Last Friday, the Democratic National Committee (DNC) served WikiLeaks via Twitter. While the microblog service is extremely popular within the White House these days, it’s one of only a handful of instances when it has been used for such an official purpose, maybe except that time when the U.S. Secretary of State found out he had been fired in a presidential tweet.

So, the law firm representing the DNC in its civil lawsuit against WikiLeaks officially served the legal documents on the case to WikiLeaks by tagging its official account in a post. Notably, the account seems to have been created specifically for that purpose, as it is relatively new and has no other tweets.

@wikileaks By Court order, you are being served with the following legal documents: https://t.co/ICg8qWnsUy, https://t.co/ZP2tTPJ4pb, https://t.co/RKue30s4hM, https://t.co/q5g0G1rQpQ.

All of these documents may be found here: https://t.co/NOCgvQhh2j. — Cohen Milstein Sellers & Toll Process Server (@ProcessServiceC) August 10, 2018

Legal systems anywhere are usually quite conservative, and are never in haste to take into account some new developments, such as technological advancements. Still, it’s quite hard for courts to keep on ignoring social media platforms, as they can be useful not only in the capacity of passive sources of evidence or means of communication. It looks like now they can become a fairly legitimate way to serve documents when all other methods to do that fail. But nevertheless, how does serving papers via Facebook, Twitter, or LinkedIn look from a legal perspective? This feature offers our analysis of the situation, as well as relevant domestic and foreign regulations and legal precedents.

Serving Papers Online: DNC vs WikiLeaks and Other Cases

The DNC went against WikiLeaks, the Trump campaign, and the government of Russia in a civil lawsuit back in April 2018. In particular, the DNC claims millions of dollars in damages, as well as accuses the defendants in literally everything, from infringing copyright laws to getting involved in a conspiracy, as well as states that Russian hackers cooperated with Trump’s associates in order to undermine the campaign of Hillary Clinton, which resulted in the victory of Donald Trump.

The DNC was trying to serve the documents to WikiLeaks for quite a long time, however, as WikiLeaks has no office or any official representative, and exists mostly as an internet project, its intangible nature made the legal formalities quite an endeavor. So, when all other methods of service proved futile, the plaintiff had to use Twitter, which, in this context, is a new and unconventional tactic, and, most importantly, it had been sanctioned by the court.

That being said, it’s not the first time when social media platforms are used for judicial purposes. In 2015, under a court permission, a N.Y.-based woman Eleanor Baidoo served her estranged husband a divorce summons via Facebook private message. A year before that, in 2014, two courts permitted defendants to be officially served on the internet as they live beyond the United States. As a precedent-setting event, two defendants, one of which was in Turkey, and the other in Antigua, received official summons on Facebook and LinkedIn. Also in 2014, a New York state judge allowed a man to send a legal notice to his ex-wife stating that he won’t be paying child support any longer as the child in question has turned 21.

Commenting on the latter issue, head of family law at Mischon de Reya, Michael Stutman, praised the ruling, saying that “the idea that physically handing someone a piece of paper is the only way to serve notice is archaic.

Moreover, serving the process via social media seems to have made its way to other jurisdictions as well. This February, Tara Vasdani, an associate at Mason Caplan Roti LLP, obtained an order from the Ontario Supreme court to serve a claim using social networks. After a series of unsuccessful attempts to reach the defendant at her physical address, via an email with notifications of reception and reading, and by contacting her previous employer, she decided to bring a motion asking for a permission to serve through Instagram and LinkedIn. “In order to avoid becoming obsolete, it is our duty to evolve with society — and one of the concrete and surefire ways society is evolving is through technology,” she said in a comment to Canadian Lawyer.

Social networks were also used by lawyers in Australia last year to serve a statement of claim. The Supreme Court of New South Wales held that after numerous tries to reach the defendant, “the proposed method of service (i.e. via Facebook, Instagram and LinkedIn) was likely to bring” the statement to defendant notice.

In 2016, the High Court of Singapore allowed to use Facebook, Skype, and internet message boards for the purpose of serving a process. The Court “observed that the phrase “electronic means” is wide enough to include WhatsApp and other smartphone messaging platforms linked to mobile phones.” The Court also defined 4 threshold levels to be considered in the situation:

The lack of success with traditional means.

The sufficient effectiveness of the service in drawing the defendant’s attention.

It is used by them.

There is proof the service was visited by them recently.

So, history knows at least several instances of official documents being handed via social media platforms, rather than by traditional means. But still, how does it look from the legal point of view?

Do U.S. Laws Actually Allow Serving Papers via Social Media?

Legally speaking, there’s a procedure of serving procedural documents to a legal entity within the jurisdiction territory of U.S. courts, i.e. within U.S. judicial districts as described in the Federal Rule of Civil Procedure 4(h).

Rule 4(h) references to another rule with quite a similar name, 4(f), which establishes three mechanisms for serving documents beyond the U.S. One of those mechanisms, namely item 3, states that the servicing may be conducted by “other means not prohibited by international agreement, as the court orders.” Basically it suggests that the court may use literally any means to serve the papers as long as it doesn’t directly violate the international law.

For example, in the FTC vs PCCare247 Inc. case, the United States District Court for the Southern District of New York granted the FTC the permission to serve “defendants through alternative means, to wit, email and Facebook.”

It should be noted, however, that Rule 4(f) is only applicable to foreign defendants. In domestic cases, the law forbids such tricks with electronic means, or at least that’s what another provision titled Rule 4(e) suggests. The same prohibition was expressed by the United States District Court for the District of Kansas and the United States District Court for the Eastern District of Missouri. Those courts refused to allow Facebook service upon domestic defendants.

The United States District Court for The District of Kansas ruled:

“It is clear from plaintiff’s motion that plaintiff has exhausted all conventional methods of service for both defendants in this case. It is unclear, however, that allowing an unconventional method of service via Facebook would comport with traditional notions of due process, or would achieve the desired result of effectuating service on defendants.”

The order went on:

“The court cannot verify that the Facebook profile supposedly belonging to a defendant is real unless the movant presents the court with adequate evidence proving its authenticity. For example, in Fortunado vs Chase Bank USA, the court found that Facebook was an inadequate means of service because the movant presented no facts as to the Facebook profile’s authenticity.”

The United States District Court of The Eastern District of Missouri Eastern Division expressed the following opinion

“Rule 4(e) does not permit electronic mail as a means of substituted service unless the state where the action is brought permits it. Missouri does not authorize electronic mail as a form of substituted service. If plaintiff is unable to serve process via e-mail, it certainly has not shown that it can properly serve process via Facebook.”

At the same time, in the Noel Biscocho vs Anna Maria Antigua case mentioned above, where a man was granted a permission to contact his ex-wife via Facebook to formally notify her he will stop paying child support, the court ruled that the traditional means of service under CPLR § 308 (1,2 and 4) were impracticable as there was no reasonable way to find out the woman’s actual location. Given the efforts the petitioner has made to contact her via traditional means, the court granted him said permission, even though both parties to the case were located within the United States.

So, what is it that makes those court rulings so different? It actually comes down to the state laws and the opinion of the court. Still, as the practice shows, serving formal notifications or documents via social media platforms isn’t something new or unique. It’s just rare. For now.

DNC, WikiLeaks, and Twitter: Legal View

So, why did the DNC decide it was a good idea to serve the papers to WikiLeaks via Twitter? For the very same reasons discussed above. In its motion, the DNC claimed:

“Because WikiLeaks is an international organization of unknown structure, with no known known business conducted in the United States and its servers located abroad, it must be served using Rule 4(h)’s procedure for service outside of a U.S. judicial district”.

In the DNC’s opinion, WikiLeaks is more of a virtual entity rather than a real one, so serving documents via “other means not prohibited by international agreement, as the court orders”, i.e. electronically seems quite a reasonable option. Furthermore, the DNC asserts that after attempting to reach WikiLeaks via traditional means, the plaintiff can legally reach the defendant by any other way:

“Plaintiff has diligently attempted to serve WikiLeaks through a variety of methods, including emails to an address provided by WikiLeaks on its website, and by contacting counsel who have represented WikiLeaks in other matters. None of these efforts have succeeded, however. Accordingly, the Court should grant Plaintiff leave to serve WikiLeaks by Twitter, where it maintains a robust presence and has admitted knowledge of this action, and by mail.”

The DNC also stated that WikiLeaks is quite active online as it “seems to tweet daily” and has made public statements via Twitter that assume the organization’s full awareness of the lawsuit.

Democrats have gone all Scientology against @WikiLeaks. We read the DNC lawsuit. Its primary claim against @WikiLeaks is that we published their "trade secrets". Scientology infamously tried this trick when we published their secret bibles. Didn't work out well for them. pic.twitter.com/NfCJEMiPCo — WikiLeaks (@wikileaks) April 22, 2018

Finally, the DNC noted that Rule 4(f) is safe, noting that they know of “no international agreement or international law that would prevent service by Twitter.

Simply put, the DNC has offered three arguments to justify the court ruling :

WikiLeaks is an international organization that has no known business in the U.S., and doesn’t keep their servers there. The attempts to contact them via e-mail and their counsels that had represented them before, failed. WikiLeaks is quite active online, and on Twitter in particular, which it uses to make public statements. Those public statements included their reaction on the lawsuit in question, as well as a call for their subscribers to read it. There is no international law or agreement that prohibits serving documents via Twitter.

While notifying defendants via social media isn’t a common rule, it’s also not something unique, and those four arguments make “the subpoena issued via Twitter legible under Rule 4(f).

However, there are notable issues in this area that prevent courts and plaintiffs from doing it all the time.

Why Don’t They Serve Documents via Social Networks All the Time?

It would be a strange new world where you could receive summons in a private message on Facebook, or get a formal notification via Instagram. However, let’s say officials decided to use social media platforms for such purposes all the time, and they sent you a subpoena or other formal paper. You completely ignored it and made fun of it online. Then they managed to take you to court, and that’s where their problems started. And that is because of the things you can reasonably say in your defense.

Option One: I received nothing because there’s a bug on the platform / I don’t actively use that, how did you say, Twitter thing

According to the Rule 4(l)(1) of Federal Rules of Civil Procedure, generally, the server’s affidavit is needed to prove the servicing had occurred. Pursuant to the Rule 4(l)(2)(B) of the same legal act, if the service was made outside the U.S., the service can be proved by a receipt signed by the addressee, or by other evidence that would prove to the court that the summons and complaint were delivered to the addressee. In most cases, it’s just a court paper that the server files as evidence the papers had been served to the person of interest.

So if you’re no longer active on your social networks, is the subpoena, summons or notification or whatever else they send you actually received in a legal sense? It’s even harder if you reference some mysterious bug that prevented you from reading the papers. And if the social network in question doesn’t show the last time you visited it, it’s pretty hard to prove that you’re an active user, at least in court.

At the same time, in accordance with the Rule 4(l)(3) of Federal Rules of Civil Procedure, failure to prove service does not affect the validity of service and the court may permit proof of service to be amended. Therefore, a plaintiff may present new proofs if the court believes their predecessors cannot suffice.

So, depending on the social network in question, it might be quite difficult to prove you actually received anything. Considering the peculiarities of the legal system in the U.S., however, the interpretation of servicing proofs may differ from court to court, especially considering that the very method of serving in question is pretty novel.

Option Two: It wasn’t my Twitter / Facebook / LinkedIn / Instagram / Whatever

Unless your account is officially confirmed, it’s pretty difficult to prove it’s actually yours. Even with Facebook’s frightening facial recognition system in place, it’s fairly easy for anyone to set up a fake account in your name, and pretend that they are you. So, the plaintiff will have a hard time proving the account is actually used by you, and not some impostor.

The same goes for companies who usually provide links to their social media accounts on their own websites or correspondence. However, in all other cases (say, a company in question is actually a fake), getting a court order to serve them on social media might be quite a challenge.

Still, in case of Twitter, there is a procedure called “legal requests,” which can be made by law enforcement, a government agency, a lawyer representing a criminal defendant, or a civil litigant, and which allows them to ask for information on the Twitter user they’re wondering about Moreover, Twitter notifies the user in question of such request, which under certain circumstances might also be considered as a proof of serving. Finally, unlike some of its peers, Twitter has the institution of verified accounts marked with a blue badge, so in case your account is one of those, it is you who would have hard time proving it’s somebody else. As for Facebook, some pages there are verified in order to “let people know that they’re authentic.” Similarly, the social network marks such accounts with a blue badge. However, usually you need to be a well-known public figure for that. Mortals like us rarely see any blue badge next to our nicknames.

Option Three: I knew nothing about it because I disabled notifications and direct messages

As a Twitter user, you have every right to set limitations as to how people can reach you. The same goes for Facebook, and virtually any other social media platform offering you numerous privacy options. Those options include muting notifications, disabling direct messages, limit tagging, and so forth. Those aspects of those platforms actually make it technologically impossible to reach you if you have activated settings like those in advance. So, a defendant can always reference those things as a reasonable explanation why they had no idea about the court.

Senior Research Attorney Paul A. Ferrer expresses a similar opinion:

“Given the limitations of Twitter, including its 140-character limit on Tweets and lack of user authentication, it is questionable whether service by publicly posting on Twitter really satisfies the […] due-process standard.”

So, until those problems with social media that allow the defendant to use the aforementioned reasonable explanations are solved, it’s quite unlikely that courts will engage in issuing orders to serve official papers via Facebook or Twitter all the time.

Conclusion

Even if all of the precautions are taken into account, the actual decision and interpretation are still up to the court. For instance, in the case of Mullane v. Central Hanover Bank & Trust Co., the United States Supreme Court has held that due process requires that service of process 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.”

Therefore, a plaintiff must make a strong case showing that the usage of social networks is a sufficient and proper way to notify the other party. Still, this practice is unlikely to become really widespread in the short or even long run, as it will probably set up too many problematic questions for the court due to the very nature of the technologies involved.