By IT-Lex Intern Joey Chindamo (LinkedIn)
If a Texas bill becomes law, your next Facebook notification could be an official—and legally binding—service of process. Texas State Rep. Jeff Leach (R-Plano) introduced House Bill 1989 last month. It reads, in pertinent part:
Sec. 17.031. SUBSTITUTED SERVICE THROUGH SOCIAL MEDIA WEBSITE.
(a) If substituted service of citation is authorized under the Texas Rules of Civil Procedure, the court may prescribe as a method of service under those rules an electronic communication sent to the defendant through a social media website if the court finds that:
(1) the defendant maintains a social media page on that website;
(2) the profile on the social media page is the profile of the defendant;
(3) the defendant regularly accesses the social media page account; and
(4) the defendant could reasonably be expected to receive actual notice if the electronic communication were sent to the defendant’s account.
As the eMedia Law Insider points out, service of process is typically delivered either in person or through certified mail to ensure a defendant has knowledge of the lawsuit. Not surprisingly, the proposal of serving process through social media channels raises authentication issues because it can be difficult, if not impossible, to know if a social network account actually belongs to the person named.
Aside from the authentication issues created by service of process through social media, there is also the problem of publicity. Techdirt discussed the lack of privacy social media networks afford and the fact that service of process through them essentially shouts from the mountaintops, “YOU ARE BEING SUED.”
While the proposal may have some deficiencies, it is encouraging for technology law that U.S. lawmakers and courts are beginning to trust digital delivery for service of process. And, if trends like Facebook’s ban on pseudonyms continue, the inherent authentication problems of social media may be solved. If the authentication problem is resolved, and if it can be proven that there is reasonable certainty a potential litigant will see it, service of process via social media may turn out to be a viable alternate channel for attorneys trying to track down elusive defendants.
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