The Fifth and Fourteenth Amendments require compliance with “due process of law” before persons may be deprived of “life, liberty, or property.”1×1. U.S. Const. amends. V, XIV. Notice is one of the oldest aspects of due process,2×2. See, e.g., Frank H. Easterbrook, Substance and Due Process, 1982 Sup. Ct. Rev. 85, 95–96 (tracing the “magic words ‘due process,’” id. at 95, to a 1354 English statute specifying that “courts could not proceed in any important civil or criminal case . . . without service of a writ on the defendant giving him an opportunity to appear in answer,” id. at 96). and proper service of process — that is, the means by which a plaintiff provides formal notice of a lawsuit to a defendant — has been characterized by the Supreme Court as “elementary and fundamental.”3×3. Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950). Under Rule 4(f) of the Federal Rules of Civil Procedure, a plaintiff may serve process on an individual in a foreign country through certain specified means or through any mechanism approved by international agreement, by the foreign country, or by the court.4×4. Fed. R. Civ. P. 4(f). Rule 4(f) is a “flexible standard” that allows service through any means that comports with due process.5×5. Ronald J. Hedges et al., Electronic Service of Process at Home and Abroad: Allowing Domestic Electronic Service of Process in the Federal Courts, 4 Fed. Cts. L. Rev. 55, 59 (2010). Recently, in St. Francis Assisi v. Kuwait Finance House,6×6. No. 3:16-cv-3240, 2016 WL 5725002 (N.D. Cal. Sept. 30, 2016). the United States District Court for the Northern District of California extended Rule 4(f), holding that service of process via Twitter on an otherwise unreachable international defendant was permissible.7×7. Id. at *2. However, by not requiring that the plaintiff authenticate the defendant’s Twitter username, by ignoring the low probability of actual notice where a Twitter account is directly referenced in a high number of posts (tweets), and by placing a burden on the defendant to click on unknown links on Twitter on the chance that they may contain legitimate legal documents, the court failed to take into account the practical risks that make service of process via Twitter unlikely to fulfill due process requirements.
On June 13, 2016, St. Francis Assisi, a California nonprofit corporation, filed a complaint in the Northern District of California against two banks — Kuwait Finance House, a Kuwaiti corporation, and Kuveyt-Turk Participation Bank, Inc., a Turkish bank owned by Kuwait Finance House — and one individual, Hajjaj al-Ajmi, alleging that the defendants had aided the terrorist organization the Islamic State of Iraq and Syria (ISIS) by providing it with “financial benefits, money and financial services.”8×8. Complaint for Damages & Demand for Jury Trial at 2, St. Francis Assisi, 2016 WL 5725002 (No. 3:16-cv-3240) [hereinafter Complaint for Damages]. Specifically, the Assyrian Christian members of St. Francis Assisi alleged that they owned property in areas of ISIS activity and that they “ha[d] been systematically subjected to unprovoked killings and displacement into refugee camps” by ISIS.9×9. Id. Al-Ajmi, one of the defendants, is a Kuwaiti national who has repeatedly been recognized as a global terrorist and financier by international organizations.10×10. See St. Francis Assisi, 2016 WL 5725002, at *1. In 2014, the United States Treasury Department added al-Ajmi to its list of Specially Designated Global Terrorists, noting in its press release that al-Ajmi “serves as a funnel for financial donations to [al-Qaeda-associated Syrian terrorist organization al Nusrah Front (ANF)] facilitators.”11×11. Press Release, U.S. Dep’t of the Treasury, Treasury Designates Three Key Supporters of Terrorists in Syria and Iraq (Aug. 6, 2014), https://www.treasury.gov/press-center/press-releases/Pages/jl2605.aspx [https://perma.cc/VW4U-3JNS]. Al-Ajmi’s alleged fundraising activities involved soliciting funds through Twitter. The al-Qaida Sanctions Committee of the United Nations has noted that al-Ajmi “is responsible for at least one Twitter fundraising campaign” associated with ANF.12×12. U.N. Security Council Subsidiary Organs, Narrative Summaries of Reasons for Listing: QDi.328 Hajjaj Bin Fahd Al Ajmi (Aug. 15, 2014), https://www.un.org/sc/suborg/en/sanctions/1267/aq_sanctions_list/summaries/individual/hajjaj-bin-fahd-al-ajmi [https://perma.cc/W864-4CMG].
St. Francis Assisi’s complaint alleged that, in June 2012, al-Ajmi established a fundraising group known as the Popular Commission in Support of the Syrian Revolution, which raised money “through its own Twitter account and [al-Ajmi’s] personal Twitter account” to purchase weapons.13×13. Complaint for Damages, supra note 8, at 3. Then, in August 2013, the complaint alleged, the ANF media office solicited donations through al-Ajmi, directing donors to contact him on Twitter.14×14. Id. In all, the complaint alleged seven counts against the named defendants, including committing crimes of international terrorism in violation of the Antiterrorism Act of 1990,15×15. 18 U.S.C. §§ 2331–2339D (2012); see St. Francis Assisi, 2016 WL 5725002, at *6–8. financing terrorism in violation of the law of nations,16×16. St. Francis Assisi, 2016 WL 5725002, at 9–14. St. Francis Assisi alleged that al-Ajmi’s actions violated existing international law as defined in the International Convention for the Suppression of the Financing of Terrorism, G.A. Res. 54/109, U.N. Doc. A/RES/53/108 (1999), which the United States ratified in 2002. as well as aiding and abetting acts of genocide.17×17. See St. Francis Assisi, 2016 WL 5725002, at *14–17. On August 26, 2016, noting that al-Ajmi continued to solicit funds through his Twitter account18×18. Notice of Motion & Motion of Plaintiff St. Francis Assisi to Effect Service of Process on Kuwait Finance House, Kuveyt-Turk Participation Bank Inc., & Hajjaj Al Ajmi by Alternative Means Under Rule 4(F)(3); Memorandum of Points & Authorities at 3, St. Francis Assisi, 2016 WL 5725002 (No. 3:16-cv-3240). and asserting that he would continue to evade traditional service,19×19. See id. at 4. the plaintiff moved to allow alternative service through Twitter.20×20. Id. at 6.
Magistrate Judge Beeler granted the plaintiff’s motion on the basis that “service via Twitter is reasonably calculated to give notice and is not prohibited by international agreement.”21×21. St. Francis Assisi, 2016 WL 5725002, at *1. On the latter issue, Judge Beeler analyzed whether service via Twitter was prohibited by international agreements such as the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters22×22. Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163 (1969) [hereinafter Hague Service Convention]. (which typically requires service through a member state’s “Central Authority”23×23. Id. art. 2, 20 U.S.T. 362, 658 U.N.T.S. 163. ), finding that it was not.24×24. St. Francis Assisi, 2016 WL 5725002, at *1–2. In discussing whether service of process through Twitter was prohibited by international agreement, the court stated that Kuwait is not a signatory to the Hague Service Convention — in so doing, the court appeared to rely on the plaintiff’s statement to the same effect in its motion for alternative service. Id. at *2. However, Kuwait has in fact acceded to the Convention; the Convention entered into force for Kuwait on December 1, 2002. Statement of Treaties and International Agreements: January 2003, at 21, U.N. Doc. ST/LEG/SER.A/. Since Kuwait has declared its opposition to direct mail service under Articles Eight and Ten, service upon Kuwait’s stated Central Authority is typically required. See Hague Service Convention, supra note 22, Annex A, 2331 U.N.T.S. 54 (adding Kuwait’s reservations to the Hague Service Convention). Interestingly, St. Francis Assisi did in fact attempt such service, but was refused. St. Francis Assisi, 2016 WL 5725002, at *1.
Some courts have held that service is allowable under the Hague Service Convention unless the method of service has been specifically objected to by a contracting state. See, e.g., Gurung v. Malhotra, 279 F.R.D. 215, 219 (S.D.N.Y. 2011) (finding legitimate email service on Indian defendants where India had objected to postal service under Article 10); SEC v. Anticevic, No. 05 CV 6991, 2009 WL 361739, at *4 (S.D.N.Y. Feb. 13, 2009) (allowing service by publication in Germany and Croatia on the basis that neither country had “explicitly object[ed] to service by publication”). Had the St. Francis Assisi court chosen to undertake a more detailed analysis of whether Kuwait’s reservations to the Hague Service Convention bar service through Twitter, it could have potentially relied on such persuasive authority.
The court also addressed whether service via Twitter was reasonably calculated to give al-Ajmi notice by looking to two other cases. First, the court noted that in WhosHere, Inc. v. Orun25×25. No. 1:13-cv-00526, 2014 WL 670817 (E.D. Va. Feb. 20, 2014). the district court allowed service on a Turkish defendant through email, Facebook, and LinkedIn where the plaintiffs had attempted to serve the Turkish Central Authority in accordance with the Hague Service Convention and had been rebuffed.26×26. St. Francis Assisi, 2016 WL 5725002, at *2. Second, the court noted that in FTC v. PCCare247 Inc.27×27. No. 12 Civ. 7189, 2013 WL 841037, at *1 (S.D.N.Y. Mar. 7, 2013). the district court authorized service on Indian defendants through email and Facebook where the Indian Central Authority had failed to serve the defendants and did not respond to the plaintiff’s status inquiries.28×28. St. Francis Assisi, 2016 WL 5725002, at *2. Analogizing to WhosHere and PCCare247, the court held that service through Twitter was acceptable.29×29. Id. The plaintiff then duly completed service by tweeting at usernames potentially associated with al-Ajmi.30×30. See, e.g., St. Francis Assisi (@StFrancisKFH), Twitter (Oct. 6, 2016, 4:17 PM), https://twitter.com/StFrancisKFH/status/784170741788913665 [https://perma.cc/V5CH-X8WB]. Ultimately, the claims against al-Ajmi were dismissed for lack of standing, but the court granted the plaintiff leave to amend the complaint and also authorized it to serve the amended complaint on al-Ajmi via Twitter. St. Francis Assisi v. Kuwait Fin. House, No. 16-cv-03240, slip op. at 8 (N.D. Cal. Jan. 24, 2017).
In ruling that Twitter is an acceptable method of service for otherwise unreachable international defendants, Judge Beeler likely had the laudable intention to extend service to include modern and widely used forms of communication. However, the court ignored the unique, real-world limitations of Twitter, including a lack of ability to authenticate most accounts, a low probability of actual notice to popular users, and the burdensome requirement that a user click on links to unknown third-party websites on the chance that they contain legitimate legal documents. Such limitations make service of process via Twitter unlikely to fulfill the due process requirement of reasonable notice.
A “fundamental”31×31. Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950). requirement of due process is that defendants receive notice of lawsuits against them and have a chance to respond.32×32. See Easterbrook, supra note 2, at 95–96. The modern standard for such notice comes from the Supreme Court’s statement in Mullane v. Central Hanover Bank & Trust Co.33×33. 339 U.S. 306. that notice must be “reasonably calculated . . . to apprise interested parties” of a pending lawsuit.34×34. Id. at 314; see also Yvonne A. Tamayo, Are You Being Served?: E-Mail and (Due) Service of Process, 51 S.C. L. Rev. 227, 232 (2000). Applying this standard, courts have over time become more amenable to electronic service of process,35×35. For an overview of the history of electronic service of process, see generally Yvonne A. Tamayo, Catch Me if You Can: Serving United States Process on an Elusive Defendant Abroad, 17 Harv. J.L. & Tech. 211 (2003); Kevin W. Lewis, Comment, E-Service: Ensuring the Integrity of International E-Mail Service of Process, 13 Roger Williams U. L. Rev. 285, 286–92 (2008); and John M. Murphy III, Note, From Snail Mail to E-Mail: The Steady Evolution of Service of Process, 19 St. John’s J. Legal Comment. 73 (2004). and Rule 4(f), as a result of its flexibility, has served as the vanguard of electronic service. In the landmark case Rio Properties, Inc. v. Rio International Interlink,36×36. 284 F.3d 1007 (9th Cir. 2002). for example, the Ninth Circuit held that where email was the method most likely to reach international defendants, such service was acceptable and would allow courts to enter the “technological renaissance.”37×37. Id. at 1017; see also Tamayo, supra note 35, at 213. Today, applying Rio, courts approach service via email on a case-by-case basis, considering factors such as the evasiveness of the defendant, whether the defendant conducted prior communication via email, and whether the defendant is a business.38×38. Lewis, supra note 35, at 296. For a summary of cases that have allowed email service on foreign defendants, see Alyssa L. Eisenberg, Comment, Keep Your Facebook Friends Close and Your Process Server Closer: The Expansion of Social Media Service of Process to Cases Involving Domestic Defendants, 51 San Diego L. Rev. 779, 789 & n.64 (2014).
Some courts have begun to allow service of process via social media in conjunction with email39×39. Christopher M. Finke, Comment, Friends, Followers, Connections, Lend Me Your Ears: A New Test for Determining the Sufficiency of Service of Process via Social Media, 46 U. Balt. L. Rev. 139, 155 (2016). — the website most commonly used is Facebook,40×40. For an overview of courts’ application of service-of-process doctrine to Facebook, see Hedges et al., supra note 5, at 69. which has over a billion daily active users.41×41. Company Info, Facebook Newsroom, http://newsroom.fb.com/company-info [https://perma.cc/UV4A-8PKR]. Scholars have noted that service of process via Facebook raises unique questions, including whether the defendant’s Facebook profile can be adequately authenticated and whether there is a reasonable probability of actual (and timely) notice where a user only visits his or her profile occasionally.42×42. John G. Browning, Your Facebook Status — “Served”: Service of Process Using Social Networking Sites, 2 Reynolds Cts. & Media L.J. 159, 160 (2012) [hereinafter Browning, Your Facebook Status]; see also Finke, supra note 39, at 159–60 (reviewing factors that scholars have proposed to determine if service via social media is acceptable in a particular instance). Where the defendant is at risk of a default judgment, for example, lack of timely notice could contravene due process. John G. Browning, Served Without Ever Leaving the Computer: Service of Process via Social Media, 73 Tex. B.J. 180, 182 (2010). Despite such concerns, some academics have analogized private Facebook messages to email,43×43. Hedges et al., supra note 5, at 69. and others have argued that Facebook is in fact a superior method of service due to greater availability of information that could be used to authenticate a Facebook profile.44×44. Such information includes the defendant’s “schooling, relationships, relatives, and . . . employment dates.” William Wagner & Joshua R. Castillo, Friending Due Process: Facebook as a Fair Method of Alternative Service, 19 Widener L. Rev. 259, 277–78 (2013). However, the existence of such information can vary significantly among profiles — thus, a court’s decision to allow service via Facebook is typically a “fact-intensive determination.”45×45. Browning, Your Facebook Status, supra note 42, at 163.
The court in St. Francis Assisi defended service of process via Twitter through analogy to Facebook but ignored Twitter’s unique practical limitations. Although Twitter is widely used,46×46. Twitter has over 300 million monthly active users. About, Twitter (June 30, 2016), https://about.twitter.com/company [https://perma.cc/T486-63WJ]. it poses issues of authentication. Whereas Facebook’s Terms of Service require that a user create an account under his or her real name, Twitter has no such policy.47×47. Compare What Names Are Allowed on Facebook?, Facebook, https://www.facebook.com/help/112146705538576?helpref=faq_content [https://perma.cc/2BN7-6MS3], with Help Center: Why Can’t I Register Certain Usernames?, Twitter, https://support.twitter.com/articles/101299 [https://perma.cc/WBH2-TF25]. To create an account on Twitter, a user has to enter only a username (which can be pseudonymous), a phone number or email address (which remain publicly inaccessible), and a password.48×48. Help Center: Signing Up with Twitter, Twitter, https://support.twitter.com/articles/100990 [https://perma.cc/WR69-ULGW]. Although it is true that some accounts can be “verified” by Twitter and therefore authenticated, such accounts are rare and typically must be in the “public interest.” Help Center: About Verified Accounts, Twitter, https://support.twitter.com/articles/119135 [https://perma.cc/4EX4-MMFZ]. Where — as in St. Francis Assisi — the defendant is alleged to have violated Twitter’s Terms of Service, multiple accounts are often created one after another in the defendant’s name as others get taken down, and it is difficult to authenticate which, if any, are actually operated by the defendant.49×49. Finke, supra note 39, at 163 (“For service to be effective, the plaintiff must have some evidence to show that the notice was served on the correct user’s account.” (footnote omitted)); see also Angela Upchurch, “Hacking” Service of Process: Using Social Media to Provide Constitutionally Sufficient Notice of Process, 38 U. Ark. Little Rock L. Rev. 559, 593 (2016) (noting that “[a]ccounts created to mirror” others are “troubling” and may create a risk of ineffective service by misleading the plaintiff). When al-Ajmi was designated a Global Terrorist, for example, Twitter suspended his main account, but a new one arose within hours, eventually accumulating almost 200,000 followers.50×50. Christopher S. Stewart & Rob Barry, Blacklisted Terrorism Financiers Still Active on Social Media, Wall Street J. (Apr. 25, 2016, 12:01 AM), http://www.wsj.com/articles/blacklisted-terrorism-financiers-still-active-on-social-media-1461556861 [https://perma.cc/B3X8-EWGW]. The ease of creating new accounts and the difficulty of authenticating existing ones should make courts wary of allowing service of process through Twitter.
The cited cases in St. Francis Assisi are distinguishable because of those courts’ ability to authenticate the defendants’ email addresses and Facebook profiles. In WhosHere, the defendant and the plaintiff had previously communicated via email.51×51. WhosHere, Inc. v. Orun, No. 1:13-cv-00526, 2014 WL 670817, at *1 (E.D. Va. Feb. 20, 2014) (“[D]efendant responded by email to plaintiff’s communications using the email address [at issue]. . . . Defendant [also] provided plaintiff with additional contact information including a second email address . . . and a Skype username . . . .”). In PCCare247, the defendants were regular Facebook users and had used their personal pages to advertise their business and document their professional activities.52×52. Eisenberg, supra note 38, at 804. In addition, the WhosHere and PCCare247 courts ordered service through specified email addresses and URLs, whereas the St. Francis Assisi court provided no such guidance. St. Francis Assisi instead attempted to combat the authentication problem by tweeting at multiple usernames that may have been associated with al-Ajmi.53×53. The plaintiff mentioned @hajjaj1407 and @hajaj_alajmi in its original tweet; however, both accounts have since been suspended. St. Francis Assisi (@StFrancisKFH), supra note 30. Since the court did not require the plaintiff to authenticate any of those usernames, it remains unknown if the plaintiff’s tweets were even directed at al-Ajmi in the first place. If the plaintiff’s tweets were directed at fake accounts, they failed to satisfy Mullane’s requirement that the service be “reasonably calculated” to reach al-Ajmi.54×54. Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950).
Additionally, it is unreasonable to expect that a public tweet alone could provide notice when the defendant’s Twitter account has a large number of followers and is referenced in many tweets each day.55×55. See Upchurch, supra note 49, at 596–99 (discussing the ability to direct a message at a specific user through social media, but noting that the sheer volume of messages may nonetheless make service ineffective). Although Twitter notifies users of any tweet that contains their username (a “mention”56×56. Help Center: What Are Replies and Mentions?, Twitter, https://support.twitter.com/articles/14023 [https://perma.cc/CJL8-H9Z7]. ), al-Ajmi had over 474,000 followers before his account was originally suspended in 2014,57×57. Miriam Berger, Twitter Just Suspended Two Kuwaitis Accused by the U.S. of Financing Terror in Syria, BuzzFeed News (Aug. 7, 2014, 4:35 PM), https://www.buzzfeed.com/miriamberger/twitter-just-suspended-two-kuwaitis-accused-by-the-us-of-fin [https://perma.cc/VJ6X-WXKJ]. and likely received many hundreds of mentions per day. Highly followed Twitter users may thus have to look through hundreds of notifications to determine if any of them contain a legitimate legal document.58×58. Some authenticated (“verified”) users are able to filter their mentions and may be more likely to receive notice through Twitter posts directed at them — but likely only if such posts come from other “verified” accounts. Jamie Harris, Twitter Verified Accounts Get Mentions Filter, Able to Block Regular Users, Digital Spy (Sept. 13, 2013), http://www.digitalspy.com/tech/news/a515368/twitter-verified-accounts-get-mentions-filter-able-to-block-regular-users [https://perma.cc/8QVU-Q8N2]. Thus, the probability is extremely low that defendants such as al-Ajmi would actually receive notice via Twitter.
Even where a potential defendant sees a mention with a legal summons, he or she cannot view the document through Twitter’s interface since Twitter imposes a 140-character limit on posts59×59. Help Center: Posting a Tweet, Twitter, https://support.twitter.com/articles/15367 [https://perma.cc/A5DU-CKST]. and does not allow document attachments. Instead, a user wishing to share a document via Twitter must upload that document to a third-party hosting website outside the Twitter platform, then provide a link in a tweet, as St. Francis Assisi did.60×60. The tweet contained no information that would have indicated to a potential defendant that it was a legitimate summons rather than a prank or, in Internet slang, a post by a “troll.” Troll, Merriam-Webster, https://www.merriam-webster.com/dictionary/troll [https://perma.cc/D4H5-JEQY]. Rather, the tweet — sent from a recently created Twitter account with Twitter’s default (egg) profile picture — simply stated, “You are being served with summons & complaint,” followed by a link. St. Francis Assisi (@StFrancisKFH), supra note 30; see also Documents Shared by “St. Francis Assisi,” MediaFire, https://www.mediafire.com/folder/hcbmamsakymiu/documents [https://perma.cc/7MJS-DN6C] (hosting complaint and summons). Thus, St. Francis Assisi sets a dangerous precedent by placing the burden on a potential defendant to click on links to third-party websites from unknown and unverified Twitter accounts simply on the chance that the link contains legitimate legal documents.61×61. Service of process via Twitter therefore also raises the concern of whether, when the defendant sees but ignores a tweet that contains process, actual notice has been fulfilled even though the defendant’s reaction may have been completely reasonable. Given the relative informality of most Twitter interactions and the current rarity of service of process via Twitter, a court could find even proven actual notice on Twitter nonetheless insufficient under the Mullane due process standard.
Such practical concerns raise critical questions about the sufficiency of service of process through Twitter. Although it is true that, in some cases, a Twitter posting may be the only method of service that has a chance of reaching the defendant, such a justification remains inadequate under the Mullane standard, which requires that notice at least be “reasonably calculated” to reach the defendant.62×62. Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950). Given how fundamental notice is to due process, a court would do better to dismiss lawsuits against unserved and unreachable foreign defendants than to allow alternative service through ineffective methods.63×63. It is true that the Mullane Court did allow methods of service — for example, publication — that also have a low probability of actual notice, id. at 316–18, but the Court took pains to point out that such methods did not pose a serious challenge to the absent defendants’ due process rights since their rights would be adequately safeguarded by similarly situated parties who would receive notice by direct mail. Id. at 319. In St. Francis Assisi, however, no such protection existed for al-Ajmi. In a judicial system based on a foundational commitment to giving defendants a chance to contest litigation, the serious shortcomings of service via Twitter make it unlikely to satisfy due process.