I think my co-blogger Stewart Baker is missing the point of Michael Vatis’s post on the Obama campaign and the CFAA. Vatis argues that the Obama campaign violated the CFAA if you accept DOJ’s ridiculous view that violating Terms of Service of a website is itself CFAA violation. But Vatis does not argue that DOJ ‘s interpretation is correct. He calls DOJ’s position an “absurdity,” and he uses the example of the Obama campaign software to showcase just one of the absurd implications of DOJ’s view.
By contrast, Stewart assumes that DOJ’s theory is correct, and he thinks that the campaign’s violation of TOS is therefore a big deal. But if you accept DOJ’s theory, it’s probably true that everyone who uses the Internet violates the CFAA. That’s certainly true of anyone reading this post who is employed by the federal government, has a middle name “Ralph,” or has been to Alaska. So the fact that DOJ’s theory could ensnare the Obama campaign isn’t the point. The point is that this theory ensnares all.
UPDATE: I haven’t looked at Facebook’s relevant TOS myself — I try to avoid reading TOS if I can — but many commenters seem 100% certain that the Obama campaign didn’t violate them. If so, this is obviously a bad example to use to criticize the CFAA. But there are lots of examples to go around. Anyway, I’m out the door headed to an event, so my apologies that I can’t take the time to verify the point myself right now. See the comments for more.