Facebook 'pokes' can be used for court notification
Facebook grew to more than 100 million users by providing a way for friends and family to keep in touch with one another. But few, if any, probably expected that their Facebook accounts offer lawyers a handy new way to tell them that they've been sued.
It's already happened in Australia, where a court recently allowed a lawyer for a mortgage lender to use Facebook as a method of serving legal documents. The purpose of the suit: to let a couple know that they're about to lose their home through foreclosure after defaulting on a loan.
United States judges also have the leeway to authorize serving legal documents through Facebook, legal experts said on Tuesday. (Look for the IRS and state tax collectors to follow suit.)
"I don't see why in the proper case a judge wouldn't authorize it, as long as it was reasonably calculated to reach the defendant," said Rory Ryan, a law professor at Baylor Law School in Texas and contributor to the civil procedure blog.
In general, judges tend to be traditional and rather conservative in how they expect the other side to be notified about a pending lawsuit. Federal rules for civil cases specify the different types of notification that's permitted: handing it to someone, mailing it to the last known address, leaving it at a home or workplace. Electronic means are generally permitted if the recipient "consented in writing."
Rules for state courts vary, and some are more permissive. Alaska allows "alternate service" such as publication in a newspaper if traditional methods don't work. Utah and Connecticut, for example, have similar procedures.
In general, judges want to use any reasonable means to notify someone of legal action against them--and there's no reason that MySpace and Facebook accounts (or instant messages, for that matter) would be off-limits. "I don't think Facebook is going to be the first resort of many judges but I don't see why it could be categorically excluded," Ryan said.
This has already happened with e-mail. In 2006, attorneys for a plaintiff in a New York federal court persuaded a judge to allow them to serve a summons that way. The reason they received permission is that the defendant's lawyer wouldn't say where he is, but he had used an e-mail address in a recent classified ad.
More recently, a federal judge in California allowed documents to be served on Wikileaks through e-mail.
Facebook doesn't seem to have been used in the United States in this manner before, although a 2006 case in Connecticut did use cite the use of a Facebook account to determine where someone was. In an opinion dealing with seized property, a superior court judge wrote that a student used a "service known as 'The Facebook'" and a campus investigator concluded that the relevant "Internet accounts were based in Southbury."
"In unusual cases the plaintiff can apply to the court for special instructions--in such a case one can imagine that a court might allow such a means if the judge thought it likely to achieve actual notification, following it up with something more traditional," said Steve Yeazell, a law professor at UCLA who teaches civil procedure and litigation.
P.S.: See this archive of documents from 2000 when a clutch of litigation-happy lawyers from Mattel tried to send subpoenas through bulk e-mail to people, including me, who linked to some software they wanted to keep off of the Internet. Trying to delete information that's been widely mirrored on the Internet always, of course, ends well.
CNET News' Stephanie Condon contributed to this report
Declan McCullagh, CNET News' chief political correspondent, chronicles the intersection of politics and technology. He has covered politics, technology, and Washington, D.C., for more than a decade, which has turned him into an iconoclast and a skeptic of anyone who says, "We oughta have a new federal law against this." E-mail Declan. 
If I want to hide from courts, I'd just ignore the "poke" or email, or the letter, or that phone call, or the cops knocking on my door.
- by RicABlair December 18, 2008 11:19 PM PST
- IMH(nonlegal)O The key is "reasonably calculated to reach the defendant." It really doesn't matter if the recipient ignores the summons because s/he thinks it's bogus. If s/he gets it, s/he has been served. The key is whether in fact s/he, the intended recipient, actually receives notice. The woman in the MySpace case created a fake entry and pretended to be a boy to harass a girl who ultimately committed suicide. The lesson is that a fake entry can be easily created; someone can set up a fake Facebook entry for Jack Sprat and the real Jack who doesn't own a PC would never know he had been served. Service via Facebook is per se unreasonable until such entries can be verified as genuine.
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