Service Via Facebook Shouldn't Always "Count"

Service Via Facebook Shouldn't Always "Count" 80

Posted by CmdrTaco on Monday March 16, 2009 @09:35AM from the one-two-threeee-ah-ah-ah dept.

Frequent Slashdot contributor Bennett Haselton writes "A New Zealand court has allowed a plaintiff to serve papers on a defendant via Facebook, following a similar ruling from an Australian court last year. 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.' The trend could lead to abuses if courts start taking 'Facebook service' too seriously." For more of the many words written by Bennett, hop on that curiously named link right below.

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?

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