Journal of Information & Privacy Law

Social Media as a Means to Effectuate Service of Process

By Nicholas Esterman, Lead Production Editor on Sunday, December 1st, 2013
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In May 2011, a Minnesota circuit court judge drafted an order authorizing the service of process on a defendant living in Cote D’Ivoire by “email, Facebook, or any other social networking website.”  Jessica McFae attempted to serve divorce papers on her estranged husband but realized that he had moved back to his native Cote D’Ivoire.   The circuit judge reasoned that traditional modes of service would be ineffective, costly, and time consuming; thereby concluding that social media was the best mode of service under the circumstances.   This was the first use of social media as a method of service approved by a United States’ court, opening the door to potential expansion of social media websites as a medium to notify defendants of pending legal actions.

The fundamental goal of any service method is to preserve a defendant’s right to due process by providing him notice of an impending legal action.   The Federal Rules of Civil Procedure have remained dated and rigid when it comes to expressly permitting new methods of service.   Therefore, the Federal Rules must become flexible enough to allow any method of service “reasonably calculated” to provide a defendant notice.   Courts have continually strained to accommodate more efficient means of service within the confines of Rule 4.

United States courts have demonstrated a willingness to approve new methods of service to keep step with changes in technology when it comes to foreign defendants.   To date, courts have employed methods of service via facsimile, television, and email on foreign defendants, relying on Rule 4(f)(3) which only allows for service by “other means” on foreign defendants.  However, the Federal Rules do not allow specifically for electronic service on domestic defendants.   The question then is whether the service of process via social media websites for domestic defendants is a reasonably calculated mode of service given constitutional and statutory requirements.

Achieving service through a social media website would likely take place in the form of one of two actions.  First, the summons and complaint could be posted on the defendant’s social media profile page or, second, the summons and complaint could be sent in a private message to the defendant via their social media page.   Both of these capabilities are present on the most popular social media networks.   Service by posting would most similarly resemble posting notice to the social media profile of the defendant if allowed by the defendant’s privacy settings.  Like traditional service by publication, service by posting to a social media profile would be both a very public act and allow others viewing the posting to potentially notify the defendant, allowing for both actual and constructive notice on the defendant.

The second possibility for achieving service through social media would be to send a copy of the summons and complaint through the private message feature available on most social media websites.   The private message feature works as an internal email service exclusive to a respective social media source and its users.   Some courts under limited circumstances have allowed traditional email service.   However, service of process through email suffers from multiple limitations, including the ability to verify the identity of the email recipient.  Whereas, a multi-point identity verification test could be employed via social media service by reviewing information posted on the defendant’s online profile to verify a recipient’s identity.

The law is often slow to change with the cultural, moral, and technological advancements of a society.  It is a fact the American public encounters with each Supreme Court term or pending federal appellate case.  Yet, our country cannot afford to infringe on the constitutional rights of its citizens simply because it fails to keep up with a society leaping forward technologically.  Procedural due process can best be achieved through utilizing technological advancements rather than relying on the methods of old.  This starts with the most fundamental aspect of any lawsuit, serving process on the defendant.  Our system and its rules owe a duty to ensure that defendants are offered the right to defend themselves based on prompt, efficient service of process.  Service via social media must be considered in effectuating service in our modern, tech driven society when personal service fails.

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