Did Barack Obama win re-election by violating the Computer Fraud and Abuse Act?
This is the question posed by former Homeland Security attorney Stewart Baker, a blogger for The Volokh Conspiracy, a group blog organized by Eugene Volokh, a professor of American law at the UCLA School of Law.
Baker’s credentials make the question a serious one.
A partner in the Washington office of Steptoe & Johnson LLP, he returned to private law practice after serving for three and a half years as the assistant secretary for policy at the Department of Homeland Security, where he created and managed the 250-person DHS Policy Directorate responsible, among other duties, for relationships with law enforcement and public advisory committees.
The Computer Fraud and Abuse Act, enacted by Congress in 1986, is a broadly written law that in practice regulates virtually all computers and cellphones, largely because communications over the Internet tends to have implications for interstate commerce.
Baker argued that the Obama presidential campaign in 2012 possibly violated the act by an arrangement with Obama supporters posting on Facebook. It allowed the Obama campaign to search the person’s Facebook network for likely voters the campaign could identify as unmotivated or unregistered.
The likely voters would then get tailored messages from their Facebook friends urging them to register and turn out.
Baker’s appreciation for the creativity of the tactic was moderated by his conclusion the tactic might have been a criminal violation of the Computer Fraud and Abuse Act.
“It’s clever. It’s the future,” Baker conceded. “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.”
Baker explained that Facebook’s customer service agreement was written to limit access to information, not just use of the information.
“Maybe the campaign never thought about the possibility that it was violating federal law,” Baker wrote. “That’s not a scandal, though it strikes me as unlikely that not one of these tech-savvy geeks failed to notice that they were breaching Facebook’s terms of service.”
Given the importance of turnout to the outcome of the 2012 presidential campaign, Baker argued President Obama arguably won re-election by violating federal law or by getting special treatment from Facebook, and maybe from federal prosecutors as well.
“I think this issue will go mainstream,” Baker insisted. “Half the country will want to know exactly how that happened. And I don’t see how the extraordinary discussion conferred by the Computer Fraud and Abuse Act can survive the storm that follows.”
Trolling for voters
WND senior staff reporter Jerome R. Corsi, author of the WND book “What Went Wrong: The Inside Story of the GOP Debacle of 2012 … And How It Can Be Avoided Next Time,” agrees.
“There is no doubt the Obama computer strategies and capabilities gave Obama an advantage in 2012,” Corsi said. “A major goal of the Obama voter intelligence campaign was to network from strong Obama supporters to find likely Obama voters that could be converted into Election Day votes.”
Corsi pointed out that despite Obama winning six of the seven swing states in play in 2012, many of the key states were very close, within reach for Romney had Republican turnout been higher.
In 2012, when all the precincts were counted, Obama won Ohio by only 103,481 votes, approximately 2 percent of all votes cast in the state, and he won Florida by 73,189 votes, approximately 1 percent of all the votes cast.
“Turnout was the key to victory in 2012,” Corsi pointed out. “Approximately 6.7 million fewer white voters voted in 2012 than voted in 2008. Romney got 59 percent of the white vote. The white voters who stayed home were the conservatives. Had Romney gotten the same numbers of white voters to the polls as McCain got in 2008, Romney could well have been president.”
Maximizing turnout in the Democratic Party base was a necessary strategy for Obama to be re-elected, Corsi pointed out, stressing that Obama got 4.5 million fewer votes in 2012 than in 2008.
“The Obama team had the social science studies that showed how you can increase turnout by telling a prospective voter how his or her neighbors plan to vote,” Corsi noted.
He said the Facebook strategy analyzed by Baker is “very powerful, when the Obama campaign accesses your friends to ask if they know you plan to vote for Obama.”
If Baker is correct, Corsi stressed, the Facebook strategy rapidly moves into the liability column if the Obama campaign did not adequately research the information-access restrictions of the Computer Fraud and Abuse Act.
“The geeks in the ‘cave’ in Obama’s Chicago campaign headquarters were trolling for votes over the Internet wherever and however they could find them,” Corsi said. “It would not surprise me if Obama’s computer geniuses cut legal corners on the Internet, much like hackers couldn’t care less if they violate a few federal laws breaking through firewalls.”