How to sue someone in the digital age when you don't know where they live.

In every lawsuit the Plaintiff has the obligation to notify all defendants that they are being sued. When a lawsuit is filed the court issues a summons which must be served (usually with a complaint) on every defendant. Massachusetts and probably all other states prefer that the person be served in hand or at least by leaving documents at their home. What happens if you don't know where they live or work? How do you serve them?

Every state has laws that allow a substitute form of service of documents on a person who can't be located. In Massachusetts, a motion must be filed to serve by an alternate form of service. If nothing else works, the court can order service by publishing in a newspaper. Of course, most people don't read the legal notices in newspapers so service by publication usually results in no notice at all but would be satisfactory to a court. In Massachusetts, the courts prefer that a different form of notification be used. Massachusetts courts now require detailed affidavits explaining how the Plaintiff searched for a Defendant including details of searches on the internet. As one clerk told me internet searches are required unless the Defendant's name is Smith.

A search for a missing Defendant should start with a search for a telephone number. A telephone information request with the telephone company is generally a first step. If this doesn't work, a similar search on the internet using multiple search engines (Google, Bing, etc.) should be made. If the person has a driver's license or professional license then the state data banks may show a current address for the person. All of these search methods may show a residence for a missing Defendant. A lawyer can request confirmation of addresses or forwarding address information from the post office. A non-lawyer probably would need a court order authorizing the post office to provide this information from the post office.

If, after using all of the methods just described, the person still can't be located, then social media should be searched. There are too many social media sites to search them all. At a minimum, Facebook, Linkedin, Instagram, and GooglePlus should be searched. If a social media page is located for the individual then print the contents of the page. A judge may need information that the person currently uses the social media site.

If after all of these methods, the person still can't be found, try to locate a close relative: parent, child, ex-spouse, or sibling. These people may be in contact with the person and may be used for service.

After all methods to research have been used and if you still don't have a work or residential address, then file a motion with the court for alternate service. In Massachusetts, and probably other states, the judge will want to use the best method of service that is calculated to actually reach the Defendant. Service can be made by email, text messaging, messaging through social media, or by relatives. The motion should be accompanied by a detailed affidavit showing all of the internet research and any relevant web pages.

If after all of these steps, the person can't be located, service by publication may be approved by a judge. Service by publication is expensive and usually ineffectual. However, it may be the only method available. Alternate service can be complicated for individuals. A local attorney can guide you through the process and help you locate your defendant.   

Death and Facebook. The Legacy Feature.

A friend of mine died and his wife posted his death and funeral arrangements on his Facebook page. In this era of social media, Facebook is a natural and expected forum to notify friends and relatives of such information. Unfortunately, use of his Facebook account was unauthorized by Facebook and constituted criminal behaviour under both Massachusetts and Federal law. At the time of his death, his wife had no other way to use his Facebook account to provide notice. Since that time, Facebook has changed its policies and now has a Legacy feature for memorization of Facebook pages after death.

Facebook's Terms of Service states: “You will not share your password let anyone else access your account, or do anything else that might jeopardize the security of your account.” In other words, the only authorized user of a Facebook page is the registered owner. There is no exception for family members after death. Authorization is important because both Massachusetts and Federal law make it a crime for any person who is not an authorized user to access a computer. Since using Facebook means that a user accesses Facebook's computer, any person who is not authorized by Facebook and uses another person's account is committing a crime. Massachusetts General Laws chapter 266, section120F punishes unauthorized computer access by up to thirty days in jail and a one thousand dollar fine. United States Code Title 18Section 1030 punishes unauthorized computer access by up to twenty years in prison and fines. Permission to use a Facebook account by the registered owner of the account is still a crime because Facebook doesn't allow such permission. A widow posting information about her husband's death is unauthorized and a criminal act.

Facebook has recognized people's desires to use Facebook accounts after death and has created a new feature called Legacy. During a person's life, they can designate a person as a “Legacy Contact.” This person will have limited rights to access a Facebook account after a person dies. The Legacy Contact can post a final message and Memorialize the account. Memorialization freezes the account, indicates that the owner died and may allow others to share memories on the account.

Every individual with a Facebook account should consider a legacy contact. This should become part of estate planning and become just as routine as writing a will or making pre-death funeral arrangements. Unauthorized computer access can have serious criminal consequences. A lawyer can help understand how to avoid violating the law and still enjoy social media.

Judges have to be careful about social media.

I have written about the dangers of social media and people who are in court in my blog.  Just as people who litigate in court must be careful about the use of social media, so do judges and lawyers.  The American Bar Association cautioned judges about this problem and now a Judge in Florida has been disqualified from a divorce case because of social media.

In the Florida case, a judge presiding over a divorce sent a "friend request" to the wife in the divorce before rendering a judgment.  This put the wife in a very difficult position.  If she rejected the request would the Judge retaliate in the Judgment?  If she accepted the request would that consitute improper ex-parte communications with the judge?  Could the husband attack the judgment because of the new relationship?

Judges are suppose to be impartial so that they can make a decision free of improper influences.  Connecting with someone in a non-professional manner on social media should be grounds for removing the judge from a case.  Judges should not friend lawyers or litigants unless they have a prior relationship with that person such that there is already a conflict of interest preventing the judge from hearing the case.  Lawyers must avoid the appearance of impropriety and should not ask Judges to friend them.  If a lawyer does have a social media relationship with a judge, they should reveal this to the other side as soon as possible.

To the extent possible, it is not a bad idea for a litigant to look at the social media identities of the opposing lawyer and the judge assigned to the case.  If some contact is found that raises questions, an experienced lawyer should be consulted to ask about any possible concerns as a result.  

Arrests made for violating restraining orders by social media contacts

Recently there have been several cases in which people have been arrested for violating restraining orders by contacting the protected person by social media. I have written about this topic in the past on my blog. These cases are the first cases I have found in which someone was arrested for using social media and violating restraining orders.

In December, 2013, a man in Beverly, Massachusetts was arrested because he sent his girlfriend an invitation to join his circle on Google Plus. He claimed that he didn't send the invitation and that he has no idea how it was sent. With Google Plus, people create circles as a way of expanding their social network. When a person is added to a circle, Google may send an invitation to that person. This is the equivalent of “liking” a person on Facebook.

Thaddeus Matthews, a radio show host in Memphis, was arrested after he “liked” a video posted on Facebook by a woman who had a restraining order against him. When a person “likes” a posting on Facebook, the “like” is posted on the Facebook wall of all “friends” and the person who posted the original posting. Although a person may claim to not understand the workings of Facebook, a court is likely to not believe this. The result for Thaddeus Matthews is that he is likely to be convicted of a crime.

Restraining orders require the restrained person to have nothing to do with the protected person. In almost all cases, this means that the restrained person can't follow or spy on the protected person. This prohibition should include cyber stalking. Thaddeus Matthews should not have been looking at postings by his former girlfriend once the restraining order issued. As I recommended in my previous blog post on this topic, once a restraining order issues, the restrained person should “unfriend” the protected person.

Restraining orders can  be difficult to understand and obey.  A person served with a restraining order should consult an experienced attorney who understands domestic abuse orders.  If that person uses social media, they should ask the lawyer about how to use social media and not violate the restraining order.

Restraining orders and Facebook*

Does a court ordered domestic abuse restraining order effect the way a person uses Facebook or other social media? In Massachusetts a typical domestic abuse restraining order includes a no contact and no abuse order protecting an individual or an individual and their children. As an example, a Court may order John to stay 100 yards away from his wife Jane and his children Mary and Sam. In addition, John is prohibited from contacting or abusing Jane, Mary, or Sam. Violation of any of these orders is a criminal act subjecting John to possible arrest and criminal prosecution. If convicted, John could be incarcerated. John is a user of Facebook and has been a user for years. His wife Jane and possibly his children are “friends” on Facebook. He and Mary have common “friends” on their Facebook accounts.

The first thing that John should do is to “unfriend” Jane and the children. As friends, his wife and children will receive postings from John's Facebook page on their own Facebook pages. Any postings by John that appear on Jane's Facebook page could easily be considered to be a violation of the no contact order. Since John is aware that Jane is a “friend” he should be aware that his postings will appear on the “walls” of his Facebook friends. This should be sufficient to constitute an intentional act that violates the no contact provision of the restraining order. However, is unfriending his wife and children sufficient? Probably not.

John should avoid mentioning Jane, Mary, and Sam in his Facebook postings. Even if John writes that “I love my children and will never stop loving them” he could be arrested. While I believe that such a posting doesn't violate the restraining order if the wife and children are no longer friends, my opinion is not enough to stop him from being arrested. Since John and Jane have common friends, one of these friends may tell Jane about the posting. If Jane calls the police, the initial decision about arresting and prosecuting John will be made by the police or Assistant District Attorney. The problem is that not every police officer, Assistant District Attorney, or even Judges understand Facebook and how it works. As a result, a criminal case can be filed against John. It is small comfort for John that at trial or on appeal, the case is dismissed. He may spend time in jail and may have to spend thousands of dollars to hire a lawyer and possibly an expert witness to fight the criminal case. The better choice is to avoid conduct that may result in the criminal charges.

I recommend the following actions if a order issues:

1. Immediately “Unfriend” the person identified in the restraining order as being protected.
2. Do not write or post anything online that uses the name of the protected person or an other term that identifies them. Identifying Jane as “my wife” or writing about “my children” is the same as identifying them by name.
3. Do not post any pictures or video of the protected person.
4. Do not discuss the restraining order in a public forum like Facebook.
5. Adjust your security settings on Facebook so that protected person can't see your content. 

If you are the subject of a restraining order you should consult an experienced lawyer to help you understand the order. There may be parts of the order that are not clear or confusing. You want to avoid any conduct that can result in an arrest for violation of the restraining order.

* Facebook is used in this discussion but the discussion applies to all social media.

Now that we are divorced, stay away from my Facebook Friends!

Husbands and wives share many aspects of their lives. It is not unusual for them to share their Facebook friends and other social media contacts. The practice of looking at someone's friends or contacts and trying to convert them into your friends or contacts has earned its own nomenclature. The UrbanDictionary calls this practice “Facejacking” (limited to Facebook), “Spacejacking” (limited to MySpace), “fooching”, "mooching," "friend poaching," "friend reaping," or  "friend swiping".

Facejacking does not create problems when the couple is together. Frequently, one spouse encourages the other to do so. However, once the couple split up and get divorced, attitudes change. While the couple may 

remain Facebook friends, it is not acceptable for a former spouse to Facejack the new friends and contacts and reach out to them. The last thing that an ex-husband wants is for his ex-wife to contact his new girlfriend through Facebook. This is especially bad when the girlfriend doesn't expect such a contact. The way to prevent this problem is to anticipate this when drafting the divorce agreement.

A typical divorce agreement has a clause that requires each spouse to respect the privacy of the other. I recommend additional language be added that prohibits Facejacking and the like. An experienced divorce lawyer should be able to draft language that protects both spouses equally from the ex-spouse using Facebook to try to sabotage your new relationship.