I Should Not Have Opined About Facebook’s TOS and its Relationship to the CFAA

Some commenters on Stewart Baker’s, Orin Kerr’s, and my own recent posts on the Obama 2012 campaign’s possible violation of the Computer Fraud and Abuse Act argue that, even if the CFAA does criminalize use of websites in violation of their terms of service, the Obama campaign did not in fact violate Facebook’s TOS, as argued by cyberlaw expert Michael Vatis. The point at issue, as I now understand it, is that FB may have different terms of access for apps as opposed to individuals, and that the Obama campaign’s intervention may have been limited to the former.

The main point of my post was not to argue this issue, but to note that even if the Obama campaign did violate the CFAA, the violation 1) did not determine the outcome of the election, and 2) should not be prosecuted. At the same time, I did say in an update that I thought Vatis’ analysis was correct, and I did implicitly endorse his conclusions elsewhere in the post. At this point, I’m not sure whether Vatis is right or whether his critics in the VC commentariat are. But I do know enough to say that there is a serious debate here, and that I should not have opined on it given my own lack of relevant knowledge. I’m not a cyberlaw specialist. And – although I use Facebook extensively – I don’t pay much attention to its TOS because I don’t think it’s likely to pose a problem for any of my uses of the site. My initial judgment was based on deference to Vatis’ expertise, combined with the fact that he is a former Clinton administration official and not likely to err on this subject out of hostility to Obama. Deference to expert opinion is often rational, but it’s far from an infallible information shortcut – especially when, as in this case, you are deferring to just one expert’s views, rather than a consensus of the field.

Several years ago, I explained why I mostly try to confine my blogging about serious law and policy issues to “1. Issues on which I am an expert… 2. Issues on which I’m not officially an expert, but have a lot of knowledge because I follow them closely…[and] 3. Rare cases that fall outside of 1 and 2, where I come up with an original point that other commentators have for some reason ignored.” The Facebook TOS/CFAA issue doesn’t fall into any of these three categories.

My rules are not ironclad Laws of Blogging that Must be Obeyed at All Times. And, just for the record, they are not official VC Terms of Service! But I think they are sound general principles that I generally should not deviate from without a good reason. In this case, I was wrong to ignore them.