How Utah Makes Electronic Service of Process Work

• May 24, 2016
• by Stephanie Irvine
• Technology
• Social Media
• Associations

In Utah, when traditional means of civil process service fail, process servers have the option of filing a motion to allow service by way of “alternative service,” which is defined as publication or “some other means.” Some other means can, and in some cases, does mean Facebook.

This isn’t news, however. So what gives?

Numerous articles ruminating the possibility of service by Facebook or unknown electronic means of service, the threat of digital signatures, GPS, cameras, etc. have surfaced throughout the years. As if to signify the apocalypse of civil process service, lawmakers, process servers, and attorneys have struggled to identify what all this technology would mean for everyone involved in legal proceedings. And social media? Pah! Would it be a fad? Would it become mainstream?

Many have struggled with this.

Service by Facebook, although not an entirely new concept, is in the news periodically because it’s news to a lot of people. A quick Google search will pop up several articles throughout the years in which this manner of service is questioned, approved, and pontificated about.  And when you’re dealing with most state governments or the federal government, technology is a scary new thing. In 2014, a Government Tech post highlighted how “if you walked into a courthouse a decade ago, you might have seen file clerks pushing carts and searching for case folders, paralegals lugging stacks of paperwork to the clerk’s office and staffers entering mounds of documents by hand into a computer system, if there was one.” I’d be willing to bet we both know a handful of courtrooms that still look like this.

It’s a completely foreign concept. Not to mention a huge, costly undertaking — one that many states just aren’t willing to take on. And so, the paper pushing continues, service by Facebook continues to be alarming, and the same old, same old carries on.

Some progress has been made. The New York Post from 2014, which published an exclusive about Facebook being an acceptable means of service in New York, shows that technology is becoming more mainstream. But then, there are times at which you can’t help but wonder how far we’ve really come. In March of 2015, a New York divorce trial Baidoo v. Blood-Dzraku (N.Y. Mar. 27, 2015) cites that a decade ago, service by email was groundbreaking.

You read that right: groundbreaking. Well, six years ago in Utah, there must have been an earthquake because service by Facebook was not just being considered — it was already happening.

Here’s How Utah Made Facebook Work

Which brings us back to our point: with the brou-haha of Facebook as acceptable means of communication and therefore of completing service of process, how is it that Utah has been able to quietly allow service of process by Facebook with very little notice?

To begin with, Utah has always been ahead of the game. Utah was on the forefront of alternative service and is frequently cited among the states that have been the first to move forward with unorthodox methods of civil process service (i.e. not personal service). In fact, Utah is lauded for its model-worthy legislation, since it was the first of its kind that incorporated and accepted digital signatures. This is going way back to 1999 (RIP, Prince).

Side note: the article examining that legislation, published in the Journal of Computer & Information Law, is a great read if technology and legislation is your thing, which I’m assuming, given that you’ve read this far in this article, it might be.

Furthermore, Utah is really quite technologically advanced. They’ve been called “pioneers of judicial record keeping,” and their website has landed a number of awards dating back to 1996 (so many that if I tried to list them all, you would stop reading). In April 2016, they hosted a “hackathon” in which hackers came together to try and create apps that would help the interaction of residents with the court system. Yes, hackers for the courts. Clearly, they get technology. They understand it.

It started in 2001 when Utah amended its Rules of Civil Procedure to include other electronic means of service beyond U.S. mail or personal service, such as email or “other possible electronic means,” as acceptable methods of service. This might not appear to be very technologically advanced, but it was smartly written in that it acknowledged that in the future, there may be other possible electronic means. What was also genius about this is that when said electronic means became possible, the law wouldn’t need to be rewritten, and thus, judges could determine when the “other means” would be appropriate. At the time Utah amended the URCP, Facebook wasn’t on anyone’s radar because it didn’t exist yet. Facebook wasn’t created until 2004, but it has certainly gained momentum.

Later, in 2010, when the rest of the country still wasn’t really considering Facebook as a viable means of service, it was clear that Utah saw how big of an impact Facebook was making. On December 17, 2010, a specific affidavit for alternative means of service was approved by the Board of District Court Judges, featuring communication options for alternative service including “Social Network (such as Facebook), Twitter, Text Message, and Phone.” When the Facebook Affidavit appeared, Facebook had grown by nearly 40% from 2009 to 2010, with 360 million users in 2009 to 500 million by the end of 2010.

What’s more telling about these numbers, however, is that 70% of the users were from outside the United States! Utah was keen enough to see that the relatively small number of Facebook users within the U.S. (and within Utah) was still significant enough to consider. It’s a good thing they did, as the growth has indeed continued. As of January 2016, a little more than a decade from its inception, Facebook has reached 1.59 billion users.

It’s worth mentioning that not only did the Utah Courts create a specific affidavit for process servers that specifically listed the alternative means of electronic service, it is completely accessible. The document is published and available to download on the Utah Courts website. The document was later revised in April 2015, but only slight changes to formatting were made. We were able to access the earliest online version from July 26, 2011, which still shows Facebook as an option back in 2011.

Utah has been proactive from the start, which certainly helps when it comes to implementing a new method of service. As a result, it’s been pretty unremarkable, rarely making headlines (except, of course, when it’s lumped in as a predecessor to other states making the social media service of process jump).

How Facebook Can Work In Your State (if legislation ever gets passed)

Through social media the plaintiff has the ability to gauge a defendant’s interaction on the account, which makes assessing the chance of actually receiving notice even more accurate.

–Keely Knapp, JD/JDL in "Accepting Social Media for Service of Process in the 21st Century"

First of all, having a lobbying process server association can certainly help make an impact on what legislation gets passed with regard to civil process service. Utah’s UPALS process server association is fairly active, and at the time of publication, was working on two separate bills.

Additionally, what helped make a more compelling argument to include service by social media is that communication in Utah (at least with respect to service of process and specifically with divorce cases) is fairly straightforward. Everything with regard to service of process can be navigated easily through the Utah Courts website, which makes the process quite clear.

The legislation is fairly easy to understand:

In an article about service by social media, published by the Louisiana Law Review (another great article that you should definitely read), author Keely Knapp, JD/JDL explains that “The desire to give actual notice is at the heart of service. The strongest argument for effectuating service of process through social media—Facebook in particular—is that, in many cases, the likelihood of the defendant receiving actual notice is extremely high because users of social media typically access their accounts regularly. Moreover, through social media, the plaintiff has the ability to gauge a defendant’s interaction on the account, which makes assessing the chance of actually receiving notice even more accurate.” Essentially, this satisfies the need to identify the person to be served and the likelihood in which he or she could be served by Facebook.

This sentiment was echoed in “Facebook Notification – You’ve Been Served: Why Social Media Service of Process May Soon Be a Virtual Reality, written by Pedram Tabibi, Esq., which was published in the Phoenix Law Review in 2013: “By these standards, sometimes service through social media may very well be the most likely method to actually reach the defendant. In instances where a defendant has proven to be physically elusive but maintains an online profile that is used with regularity, service through social media is not only a viable alternative but one that would likely afford the defendant actual notice of the litigation against him.” Basically, you can confirm that the defendant is actually using the social media account and will likely receive the notice. Additionally, you can confirm that you have the right person.

This works especially well in cases of where the individual is able to identify and verify the correct individual to be served. The Facebook page is verified, and that information/URL is sent to the process server, who can then effectuate service.

It should really come as no surprise that legal proceedings happening as intended aren’t getting attention. Sorry, Utah. Things have been working so well, no one has really noticed.

But Is It REALLY Working That Well? Prove it.

We have had [eSOP through Facebook] happen 3-4 times in the last few months.

–Statewide Process Servers (West Jordan, Utah)

To learn more about how this process has worked with real cases and to see if it really was that simple, we inquired about service by Facebook with the team at Statewide Process Servers out of West Jordan, Utah, who affirmed that: “...We have had it happen 3-4 times in the last few months. They are divorce/custody cases in which they either do not have an address for the respondent or we are unable to serve the respondent at the addresses they have. Our client will file a motion for alternative service with the court in which they ask to serve the person through their confirmed Facebook page. Once the Judge signs the order granting it they send it to us. I then create image files of the documents and send them to the person through Facebook messaging. I take a screenshot of each image being sent through the Facebook messaging app and include them with an Affidavit of Service indicating that I served them via Facebook Messaging per the judge's order to do so.”

And it appears that it is that simple, after all.

Final Thoughts?

It’s almost as if Service of Process by Facebook was the newest Y2K bug. A vastly feared yet inevitable change that involves technology and the very fabric of our business. What’s to fear? Everything seems to be status-quo.

How do you feel about service by Facebook?