Donald N. Barclay III
Donald Barclay is a Resident Forum Blogger who examines current legal issues in the field of modern computer technology.
Though some may feel that the Post Office is here to stay, you can’t argue that the Post Office has maintained the same level of utility that it had prior to the advent of email. Over the last few years, many more methods of communication over the Internet have developed – particularly the social networking giant Facebook’s popular personal messenger service. With more than one billion people using Facebook, it is an very likely that the social network reaches the same number of, if not more, people as the US Postal Service. It should come as no surprise that there now exists an instance in which federal process service has occurred on Facebook. Examining the Federal Rules of Civil Procedure, it would be hard to argue that such a service is allowed. It is for this reason that a rule change may be in order in the coming years.
The Federal Rules of Civil Procedure Rule 4 and Rule 5 govern process service at the federal level. Proper service can be achieved by:
(A) handing it to the person; (B) leaving it: (i) at the person’s office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office; or (ii) if the person has no office or the office is closed, at the person’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; (C) mailing it to the person’s last known address—in which event service is complete upon mailing; (D) leaving it with the court clerk if the person has no known address; (E) sending it by electronic means if the person consented in writing—in which event service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person to be served; or (F) delivering it by any other means that the person consented to in writing—in which event service is complete when the person making service delivers it to the agency designated to make delivery.
The key provisions to examine are (b)(2)(C), (b)(2)(E), and (b)(2)(F). With minor amendment, any of these subsections can be made to allow electronic delivery. Facebook may not come to be an accepted source of service under the rules, but it is easy to see how email could be allowed. Many people receive bills, pay stubs, and other important documents via a primary email address, so why could they not be given other notices of potential financial responsibility in an email as well? As it stands, prior written authorization is required to allow process service over electronic means, but if one cannot track down an individual to serve papers, how will they get this authorization? Changing (E) or (F) to allow electronic service without authorization, should be something that the rules committee considers.
Email may be the modern method of communication, but what courts will have to be mindful of are the people who do not use email, or who have since changed email addresses beyond an opposing party’s knowledge. The easy solution would be to require individuals to register email addresses with the IRS or other agencies that everyone must interact with yearly. This will stop service from going to someone’s email address that they do not check, as the government can expect these email addresses to be kept current for tax or other purposes. But this solution may be to chagrin of people who wish to keep the government out of their Internet lives.
The counter argument to that would be, as email addresses have become nearly as common as a phone number, one could form an argument similar to that used Smith v. Maryland, 442 U.S. 735 (1979), and say that the government’s knowledge of an email addresses’ existence, and who may own it, is not an infringement of privacy, as the content of one’s email addresses are not being examined. The other alternative would be to obtain an email address one uses for billing purposes with private organizations, but as private entities are in no way obliged to provide this information at present, this seems to be the less likely of these two scenarios. Either way, in this instance, like many others, the legal practice is faced with the dilemma of how to adapt to new, and often more efficient, technology. Introductions such as e-filing and online records retrieval have been welcomed, but more change may need to come.
Fed. R. Civ. P. 5
Published on March 1, 2016.