THE EVOLVING NATURE OF PROCESS SERVING
Should Courts Embrace Social Media & Facebook as a Means to Effect Service of Process?
The following article includes excerpts from a recent accredited Continuing Legal Education Presentation for the Capital District Paralegal Association presented by CEO Mario Pecoraro.
In 1980, it was debated whether Iranian defendants could be served via Telex, a switched network of teleprinters similar to a telephone network, used for the purposes of sending text-based messages. Regarding that case, a judge remarked that courts should not “be blind to changes and advances in technology. No longer do we live in a world where communications are conducted solely by mail carried by fast sailing clippers or steamships.”
With the evolving nature of communication systems, the question arises as to whether social media and email can be used to effect service of process. Consider the case of the Federal Trade Commission vs. PCCare247Inc.
(FTC v. PCCare247 Inc., 2013 WL 841037 (S.D.N.Y. March 7, 2013)
In this legal action, the FTC filed suit against a number of defendants from India alleging they operated a scheme that tricked American consumers into spending money to fix non-existent problems with their computer. In 2012, the FTC exposed six fake tech support companies including PCCare247 after having undercover agents pose as victims.
FTC Request Documents be Served via Email and Facebook
The defendants had already received notice of the suit via process that included filing with the Indian Central Authority, email, Federal Express, and through a process server. After some difficulty in effecting service of the summons and complaint on the defendants in India, the FTC asked the court for leave to serve the remainder of the documents in the case via email and Facebook. The documents included additional pleadings, motions and notices.
Court Grants FTC Motion
The court granted the FTC’s motion after considering the following criteria:
Under Federal Rule of Civil Procedure, a court may fashion means of service on an individual in a foreign country…
a) as long as ordered means is NOT prohibited by international agreement
b) as long as it comports with constitutional notions of due process
Not Prohibited by International Agreement
The court noted that the United States and India are signatories of the Hague Service Convention. Article 10 of the Convention “allows for service of process through alternative means such as ‘postal channel’ and ‘judicial officers’ provided that the destination state does not object to those means.” While India has objected, the court found that service by Facebook is outside the scope of Article 10. Since India has not objected to service by email or Facebook, the court held that the International Agreement did not prohibit such service.
Comports with Due Process
The court also found that the ruling could be made because constitutional notions of due process were followed. The service by email and Facebook were reasonably calculated to provide defendants with notice of future filings in the case. The FTC had set forth facts that supplied ample reason for confidence that the email and Facebook accounts were independently verifiable. In addtional, another email account was used to register one of the defendant’s domain names. The court could also glean information as to the Facebook account’s legitimacy by noting that a number of the defendant’s were Facebook friends with each other. In addition, proper due process was followed since the Facebook service was provided as a backup to the email service.
In his decision, U.S. District Judge Paul Engelmayer wrote, “The Court acknowledges that service by Facebook is a relatively novel concept, and that it is conceivable that defendants will not in fact receive notice by this means. But, as noted, the proposed service by Facebook is intended not as the sole method of service, but instead to backstop the service upon each defendant at his, or its, known email address. And 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.”