Hey, did you know that Obama didn’t beat Romney because he ran a much better campaign, or because Romney was a lousy candidate, or because of the shifting demographics of the nation, or because Republican policies are way more unpopular than anyone on the right can bear to admit?
No, Obama won because he cheated!
Thanks to Stewart Baker over at the Volokh Conspiracy (which is normally not quite this batshit crazy), the claim is now being made that the Obama campaign’s high-tech doohickeys and GOTV efforts broke the law (specifically the Computer Fraud and Abuse Act, the same thing Aaron Swartz was prosecuted under) by violating Facebook’s Terms of Service, and that the only reason the DoJ didn’t go after them for this criminal conspiracy is, well, I’ll let Baker explain it:
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.
Maybe the campaign never thought about the possibility that it was violating federal law. 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.
The other possibilities are all much more troubling. Perhaps the campaign, or some official in the administration, checked quietly with Justice and got an assurance that its prosecutors would not inconvenience the campaign. Or perhaps the campaign thought about the risk and said, “Pff! Those guys work for us. They’ll never prosecute, especially if we win.” Or perhaps the Obama campaign went to Facebook and got a quiet waiver of the terms of service.
Of course, Baker’s assumption that the law was broken in the first place is based on a laughably ignorant understanding of Facebook’s ToS and how the internet works. His ridiculous theory gets justifiably torn apart in the comments section of his post, as people point out that if the Obama campaign broke the law so is the very Disqus commenting system the Volokh Conspiracy uses, but something tells me that won’t stop the usual suspects from jumping on this bandwagon…
UPDATE: the original, very silly blog post Baker cites as his ‘authority’, which was originally down when I posted the Page, can be found here.
UPDATE #2: there have now been two other posts about this non-issue over at VC, by Profs. Ilya Somin and Orin Kerr, and both of them take it as a given that the Obama campaign broke the law. The first says yeah, sure, Obama’s guilty, but that’s not why Romney lost, and the second says that the original blog post Baker cited was attempting a reductio ad absurdum on the DoJ’s interpretation of the CFAA, and that while the Obama campaign was guilty so is everybody else. Neither of them make more than a backhanded reference to the incontrovertible fact that the Facebook ToS was not violated, and that no law - under anybody’s interpretation of the CFAA - was broken.