The next time you log in to your Facebook account, the little red message icon could mean that you are heading to court. In the case of FTC v. PCCARE247 Inc., et al., 2013 U.S. Dist. LEXIS 31969 (S.D.N.Y. Mar. 7, 2013), the India-based defendants are alleged to be operating a scheme that tricks American consumers into paying to fix problems with their computers that do not exist. The Federal Trade Commission served its Summons and Complaint by sending it to the defendant via Indian Central Authority (pursuant to international law), email, Federal Express, and personal service. Id. at *4. Although service by email, Federal Express, and personal service had been somewhat successful, service via the Indian Central Authority (which had stopped communicating with the FTC) had been completely unsuccessful with all defendants. Id. Accordingly, on March 13, Judge Paul A. Engelmayer of the Southern District of New York granted the FTC’s motion to serve the defendants via email and Facebook. Id. at *19. As Judge Engelmayer noted, “[p]articularly where defendants have ‘zealously embraced’ a comparatively new means of communication, it comports with due process to serve them by those means.” Id. at *17 (citation omitted).
Because a Facebook profile can be created using real, fake, or incomplete information, the Court cautioned that serving a defendant via Facebook might raise due process concerns if there were no independent facts to confirm ownership of the account (for example, the email address associated with the account is known to belong to the defendant). Id. at *15. Considering Facebook’s meteoric insertion into daily life, it is conceivable that for difficult-to-reach defendants, such form of service may cease to be “a relatively novel concept” and become part of a litigant’s toolbox. Id. at *16. Other social media sites could soon be accepted as proper channels for service as well. For example, service via a verified Twitter account might be less objectionable than service via Facebook since Twitter undertakes steps to independently confirm ownership. As Judge Englemayer observed, “history teaches that, as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means of then-recent vintage, rather than dismissing them out of hand as novel.” Id. at *16-17. n