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

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.) . . . Given the importance of turnout to the result in 2012, and the computer crime prosecutors’ already controversial exercises of discretion, I think this issue will go mainstream. If the President even arguably won re-election by violating federal law or by getting special treatment from Facebook or federal prosecutors, half the country will want to know exactly how that happened. And I don’t see how the extraordinary discretion conferred by the CFAA can survive the storm that follows.

I’m sure Eric Holder’s DOJ will be right on it. I wonder if any civil suits are possible?

UPDATE: Speaking of asterisks, a rather major update and correction to the post: “Having talked in some detail with folks at Facebook, I’ve concluded that this post was just wrong.” Apparently, this was an authorized use of a separeate service, Facebook Platform, even though it would have violated Facebook’s terms of use.