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Service Via Facebook Shouldn't Always "Count"
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?
You've been facebooked?
Support NYCountryLawyer RIAA vs People
That'll solve everything except Doppelgangers.
For more of the many words written by Bennett, hop on that curiously named link right below.
Which one, "ruled" or "ruled"?
Alexander Peter Kristopeit bought his basement from his mommy for one dollar.
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.
huh?
"Knowledge is the only instrument of production that is not subject to diminishing returns" -Journal of Political Econom
In the United States, a woman can often establish paternity by naming a man, "attempting to get papers served" and then getting a summary judgment issued against him in his absence. Generally, you have only 30 days to respond to the allegation, and then the courts **might** invalidate it if you have some really, really good argument (not being the father is often not good enough!)
Personally, I think this is a terrible idea. What if someone never checks their Facebook account or loses access to it? No, I think like most police powers and similar measures, this is only being tolerated by it makes some lawyer's job easier, and there doesn't seem to be much to protect people when the system fails them.
Since when does having a FB account of a given name prove that that individual owns that account?
I am Slashdot. Are you Slashdot as well?
One of my friends that I met through MobWars told me about this app that you can install on Facebook that lets you access your CITI bank account. I love it - its so convenient. Facebook is totally secure and totally convenient.
the president has been set by the Australian court and now upheld yet again in the New Zealand court. Something tells me that we are going to be seeing many more of these types of "being served" in the future. What i'm really curious about is what happens if you terminate your account of Facebook, can/will Facebook provide (or be forced to provide) the archived information on the account to the courts for serving purposes? Should be something to look out for in Facebook's modifications to their ToS agreements.
If you can sue via facebook I will sue Jesus for religious discrimination, Christopher Columbus for genocide of the native Americans and King Charles II for usurping the British Republic.
tl;dr
Look, if you were serviced on Facebook, it doesn't count. You are still a virgin. Come out of the basement and try to meet a real girl...
Maybe I should read the article...
I love it - its so convenient. Facebook is totally secure looking and totally convenient for both user and hacker :)
With all technology comes the responsibility to use it wisely. I can see the point in allowing service via Facebook as an option of last resort - as mostly a symbolic gesture when trying to get in touch with someone particularly elusive. As a first resort? No way.
"We are stuck with technology when what we really want is just stuff that works." -- Douglas Adams
Douglas Whitaker
Well, there was a story late last week about a judge throwing a case out because the arresting cop listed his status as devious and posting Training Day as required watching for all cops on his MySpace page? Social network turning legal policy?
I have a Facebook account created when someone asked me to look at their pages. I haven't logged in in certainly one, maybe two, possibly three years. I would never see anything serve on me there.
I probably have accounts on a score or more other forums and so on that I signed up to, used for a short while, and either got bored or achieved what I needed. Do I have to keep monitoring all of these in case someone chooses to post an important message?
The article does not state whether the court required the plaintiff to show that the defendant was currently active on Facebook, or even that the question was asked. That strikes me as an important point. If you could show that the defendant regularly used their Facebook account both before /and after/ the attempted service, the reliability of the claimed service becomes much greater.
Consciousness is an illusion caused by an excess of self consciousness.
but simply sending a FB message counting towards being "served" doesn't really make sense to me - especially if the server had already made an attempt by e-mail (which you can at least request a read-receipt).
Uh? Really?
I'm sure that you receive read-receipts, except if your mail provider only offers POP access (no SMTP) or your ISP blocks SMTP or you use a client which doesn't do read-receipts or if "read-receipt" means something totally unrelated to humans looking at text.
Then sure, read-receipts might say something useful.
I wonder how long until you can be served via Twitter. Subpoena's in 140 characters or less!
"@JasonLevine This is a legal subpoena. Respond in 30d or default judgment will be awarded against U. Read entire subpoena: http://is.gd/nyag"
(Yes, I am on Twitter. No, "JasonLevine" is not my Twitter name. I have a "Twitter/blog identity" that is completely separate from my "real name online identity.")
My sci-fi novel, Ghost Thief, is now available from Amazon.com.
...while he was in the shower. Embarassing!
For many people it's possible to create a list of places where they have lived in the past. If someone wishes to serve a subpoena then such a list would be useless, because they can only be served at their current address. It is up to the plaintiff to show that the subpoena was served to the current address.
The same legal principle should apply for emails and electronic profiles - if you wish to serve, then you have to show that the target "currently inhabits" the profile or email. Past or unused emails shold be treated list past dwellings. IANAL, but I would think that many of the legal principles should be transferable in a not-bad way.
Comment removed based on user account deletion
you can at least request a read-receipt
If you receive the read-receipt, it's useful. If not, it doesn't necessarily mean they didn't read the message.
Alexander Peter Kristopeit bought his basement from his mommy for one dollar.
If they send an email to an address they think is yours and it is actually someone else's, then it might be read, but that still doesn't mean it was read by you.
Yes, that possibility would obviously need to be taken into consideration...
Alexander Peter Kristopeit bought his basement from his mommy for one dollar.
I use facebook, but never use it as an email client.
I have messages from friends who have goon unanswered because of this and they got upset.
I also never use the proprietary chat client included in Facebook.
I do not use these because there is an existing email address and chat client I use. And I do not want to tie these services into someones proprietary site that may or may not protect my privacy and security.
Facebook should not be considered a reliable mechanism of contact. Although... I guess the explanation of "exhausted all other avenues of contact" ... would allow it to be used as a last resort.
And another reason to distrust FaceBook:
http://www.nzherald.co.nz/technology/news/article.cfm?c_id=5&objectid=10562057
but on SlashDot we are preaching to the choir...