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Service Via Facebook Shouldn't Always "Count" 80

Posted by CmdrTaco
from the one-two-threeee-ah-ah-ah dept.
Frequent Slashdot contributor Bennett Haselton writes "A New Zealand court has allowed a plaintiff to serve papers on a defendant via Facebook, following a similar ruling from an Australian court last year. But as these rulings do not necessarily mean, as Facebook announced in a press release, that the courts have endorsed Facebook 'as a reliable, secure and private medium for communication.' The trend could lead to abuses if courts start taking 'Facebook service' too seriously." For more of the many words written by Bennett, hop on that curiously named link right below.

A New Zealand court has ruled that a plaintiff can serve papers on a defendant via a message sent to their Facebook account. Last December, an Australian court ruled that a company could serve papers on a couple after failed attempts to reach them by regular mail and e-mail. Facebook responded to the ruling with a statement that said, "We're pleased to see the Australian court validate Facebook as a reliable, secure and private medium for communication. The ruling is also an interesting indication of the increasing role that Facebook is playing in people's lives." I think there are two interesting questions here: (1) Is that really how courts view service via Facebook? And (2) What will happen if courts do begin to view service via Facebook that way?

As to the first question — the court's endorsement of service via Facebook does not mean that they think the service is necessarily secure or reliable. Courts often let you serve papers on a party in a court case via means that are less reliable than normal channels, provided that you've exhausted the more reliable means first. When I was trying to earn my way into heaven by suing spammers in Small Claims court, some states allowed corporations to be served by serving the papers on the Secretary of State in the corporation's home state, but only if you could prove that you had tried and failed to serve the corporation at their registered address. In cases where I served the Secretary of State, it's unlikely that the defendant ever even saw the papers (since the only thing the Secretary of State could do with them was forward them to the defendants' address on file, where I'd already tried to locate them), but it still "counted" because I had exhausted the regular means of serving the documents. Sometimes when serving an individual, if the sheriff couldn't reach someone at home, a judge would sign an order allowing the legal papers to be stuck to their front door (which is neither "secure" nor "reliable"), but only after the sheriff had been unable to deliver it to them in person. So a court's endorsement of Facebook as a means of service doesn't necessarily mean the court thinks that the means of service is reliable. It just means it's a good last resort when conventional methods haven't worked.

Facebook is not, after all, secure or reliable, although these limitations are not the fault of Facebook itself. By "not reliable," I don't mean that it loses or mis-routes messages — I've never seen that happen — but that you have no idea whether someone has signed in to read a message, or deleted it by accident, or lost it among all the other messages that they received. As for whether it's "secure," like most services, the greatest weakness in Facebook's security is in the 'forgot your password' feature — if you compromise someone's e-mail account, then you can have a password reset link sent to their e-mail address and compromise their Facebook account as well. So your Facebook account is only as secure as your e-mail account, and e-mail accounts are usually vulnerable in their own "forgot your password" feature, which often lets you access someone's e-mail account just by knowing their birth date, their zip code, and the answer to an easy question like "Who is your favorite fictional character?" And in any case, obtaining "service" via Facebook doesn't preclude the possibility that the person you served on Facebook was an impostor, or another person who happened to have the same name.

What would really change the game would be if courts started ruling that service via Facebook was valid even without first attempting to serve a party via mail or other means. I had my own experience with a case like this in 2000, when programmers Matthew Skala and Eddy Jansson released a program called "CPHack" which could decode the encrypted list of sites blocked by a program called Cyber Patrol, so that people who owned copies of the program could use CPHack to decrypt the list of blocked sites. (One of the more controversial aspects of such blocking software is that the list of blocked sites is hidden from purchasers of the program.) A judge granted Cyber Patrol a ruling forbidding the authors from distributing the program, and ordering anyone hosting a mirror copy of the program to remove it as well. That same day, I received a copy of the ruling via e-mail from Cyber Patrol's lawyer, ordering us to remove the mirror from the Peacefire site. I asked a lawyer if that was considered valid service (this was back when I still thought that a legal question like that always had an objective answer, as opposed to the question of "valid service" being an entirely subjective one that depended on what judge you happened to get), and he said that I shouldn't take any chances and should take the mirror down anyway, which we did. Dozens of other mirror sites, which had sprung up in anticipation of the legal controversy, were also served with papers, although the overseas ones mostly ignored them.

So this was very different from a ruling made by the 9th Circuit Court of Appeals two years later, allowing a Las Vegas casino to serve an offshore company via e-mail because regular methods had failed. The court in that case wrote, "When faced with an international e-business scofflaw playing hide-and-seek with the federal court, e-mail may be the only means of effecting service of process." But I was a domestic scofflaw whose mailing address was publicly known (in the WHOIS registration for the Peacefire site). What was the rationale for allowing me to be served by e-mail?

Unfortunately I think it's probably just a case where the rules were vague enough that the judge felt entitled to bend them to achieve an outcome that he wanted. The 9th Circuit didn't leave much doubt as to the level of objectivity in their ruling on e-mail service either, in calling the defendant an "international e-business scofflaw."

And these are the two main reasons why I think that allowing electronic "insta-service" via e-mail or Facebook — in cases where parties have not first tried to serve papers via regular means — would erode the rights of the little guy. First, in most of the cases I can think of where a powerful plaintiff was playing "whack-a-mole" with multiple defendants by using electronic service of process to shut down new sites as fast as they were springing up, the goal they were trying to achieve was (a) futile, if half the mirror sites were overseas anyway, and (b) ultimately incompatible with civil liberties. (Why shouldn't people have the right to decrypt the list of sites blocked by Cyber Patrol? After the ACLU got involved on appeal, a higher court ultimately ruled that mirror sites could not be ordered to take down CPHack. The HD DVD encryption key controversy is another well-known example.) In cases where a plaintiff has a legitimate claim against multiple sites — for example, sites that are violating the plaintiff's copyright by hosting unauthorized copies of content that they own — most service providers already publish an e-mail address where copyright owners can send a DMCA takedown notice, and where the copyright owner is risking large statutory financial penalties if they send a takedown notice that turns out to be baseless. There are no similar protections to prevent abuses of the system through electronic service of other kinds of legal notices.

The other reason this trend could work against the average person, is that any vague rule that is not consistently followed by different judges, puts non-lawyers at a disadvantage in court. Partly because it may confuse non-lawyers who hear that e-mail service was allowed in one case, and think that's part of "the rules," and then find that e-mail service was disallowed in another case, and wonder how "the rules" could allow it in one case but not in another, all the while laboring under the mistaken impression that there actually are "rules" which unambiguously determine whether or not e-mail service is allowed, when the truth is that it's just up to each individual judge. But also because every ambiguity in the rules is another opportunity for the judge's prejudices to influence the outcome. I do not think that most judges are prejudiced against people based on race or gender, but I doubt you could find any legal professional who thinks that most judges would take a case equally seriously regardless of whether it was brought by a professional lawyer or by a layperson representing themselves. (At one point in my spammer-suing career, I had only about a 50-50 chance of my motions even being read.)

So, let's not get carried away applauding judges for being "hip" and "with it" for allowing service via e-mail or Facebook. And if they start allowing it more frequently, can we at least ask that they pick one rule and stick with it?

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Service Via Facebook Shouldn't Always "Count"

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  • You've been facebooked?

    • Sure. Which one of him? [google.com]

    • Re:New movie? (Score:4, Insightful)

      by cayenne8 (626475) on Monday March 16, 2009 @09:15AM (#27209623) Homepage Journal
      Yet another good reason not to be on facebook or any other 'social site'....at least not with real, personal, identifying information.
      • I wonder... I could create, in writing, a "standard operating procedure" (SOP) that specifies messages from unknown senders (i.e. not a friend) are deleted without reading. (I wouldn't necessarily have to follow it, obviously.)

        Would I then be able to legally argue that I did not receive a summons that was "served" via Facebook? Unless the subject blurb (visible from the inbox) had enough detail to be a legally binding summons, perhaps? - and IANAL, but I'd suppose it would be hard to claim this - pranks and

        • by Tony Hoyle (11698) *

          You only have to receive it. The court doesn't need proof that you actually read it.

          eg. someone turns up at your door and gives you notice. You immediately throw it in the trash. You've still been served.. whether you like it or not.

          • by Venik (915777)
            Flawed analogy. This is exactly why they serve summons to you personally and not just drop them off in your mailbox.
            • by Tony Hoyle (11698) *

              Actually they do just drop them in the mail, if you're not in.

              • That's only good if they can prove you saw it. If you're gone for good and you never come back to check your mail, it wasn't a legal summons.

          • If they send some smelly guy dressed in a raggedy hobo shirt, torn pants, and old shoes with his toes sticking out the front to hand me a wet, bent manila envelope, you can be sure as hell that it's going straight in the trash – if I so much as touch it. I'd like to see a judge try to tell me that it was a legal summons.

            That's about the equivalent of spam e-mail.

            • by bucky0 (229117)

              Like it or not, that's not the law. You don't even have to touch it. If you open the door, the guy says, "Hi, are you ? You've been served" and tosses the letter in, that's a legal service.

              • Re: (Score:1, Redundant)

                by clone53421 (1310749)

                Fine, I guess I'd probably be held in contempt of court for not showing up. Which is fine, because the court would probably be held in contempt of me too.

                • by fractoid (1076465)
                  Sadly, unless you're a government, I don't think the two cancel each other out. And even then there's usually some show of military force required...
      • I have a facebook profile with fake information (well, not fully real). Not only are people posting my full information when linking or commenting me in pictures, but I am in fact breaking UK law by providing false information for registration.

        The trouble with trying to be safe and secure while online is that nobody else seems to give a shit about it but you.
        • The trouble with trying to be safe and secure while online is that nobody else seems to give a shit about it but you.

          until their privacy and security is messed around with...

        • Not only are people posting my full information when linking or commenting me in pictures

          I think what you meant is "posting details I didn't feel it prudent to disclose". Posting your "full information" would be prohibitively time-consuming. Besides, you can probably count the number of people who have your "full information" on one hand.

        • by kelnos (564113)
          That's because people's definition of what is "safe and secure" tends to differ greatly.
          • by fractoid (1076465)
            Very true. It still freaks me out when my wife (who's 19, and so very Web 2.0) gives someone her hotmail address after 10 minutes talking to them on WoW. I (probably like most of you) was brought up to never share any personal information online for fear of being kidnapped by Moral Panics or sweet-talked into giving out my parents' credit card numbers or something, I'm not sure exactly why. Thinking it through, I'm not convinced that there's any real safety issue with having such information out there, unle
      • Re: (Score:3, Insightful)

        by Tony Hoyle (11698) *

        Not sure how that's a good reason.

        If you're a criminal who's hiding their identity by other means, sure putting up a facebook account is a bit stupid.. but if you're not a criminal there are multiple ways to find you (phone book, voters registers, credit cards, etc.) and facebook doesn't lose you anything in this case.

      • That's in one specific country.

        In Canada, it would not be acceptable - instantaneous communication* is not considered a legal form of communication. I'm sure it would fail in the US as well.

        *fax, email, IM, etc.

        I'll pretend to be a lawyer. Everyone here owes me $1000.

      • Re: (Score:3, Insightful)

        by WillKemp (1338605)

        It would make more sense to avoid doing things that lead to court summonses, rather than avoiding being on Facebook in case they're served that way!

  • by Anonymous Coward

    That'll solve everything except Doppelgangers.

  • by clone53421 (1310749) on Monday March 16, 2009 @08:42AM (#27209309) Journal

    For more of the many words written by Bennett, hop on that curiously named link right below.

    Which one, "ruled" [nzherald.co.nz] or "ruled" [nzherald.co.nz]?

  • Frequent Slashdot contributor Bennett Haselton writes

    "A New Zealand court has allowed a plaintiff to serve papers on a defendant via Facebook, following a similar ruling from an Australian court last year. But as these rulings do not necessarily mean, as Facebook announced in a press release, that the courts have endorsed Facebook 'as a reliable, secure and private medium for communication.' The trend could lead to abuses if courts start taking 'Facebook service' too seriously." For more of the many words written by Bennett, hop on that curiously named link right below.

    A New Zealand court has ruled that a plaintiff can serve papers on a defendant via a message sent to their Facebook account. Last December, an Australian court ruled that a company could serve papers on a couple after failed attempts to reach them by regular mail and e-mail. Facebook responded to the ruling with a statement that said, 'We're pleased to see the Australian court validate Facebook as a reliable, secure and private medium for communication.

    huh?

    • Re: (Score:3, Insightful)

      by clone53421 (1310749)

      Come now. This is obvious. I'll even ignore the weird "but as these" for the time being. You just have to group the phrases properly.

      But as (these rulings do not necessarily mean, (as Facebook announced in a press release, that (the courts have endorsed Facebook 'as a reliable, secure and private medium for communication.')))

    • by Quothz (683368)

      But as these rulings do not necessarily mean, as Facebook announced in a press release, that the courts have endorsed Facebook 'as a reliable, secure and private medium for communication.'

      huh?

      I had to double-take that line myself. Poor phrasing, I'm sure. That sentence can (and I'm sure should) be parsed as:

      Despite Facebook's press release that the courts have endorsed it 'as a reliable, secure, and private medium for communication', these rulings do not necessarily mean this is the case.

    • by gardyloo (512791)

      Well, since

      But as these rulings do not necessarily mean, as Facebook announced in a press release, that the courts have endorsed Facebook 'as a reliable, secure and private medium for communication.'

      isn't even a complete sentence, maybe there was a thought in there to make the disparate bits agree. I wouldn't bet on it, though :) If the first 'as' was taken out, then perhaps that's what the original story submitter meant, though "do not necessarily mean" is an awfully wiggly way to get out of making cogent statements of one's own.

      • by mea37 (1201159)

        Soemtimes "does not necessarily mean" is a concise and exact expression of what you have to say. "Someone implied A means B. We cannot infer B from A." Actually that's one of the few things that isn't wrong with the quoted sentence; a lof of writers would over-reach and just claim "B is not true" -- whic also is not necessarily the case.

        OTOH, I don't know what the courts are saying if they're not making the endorsement in question. "We consider this service valid even though it was done with a medium th

  • by MikeRT (947531) on Monday March 16, 2009 @08:55AM (#27209427) Homepage

    In the United States, a woman can often establish paternity by naming a man, "attempting to get papers served" and then getting a summary judgment issued against him in his absence. Generally, you have only 30 days to respond to the allegation, and then the courts **might** invalidate it if you have some really, really good argument (not being the father is often not good enough!)

    Personally, I think this is a terrible idea. What if someone never checks their Facebook account or loses access to it? No, I think like most police powers and similar measures, this is only being tolerated by it makes some lawyer's job easier, and there doesn't seem to be much to protect people when the system fails them.

    • by Rude Turnip (49495) <valuation@gma[ ]com ['il.' in gap]> on Monday March 16, 2009 @09:10AM (#27209571)

      This is bigger than Facebook. I supposedly have a verizon.net email address since I signed up for FIOS. I have no clue what that email address is since I've been using Gmail and other services for years. Who knows what kinds of messages are sitting in that never-opened inbox; maybe even a subpoena, but I'd never know.

      • I was a student at Central Michigan University in the early 1990s. I already had a well established email address by the time the school issued me one. I never checked the address they issued. Not even once. Imagine my surprise when, about 2 years later, I attempted to register for the next semester's classes, and was told that there was a hold placed upon my student ID for non-payment of some fee or other. I protested that I had no idea what they were talking about -- that I'd never received any sort
      • Re: (Score:3, Interesting)

        by vlm (69642)

        Who knows what kinds of messages are sitting in that never-opened inbox; maybe even a subpoena, but I'd never know.

        I can top that, I subscribed to a local ISP before getting broadband, after the broadband install I was using fetchmail to fetch email from the old ISP while I was getting everything set up on the new ISP. Then I canceled my old ISP but forgot to remove my old email account from my fetchmail config, and apparently they never removed my old account, which was receiving a continuous stream of spam months later. I only noticed when months later my old provider took down their pop server for scheduled mainten

        • by cawpin (875453)
          I have a similar situation. I still have access to an email account that was gobbled up by the Verizon creation. That merger happened in 2000 and my parents haven't had service through Verizon since 2001. I can still receive email through that address, 8 years later.
      • by AmiMoJo (196126)

        I think the problem is not so much how reliable Facebook/the internet is as a delivery method, but that the delivery does not have to be reliable at all.

        As long as you can get a judgement against someone which they will then find it very hard to fight simply because they did not know there was ever even a case against them the system is broken.

  • by OzPeter (195038) on Monday March 16, 2009 @08:57AM (#27209439)
    Since when does having a FB account of a given name prove that that individual owns that account?
    • by Aladrin (926209)

      Between that and people that never check their account, this is ridiculous. It should never count as having served them the papers.

      I have countless accounts on various systems that I've set to 'do not email me' when I receive a new instant message simply because I had a few accounts that would get SPAM. It's now my default setting on new sites I join. In other words, I whitelist, not blacklist.

      • by canajin56 (660655) on Monday March 16, 2009 @11:15AM (#27211675)

        Some people never answer their door if they don't know the person in the peephole. And some people never check their mail, either. However, going to their residence in person, and sending registered mail, are both perfectly acceptable. If you don't answer your door, and don't respond within 30 days of receiving registered mail from the court, you will get a default judgment. Allowing additional service by Facebook is doing the defendant a favour! It notified them by one more avenue. Fine. They ignore their door, their mailbox, their phone. Maybe they read their facebook though. That gives them one more chance. I don't see how this is in any way bad for them, since precedent already establishes that Facebook can only be used if all other methods of contact have failed. This is not a first method, its the method of last resort. Prior to facebook, the typical method of last resort was to put a notice in the classified section of the paper. Less people read the public notices section classified for than read their facebook messages, I'm sure.

        That applies to the Oz case, anyway, where they'd already been contacted by phone, mail, and a person at their door, none of which were responded to. That's more than sufficient for a default judgment! The NZ case, less so. The person had left the country, moved to England. He had no known address. But he did have a facebook account and e-mail address, both of which he uses regularly to talk to his family! It was known to be him, and he's known to check it! Serving his immediate family, (and his friend and alleged co-conspirator) and serving him by e-mail and facebook, that has to be sufficient, or else he just is immune to the law.

        • by wvmarle (1070040)

          If served in NZ but living in UK he's already pretty immune to NZ law of course (something the USA unfortunately tends to forget). Laws are limited to a geographical region, usually a country.

          In this case the person may ignore the summons and if he never returns to NZ may indeed not have to pay the punishment (jail, fines, whatever). After conviction, the only option left for NZ courts is to ask the UK police to arrest and extradite the person. And whether that is possible probably depends on the crime com

    • by kbielefe (606566)
      Since there are dozens of witnesses who know that person offline and use that account to communicate with him online.
    • Re: (Score:3, Insightful)

      by canajin56 (660655)

      Since you read the link and discovered that the plaintiff had corresponded with the defendant via the facebook account, and associated e-mail address, on previous occasions. At least, that's the NZ case. The guy was being sued by his FATHER after he stole a quarter million from the father's business. He had moved to England, and left no forwarding address. But he did communicate with his father by e-mail and FaceBook. Thus, the court ruled that it was a method of contacting him. It was already est

      • by wvmarle (1070040)

        The guy was being sued by his FATHER after he stole a quarter million from the father's business.

        [...] it isn't a criminal case.

        Euhm sorry how is theft not criminal? NZ may not be the rest of the world but I though theft is afaik a crime pretty much throughout the world.

  • by wampumferret (1501739) on Monday March 16, 2009 @08:59AM (#27209459)
    One of my friends that I met through MobWars told me about this app that you can install on Facebook that lets you access your CITI bank account. I love it - its so convenient. Facebook is totally secure and totally convenient.
    • by wykell (1323665)
      I almost used one of my hard-earned mod points to mod this post as funny. Then I realized you might actually be serious. And I became really truly afraid.

      I believe that the point of this post is that the Aussie courts are finally getting with it a little bit in the tech world, but simply sending a FB message counting towards being "served" doesn't really make sense to me - especially if the server had already made an attempt by e-mail (which you can at least request a read-receipt). Facebook then lives up
      • but simply sending a FB message counting towards being "served" doesn't really make sense to me - especially if the server had already made an attempt by e-mail (which you can at least request a read-receipt).

        Uh? Really?

        I'm sure that you receive read-receipts, except if your mail provider only offers POP access (no SMTP) or your ISP blocks SMTP or you use a client which doesn't do read-receipts or if "read-receipt" means something totally unrelated to humans looking at text.

        Then sure, read-receipts might say something useful.

        • you can at least request a read-receipt

          If you receive the read-receipt, it's useful. If not, it doesn't necessarily mean they didn't read the message.

  • the president has been set by the Australian court and now upheld yet again in the New Zealand court. Something tells me that we are going to be seeing many more of these types of "being served" in the future. What i'm really curious about is what happens if you terminate your account of Facebook, can/will Facebook provide (or be forced to provide) the archived information on the account to the courts for serving purposes? Should be something to look out for in Facebook's modifications to their ToS agreemen

    • Re: (Score:3, Informative)

      by kbielefe (606566)
      This isn't about using your facebook content as evidence in court, it's about making sure you know when a court date is, and that if you don't show up, the other side is going to get their way. i.e. unemployment disputes, divorces, custody hearings, being sued, etc.
    • Precedent, you dope.

  • by Chrisq (894406) on Monday March 16, 2009 @09:00AM (#27209473)
    If you can sue via facebook I will sue Jesus [facebook.com] for religious discrimination, Christopher Columbus [facebook.com] for genocide of the native Americans and King Charles II [facebook.com] for usurping the British Republic.
    • by oodaloop (1229816)
      What about King Kong for wrecking the Empire State Building and downloading pirated music?
  • Look, if you were serviced on Facebook, it doesn't count. You are still a virgin. Come out of the basement and try to meet a real girl...

    Maybe I should read the article...
  • With all technology comes the responsibility to use it wisely. I can see the point in allowing service via Facebook as an option of last resort - as mostly a symbolic gesture when trying to get in touch with someone particularly elusive. As a first resort? No way.

    "We are stuck with technology when what we really want is just stuff that works." -- Douglas Adams
  • Facebook/Myspace (Score:2, Interesting)

    by Ceiynt (993620)
    Well, there was a story late last week about a judge throwing a case out because the arresting cop listed his status as devious and posting Training Day as required watching for all cops on his MySpace page? Social network turning legal policy?
    • Re: (Score:3, Insightful)

      by Todd Knarr (15451)

      I don't think it's "social networking turning legal policy" so much as "social networking being relevant to motivation and impeachability". The judge in that case said, basically, that what the cop was saying on MySpace is just as relevant as anything else the cop might say. If the defendant would've brought in evidence of the cop regularly saying those same things to friends off-duty, or worse yet other cops on-duty, it would've been read as evidence that the cop isn't following the rules, undercutting his

  • I have a Facebook account created when someone asked me to look at their pages. I haven't logged in in certainly one, maybe two, possibly three years. I would never see anything serve on me there.

    I probably have accounts on a score or more other forums and so on that I signed up to, used for a short while, and either got bored or achieved what I needed. Do I have to keep monitoring all of these in case someone chooses to post an important message?

    The article does not state whether the court required the pla

    • by Tony Hoyle (11698) *

      I'm not sure that you could - you can't see a facebook profile unless you're already a friend of the user, and 'US Attourney General wants to be your friend' doesn't sounds like it's going to get a good response overall...

      OTOH it may be that in this case the person serving was already in the friend list, as I wasn't aware you could message a user who wasn't a friend either (thus making serving to random people impossible).

      • you can't see a facebook profile unless you're already a friend of the user

        True, if that's how you have your privacy settings set.

        'US Attourney General wants to be your friend' doesn't sounds like it's going to get a good response overall

        Most definitely.

        the person serving was already in the friend list

        ...hehe. Ok, I doubt it.

        I wasn't aware you could message a user who wasn't a friend

        Generally you can – I think there might be a setting to prevent it, though. I would have to check.

  • I wonder how long until you can be served via Twitter. Subpoena's in 140 characters or less!

    "@JasonLevine This is a legal subpoena. Respond in 30d or default judgment will be awarded against U. Read entire subpoena: http://is.gd/nyag [is.gd]"

    (Yes, I am on Twitter. No, "JasonLevine" is not my Twitter name. I have a "Twitter/blog identity" that is completely separate from my "real name online identity.")

This process can check if this value is zero, and if it is, it does something child-like. -- Forbes Burkowski, CS 454, University of Washington

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