Digital Service of Process: Turning to Social Media

Technology has historically outpaced the law. The prevalence of social media throughout society indicates an inherent ability to transition methods of Service of Process in the near future. Given social media’s rapid technological advances in other fields, perhaps it will find its place within the framework of the legal system. There are already precedents being set.

After defendant Gökhan Örün, who is allegedly located in Turkey could not be located and served personally or by letter, the plaintiff, WhosHere, offered to serve process on Örün by email and through the social networking sites, Facebook and LinkedIn. On February 20^th, 2014, U.S. Magistrate Judge Thomas Rawles Jones, Jr. (Eastern District of Virginia) authorized a first-ever Service of Process by social media. Judge Jones held that, since Turkey “has not specifically objected to service by email or social media networking sites which are not explicitly listed as means of service,” under Federal Rules of Civil Procedure 4(f)(3) email, Facebook, and LinkedIn were reasonable methods of delivering the summons and complaint.

More recently, a Staten Island man Noel Biscocho used Facebook to electronically serve his ex-wife Anna Maria Antigua legal notice that he intended to modify his child support obligations. After his son turned 21, Biscocho filed an action “to cancel his court-ordered $440-a-month child support.” According to a July 6^th affidavit, Antigua had moved out of her home and left no forwarding address. Attempts to contact the couple’s children regarding her whereabouts proved fruitless, as neither his son nor daughter, 22, responded to his messages.

But, Antigua “maintains an active social media account with Facebook” and “as recently as July” had even “liked” several photos posted by Biscocho’s second wife. Staten Island Support Magistrate Gregory Gliedman ruled that the traditional methods for service of process – such as delivery to Antigua personally, or to someone at her home or business, and mailing her a copy – were “impracticable” given her unknown location. “However, despite the absence of a physical address, [Biscocho] does have a means by which he can contact [Antigua] . . . namely the existence of a social media account,” he contended.

Since traditional methods had failed, the Family Court reasoned that social media provided the best chance of Antigua receiving actual notice of these proceedings and as a last resort “[Antigua] can receive communications via social media, whereas her actual physical whereabouts are uncertain.”

Although the courts in both cases eventually found that the plaintiff’s best chance for serving notice rested in social media, there was first an effort to uphold the traditional methods for service of process. Only after these methods had failed, due to the whereabouts of the respective defendants being unknown, did the judge allow the use of social media. Furthermore, it was not enough that these defendants merely had Facebook accounts. Rather, what really made this method a viable option was the evidence that the defendants maintained active profiles and therefore were more likely to check and see the summons and complaints.

While these cases relate to civil matters, they are applicable to criminal cases as well, because any person authorized to serve a summons in a federal civil action may serve a criminal summons. There is an integral reliability when sending a summons via Facebook. According to Facebook, “messages are marked as seen when the person you sent them to is actively chatting or checking their messages,” which acts similarly to an email with a Request Read Receipt. Therefore, the court will always receive proof that the active user in fact received his or her summons while on Facebook.

Similarly, the broad appeal of social media makes it a useful tool already being utilized by police departments. New York State Police launched a program called "Warrant Wednesday," where police post wanted photos in an effort to use Twitter and Facebook to catch suspects wanted in connection with crimes and to bring them to justice. Each of the ten fugitives featured has a felony warrant out for their arrest, and a corresponding local police number to call. 

If social media were to be authorized as a primary form of Service of Process it would allow police departments and various courts to offer warrants or summons directly to the suspect or defendant. However, concerns over privacy and reliability suggest the method would not be without setbacks. Nonetheless, social media already offers plaintiffs, criminal attorneys, and judges an expedited secondary means through which to serve notice.

Michael Coburn

Staffer, Criminal Law Practitioner

Photo by Jason Howie via Flickr