Earlier this month, a judge on the U.S. District Court for the Southern District of New York ruled that the Federal Trade Commission (FTC) could serve a judicial summons to defendants located in India by sending them both emails and Facebook messages. According to an article in the ABA Journal, this ruling is the first of its kind in the United States.
Although the court’s ruling addresses only whether the combination of an email and a Facebook message constitutes constitutionally-sufficient service of process for foreign defendants, it is important in that it acknowledges the reality that often the law lags behind technology. In this particular case, the court did not need to rule on whether service by Facebook message alone would be sufficient as proper service of process, but its reasoning suggests that it may be, in certain circumstances.
In this column, I first describe the facts and analysis leading to the ruling. I then explain why the ruling’s reasoning is narrow enough that it will likely survive review by a higher court if it is appealed. Finally, I discuss the interplay between constitutional law and international law and argue why this decision may support a subsequent finding that service by Facebook alone is adequate for some foreign defendants.
The Facts Behind Federal Trade Commission v. PCCare247 Inc.
In September 2012, the FTC filed a lawsuit in the U.S. District Court for the Southern District of New York and asked the court to issue an injunction against nine defendants (five of whom were located in India) for allegedly operating a scheme deceiving American consumers into spending money to fix nonexistent computer problems.
The court issued a temporary restraining order (a preliminary step on the road to an injunction) freezing the defendants’ business practices and assets. Subsequently, the FTC submitted the Summons, Complaint, and related documents to the Indian Central Authority, in accordance with the Federal Rules of Procedure 4(f)(1) and the Hague Convention. The FTC also sent these documents to the defendants in three other ways: by email, by Federal Express (“FedEx”), and by personal service via a process server.
Shortly thereafter, the defendants received the documents by FedEx and personal service, but the Indian Central Authority failed to formally serve the defendants. Having received actual notice of the lawsuit, the defendants hired counsel to make an appearance in a preliminary injunction hearing. The court granted the preliminary injunction, continuing most of the terms of the temporary restraining order, except that it unfroze certain assets to allow the defendants to pay attorneys’ fees.
The defendants have not complied with the terms of the preliminary injunction, and that noncompliance has thus led the FTC to file a motion seeking to serve the defendants by both email and Facebook. Since the defendants already received the Summons and Complaint, the motion seeks only to serve them with other documents by the proposed means.
Service of Process Under the Federal Rules of Civil Procedure
Service of process is the procedure of giving legal notice to a person or entity that a court is exercising its jurisdiction over that person or entity, thereby allowing that person to respond and make an appearance in court. The U.S. Supreme Court promulgates Federal Rules of Civil Procedure (FRCP), which govern the pretrial and trial process in federal district courts. These include rules governing service of process.
Under the FRCP, a foreign defendant may be served by “any means that is reasonably calculated to give notice,” or “by other means not prohibited by international agreement.” In some cases, there is an international agreement as to the means of service, such as the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents. However, even if there is a prior agreement as to an accepted means of service of process, a court may still permit a plaintiff to serve a foreign defendant in a way different from the agreed upon means, so long as the alternative means is consistent with the requirements of the FRCP.
The question whether an alternative means of service is permissible requires consideration of two factors: (1) whether the proposed means of service is not prohibited by international agreement, and (2) whether the proposed means of service comports with constitutional notions of due process.
In the present case, the court considered whether the FTC’s proposal of service by both email and Facebook met these two requirements.
As to the first requirement, the court found that India has established an enumerated list of means of service to which it objects, and service by email and Facebook are not within that list. Finding no international agreement treaty prohibiting such means, the court found that service by email and Facebook is permissible.
As to the second requirement, the court applied the principle that “Constitutional notions of due process require that any means of service be ‘reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’” The court pointed to a number of factors tending to support the conclusion that the defendants would actually receive notice through the proposed means.
Among these factors were (1) the defendants’ active use of the email addresses, (2) demonstration by the FTC that the defendants used those email addresses to register for their Facebook accounts, (3) the defendants’ stated association with the company implicated in the lawsuit, and (4) the defendants’ “friendship” with a co-defendant. Taking all these facts together, the court found that there was a high likelihood that service by Facebook would actually reach the defendants.
The Court’s Ruling: Narrow in Terms, Broad in Fact
The court was careful to craft its ruling narrowly, noting that “if the FTC were proposing to serve defendants only by means of Facebook, as opposed to using Facebook as a supplemental means of service, a substantial question would arise whether that service comports with due process.” However, despite this “substantial question,” the court required only that the plaintiff proffer facts sufficient to establish “a degree of certainty” that notice would actually reach the defendants. Thus, despite its ruling that the combination of email and Facebook in this particular case was sufficient, the court effectively set the threshold inquiry for when notice by Facebook alone could be accepted as constitutionally adequate service of process.
If a future plaintiff were to seek to serve a defendant via Facebook alone, under this court’s ruling, he or she might be able to do so merely upon providing sufficient evidence (1)that the Facebook profile actually belongs to the defendant, and (2) that the defendant is substantially likely to receive a message sent by that medium. One’s Facebook activity alone may be enough to establish both of these facts with the requisite certainty.
For example, any one of the following four activities alone might establish the certainty required:
- The Facebook profile documents “checking in” at an establishment the defendant is known to visit
- The Facebook profile has as “friends” people with whom the defendant is known to associate.
- The Facebook profile lists an email address, phone number, or website known to belong to the defendant.
- The Facebook profile is “tagged” in photographs of the defendant.
In essence, using Facebook the way it was intended to be used establishes a “degree of certainty” that the actual owner of a Facebook profile is in fact the person represented. Despite a prior court’s fear that “anyone can make a Facebook profile using real, fake, or incomplete information,” actual use and activity of a profile can provide the assurances necessary to establish the medium as a reliable means for service of process.
It will be interesting to see, in the near future, whether other courts also adopt the same or similar reasoning in order to allow the law to keep up with some of the realities of technology.
A couple features of Facebook messaging from their help center might be relevant to whether service by Facebook satisfies due process.
Messages from non-“friends” are routed around the user’s inbox to an “other” folder (there is also a separate folder for suspected spam), and might not be noticed as quickly or at all. Facebook has begun a trial run of a program that would allow users to pay a fee to route a message to a non-friend’s inbox instead, but it hasn’t been rolled out completely yet, and the effort to send the message might still be stymied by Facebook’s limit on the number of messages you can have in your inbox from non-friends.
Another feature, which indicates that a message has been “seen” by a particular user, might actually make it easier to argue that Facebook service is appropriate, as it provides a proof of delivery similar to certified mail.
It’s interesting watching the courts catch up with technology. The law moves slowly as it should.