In the recent decision of St. Francis Assisi v. Kuwait Finance House, et al., Case No. 3:16-cv-3240-LB (N.D. Ca. September 30, 2016), the U.S. District Court for the Northern District of California allowed a plaintiff to serve a defendant “via the social media platform Twitter” because “Twitter is reasonably calculated to give notice and is not prohibited by international agreement.” This case is an interesting development in the federal courts because it serves as an acknowledgment that, when the owner of the social media account can be verified and other means of foreign service fail, social media is an alternative means of service that plaintiffs can explore for foreign defendants.
In St. Francis Assisi, the plaintiff had sued the defendants for financing a terrorist organization known as the Islamic State of Iraq or, more commonly, ISIS, based on the targeted murder of Assyrian Christians in Iraq. The plaintiff had difficulty serving the complaint on one of the individual defendants, Hajjaj al-Ajmi, because his whereabouts could not be located. Critically, in evaluating al-Ajmi’s Twitter account, the court made a note of the fact that al-Ajmi “has a large following on Twitter and has used the social-media platform to fundraise large sums of money for terrorist organizations providing bank account numbers to make donations.” This confirmation of his use of Twitter was an important part of the court’s decision.
In its analysis of Twitter as a means of service, the court acknowledged that there are generally three ways to serve foreign defendants under Federal Rule of Civil Procedure 4(f): (1) by international agreement, such as the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents (the Hague Convention), a common method of service on foreign parties whose countries are signatories to the Hague Convention; (2) if there is no international means or other means specified then by “means reasonably calculated to give notice;” or (3) by other means not prohibited by an international agreement. The decision in St. Francis Assisi was based on the latter two. The court concluded that, “service by the social-media platform, Twitter, is reasonably calculated to give notice to and is the ‘method of service most likely to reach’ al-Ajmi.” The court reasoned that not only does he have “an active Twitter account and continues to use it to communicate with his audience,” but that “[s]ervice by Twitter is not prohibited by international agreement with Kuwait,” which is where al-Ajmi had frequently traveled from in connection with his alleged funding of terrorist groups. The court also considered that Kuwait is not a member party to the Hague Convention and had been nonresponsive to the plaintiff’s efforts to serve another defendant in the case through Kuwait’s Central Authority, the governmental entity generally used for service under the Hague Convention.
It is important to note that St. Francis Assisi is not an isolated decision and that it was based solely on the context of al-Ajmi being a sponsor of terrorism. Notably, in reaching its decision, the court highlighted two other cases that held service by social-media platform was acceptable, although these cases allowed service by social media and email, a distinction that is worth noting. See WhosHere, Inc. v. Orun, 2014 WK 670817, Case No. 1:13-cv-00526 (E.D. Va. 2014) (authorizing service on a defendant in Turkey by email, Facebook, and LinkedIn); Federal Trade Commission v. PCCare, Inc., 2013 WL 841037, Case No. 12-cv-7189 (S.D. N.Y. 2013) (authorizing service on a defendant in India by email and Facebook). St. Francis Assisi’s holding differs from the two cited cases because it allowed service only by social media without an email component. Nevertheless, in both WhosHere and PCCare, service failed through the Hague Convention and an electronic means was considered as a viable alternative.
While the case law on this area of service through social media platforms, such as Twitter and Facebook, is not voluminous and is in the early stages of development, the St. Francis Assisi decision shows the start of a possible trend toward acceptance by the federal courts of social media as a viable means of service of process on foreign defendants where the traditional means have been exhausted and failed. Another point to consider is that, where it may be costly to serve a foreign party through foreign publications as a proposed alternative means of service, social media may be a less costly alternative that recovery professionals should explore, especially where the defendants are viable foreign entities with ongoing businesses and their social media accounts and usage thereof can be confirmed. Of course, in any such situation, confirmation of the target defendant’s social media account will be necessary. That is, you will need to show the court when you make the request for this alternative service that the account you want to send service to is actually the defendant’s account and frequently used by the defendant.