Guest blog post by Carissa L. Bouwer. Carissa is a summer associate in the Sacramento office of DLA Piper. She attends University of the Pacific, McGeorge School of Law and will obtain a J.D. in 2012.
Advances in technology have changed the way lawyers conduct research, communicate with clients, discover information about opposing parties, and even file documents with courts. Is the next advancement likely to be in the way that defendants are served process?
Since 2008, the United Kingdom, Canada, New Zealand, and Australia have all allowed substituted service of process through Facebook when a defendant could not otherwise be served. In 2009, the United Kingdom allowed an injunction to be served via Twitter by sending a message that contained a link to the injunction. In giving approval for service through social networking sites, the courts required that reasonable efforts were made to serve the defendants, that they could not be served in another manner, and that the service was likely to give actual notice. The Australian court also stipulated that the papers be sent through a private message and not just posted on the defendant’s wall where it would go into the newsfeed of all of the defendant’s friends.
There are approximately 150 million Facebook users in the United States and more than 750 million around the world. Twitter users number 300 million. LinkedIn had 3.6 million visitors in May. In comparison, readership of newspapers is decreasing dramatically: New York Times print edition is 1.4 million on Sundays and 1.8 million people read USA Today.
In the United States, the minimum standard for service of process has long been to provide “actual notice.” In Mullane v. Central Hanover Bank & Trust, the Supreme Court said that due process requires that “notice is reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Notice by publication is not thought to give actual notice when a defendant’s identity is known. That is especially understandable today, as print newspapers are a declining industry and readership continues to fall. However, a large percentage of the population, nationally and globally, check their e-mail and other social networking sites daily, if not hourly. When people move from place to place, their access to social networking sites moves with them. Where other methods of notice have failed, a Facebook message may serve the ultimate goal of providing actual notice to a defendant who can’t be physically found. It also has the advantages of being fast, cheap, and seems particularly appropriate when the underlying action is web-based. To date, there are no reported cases of service of process in the U.S. being made through social networking, but attorneys may begin to consider it an option for defendants who are avoiding service by traditional methods.
There are concerns about identifying the correct person and confirming that their social networking accounts are active. Courts will, and should, require that evidence be offered proving the documents served on social media sites will come to the defendant’s knowledge. But once those concerns have been alleviated, service through social media may be the next great step of using technology to bring us closer together.