‘Hacking’ Service of Process: Using Social Media to Provide Constitutionally Sufficient Notice of Process
On a fundamental level, the Fourteenth Amendment Due Process Clause requires that a defendant be provided with adequate notice of any proceeding to be accorded finality. Since the Supreme Court announced the modern standard for determining the constitutionality of notice in Mullane v. Central Hanover Bank & Co., there have been many opportunities for courts to determine whether newly conceived methods of service of process are constitutionally sufficient. Entirely new means of communication have been created and put into widespread use. As people have changed the way they interact with each other and how they receive information, service methods once perceived to be effective ways to communicate notice seem less so.
As our society has changed, we have witnessed revised application of the principles of due process to court procedures. For example, personal jurisdiction changed from a highly formalistic inquiry, focused on whether a defendant was located within the territorial authority of a state, to a more pragmatic inquiry focused on fairness and due process rights. Similar to the evolution of the personal jurisdiction standard, the notice requirement has been stretched since the time of Mullane as new communication tools such as television, telex, and fax became available. What makes the current environment unique is the speed at which human communication is changing. Never before has communication changed so quickly and in a way accessible to the general public. Television and fax, while revolutionary in the way they permitted people to send and access information, were largely tools that few people had the ability to harness for purposes of notice. Social media, by contrast, is a free medium, and the user can both receive and send information. Additionally, when coupled with the advancement of inexpensive mobile devices and ready access to the internet, individuals can access social media tools wherever they go. The widespread accessibility of these new technologies has radically altered the way in which people send and receive information.
Plaintiffs have long advocated for more efficient means of service of process when a defendant attempts to evade service or when service of process through in-hand personal service would be too expensive or impractical. While in-hand personal service will remain the gold standard service of process method, social media provides new avenues for achieving constitutionally sufficient notice. As such, service rules should be adopted that provide plaintiffs with a default option of service via social media while ensuring defendants’ constitutional rights are adequately protected. Additionally, service rules should be adopted that permit the court to order service via social media after considering the individual circumstances of the case. Finally, service rules should be adopted that facilitate securing the defendant’s consent to service via social media. This article explores the principles underlying the notice requirement of the Fourteenth Amendment Due Process Clause. Against this backdrop, this article examines the unique challenges presented by service via social media. This article proposes several legislative options that permit service of process on individual defendants via social media, while upholding the principles of due process and ensuring constitutional notice is provided to the defendant. Ultimately, social media provides an efficient “legal hack” because, for some defendants, it is more likely to provide notice than other, more traditional, methods of service.