The Internet allows anyone to anonymously post information on the Net. Websites often have no contact information besides a generic email address. The anonymity of some websites and the inability of any meaningful way to find the individuals running them makes service of process a significant challenge.
A recent case demonstrates this problem and the solution: Service of Process by email.[1] These situations generally occur with parties outside of the United States, varying from a divorce action where a husband moved to Saudi Arabia, to someone within the US who was unable to be located, to a website with a PO Box for an address with an agent who refused service of process.[2]
The continued growth of bloggers, commentators, or fly-by-night online businesses highlights the issue of who to serve in a dispute. In a case that will be known mostly for prior restraint on the First Amendment, Bank Julius Baer & Co. Ltd., v. Wikileaks is prime evidence of when service of process by email is necessary. In Wikileaks, the plaintiff served a summons, complaint, and a TRO on WikiLeaks’ listed PO Box and to their counsel. Counsel for WikiLeaks refused service.[3]
The Court found alternative service of process was necessary because the physical addresses for the defendants could not be found and that the defendants’ agent refused service. The defendants’ email addresses would meet the requirements for the defendants to receive notice and an opportunity to be heard. The Court went on to order the defendants to be emailed by 3:00pm the day of the court order.[4]
Things like this will keep happening. Situations where “banks” disappear in Second Life and other online fraud may leave victims with only an email address to locate a wrongdoer.[5] In such instances, one can argue case law allows for alternative service of process when the “usual methods of service prove impracticable, service that is ‘reasonably calculated, under all the circumstances, to apprise [the] interested part[y] of the pendency of the action’ will suffice.”[6]
The fact online wrongdoers can attempt to hide themselves with anonymous domain “who-is” listings will make finding them for service of process all the more difficult. In such situations, service of process by email may allow plaintiffs to seek justice instead of cyber-tortfeasors hiding behind technology.
