been deterred by the possibility that it was violating federal law.  I can think of at least four reasons why that might be.  Three of them are scandals.

The Volokh Conspiracy

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