Socially Aware: The Social Media Law Update - Vol. 3, Issue 4 August 2012

In this issue of Socially Aware, our Burton Award-winning guide to the law and business of social media, we explore whether one can serve legal notice through Facebook and other social media platforms; examine the ongoing dispute between Twitter and the Manhattan District Attorney over the discovery of user tweets; summarize the NLRB's latest guidance regarding workplace social media policies; review a controversial provision from Amazon Web Services's customer agreement; take a look at a putative class action lawsuit against the Pittsburgh Penguins hockey team arising out of the team's text messaging activities; highlight regulatory challenges to broker-dealers and investment advisers in using social media; visit a recent fair use decision in connection with a South Park parody of a viral video; and discuss the California Attorney General's formation of a new Privacy Enforcement and Protection Unit. All this plus our statistical snapshots showing the growing popularity of mobile devices (and the corresponding decline of PCs).

"YOU HAVE ONE NEW LAWSUIT": CAN YOU SERVE LEGAL NOTICE THROUGH SOCIAL MEDIA?

Can a litigant be served via social media? On June 7, 2012, in Fortunato v. Chase Bank, a federal district court ruled that defendant Chase Bank could not use Facebook to serve a third-party defendant with the complaint that Chase had filed against her.

In Fortunato, plaintiff Lorri Fortunato sued Chase Bank, alleging that the defendant had unlawfully garnished her wages to pay a credit card debt that, according to the plaintiff, was actually incurred by her estranged daughter, Nicole (who the plaintiff alleged had lied on a credit card application in order to open an account in her mother's name). Chase sought to implead Nicole in the matter, but was having a difficult time physically locating her; indeed, as the court noted, Nicole apparently had a "history of providing fictional or out of date addresses[.]"

Chase hired a private investigator, who "searched . . . [Department of Motor Vehicles] records, voter registration records, . . . Department of Corrections records, publicly available wireless phone provider records, and social media websites" for a way to contact Nicole. The private investigator's search turned up four possible addresses for Nicole in four different towns, but the defendant remained unable to physically locate her at any of those locations.

The private investigator did, however, find what she believed to be Nicole's Facebook profile, which listed a contact email address and a location in yet a fifth town. In view of this discovery, and given that Chase's "numerous attempts to effect personal service" and "diligen[t] . . . search for an alternate residence where Nicole might be served" had not succeeded, the bank suggested a novel alternative to the court: serving Nicole with notice by sending her a message on Facebook.

Chase argued that service through Facebook would meet due process requirements because it was "reasonably calculated to apprise" Nicole of the claims against her (echoing the words of the U.S. Supreme Court in Mullane v. Central Hanover Bank & Trust Co.), and that it should therefore be an acceptable alternative means of service. Although the court agreed as an initial matter that some form of alternative service would be appropriate, the court rejected Chase's argument, ruling that service by Facebook would not be sufficiently "reasonably calculated to apprise" Nicole under the circumstances. Noting that "anyone can make a Facebook profile using real, fake, or incomplete information," the court found that "[Chase] ha[d] not set forth any facts that would give . . . a [sufficient] degree of certainty that the Facebook profile . . . [was] in fact maintained by Nicole[.]" The court then ordered Chase to publish notifications in the local newspapers for all...