Logged into Facebook? You’ve Been Served

Logged into Facebook? You’ve Been Served

Published On March 15, 2013 | By Marc Zwillinger | FTC, General, Litigation

On March 7, 2013, Judge Engelemayer of the United States District Court for the Southern District of New York issued a novel order allowing the Federal Trade Commission to serve certain papers (other than the initial summons and complaint) on a defendant using Facebook private messages in conjunction with email.   Read that again.  A federal judge allowed the FTC to serve legal papers using Facebook.

The court relied on Rule 4(f)(3) of the Federal Rules of Civil Procedure, which allows a court to fashion a means of service on an individual in a foreign country, so long as the ordered means of service “(1) is not prohibited by international agreement; and (2) comports with constitutional notice of due process.”  In this case, the FTC had attempted to serve the defendant, who resided in India, through traditional means, including the Hague convention and postal mail.  However, the Indian Central Authority had refused to serve the documents for five months and had not responded to the FTC.

In reviewing the due process question, the court found that the defendants were quite likely to receive the documents via both email and Facebook messaging because of their use of these methods of communications in the past, and that there was “ample reason for confidence that the Facebook accounts identified were actually operated by the defendant.” As to the novelty of allowing service in this manner, the court observed that India had not specifically objected to service via Facebook and email, although it had objected to all of other alternative methods of service listed in Article 10 of the Hague.  It then went on to say (in what will likely be frequently quoted words):
“And history teaches that, as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means of then-recent vintage, rather than dismissing them out of hand as novel.”  Accordingly, stay tuned for motions for service by text message, coming soon to a federal court near you.

About The Author

Marc is the founder and managing member of ZwillGen PLLC and has been regularly providing advice and counsel on issues related to the increasingly complex laws governing Internet practices, including issues related to Electronic Communications Privacy Act (“ECPA”), the Wiretap and Communication Acts, privacy, CAN-SPAM, FISA, spyware, adware, Internet gambling and adult-oriented content. He also helps Internet Service Providers and other clients comply with their compliance obligations pertaining to the discovery and disclosure of customer and subscriber information.

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