How May I Serve You? Facebook as A Means of Serving Notice and Summons

fbBy Samuel Daheim

For many, the internet has become the primary means of storing, disseminating, and receiving information in personal affairs. We often regard the web as the most convenient and accessible method of communicating. The question arises: should the legal system reflect society’s growing dependence on cyberspace? Or should the age-old traditions of law stand as unmoved pillars, upon which our notions of justice rest? Continue reading

Internet Pirates Need Not Fear the ITC—For Now

Untitled1By Mackenzie Olson

Imagine that you are the CEO of an entertainment company such as TimeWarner or Disney, and illegal downloading costs your company millions in lost revenue each year. How do you solve this problem? Do you change your business model? HBO is the creator of Game of Thrones, the most pirated TV show in the world. Some viewers who download the show illegally have explained that they pirate the program because they do not want to pay for a full cable subscription to watch one show. This year, HBO debuted a stand-alone streaming service that does not require a cable subscription. Currently, this may be HBO’s best option for reducing the rate of piracy of its programs in the United States; the US Court of Appeals for the Second Circuit recently ruled that the United States International Trade Commission (ITC) does not have the authority to prosecute foreign websites that contain pirated content in ClearCorrect Operating, LLC v. ITC. Continue reading

U.S. Internet Giants (Probably) Hit Hard By European Safe Harbor Privacy Ruling

privacyBy Brooks Lindsay

The European Court of Justice ruled on October 6 to scuttle a 15-year data-transfer pact with the United States. This pact provided a “safe harbor” to over 4,000 transatlantic U.S. companies that claimed to satisfy “adequate” data-protection standards under European law. The “safe harbor” principles allowed U.S. companies operating in Europe, like Facebook and Google, to gather the private information of European citizens and transfer that data to U.S.-based servers, so long as those companies self-certified that they complied with the E.U.’s “adequacy” standards for privacy protection. The European court decided that these principles violated Europeans’ rights to privacy because they allowed American government authorities to gain easy access to Europeans’ online information through U.S.-located databases.

The Court’s ruling is in many ways a reaction to revelations over the past few years of U.S. government mass-surveillance programs, highlighted most poignantly by Edward Snowden’s leak in 2013. The Court’s ruling is based in large part on the premise that the U.S. government and U.S. companies can no longer credibly certify that they are protecting Europeans’ privacy and meeting Europe’s baseline data-protection standards. Continue reading

The Supreme Court May Widen its Stance on Standing in Spokeo, Inc. v. Robins

spokeo

By Kelsey O’Neal

Admit it. You’ve Googled yourself at least once; though you probably did not do it just to stroke your ego. It’s important to know if your personal information is on the Internet so that you can control your message and personal brand. Social media, from LinkedIn to Facebook to Twitter, can truly define an individual. Your Facebook page or LinkedIn profile can offer an accurate or inaccurate impression of you. For one man, Thomas Robins, his online presence did not accurately reflect him. When Robins checked his online footprint on Spokeo.com, he discovered that the website had promulgated false information about him. The search engine stated that Robins, a single man, was married; it claimed he had received a degree that he had not gained; and it claimed he was worth more than his actual net worth. Robins believes that the false information made his job search more difficult.

Robins filed a class action suit against Spokeo.com under the 1970 Fair Credit Reporting Act (FCRA) alleging that the online database had published false personal information about him. Even though Spokeo.com published more positive information about him, Robins claims that the website caused him actual harm. The FCRA provides statutory damages from $100 – $1000, even if the plaintiff cannot show actual harm. As a general rule courts will only hear a case if the plaintiff alleges actual harm. In other words, a court must first ensure that the plaintiff has standing to allege an Article III injury-in-fact. But, The FCRA gives plaintiffs a cause of action without a showing actual harm. In choosing to hear Spokeo, the Supreme Court will decide if statutory damages provisions give plaintiffs Article III standing. In a reconsideration of the case, the District Court for the Central District of California ruled that Robins could not show that the false information was actually harmful, and so it dismissed his case. Robins appealed. The Ninth Circuit, siding with the Sixth Circuit in its decision in Beaudry v. TeleCheck Services, Inc and with the support of President Obama’s Administration, held that Robins did have standing to sue because Congress’ creation of a private cause of action created a statutory right, and the violation of a statutory right is a sufficient injury-in-fact to create standing. Spokeo.com appealed, and on April 27th, 2015, the Supreme Court decided that it should hear Robins’ case in its next session.  Continue reading

“Dislike” – Service of Process Via Facebook Messenger

judge

By Christian Kaiser

Suppose you are sitting across from a hot date at a trendy restaurant downtown. Like all of the dates you get from Tinder, this date starts off great. It is intellectually stimulating. You talk about your interests. You might also talk about the Seahawks, or why Nelson Cruz is going to hit 40 homeruns this year, etc. Then you slip in that you are a lawyer, to which your date replies, “Tell me something ‘lawyerly.’” Since you are a Securities lawyer for a big Seattle law firm, you blurt out the first thing that pops into your head: “Have you heard about the rule against perpetuities?” As you begin to explain this fascinating legal issue, your date’s eyes predictably glaze over, and she starts to check her iPhone. You do the same and check your Facebook. You have a new message, which reads: “You have been served.” The message specifies a date and time when you must appear in court. The words “general partnerships are fine” and “you guys won’t ever fight” begin echoing through your head as you remember those East Coast clients from a few years back. You look up at your date and tell her you have to leave. As you exit the restaurant, you call your friend in your firm’s litigation department and ask whether Facebook Messenger meets the constitutional standards of due process for service of process. To your surprise, he answers “yes.”

This March, in FTC v. PCCare247, Inc., the Southern District of New York ruled that serving notice over Facebook was constitutionally adequate for service of process on international defendants. (https://www.ftc.gov/enforcement/cases-proceedings/122-3243-x120057/pccare247-inc-et-al). In this case, the defendants were located in India, and more traditional means of service had failed. Under FRCP 4(f)(3), a judge can order means of process, so long as it is “(1) not prohibited by international agreement; and (2) comports with constitutional notions of due process.” International conventions do not prohibit service of process via Facebook and, as the S.D.N.Y. stated, the circumstances in which the Facebook accounts would be served ensured service was constitutionally proper. In PCCare247, Inc., service was sent in two ways: via email and through Facebook Messenger. The court found that the defendants’ Facebook accounts were legitimate because they listed the defendant company as the defendants’ current employer, and a number of the defendants were friends with each other on Facebook. This, along with the similarities between Facebook Messenger and email, convinced the court that the standards of due process were met.  Continue reading