The Fifth and Fourteenth Amendments require compliance with “due process of law” before persons may be deprived of “life, liberty, or property.”1 Notice is one of the oldest aspects of due process,2 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 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 Rule 4(f) is a “flexible standard” that allows service through any means that comports with due process.5 Recently, in St. Francis Assisi v. Kuwait Finance House,6 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 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 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 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 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 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
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 Then, in August 2013, the complaint alleged, the ANF media office solicited donations through al-Ajmi, directing donors to contact him on Twitter.14 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 financing terrorism in violation of the law of nations,16 as well as aiding and abetting acts of genocide.17 On August 26, 2016, noting that al-Ajmi continued to solicit funds through his Twitter account18 and asserting that he would continue to evade traditional service,19 the plaintiff moved to allow alternative service through Twitter.20
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 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 (which typically requires service through a member state’s “Central Authority”23), finding that it was not.24
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 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 Second, the court noted that in FTC v. PCCare247 Inc.27 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 Analogizing to WhosHere and PCCare247, the court held that service through Twitter was acceptable.29 The plaintiff then duly completed service by tweeting at usernames potentially associated with al-Ajmi.30
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 requirement of due process is that defendants receive notice of lawsuits against them and have a chance to respond.32 The modern standard for such notice comes from the Supreme Court’s statement in Mullane v. Central Hanover Bank & Trust Co.33 that notice must be “reasonably calculated . . . to apprise interested parties” of a pending lawsuit.34 Applying this standard, courts have over time become more amenable to electronic service of process,35 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 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 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
Some courts have begun to allow service of process via social media in conjunction with email39 — the website most commonly used is Facebook,40 which has over a billion daily active users.41 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 Despite such concerns, some academics have analogized private Facebook messages to email,43 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 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
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 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 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 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 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 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 In PCCare247, the defendants were regular Facebook users and had used their personal pages to advertise their business and document their professional activities.52 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 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
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 Although Twitter notifies users of any tweet that contains their username (a “mention”56), al-Ajmi had over 474,000 followers before his account was originally suspended in 2014,57 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 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 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 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
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 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 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.