INTRODUCTION
Technology has fundamentally altered how the legal
profession operates. The impact of technology on the courts and legal profession is
ongoing making its’ first measured step when the Judicial Conference of the
United States approved PACER- Public
Access to Court Electronic Records.1 Today social media is routinely
used in discovery requests2 and now sits at the intersection poised
to change legal practices specifically affecting service of process options.
SERVICE OF PROCESS
REQUIREMENTS AND WHY THE STATUS QUO FOR USING PRINT MEDIUM IS NO LONGER SUBSTANTIVE
AS REASONABLY CALCULATED
“Before a state may legitimately exercise control over
persons and property, the state’s jurisdiction must be perfected by an
appropriate service of process that is effective to notify all parties of proceedings that may
affect their rights.”3 States and federal courts have specific rules
for how service must be completed through Rule4 of the Federal Rules of Civil Procedure (FRCP) and state law.4
In general, a reasonable service method includes serving in person, through mail
or through a respondent accepting service. As a last resort, constructive notice
in a generally circulated newspaper after failure to serve a defendant is
common practice. It is imperative a defendant(s) is properly served otherwise
failure to properly serve may be an argued defense.5 However, with
changing readership habits among the U.S. population print publication
circulation has been on the decline. Current Pew research shows more people
consume news digitally making service through printed newspapers substantially
less impactful. Newspaper readership hovers around 20% of adults ages 18 to 40 compared
to 76% social media usage by adults comprising the same demographic parameters.6
Consequently it could be argued it is time to shift service of process
paradigms to include established social media user habits.
RULINGS AND
CONSIDERATIONS TO USE AS BASIS FOR STATES AND FEDERAL JURISDICTIONS TO INCLUDE
SOCIAL MEDIA AS REASONABLY CALCULATED
One avenue that may amplify a court or states acceptance of
social media service of process is increasing server education in all states on
social media platforms and niches. A
Fordham Law School survey showed there is a wide variation in server education
and training across states and suggests server education and training as a
possible industry reform.7 In some states, servers are required to
be bonded, licensed and registered whereas other states do not have the same
requirements. Debating the inclusion of social media service may warrant not only how the summons is noticed but also education and training on those practices.
In Mullane
v. Central Hanover Bank & Trust Co. it ruled “fundamental requirement
of due process is notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendancy of the action and afford them an
opportunity to present their objection.”8 Additionally, the majority
opinion issued in 1950 argued “it would be practical to use a form of notice
more likely to reach the intended recipients.” In the recent opinion of the
court issued in Baidou v Blood-Dzraku “it would appear that the next frontier in the developing
law of the service of process over the Internet is the use of social media
sites as forums through which a summons can be delivered.”9 Beyond
reduced costs, electronic paper trails, and increased ease, caveats in using
social media accounts is establishing that the account belongs to its user and that
all notifications still meet due process requirements.
CONCLUSION
The arguments to include social media with print or even
over print publications is growing. Provided there is a way to establish
accounts belong to defendants, social media may become a preferred method for service of process requirements or at least used
as an additional component for inclusive service of process requirements.
QUESTIONS TO CONSIDER
Do you think it is
time for service of process requirements to include social media through an amendment to Rule 4 and state laws or are there
still too many outliers to make this a suitable option that meets due process
requirements?
Are there enough technological safeguards in a day of data
privacy and hacking?
___________________________________________________________________________
Sources and
Additional Reading
4 https://www.federalrulesofcivilprocedure.org/frcp/title-ii/rule-4-summons/
5 Mauet,
Thomas. “Legal Investigation.” Pretrial, edited by David Marcus, 2015, pp.
79–83.
7 https://www.ftc.gov/sites/default/files/documents/public_comments/protecting-consumers-debt-collection-litigation-and-arbitration-series-roundtable-discussions-august/545921-00025.pdf
8 https://www.lexisnexis.com/lawschool/resources/p/casebrief-mullane-v-cent-hanover-bank-tr-co.aspx
9 https://www.leagle.com/decision/innyco20150403229
This is surely a topic that will keep law professionals and scholars busy for eons. I found a case of Federal Trade Commission V. PCCare247 Inc to be quite germane in regard to service of process and the use of social media.
ReplyDeleteIn the case of Federal Trad Commission v. PCCareInc.,
the United States District for the Southern District of New York (S.D.N.Y.) sanctioned using social media as a means of circumventing the Hague Convention's standard method of facilitating service among signatory states through designated Central Authorities.(1)
The ruling appears to represent the first time a US court has permitted service process via Facebook, according to the National Law Review.(2)
In FTC V. PCCare247, "Indian defendants allegedly operated a scheme to convince American consumers that they should spend money to fix non-existent problems with their computers."(3)
As expected, the defendants proved to be difficult to serve formally. Pursuant to the Hague Convention, "the court granted the FTC's request to serve process on the defendants by both email and Facebook." (4)
We are all familiar with stories about how to avoid the service process. For example, the process server posing as the pizza delivery man, or as a train conductor, or knocking on a front door at 5am to catch a defendant off-guard. It is no surprise that the Indian defendants were illusive and and would require an unorthodox form of service.
"The court observed that under Rule 4(f)(3) of the Federal Rules of Civil Procedure, a court remains free to order alternative means of service on an individual in a foreign country so long as the means of service are not prohibited by international agreement and comport with due process."(5)
I personally agree that service via email and "social media may be an effective option for serving a defendant both foreign and domestic that cannot be tracked down using traditional means."(6)
As you have pointed out, Yvette, Since the Judicial Conference of the United States has approved PACER Pacer- Public Access to Court Electronic Records, and since the discovery process often turns to social media, I suspect that service of process will be used routinely for the most elusive of defendants.
1. www.google.com/amp/s/www.natlawreview.com/article/service-process-through-social-media%3famp
2. www.google.com/amp/s/www.natlawreview.com/article/service-process-through-social-media%3famp
3. www.google.com/amp/s/www.natlawreview.com/article/service-process-through-social-media%3famp
4. www.google.com/amp/s/www.natlawreview.com/article/service-process-through-social-media%3famp
5. Federal Trade Commission v. PCCare247 Inc., Case No. 12 Civ.7189 (PAE) 2013 WL 841037 (S.D.N.y. March 7, 2013(PCCare247)
Georgi thank you for your additional insight. The case you referenced, Federal Trade Commission V. PCCare247, is from 2013 and perfectly illustrates how some courts are approaching this emerging issue. The court “acknowledge[d]that service by Facebook is a relatively novel concept" ... “history teaches that, as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means of then-recent vintage, rather than dismissing them out of hand as novel.” In addition, the American Bar association also pointed out Common law countries embrace social media for service of process with cases in Australia, Canada, New Zealand, and the United Kingdom allowing social media as a form of service. I think we will see ongoing debate and cases that work through the merits and limitations of social media per service of process.
DeleteGeorgi,
ReplyDeleteYour insight on additional content to Yvette’s post regarding FRCP 4(f)(3) was an interesting read. It made me agree that Facebook is not a credible means to issue a summons to a person due to the unpredictability of its users. In the article you referenced, Service of Process Through Social Media, a “court in the Southern District of New York denied a motion to permit a party to effect service using Facebook because the plaintiff had not sufficiently established the credibility of the defendant’s Facebook account.”1 Fortunato v. Chase Bank.2 When this was brought up, it again made me disagree that social media should be used as a delivery method because anyone can make a Facebook or social media account under any name they choose. Also, if social media is used to serve defendants, what prevents the elusive types to just delete the message and deny the claim they were served in the first place? Is technology today intelligent enough to safeguard against such actions to ensure proper and “fool proof” delivery? Additionally, I know several people who share social media accounts with their spouses. How would this form of deliverance if used on this type of situation apply to the defendant here?
There are many gray shades when navigating new processes, especially when changes are being made to due process of the judicial system. If there was a way to verify the user of the social media account was in fact the correct individual and that a secure and reliable system to ensure deliverance of the summons was implemented, only then would I accept that using Social media would be an appropriate means to serve a defendant.
1. https://www.natlawreview.com/article/service-process-through-social-media
2.https://www.americanbar.org/content/dam/aba/publications/litigation_news/fortunato-chase-bank.pdf
Great points Aleah. Those are all factors that I had thought about. The natural capriciousness of the whole social media platform today would predictably create a whole new world of legal turmoil in every facet of the profession, not just in service of process. And I think it's safe to presume that the constant adaptation of technological advancement would make it a challenge to the permanence of written law and legislation, not to mention the ongoing debate on privacy and where those precedents are going to be set as the lawmakers struggle to catch up with velocity of the social media age.
DeleteThom,
DeleteAdding to that I believe there would be a substantial increase in counter motions because excuses would be made as to why a summons was not received by a defendant via social media.
Georgi and Aleah,
ReplyDeleteYou both make really good points. I agree, Georgi, that email would be a good way to serve a defendant. I think it would be a lot better than using social media.
Aleah, I agree with your point that there are a lot of couples who share one social media account. That would make privacy a little tough to keep. The other thought I had was that not only do couples share some social media accounts, but also that a lot of people have Instagram accounts that are privatized. So they wouldn't be able to be served by the judicial account unless they first accepted the request from that account.
My thought would be to have the judicial account send a message to the defendant through social media, explaining that they have been served and then sharing a link with them. The defendant could then click on the link and input a certain password in order to look at the information. The password could be something that the government would know, but others wouldn't (or it is rare that they wouldn't), such as the last four digits of their social security number. This way, the judicial system wouldn't need to worry about social media platforms following their rules, but instead they would make their own rules for privacy while using social media solely as a means of communication.
Dan,
Deletethough your in depth and thoughtful insight as to how the application of summons deliverance would be controlled and verified by social media, do you think the government would risk potentially wasting manpower and time to enforce these procedures? Rule 4 does have the option to use alternative means of service however, would this type of service be the most effective and reliable method opposed to other alternative methods?
Aleah,
Deletein regards to whether this type of service would be the most effective and reliable method, I don't think so. I think I was going more the "problem solving" route and thinking about how agencies could serve people through social media, as a last resort kind of thing. I believe there are more effective routes of service and that social media should be a last resort.
I do believe that in todays world, most people are on social media and it should definitely be an option for service. As specified in Rule 4, parties are able to motion the court to serve the other party by alternative service. What it does not specify is that parties are able to motion the court to serve the other party by social media if they so choose. This must be very specific in the motion and they can request alternate service in multiple ways, though if it states multiple ways in the motion, they MUST provide proof to the court that service was made in every way requested in the motion. Often times people do request alternative service through facebook and email because they do not have a specific location of the other party. Service by other means stated in Rule 4 must be attempted first before the court will sign an Order for Alternative Service, or the motion needs to be very clear and convincing as to why the alternate service is necessary.
ReplyDeleteLacey,
Deleteyou do make very good points. I wonder though, Rule 4 also states that means of service must too be reliable. Do you think Facebook or Instagram is a reliable form of communication that someone who cannot be located via traditional methods would be truthful in the deliverance of their summons via social media?
I do not believe that Facebook or Instagram are reliable means of service, but when you are unaware of the whereabouts of an individual but know they are accessing those social media sights regularly, sometimes it is the only way. I do believe it is just as reliable if not more reliable as publishing notice in a newspaper. Newspapers only circulate in a small area, social media is accessed anywhere.
DeleteThis comment has been removed by the author.
ReplyDeleteMy initial reaction was I must agree with Aleah; social media is not an acceptable method of service. As she points out, one can open a social media account under any name, and, even if the account belongs to the intended person, there is no way to prove the person read the summons.
ReplyDeleteYvette, you pose an interesting question at the end of the post: “Do you think it is time for service of process requirements to include social media through an amendment to Rule 4 and state laws…”
I don’t believe an amendment to either the rules or laws regarding service needs is needed to allow for service through social media. In Ferrarese v. Shaw, the petitioner had hired a professional company to serve the defendant.1 The company found that the defendant had changed her name and moved several times and was unable to perfect service. The plaintiff hired a private investigation firm, but the firm failed to locate the defendant. The petitioner was able to find an Instagram account and a Facebook account with a photo the plaintiff identified as the defendant. There was an email address associated with the Instagram account. The petitioner sought the court’s permission to serve the defendant through alternate means, i.e., the social media accounts. The court used the following in its analysis:
A plaintiff seeking to effect alternative service must make a showing that the other prescribed methods of service were impracticable. Once plaintiff has met this burden, the Court must ensure that the alternate method complies with constitutional due process. Thus, the Court first examines whether plaintiff has shown that traditional service is impracticable, and then determines whether the purported method of alternate service complies with due process.2
The court concluded that the petitioner had exhausted all traditional methods of service. The court would allow the plaintiff to serve the defendant by email and Facebook but required that the plaintiff also send the summons by certified mail to the defendant’s last known address where her sister lived.
Additionally, it could be argued that publishing on the defendant’s social media accounts, or perhaps to the accounts of their family or friends or even their employer, is fundamentally no different than publishing in a newspaper. It is as difficult to prove the defendant read the notice in a newspaper as it is proving the defendant read it on a social media account. However, publishing in a newspaper is constructive notice that courts have accepted for decades.3 Though the courts generally only accept constructive notice when primary methods of service have failed.4
To conclude, service by social media is permissible without changing laws or rules. By evaluating alternate service on a case-by-case basis, the court can be certain that a plaintiff has made sincere efforts to serve a defendant by traditional methods, and that proposed alternate methods, including social media, preserve the defendant’s due process rights. Provided the court evaluate alternate service as the court in Ferrarese did, I could be persuaded that service by social media is acceptable.
1. Ferrarese v. Shaw, 164 F.Supp.3d 361, (E.D. New York 2016).
2. Id., (citations omitted).
3. See H.U.F. v. W.P.W., 2009 UT 10, 203 P.3d 943; Mallory v. Kessler et al., 54 P. 892 (Utah 1898).
4. Jackson Const. Co., Inc. v. Marrs, 2004 UT 89, 100 P.3d 1211.
This was an incredible post. The case you mentioned, Ferrarese v. Shaw was an extreme example of Rule 4's openness towards the use of alternative methods of service. I think the reason I feel the use of social media is not a reliable means to issue a summons is mainly because there are too many variables that prevent the summons to be completed and too many excuses that could be argued as to why, if sent via social media, the summons was not received. Your argument as to why this alternative method would be appropriate has convinced me that only in extreme circumstances such as Ferrarese v. Shaw, should this be acceptable. Well done.
DeleteI believe validating the user is a challenge, as well as, proving the service of process through the social media platform. The differentiating factor between publication and Facebook is the publication is typically accessible by the public while Facebook can be easily restricted for public viewers. I good example is cited In Fortunato v. Chase, the court denied a request to implead a daughter on a lawsuit with her mother using service by Facebook. The court noted the lack of sufficient evidence to prove the profile belonged to the correct individual.(1) As more precedent cases are handled, this may become the normal evolution due to the societal impact and importance in today's digital revolution. The solution may be similar to the arbitration clauses in agreements. As part of social sites contracts and agreements, parties will agree that electronic service of process carries the same validity as personal service. The prosecutor or plaintiff's counsel could pay a fee to the host of the social media site to freeze the account until validating, specific information is entered which would ratify acceptance of process by the user. Finally, There needs to be many more cases before a solid conclusion could be made for either side of the debate.
ReplyDelete1) https://www.lawpracticetoday.org/article/service-process-via-social-media/
Cain,
Deleteyour response made me think of other electronic methods that companies use to validate an agreement. I am renting my home and the lease was done through electronic signature. Also, during my time in the military I had to sign countless documents by the use of an electronic signature. I agree that there needs to be more cases of this alternative method of service for there to be a more clear decision as to if the use of social media is reliable to use to issue summons. I personally feel that something as important as court should have a more professional and reliable method of service. Though stated by Yvette, over 76% of people in the United States use social media, all those media accounts can only be created if the user has a valid email. Do you think the use of email would be more reliable than social media platforms like Facebook or Instagram?
I think the problem arises with both due to authentication. I believe it is still difficult to validate the user's true identity especially when determining legal service of process. As stated previously in other responses, there are families that use a single email for a family account. There are individuals with numerous email accounts, as well as, fictitious people that hack like-kind emails for malicious reasons. I think both platforms have similar challenges and abilities to confirm the identity of the creator.
DeleteYvette,
ReplyDeleteThis was a very good topic of choice to discuss in terms of due process. Being served (though, never been served myself) I am sure is not a fun experience and that is probably why so many defendants try to avoid court all together if they can help it. This discussion topic immediately made me think of the movie Pineapple Express, where Seth Rogan's character is a process server and dresses up in an assortment of disguises to serve defendants at their place of work and all of them are less than pleased with him. Rule 4 is an integral part of due process because it sets up the when and where so complaints can be addressed. I personally do not think that as an alternative method of service that social media should be used to issue a summons to a defendant unless there was a concrete method of not only ensuring the account being delivered to can be verified that the user is in fact the seeking defendant but also the confirmation of the delivery of the summons could be made. In email, there is a feature "read" which can distinguish whether or not an email has been read in a organization shop box. If there was a way to see or confirm that the summons had been opened or viewed by the defendant, that would be a more reliable method, but not the most reliable method because of how vulnerable the internet is to hackings and technological errors.
I agree with Yvette, as I was reading the blog the first thing that came to my mind was the movie Pineapple Express. For those who haven't watched the movie, I will attempt to summarize it in a few short sentences.
ReplyDeleteThe movie is about a process server named Dale Denton, played by Seth Rogan. He is an unapologetic stoner and very creative at his job. He disguises himself to deliver notices. He happens to witness a murder and while trying to evade the murderer and his henchman who include a female police officer. He drags in his weed dealer into a cat and mouse game of comic greatness filled with one-liners. The movie ends in an action-packed sequence that includes gun battles, completely unrealistic stunts, and explosions.
Anyway, the movie may be a facetious take on due process, specifically the component of service process displayed by Dale Denton's choice of occupation. It can be viewed as a metaphor for using social media as a form of notice more likely to reach the intended recipients.
Just like Dale Denton's ridiculous disguises that no one took seriously, the general public will not take social media seriously, even though it may be very effective at reaching its intended target. The results would be a cat and mouse game. It would be hard to establish what's real and what's not. Whether the notice received is the latest internet scam or a legitimate notice.
Also, let's not forget Cambridge Analytica and their exploitation of private data on Facebook. This demonstrated social media is the wild west ripe for exploitation. I can imagine a scenario where Facebook partners with another firm like Cambridge Analytica to exploit this data. And just like the unrealistic stunts on pineapple express. We would be left asking ourselves, how did that just happen.
Finally, we can't forget the explosion, you know that one that's at the end of the movie. In the case of social media, it would be an implosion. I can almost picture a scenario where Mike Zuckerberg has been summoned by Congress to explain why his company has monetized due process. The hearing will be televised. We will get enraged and delete Facebook but only for a day. Because when we get bored at work the next day, we will download it again. And the notice will still be in the inbox.
This post is on behalf of Felicia who is having technical difficulties with Blogger:
ReplyDeleteTo my surprise, in the state of Utah, social media is an option for service of process, if the court allows it following a motion for alternative service.(1)
“In the Motion for Alternative Service, the plaintiff/petitioner must explain which method(s) they think are most likely to give the defendant/respondent actual notice of the court case.”(1)
I find it interesting, but progressive for courts to find alternative means for service of process in a time where technology is key to how we communicate as a society on a daily basis. (2)
I agree with your findings through current pew research that the days of print are dying, and consumers are turning to news via social media. For years it has been changing the way the news industry operates and everyone from print, television and even radio are turning to social media to reach viewers. In fact, in an “online” article by Forbes, Social media has become the main source of news online with more than 2.4 billion internet users, nearly 64.5 percent receive breaking news from Facebook, Twitter, YouTube, Snapchat and Instagram instead of traditional media.(3)
Further, during a time when so many people are turning to their smartphone for their daily news, why not include service of process? However, I believe it needs to be added, not a replacement. I also think it needs to be decided on a case by case bases by a judge. For instance, just because one person was served in Texas via Facebook doesn’t make it okay for another person in Ohio to be served the same way even if it’s for the same reason. I think social media should be a last resort, but an option. For instance, if all avenues have been exhausted, but you have found the individual online and have reason to believe that is in fact the individual then it is an acceptable alternative. However, as in Griffin v. Maryland, 419 Md. 343 (2011), an attorney must do proper due diligence to ensure that a social media account actually belongs to the person to be served.(4)
1. https://www.utcourts.gov/howto/service/alternate_service.html
2. https://smallbusiness.chron.com/technology-communicate-27322.html
3. https://www.forbes.com/sites/nicolemartin1/2018/11/30/how-social-media-has-changed-how-we-consume-news/#3914f0843c3c
4. https://www.legallanguage.com/legal-articles/serving-process-via-social-media/
I have never considered social media as a means for serving people. After reading your post, it would make sense due to how many people are on social media and the days of newspaper reading are becoming less existent and moved to digital. I now read a lot through digital newspaper sites. I am interested in what process they would follow to ensure they were served properly and as you mentioned establish the user of the social media site. On the other end, a person could argue it was fake, someone else has been using their information, or had been catfished. I agree with Professor Dryer that it would be great to add it but not replace the alternatives that are currently in place.
ReplyDelete