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.”
