Social Media, Service of Process & the First Amendment

An EDD update last week made the statement that "As people become more mobile and start to give up traditional worldly tethers such as phone land lines, mail boxes, and address listings in phone books, lawyers are looking for new ways to reach out and touch someone with legal papers… Social media giants such as Facebook and Twitter could soon become other tools for the long arm of the law.

"Giving legal notice acceptable to the courts via social media is complicated by legal issues such as how often a user checks his or her account, lawyers 'friending' parties to a lawsuit, privacy, and where and how do you post legal notice. All these issues need to be carefully sorted out in order to comply with procedural due process…. but courts around the world, such as in Canada, Australia, U.K., and New Zealand are starting to allow virtual service of process; privacy concerns in countries such as Germany and France have prevented adoption of using social media to give notice of court proceedings.. U.S. Courts might not be far behind."
A Federal Courts Law Review article back in Sept. 2009 says, electronic service of process as only available in federal practice under Federal Rule of Civil Procedure 4(f)(3), and is permitted only in the context of "Serving an Individual in a Foreign Country."

The same day, the New York Law Journal carried an article discussing Social Media/First Amendment Face Off, noting at one point that "a growing issue is whether the First Amendment limits the ability of the government to obtain information from social network sites such as Facebook and Twitter. The argument that is beginning to be raised is that by providing subscriber information to the government, social media sites permit the government to create a "map of association" of all of the contacts, associates, colleagues, and friends of users… This First Amendment check on government investigative activities was most famously explored in the U.S. Supreme Court in NAACP v. Alabama, 357 U.S. 449, in which the Court held that the constitutional right of association -- which is tied to the rights of speech and assembly -- could protect those who join groups from state scrutiny.

"The right to withhold lists of members in a group is not, however, absolute.," the article continued. "The right must be balanced against the government interest. In most cases, a criminal investigation is sufficient justification to compel disclosure, but not always… In 2007, the government sought to obtain customer records from Amazon in In re Grand Jury Subpoena (Amazon), Case No. 07-GJ-04, W.D. Wisc. 2007. The government sought the records to aid in the investigation of a fraudulent book seller, but the court was concerned that the disclosure of the purchase lists, and therefore reading habits of individuals, would violate the First Amendment. Rather than permitting the full disclosure sought by the government, the court fashioned a compromise filtering approach which protected the First Amendment interests of the customers."