Service Via Facebook Shouldn't Always "Count" 80
A New Zealand court has ruled
that a plaintiff can serve papers on a defendant
via a message sent to their Facebook account. Last December, an Australian
court ruled
that a company could serve papers on a couple
after failed attempts to reach them by regular
mail and e-mail. Facebook responded to the ruling with a statement that said,
"We're pleased to see the Australian court validate Facebook as a reliable, secure and
private medium for communication. The ruling is also an interesting indication of the
increasing role that Facebook is playing in people's lives." I think there are two interesting
questions here: (1) Is that really how courts view service via Facebook? And (2) What will
happen if courts do begin to view service via Facebook that way?
As to the first question — the court's endorsement of service via Facebook does not mean
that they think the service is necessarily secure or reliable. Courts often let you serve
papers on a party in a court case via means that are less reliable than normal channels,
provided that you've exhausted the more reliable means first. When I was trying to earn
my way into heaven by suing spammers in Small Claims court, some states allowed corporations
to be served by serving the papers on the Secretary of State in the corporation's home state,
but only if you could prove that you had tried and failed to serve the corporation at their
registered address. In cases where I served the Secretary of State,
it's unlikely that the defendant ever even saw the
papers (since the only thing the Secretary of State could do with them was forward them to the
defendants' address on file, where I'd already tried to locate them), but it still "counted"
because I had exhausted the regular means of serving the documents. Sometimes when serving
an individual, if the sheriff
couldn't reach someone at home, a judge would sign an order allowing the legal papers to be stuck
to their front door (which is neither "secure" nor "reliable"),
but only after the sheriff had been unable to deliver it to them in person.
So a court's endorsement
of Facebook as a means of service doesn't necessarily mean the court thinks that the means
of service is reliable. It just means it's a good last resort when conventional methods haven't
worked.
Facebook is not, after all, secure or reliable, although these limitations are not the
fault of Facebook itself. By "not reliable," I don't mean that it loses or mis-routes messages —
I've never seen that happen — but that you have no idea whether someone has signed in to read a
message,
or deleted it by accident, or lost it among all the other messages that they received. As for
whether it's "secure," like most services, the greatest weakness in Facebook's security is in
the 'forgot your password' feature — if you
compromise someone's e-mail account, then you can have a password reset link sent to their
e-mail address and compromise their Facebook account as well. So your Facebook account is
only as secure as your e-mail account, and e-mail accounts are usually vulnerable in their own
"forgot your password" feature, which often lets you access someone's e-mail account just by
knowing their birth date, their zip code, and the answer to an easy question like "Who is your
favorite fictional character?" And in any case, obtaining "service" via Facebook doesn't preclude
the possibility that the person you served on Facebook was an impostor, or another person who
happened to have the same name.
What would really change the game would be if courts started ruling that service via Facebook
was valid even without first attempting to serve a party via mail or other means.
I had my own experience with a case like this in 2000, when programmers Matthew Skala and
Eddy Jansson released a program called "CPHack" which could decode the encrypted list of sites
blocked by a program called
Cyber Patrol,
so that people who owned copies of the program
could use CPHack to decrypt the list of blocked sites.
(One of the more controversial aspects of such blocking
software is that the list of blocked sites is hidden from purchasers of the program.) A judge
granted Cyber Patrol a
ruling
forbidding the authors from distributing the program, and ordering anyone hosting a mirror
copy of the program to remove it as well. That same day, I received a copy
of the ruling via e-mail from Cyber Patrol's lawyer, ordering us to remove the mirror from the Peacefire
site. I asked a lawyer if that was considered valid service (this was back when I still
thought that a legal question like that always had an objective answer, as opposed to the
question of "valid service" being an entirely subjective one that depended on what judge you
happened to get), and he said that I shouldn't take any chances and should take the mirror down
anyway, which we did. Dozens of other mirror sites, which had sprung up in anticipation of the legal
controversy, were also served with papers, although the overseas ones mostly ignored them.
So this was very different from a ruling
made by the 9th Circuit Court of Appeals two years later, allowing a Las Vegas casino
to serve
an offshore company via e-mail because regular methods had failed. The court in that
case wrote,
"When faced with an international e-business scofflaw playing hide-and-seek with the federal court,
e-mail may be the only means of effecting service of process." But I was a domestic scofflaw
whose mailing address was publicly known (in the WHOIS registration for the Peacefire site). What
was the rationale for allowing me to be served by e-mail?
Unfortunately I think it's probably just a case where the rules were vague enough
that the judge felt entitled to bend them to achieve an outcome that he wanted. The 9th Circuit
didn't leave much doubt as to the level of objectivity in their ruling on e-mail service either, in calling
the defendant an "international e-business scofflaw."
And these are the two main reasons why I think that allowing electronic "insta-service" via
e-mail or Facebook — in cases where parties have not first tried to serve papers via
regular means — would erode the rights of the little guy.
First, in most of the cases I can think of where a powerful
plaintiff was playing "whack-a-mole" with
multiple defendants by using electronic service of process
to shut down new sites as fast as they were springing
up, the goal they were trying to achieve was (a) futile, if half the mirror sites were overseas
anyway, and (b) ultimately incompatible with civil liberties. (Why shouldn't people have the right to decrypt
the list of sites blocked by Cyber Patrol? After the ACLU got involved on appeal, a higher
court ultimately ruled that mirror sites could not be ordered to take down CPHack. The
HD DVD encryption key
controversy is another well-known example.) In cases where
a plaintiff has a legitimate claim against multiple sites — for example, sites that are violating
the plaintiff's copyright by hosting unauthorized copies of content that they own — most service
providers already publish an e-mail address where copyright owners can send a DMCA takedown notice,
and where the copyright owner is risking large statutory financial penalties if they send a takedown notice
that turns out to be baseless. There are no similar protections to prevent abuses of the system
through electronic service of other kinds of legal notices.
The other reason this trend could work against the average person,
is that any vague rule that is not consistently followed by different judges,
puts non-lawyers at a disadvantage in court. Partly because it may confuse non-lawyers who hear that
e-mail service was allowed in one case, and think that's part of "the rules," and then find that e-mail service
was disallowed in another case, and wonder how "the rules" could allow it in one case but not in
another, all the while laboring under the mistaken impression that there actually are "rules" which unambiguously
determine whether or not e-mail service is allowed, when the truth is that it's just up to
each individual judge. But also because every ambiguity in the rules is another opportunity for the
judge's prejudices to influence the outcome.
I do not think that most judges are prejudiced against
people based on race or gender, but I doubt you could find any legal professional who thinks that most judges
would take a case equally seriously regardless of whether it was brought by a professional lawyer or
by a layperson representing themselves. (At one point in my spammer-suing career, I
had only about a
50-50 chance of my
motions even being read.)
So, let's not get carried away applauding judges for being "hip" and "with it" for allowing service
via e-mail or Facebook. And if they start allowing it more frequently, can we at least ask that
they pick one rule and stick with it?
Re:Which is it? (Score:3, Insightful)
Come now. This is obvious. I'll even ignore the weird "but as these" for the time being. You just have to group the phrases properly.
But as (these rulings do not necessarily mean, (as Facebook announced in a press release, that (the courts have endorsed Facebook 'as a reliable, secure and private medium for communication.')))
Facebook Account == Persons account?!?!?! (Score:5, Insightful)
Re:Where this can really bite someone (Score:5, Insightful)
This is bigger than Facebook. I supposedly have a verizon.net email address since I signed up for FIOS. I have no clue what that email address is since I've been using Gmail and other services for years. Who knows what kinds of messages are sitting in that never-opened inbox; maybe even a subpoena, but I'd never know.
Re:New movie? (Score:4, Insightful)
Technology marches on... (Score:2, Insightful)
"We are stuck with technology when what we really want is just stuff that works." -- Douglas Adams
Re:New movie? (Score:3, Insightful)
Not sure how that's a good reason.
If you're a criminal who's hiding their identity by other means, sure putting up a facebook account is a bit stupid.. but if you're not a criminal there are multiple ways to find you (phone book, voters registers, credit cards, etc.) and facebook doesn't lose you anything in this case.
Re:Facebook Account == Persons account?!?!?! (Score:3, Insightful)
Since you read the link and discovered that the plaintiff had corresponded with the defendant via the facebook account, and associated e-mail address, on previous occasions. At least, that's the NZ case. The guy was being sued by his FATHER after he stole a quarter million from the father's business. He had moved to England, and left no forwarding address. But he did communicate with his father by e-mail and FaceBook. Thus, the court ruled that it was a method of contacting him. It was already established that that account belonged to him. A friend of his was served as a co-defendant. They knew HIS address.
This isn't CSI, and it isn't a criminal case. On TV, its a daily occurrence that somebody would make a fake e-mail address and facebook account in the name of some guy, including photos of him, and use that to contact his father and talk about family stuff and his daily life. In real life, I'm sure people make fake facebooks of their mates/enemies all the time. Put some photos on there, talk like a jackass, e-mail it around and laugh. Maybe they use it to send hate mail to random people, too! I doubt many of them use them for months on end, discussing family business with the father of their "prey". Because, why? Anyways, courts have always served documents on people with no forwarding address, by either leaving the document with family (in this case the plaintiff IS immediate family) or by placing an ad in the classified section of a paper local to the last known address! Nobody has ever been outraged at this practice. I'd say that facebooking and e-mailing him at accounts he's known to use regularly, and confirmed by family members to be his real accounts, is more reliable than putting a classified ad in every British paper. The judge apparently agrees.
The Oz case is even more cut and dry. That was about a defaulted 6 figure loan, with their house as collateral. They wouldn't answer the door at their listed address. They wouldn't answer the phone number or email they gave to the bank, either. But, the bank found both their facebook accounts. Both matched their name and birthday. They listed each other as friends. It was them. They had already received a default judgment. This is because they were served by phone, mail, and e-mail, and would have been served in person too had they answered the door at their listed place of residence. They either had moved with no forwarding address (though the house was still owned by them!) or were purposefully ignoring officers of the court. They weren't served by facebook at all. What they were, was issued a notice of the default judgment by facebook. The judge decided that since they weren't reachable any other way, that would be fine. But they'd already been ruled against, well before that happened. Because they didn't read their mail, their email, answer their phone, or answer the door. Maybe they were on a very long, multi-month vacation! Who knows. If so, sucks to be them. But if you leave your home unattended for months straight, right after defaulting on a 6 figure lone, you get what's coming to you. The facebook business is just how they were notified of the default judgment (in addition to the notice on their front door!) They were not served a subpoena by facebook. And again, traditionally the notice would be done via a public notice in the local paper. Facebook is more likely to be read than that.
Finally, Oz courts have already ruled Facebook cannot be used unless all others methods of attempting to contact the party have been exhausted. That is, they had tried going in person, and by registered mail and phone, with no response. The judge said that they have to also send registered mail to his PO Box and give sufficient time for a reply, before he would allow them to attempt to contact the person by facebook. Sounds reasonable. You can't get out of court by moving without a forwarding address.
Re:Facebook Account == Persons account?!?!?! (Score:5, Insightful)
Some people never answer their door if they don't know the person in the peephole. And some people never check their mail, either. However, going to their residence in person, and sending registered mail, are both perfectly acceptable. If you don't answer your door, and don't respond within 30 days of receiving registered mail from the court, you will get a default judgment. Allowing additional service by Facebook is doing the defendant a favour! It notified them by one more avenue. Fine. They ignore their door, their mailbox, their phone. Maybe they read their facebook though. That gives them one more chance. I don't see how this is in any way bad for them, since precedent already establishes that Facebook can only be used if all other methods of contact have failed. This is not a first method, its the method of last resort. Prior to facebook, the typical method of last resort was to put a notice in the classified section of the paper. Less people read the public notices section classified for than read their facebook messages, I'm sure.
That applies to the Oz case, anyway, where they'd already been contacted by phone, mail, and a person at their door, none of which were responded to. That's more than sufficient for a default judgment! The NZ case, less so. The person had left the country, moved to England. He had no known address. But he did have a facebook account and e-mail address, both of which he uses regularly to talk to his family! It was known to be him, and he's known to check it! Serving his immediate family, (and his friend and alleged co-conspirator) and serving him by e-mail and facebook, that has to be sufficient, or else he just is immune to the law.
Re:New movie? (Score:3, Insightful)
It would make more sense to avoid doing things that lead to court summonses, rather than avoiding being on Facebook in case they're served that way!
Re:Facebook/Myspace (Score:3, Insightful)
I don't think it's "social networking turning legal policy" so much as "social networking being relevant to motivation and impeachability". The judge in that case said, basically, that what the cop was saying on MySpace is just as relevant as anything else the cop might say. If the defendant would've brought in evidence of the cop regularly saying those same things to friends off-duty, or worse yet other cops on-duty, it would've been read as evidence that the cop isn't following the rules, undercutting his believability and the legal basis for his actions. All the judge said here was that "No, you don't get a free pass on what you say just because you said it on MySpace.". Which sounds reasonable to me.