You have one new Facebook notification: You’ve been served

Tweet

“You’ve been served” is something no one ever wants to hear, but what if while checking out your new friend requests on Facebook, you were also greeted with a notification of service?  While it seems far-fetched, Manhattan federal judge Paul Engelmayer ruled in March that U.S. Government lawyers could serve process on a group of defendants in India via Facebook.

The Federal Rules of Civil Procedure require the method of service to be one reasonably calculated to give notice.

Rule 4(f) of the Federal Rules of Civil Procedure (pdf) requires that a defendant living in a foreign country must be served by an internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention.  If there is no internationally agreed mode of service, the chosen method must be one that is reasonably calculated to give notice.  The Rules also grant the courts discretion regarding the methods of service so long as the chosen method does not override any international agreement already in place.

While a number of courts have begun to allow plaintiffs to serve court papers through email, very little case law exists concerning the service of process using social media sites such as Facebook.

Courts “must be open to new technologies, rather than dismissing them out of hand.”

Judge Engelmayer stated in his ruling, “that service through Facebook was a ‘relatively novel concept,’ and the defendants might not receive legal notice through it.” ²  Despite the fact that Facebook might not be the most ideal form of service, it is not specifically prohibited by the Hague Convention or Federal Rules of Civil Procedure.

While courts remain skeptical about using Facebook to serve court papers, Engelmayer notes that courts “must be open to new technologies, rather than dismissing them out of hand.”  He sees service of process via Facebook as a precaution to ensure thoroughness, and the defendants were also to be served by email.

Judge Engelmayer issued this ruling in a case brought by the Federal Trade Commission (FTC) against PCCare247 Inc. in September of 2012.  PCCare247 was one of fourteen corporate defendants and seventeen individual defendants named in six legal filings.  The corporation is alleged to be part of a tech support scam where telemarketers deceive consumers into believing that their computers have viruses and then charge them as much as five hundred dollars to remedy the issues.

The operations were based primarily in India and targeted English-speaking consumers in the United States, Canada, Australia, Ireland, New Zealand, and the U.K.  The scam was largely carried out over the telephone; however, some consumers were scammed through certain Google searches performed on their computers.  The defendants were charged “with violating the FTC Act, which bars unfair and deceptive commercial practices, as well as the Telemarketing Sales Rule and with illegally calling numbers on the Do Not Call Registry.”  While two of the named defendants settled with the FTC in May, the PCCare247 defendants are still engaged in active litigation with the FTC.

While Facebook is a common form of communication, the Rules of Civil Procedure still apply.

The United States and India are signatories to the Hague Service Convention, which governs service of process overseas.  The Hague Convention allows for service of process through means specifically enumerated in Article 10.  India has objected to the means within the Article, but Engelmayer’s ruling posits that a court still has discretion, under Rule 4(f)(3) of the Federal Rules of Civil Procedure, to order or allow alternative methods of service that are not specifically mentioned in Article 10.  Facebook is a method not enumerated in Article 10.

While a number of courts are likely skeptical about using Facebook as a method of service, legislative bodies may make the decision for the courts whether to allow a party to serve process through social media websites.  In fact, Texas legislators introduced House Bill 1989 to do just that, allowing the state or an individual plaintiff to serve notice of a lawsuit through an “electronic communication sent to the defendant through a social media website” if the court finds certain conditions are met.  According to Paul H. Cannon of the Texas law firm Simmons & Fletcher, however, this form of process fails to serve the purpose intended under the Federal Rules of Civil Procedure.

“The very purpose of our system requiring personal service is to ensure that the individuals have notice of the claims being brought against them, so they are not deprived of property or rights without due process,” said Cannon in an interview with the Houston Chronicle.  “While the language of the bill attempts to safeguard this by placing a burden upon the person seeking service to prove that the page belongs to and is used by the defendant, the reality is that one cannot truly prove this without bringing the page owner into court-in which case, you could serve them in person.” Cannon also expressed a valid concern that one could easily “copy and photoshop the documents and post them on someone else’s social media page.”

The concerns expressed are both interesting and valid.  While Facebook is a common form of communication, the Federal Rules of Civil Procedure still apply, and they make it clear that notice to the defendant is important.  While it may be difficult to ensure proper notice with any form of service other than personal service, Facebook and other social media sites would make proving notice even more difficult for the serving party.  In the PCCare247 case, email was to be used as the primary form of notice to the defendants, and Facebook was not the only way of notifying the defendants that they were being served.

Regardless, a lack of due process was not an issue in the PCCare247 case because both email and Facebook were to be used by the FTC in serving the defendants.  Moreover, as Engelmayer stated in his opinion, the FTC supplied sufficient evidence proving that the Facebook accounts that were served were actually operated by the defendants.  According to Engelmayer’s opinion, Anuj Agrawal and Parmeshwar Agrawal, two of the three directors of PCCare247, both registered their Facebook accounts with email addresses associated with PCCare247 and iConnexxions.com (another website that was part of the scam).  Vikas Agrawal, the third director of PCCare247, registered for his Facebook account with the same address he used to register iConnexxions.com.  Vikas and Anuj also listed their job titles on Facebook as positions at the defendant companies.  Additionally, they are both friends with Parmeshwar, linking the three together.

Even if it is established that a particular defendant is the account owner for a social media profile, the difficulty lies in determining if that person frequently logs on to the account or even checks it at all.

Due process was satisfied in this particular case based on very specific facts, making it difficult to create a hard-and-fast rule that would apply in all cases.  Even if it is established that a particular defendant is the account owner for a social media profile, the difficulty lies in determining if that person frequently logs on to the account or even checks it at all.  However, it is still possible that we could see important changes in the future.  Samuel Issacharoff, a professor at New York University School of Law, said he is not surprised by the ruling to allow service through Facebook, stating that Facebook is only “a small further step” in the service of process and making service more cost-effective.

Service of process via Facebook may seem unorthodox today, but people likely said the same about the use of email years ago.  It could just be a matter of time before that little red notification button on the top of your Facebook page becomes a sign that you’ve been served.