Facebook - The Future of Service of Process?
I recently came across an article written by a law firm that talked about the future of service of process via Facebook:
My feedback (unsolicited) of course to folks who wrote this article:
First, always always always take a quick look to see if any cases discuss the issue you are writing about. Rio Properties is a widely cited 9th Circuit case which looks at alternate service (via email in that case). An article or post on alternate service should at least note this case (or any case for that matter). It would give the reader comfort to know that you've come across it. When you don't mention it, the reader is left to wonder.
Second, I'm not sure what "prosecutors [being] commonly permitted to use photographs obtained from social networking websites as evidence in court for a variety of proceedings—from divorce to sexual harassment to drunk driving to murder cases" has to do with service of process. I would leave out all discussion of the evidentiary issues. They don't really add to the service of process issue. If there's a connection between the two (beyond the fact that both involve social networking profiles) you should articulate it.
Third, I'd mention the actual legal considerations, even briefly. What to think about if you are worried about being served, or if you are the one effecting service? You know, "rubber hitting the road" type information. A few things come to mind. Alternate service is authorized in the U.S. but the rule (*apparently*) only applies to foreign defendants, it requires court approval, and service can't be contrary to a treaty or local law (?). There's also the small requirement that you be able to demonstrate to the court the person who you are serving is actually likely to get notice. Remember the whole due process/service of process stuff from law school? That's what this is. You don't need a 100% certainty that the person will receive notice, but you should be able to make the case that they use the medium you are trying to serve them with. You probably want to make the case on reliability as well, People joke about service via Twitter being unlikely because Twitter is simply unreliable. But really, you probably do need to make the case that the social network profile is frequently updated (maybe even used in a manner related to the dispute ?), and that the social network is reliable. Is there a risk the person deletes your notice as spam? Are there any privacy issues to consider? Any special instructions you want to give the process server? Everyone reading this article knows that social networking sites come up in cases. Most people have probably heard of one of the two articles where legal documents were transmitted through a social networking site. The reader is probably looking for specifics, and this is your golden opportunity to deliver value and reflect positively on your brand.
Finally, the overall thrust of the article is unclear. You remind readers to "rethink" the content/accessibility of their on-line profiles and "the legal implications of new technology generally." The "legal implications of new technology generally"? The red pen should have slashed that one. It sounds like the thrust of the article is "social networking has legal consequences . . . watch out"? There are plenty of articles along these lines out there, and I'm sorry to say we didn't need another one.
Also - one more thing. Avoid avoid avoid the use of "clearly" in a document. There's little reason to use it in general, and even less reason in a legal document/article. You followed up "clearly" with "certainly" in the following sentence. A double whammy.
While there is no record yet of courts in the US allowing formal service via Facebook, prosecutors are commonly permitted to use photographs obtained from social networking websites as evidence in court for a variety of proceedings—from divorce to sexual harassment to drunk driving to murder cases.I'm generally all about positive reinforcement, but these people deserve to know that this article added absolutely nothing to the mix. It was worse. It generalized, and added to the hysteria about social networking. It took a concept that has little real world application in the U.S. (at this point) and just riffed on it. Without reference to a single case that actually talked about the issues.
Federal Rule of Civil Procedure 4(e)(2)(B) allows an individual located within a US judicial district to be served by leaving documents at an “individual’s dwelling or usual place of abode…” While the terms “dwelling or usual place of abode” are understood to mean an individual’s physical home, it is not unrealistic to predict that this language could one day be expanded by a court to include a person’s usual place of virtual abode.
Furthermore, Federal Rules of Civil Procedure 4(f)(2) and 4(f)(3) allow an individual located in a foreign country to be served, in the absence of internationally agreed means, “by a method that is reasonably calculated to give notice…as prescribed by the foreign country’s law for service” or “by other means not prohibited by international agreement, as the court orders.” This language clearly allows room for the service of process via social networking websites on individuals who are outside of the US. It certainly allows service on individuals located in Australia and New Zealand, if a reasonable case can be made.
My feedback (unsolicited) of course to folks who wrote this article:
First, always always always take a quick look to see if any cases discuss the issue you are writing about. Rio Properties is a widely cited 9th Circuit case which looks at alternate service (via email in that case). An article or post on alternate service should at least note this case (or any case for that matter). It would give the reader comfort to know that you've come across it. When you don't mention it, the reader is left to wonder.
Second, I'm not sure what "prosecutors [being] commonly permitted to use photographs obtained from social networking websites as evidence in court for a variety of proceedings—from divorce to sexual harassment to drunk driving to murder cases" has to do with service of process. I would leave out all discussion of the evidentiary issues. They don't really add to the service of process issue. If there's a connection between the two (beyond the fact that both involve social networking profiles) you should articulate it.
Third, I'd mention the actual legal considerations, even briefly. What to think about if you are worried about being served, or if you are the one effecting service? You know, "rubber hitting the road" type information. A few things come to mind. Alternate service is authorized in the U.S. but the rule (*apparently*) only applies to foreign defendants, it requires court approval, and service can't be contrary to a treaty or local law (?). There's also the small requirement that you be able to demonstrate to the court the person who you are serving is actually likely to get notice. Remember the whole due process/service of process stuff from law school? That's what this is. You don't need a 100% certainty that the person will receive notice, but you should be able to make the case that they use the medium you are trying to serve them with. You probably want to make the case on reliability as well, People joke about service via Twitter being unlikely because Twitter is simply unreliable. But really, you probably do need to make the case that the social network profile is frequently updated (maybe even used in a manner related to the dispute ?), and that the social network is reliable. Is there a risk the person deletes your notice as spam? Are there any privacy issues to consider? Any special instructions you want to give the process server? Everyone reading this article knows that social networking sites come up in cases. Most people have probably heard of one of the two articles where legal documents were transmitted through a social networking site. The reader is probably looking for specifics, and this is your golden opportunity to deliver value and reflect positively on your brand.
Finally, the overall thrust of the article is unclear. You remind readers to "rethink" the content/accessibility of their on-line profiles and "the legal implications of new technology generally." The "legal implications of new technology generally"? The red pen should have slashed that one. It sounds like the thrust of the article is "social networking has legal consequences . . . watch out"? There are plenty of articles along these lines out there, and I'm sorry to say we didn't need another one.
Also - one more thing. Avoid avoid avoid the use of "clearly" in a document. There's little reason to use it in general, and even less reason in a legal document/article. You followed up "clearly" with "certainly" in the following sentence. A double whammy.


Thanks for posting this, Venkat. We recently used Facebook to locate and make contact with a witness that we couldn't find anywhere else online or offline (nor could an independent investigator). Gotta love that.
Best,
Michael
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