"US Court Authorizes Service By Twitter on Wikileaks"

A very interesting post by Ted Folkman (Letters Blogatory).

Folkman is a leading expert on (among other things) international service of process, a technical but tremendously important field of civil procedure; read his post for more details on this issue, but here's the introduction:

The Democratic National Committee has obtained leave of court to serve process on Wikileaks via Twitter in its lawsuit against Russia, Wikileaks, Julian Assange and others. I have written previously about the FSIA [Foreign Sovereign Immunities Act] issue in the case and the issues about serving process on Mr. Assange in the Ecuadoran embassy in London. But serving process on Wikileaks poses difficulties, too.

The DNC's motion gives several reasons for seeking leave to serve process by Twitter rather than by a more traditional means. Wikileaks, it says, is an "organization of unknown structure" that has "more of a virtual than a physical presence." It has post office boxes in California and in Australia, but it is unclear to the DNC whether Wikileaks uses them for business. Lawyers who have represented Wikileaks in prior US litigation have said they no longer represent the organization or are not authorized to accept service. And Wikileaks, or someone purporting to act on its behalf, does have an active Twitter presence….

Comments

[damikesc]

Not sure i like serving subpoenas via Twitter. Being hard to serve a subpoena doesnt seem like a good reason to do this.

Will be nice to see somebody aak why we should take the word of a third party paid for by the DNC ia sufficient.

And, as usual, discovery and releasing all evidence in court will be fun.

[RobinGoodfellow]

I'm not sure I like it either. But how else can you do it? They're not like Google, with a huge corporate offe (I'm sorry?"campus") and legions of in-house lawyers.

For you or me process service by Twitter might not be seen. But I'm certain that Wikileaks will know about this service. And that is what it is all about.

[DjDiverDan]

"And Wikileaks, OR SOMEONE PURPORTING TO ACT ON ITS BEHALF, does have an active Twitter presence.."

So now it's enough to effect service on a PUTATIVE agent? I guess this DNC lawyer missed the day in law school where they discussed the rule that agency cannot be established only by the declarations of the putative agent. If someone else PURPORTS to act on my behalf, that doesn't suffice to make that person my agent, and it sure as hell doesn't mean that he or she is authorized to accept service of process on my behalf.

And just what does it mean to say that "Wikileaks is 'an organization of unknown structure'"? If Wikileaks does not exist as a legally recognized entity, a corporation, partnership, LLC, joint venture, unincorporated association, then what good can joining it in a lawsuit possibly accomplish? If Wikileaks is nothing but an informal association of individuals, a judgment against Wikileaks can't possibly bind any of those individuals unless they are joined and served. This whole thing looks to me as nothing but a legally ineffectual PR stunt by the DNC.

[FlameCCT]

"This whole thing looks to me as nothing but a legally ineffectual PR stunt by the DNC."

IOW normal behavior by the Progressive controlled DNC.

[santamonica811]

I dunno. It seems like the DNC is going about this the right way. It is asking the court for permission to serve in an unusual way, and is giving parties a chance to argue against this. Wikileaks certainly could make a special appearance to fight such an order.

If the whole point of proper service is to make sure that the other party gets valid timely notice, then what is the actual problem in this case. Other than some posters not liking the DNC, of course.

[DjDiverDan]

You really need to reread FRCP 4, and the caselaw on the minimum requirements of service necessary to satisfy due process.

[JeffreyL]

I am going to assume it will fall under (f)(3)

(f) Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individual?other than a minor, an incompetent person, or a person whose waiver has been filed?may be served at a place not within any judicial district of the United States:

(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;

(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:

(A) as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction;

(B) as the foreign authority directs in response to a letter rogatory or letter of request; or

(C) unless prohibited by the foreign country's law, by:

(i) delivering a copy of the summons and of the complaint to the individual personally; or

(ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or

(3) by other means not prohibited by international agreement, as the court orders.

[Beldar]

So I guess this means the POTUS has been regularly serving special counsel Mueller with formal legal process on just about a daily basis, huh?

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[Charles Nichols - CRTC]

"And Wikileaks, or someone purporting to act on its behalf, does have an active Twitter presence...."

I'm surprised the judge didn't authorize them to serve process on the first homeless person they encountered.

[santamonica811]

Why did this surprise you? What am I missing here?

[Bob from Ohio]

"or someone purporting to act on its behalf,"

Serving an alleged agent is no better than serving a homeless person.

[Charles Nichols - CRTC]

"Serving an alleged agent is no better than serving a homeless person."

Yep.

I was going to reference something I was taught in 1st year Latin way back when in that the ancient Romans required that they first issue a declaration of war before invading a foreign country. As I recall, the Romans would send a single Roman, who may or may not have been armed with a spear, who was to read the declaration of war (in Latin) to the first person he encountered in the foreign land.

It did not matter if the person he encountered were some illiterate, nomadic sheep herder who did not understand a word of Latin. All that mattered, in today's legal-speak, is that the Romans afforded "due process."

[Citizen Jeff]

So what's the reason to not serve Assange?