Texas May Soon Allow Subpoenas Served Via Facebook
Can’t find someone who needs to testify in court? Help might be on the way. A proposed bill in Texas would allow people to be served with subpoenas over social media like Facebook and Twitter in lieu of being delivered face-to-face or by mail.
The law would allow for electronic subpoenas if certain criteria could be met:
- the defendant maintains a social media page
- the profile on the social media page is the profile of the defendant
- the defendant regularly accesses the social media page account
- the defendant could reasonably be expected to receive actual notice if the electronic communication were sent to the defendant’s account
With social media becoming one of the most dominant forms of modern communication, it only makes sense that it will be used to convey subpoenas and other official documents.
“I suspect this Bill was introduced to provide the courts and attorneys with clear guidance for prescribing alternative methods of service,” writes legal support professional Jeff Karotkin on a service of process blog, “while also acknowledging that electronic communications and social media platforms have become so prevalent that they can and should be leveraged to provide legal notice to parties that are either evading service of process or just can’t be served physically by any other approved method.”
Utah appears to the be the only other state that allows domestic summons or subpoenas by social media, via an a “alternate service” provision that lets attorneys get creative if they can’t reach their subject by normal methods. On a case-by-case basis, the courts can allow summons to be served by Facebook, Twitter or even text message.
However, in 2011 a Minnesota judge did grant a woman permission to serve her husband with divorce papers by email, “Facebook, Myspace or any other social networking site” because she was unable to locate him and assumed he had fled the country to West Africa.
Uncle Sam on Board
A number of foreign countries allow service of process via electronic means, including Australia, Canada, New Zealand and the United Kingdom. The U.S. federal government does as well, in some circumstances.
A federal judge in 2000 allowed a defendant in a bankruptcy-related lawsuit, Broadfoot v. Diaz, to be served via email because he was a “moving target” who traveled around Europe, avoiding the possibility of being served in person. “If any methods of communication can be reasonably calculated to provide a defendant with real notice, surely those communication channels utilized and preferred by the defendant himself must be included among them,” the court reasoned.
Then the 9th U.S. Circuit Court of Appeals in 2002 upheld service via email in Rio Properties v. Rio International Interlink when the defendants, operators of a Costa Rican gambling website, could not be reached in person or via mail. Now the feds are getting into social media as well — just this year a federal judge gave the FTC permission to serve defendants in India via Facebook.
Question of Authentication
One major obstacle for electronic summons and subpoenas — how do officials know they are contacting the right person?
“The biggest problem with service via social media is authentication,” writes attorney Bradley Shear on his social media law blog. “Even though a digital account may appear to belong to a litigant in a judicial proceeding, account authentication is required to ensure that the account belongs to the right person.”
If the proper safeguards can be found, however, e-summons could save public officials and attorneys alike a great amount of time and effort tracking down subjects in person. “While we need to ensure that there are some security parameters in place (to ensure accurate receipt), using social media for service of a summons really is a great convenience and cost savings,” says Jonathan Rosenfeld, an attorney with Rosenfeld Injury Lawyers. “Given the tremendous expenditure of time and resources to serve summons, using social media for this cause should help add to the efficiency of our court system.”
“As with all new systems, I’m sure there will need to be some kinks to iron out, but I very much am in favor of the courts taking a proactive stance towards the use of technology,” Rosenfeld says. “Hopefully, this is the beginning of a broader acceptance of social media by the judicial system that social media is mainstream and not just for high schoolers.”