By Jordan Bigda
On September 30th, 2016, a federal magistrate judge in San Francisco approved service of a lawsuit via Twitter. This is the first time in American history that service was allowed on social media only. This is a special circumstance in which the plaintiff could not locate the defendant, an overseas Kuwaiti national. Service by Twitter in this instance was allowed by Judge Beeler because service via Twitter is not barred by an international agreement between the United States and Kuwait. Another factor that Judge Beeler considered in allowing service exclusively via Twitter is that the plaintiff could not locate the defendant and the defendant has an active Twitter account that is used frequently as the defendant has a large following.
Judge Beeler allowed service via Twitter pursuant to Rule 4(f) of the Federal Rules of Civil Procedure. This rule covers service of an individual in a foreign country. In the court order, Judge Beeler notes,
“Courts have applied Rule 4(f) to allow the order of any means of service as long as it comports with due process and: 1) it provides ‘notice reasonably calculated, under all circumstances to apprise interested parties of the pendency of the action and afford[s] them an opportunity to present their objections’; and 2) it is not prohibited by international agreement.”
Judge Beeler offers that Twitter, in this instance, was considered a method that is reasonably calculated to give notice given that the defendant’s account is active and frequently used.
Interestingly, this is not the first time that service via social media has been allowed in accompanying traditional forms of service. In serving foreign defendants, service has been allowed by Facebook, Linkedin, and by email. However, according to the Technology & Marketing Law Blog, the federal rules of civil procedure do not extend service via social media to domestic defendants.
Service via social media and email has both pros and cons for today’s lawyers. First, it is inherently difficult when the opposing party is a foreign party for practical reasons. There are barriers in language, time, culture, and law. Service is one of the first steps in carrying out an action in court. The disallowance of service by social media or email has caused extreme difficulty in successful service, a necessary factor in moving a case forward. Service via the Internet will therefore, allow more cases to move forward and not be stagnated by not being able to locate a defendant. Although, even if service is allowed via Internet, there is still the possibility that you will not be able to successfully serve the defendant, but it does lessen the probability.
In the case involving the Kuwaiti man, skeptics of service via social media contend that the defendant may never receive the Twitter notice of service because Twitter allows users the freedom of turning off direct messages, and blocking other users. Even though this is a possibility, service via Twitter still increases the plaintiff’s chances of successful service.
There are also important disadvantages and risks in service via Internet only. First, there are concerns of validity or authenticity. How can we be sure that a Facebook account is not fake? This leaves the lawyer with another task in proving that the social media account or email actually belongs to the defendant being served.
Another disadvantage is potential privacy concerns. Lawyers must be careful to ensure they do not reveal protected or sensitive information about a defendant on a public forum. If the federal courts begin allowing service by social media in more cases, we will likely see lawsuits over the public disclosure of a private facts. These lawsuits turn on an expectation of privacy, and although it would be difficult to claim that the public user of a social media account has an expectation of privacy, a case could be made that the kind of personal availment which occurs when one creates a social media account does not include the availment to service and the implicit consent to make that service public for all their followers to see. A comprehensive social media service policy would likely require that the service be sent in a private message to avoid privacy issues. Additionally, social media platforms like Facebook allow the sender of a message to see when the receiver actually views the message, which could be a significant benefit to the serving attorney assuming the account is authenticated.
The service of a Kuwait main via social media has set precedent for what judges in the U.S. will do when serving foreign defendants in the future. This means that it is likely that service exclusively via the Internet, email, and social media will continue in the future as long as there are good arguments to support its necessity like in this case. However, important questions remain on domestic service via the Internet: why is this not allowed under the federal rules of civil procedure for domestic defendants and will it be allowed in the future as the legal profession becomes more reliant on technology?
Today, the federal rules allow domestic service by personal service, letter or certified mail, and depending on the jurisdiction, publication in the newspaper may be allowed. Personal service or mailing service require that you know the location of the defendant. Many people can find another person’s address by an Internet search, public record, property records, or paying for a person search. However, when a person cannot be found, many judges will allow publication of notice in a newspaper. In my opinion, this is not significantly different than notice by publication on social media.
It turns out, some judges in the United States have allowed electronic service in the past. A judge in a 2011 divorce case allowed service by email and social media instead of publication in a newspaper. This judge noted that it would be unlikely for this particular defendant to see notice via newspaper publication and even said, “[t]he traditional way to get service by publication is antiquated and is prohibitively expensive. Service is critical, and technology provides a cheaper and hopefully more effective way of finding respondent.” However, there are even more examples of judges denying plaintiff’s electronic service requests without also providing constructive notice to the defendant.
The United States strict rules against the allowance of service via the Internet are unlike courts in Australia, Canada, New Zealand and the United Kingdom whom all allow electronic service. The United States, should look to the policies at play in these countries and strongly consider allowing service by social media in more domestic cases.
Student Bio: Jordan Bigda is a staff member on the Journal of High Technology Law and a current second year law student at Suffolk University Law School.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.