Internet Service Provided: The Movement Towards Service of Process Via Social Media
Christopher M. Finke*
It is classic film fodder to show a well-dressed man approaching a main character of the movie, handing that character some papers, and stating, “you’ve been served.” It is even within the realm of the imagination that a person may open his mailbox to find a letter from a fancy law firm that puts him on notice that he is being sued. What if, however, a person is scrolling through his Facebook feed when a message from his wife appears, serving him with divorce papers? An average person might immediately ask “is that even legal?” The bench, bar, and academia have been struggling to answer that question for the last decade. See, e.g., WhosHere, Inc. v. Orun, No. 1:13-cv-00526-AJT-TRJ, 2014 WL 670817 (E.D. Va. Feb. 20, 2014); Joe Hand Promotions, Inc. v. Carrette, No. 4:12cv1728 SNLJ, 2013 WL 4058745 (D. Kan. July 9, 2013); Federal Trade Comm’n v. PCCare247 Inc., 12 Civ. 7189 (PAE), 2013 WL 841037 (S.D.N.Y. Mar. 7, 2013); Fortunato v. Chase Bank USA, N.A., No. 11 Civ. 6608 (JFK), 2012 WL 2086950 (S.D.N.Y. June 7, 2012); Baidoo v. Blood-Dzarku, 5 N.Y.S.3d 709 (N.Y. Sup. Ct. 2015); In re Adoption of K.P.M.A., 341 P.3d 38 (Okla. 2014).
The exponential increase in the use and influence of social media, Facebook in particular, has been the subject of litigation. See Claire M. Specht, Note, No LOL Matter: Does Text Message Service Of Process Comport With Due Process?, 53 B.C. L. Rev. 1929, 1951–52 (2012). Notwithstanding the problem of authentication, can a lawyer use social media postings from accounts purportedly belonging to a party? Can social media postings be used to impeach the testimony of a witness? Can service of process be satisfied through social media?
I. BAIDOO V. BLOOD-DZRAKU
A New York trial court discussed whether service of process could be satisfied through social media in a March 27, 2015 opinion. See Baidoo, 5 N.Y.S.3d at 709. The plaintiff was unable to serve her husband with a divorce summons. Id. at 711. She attempted to serve him personally, but he refused to meet, and his last known address had been vacated for years. Id. at 712. The court determined that the husband’s lack of any officially recorded address made it impossible for certified mail, substitute service (like taking the summons to a workplace), or “nail and mail” (where the papers are literally nailed to the door of one’s home) to be effective in providing notice of an impending divorce proceeding. Id. at 713. The court noted that New York rules allow for other forms of service if the plaintiff can “show that the method she proposes is one that the court can endorse as being reasonably calculated to apprise defendant that he is being sued.” Id.
The plaintiff proposed an alternative method of service—sending the summons to the defendant’s Facebook account via private message. Id. The court determined that this method of service, though “already beyond the safe harbor of statutory prescription,” was acceptable. Id. at 713, 716. The trial judge found that the use of Facebook to serve a defendant, passed constitutional muster regarding due process concerns. Id. at 716. Since the plaintiff provided sufficient evidence that the Facebook account belonged to, and was used by, the defendant, and that the only remaining statutorily prescribed method of service, publishing the information in newspapers, was less likely to reach the intended audience than the use of a Facebook message. Id. at 715.
II. GOVERNING LAW
Service of process is considered a fundamental right and a requirement of personal jurisdiction. Specht, supra, at 1933. Yet statutes or rules of procedure define the method by which service is allowed. See Hans Van Horn, Comment, Evolutionary Pull, Practical Difficulties, and Ethical Boundaries: Using Facebook to Serve Process on International Defendants, 26 Pac. McGeorge Global Bus. & Dev. L.J. 555, 558 (2013). Personal service has long been recognized as acceptable, see William Wagner and Joshua R. Castillo, Friending Due Process: Facebook As A Fair Method Of Alternative Service, 19 Widener L. Rev. 259, 262 (2013), but courts have generally been hesitant to allow for service by alternative means, permitting such service only under specific circumstances. See Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007 (9th Cir. 2002) (permitting service via email after initial attempts had failed); Federal Trade Comm’n v. PCCare247 Inc., 12 Civ. 7189 (PAE), 2013 WL 841037 (S.D.N.Y. Mar. 7, 2013) (permitting service via Facebook after FTC’s “good faith efforts to serve defendants by other means”); New England Merchants Nat’l Bank v. Iran Power Generation & Transmission Co., 495 F. Supp. 73 (S.D.N.Y. 1980) (permitting service via telex message given service of process was precluded by relations between the United States and Iran); Baidoo v. Blood-Dzarku, 5 N.Y.S.3d 709 (N.Y. Sup. Ct. 2015) (permitting service via social media private message in a divorce case where all other means of service had failed). Certified mail is now the predominant method by which parties are served. See Specht, supra, at 1941–42.
Service by digital means has only become a thought in the last twenty years. See Svetlana Gitman, Comment, (Dis)service of Process: The Need to Amend Rule 4 to Comply with Modern Usage of Technology, 45 J. Marshall L. Rev. 459, 467 (2012). It began with fax and telex when those became a major method of communication in the 1970s and 1980s. See id. at 464–66. The question of digital service again became an issue with the vastly increased use of email. See Kelly Knapp, Comment, #serviceofprocess@socialmedia: Accepting Social Media For Service Of Process In The 21st Century, 74 La. L. Rev. 547, 557–58 (2014). Even now, many jurisdictions are hesitant to allow for service of process solely by email. See, e.g., id. at 558 n.75. The rise of social media has again brought to light questions over whether digital service is acceptable. See Alyssa L. Eisenberg, Comment, Keep Your Facebook Friends Close and Your Process Server Closer: The Expansion Of Social Media Service Of Process To Cases Involving Domestic Defendants, 51 San Diego L. Rev. 779, 788 (2014).
Federal Rule of Civil Procedure (FRCP) 4 governs the service of parties, and many states have adopted similar rules. See FRCP 4(e). FRCP 4 states in pertinent part that an individual may be served by personal service, leaving a copy of the summons at the defendant’s house, delivering a copy to an authorized agent, or following state proscriptions for service in the state in which the U.S. District Court resides. Id. In addition to renditions of the Federal Rule, many states also allow for flexibility by the trial court in providing an alternative method of service where statutorily prescribed methods are ineffective or impossible. See Eisenberg, supra, at 786–88. It is this crossroads where some states and the Federal courts have allowed the use of social media as a method of service.
III. THE CREEP OF SOCIAL MEDIA
Social media was only born within the last two decades. See Drew Hendricks, Complete History of Social Media: Then and Now, Small Bus. Trends (May 8, 2013), http://smallbiztrends.com/2013/05/the-complete-history-of-social-media-infographic.html. The technological “child,” however, has quickly grown into adulthood, with nearly sixty percent of Americans using some form of social media every day. See Keith Hampton, Social Networking Sites And Our Lives, Pew Res. Ctr. (June 16, 2011), http://pewinternet.org/Reports/2011/Technology-and-social-networks.aspx. Facebook in particular boasts of 1.1 billion users. See Joe Hand Promotions, 2013 WL 4058745, at *1. It is little wonder that such a powerful, information-providing force has crept its way into the courtroom.
The decisions are nearly split as to whether service via social media is acceptable. See Baidoo, 5 N.Y.S.3d at 713 (collecting decisions). Rulings up to this point have been almost exclusively from trial courts; thus hold no binding precedent over future decisions. See id. Only one state appellate court has directly addressed the issue of whether Facebook is a proper method of service, holding that the site does not satisfy the requirements for service of process. See In re Adoption of K.P.M.A., 341 P.3d at 38 . There is further division among those courts that allow service by social media in that some have allowed social media alone to suffice, while others require that it be supplemental to another form of service. Compare Baidoo, 5 N.Y.S.3d at 709, with PCCare247 Inc., 2013 WL 841037, at *6. Such discrepancies across jurisdictions are unlikely to be resolved anytime soon, because social media’s most analogous form of service is email, which itself has not been accepted in every jurisdiction. See Gitman, supra, at 469.
In Baidoo it was noted that legislatures are slow to react to technological advances, and “it has fallen on the courts to insure that our legal procedures keep pace with current technology.” Baidoo, 5 N.Y.S.3d at 713–14. Rio Props, an oft cited opinion from the United States Court of Appeals for the Ninth Circuit stated that the reasonability principles of due process “unshackles” the court from methods that could now be called obsolete. Rio Props., 284 F.3d at 1017. Jurisprudence will grow around the use of social media in the service of process. With more courts open to the idea of digital services, it appears that service by social media is just beyond the horizon.
* Christopher Finke is a second year law student at the University of Baltimore where he is a Staff Editor for the Law Review as well as a competitor in the Cardozo-BMI Moot Court Team. He is currently interning for Judge George L. Russell III on the Federal District Court for the District of Maryland, and will be working as a summer law clerk for Silverman, Thompson, Slutkin & White LLC in 2016.