“You’ve Got Mail!” Parties May Now Be Served via Email, Text, and Social Media.

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Who remembers the 1998 movie You’ve Got Mail and its infamous quote, “I go online, and my breath catches in my chest until I hear three little words: You’ve Got Mail”? While we no longer hear that reminder, there may be three new little words that cause people to feel shortness of breath when accessing the internet: “You’ve been served.”

Service of a summons and legal complaint via email, text message, and even social media has now been formally recognized in Illinois. That means you could just open your Instagram account to find a summons waiting in your inbox.

Social media has helped us network, discover new products, and keep up with the latest dance trends. And now social media is making its mark on our legal system, along with email and text messaging. In April 2023, the Illinois Supreme Court amended Rule 102 to officially permit parties to use electronic service to serve a summons and a complaint on a defendant/respondent, as long as the request was properly motioned and the serving party obtained leave of court. The Illinois Civil Code already allowed for process via special means, including electronic methods, but it had not been formalized by the court. See 735 ILCS 5/2-203.1.

While the change means a party can serve a summons and a complaint by email, text message, or social media, these methods “are not exclusive.” A trial court may order a different method of service as long as it is consistent with due process. Service by electronic means may only be requested after the traditional methods of service—personal service, by mail, by publication, or through the sheriff’s office—have been attempted. There are also multiple requirements that must be met before and after service is effected via electronic means.

How Can I Serve Someone Electronically?

The party requesting electronic service must first file a motion with the court and include a supporting affidavit stating the reasons why the recipient likely owns a specific email address, cellphone number, or social media account. If there are any emails and text messages between the serving party and recipient, include them in the affidavit. For social media accounts, be prepared to present evidence that the recipient uses that profile on a regular basis: this could include proof of ownership, status updates and posts, communications between the serving party and recipient through that profile, and the age of the account (the older it is, the more likely it is to be legitimate). If the account is private, look for recent profile picture updates.

A judge is more likely to permit service by electronic means if it can be demonstrated that the recipient received the message. Facebook Messenger, Instagram, and WhatsApp allow a sender to see if a recipient has read a message. Some email programs similarly allow for a “read receipt,” and even many text messaging apps have this feature. As long as service is “made in a manner consistent with due process,” the court may order electronic service.

Secondly, if the court is satisfied that the defendant/respondent has access to and the ability to receive and read the summons and complaint electronically, then electronic copies must be provided with a clear notice that the party is being sued. Illinois Supreme Court Rule 102 requires the following language: “Important information—You have been sued. Read all of the documents attached to this message. To participate in the case, you must follow the instructions listed in the attached summons. If you do not, the court may decide the case without hearing from you, and you could lose the case.”

Lastly, the amended rule also states that a copy of the summons must be sent by mail to the address of the defendant/respondent’s last known residence. The serving party must also file with the court some proof of service (e.g., a screen shot or screen print) when sending a summons electronically.

What Are Some Challenges of Service by Social Media?

Nearly everyone has a profile on some social media site, whether it’s Facebook, LinkedIn, Instagram, or Twitter. These accounts can be accessed anywhere in the world, so it seems social media will be the best option to serve an individual that is out of reach. There remain, however, many challenges to this mode of service.

  • It can be difficult to authenticate a social media profile: many fake accounts pop up all the time on social media. Known as “spoofing,” a bad actor can grab photos and information about a person from the internet and then create a fake account that appears to be that person. Sometimes it is very difficult to tell if an account is in fact fraudulent.
  • It can be tough to demonstrate that the defendant actually received notice: if the individual being served never responds to the message, there is no guarantee the documents were seen and received by that individual. Even if the account is owned by the person intended to be served, service via social media is pointless if the user doesn’t actively use the account.
  • Privacy may be compromised: hackers illegitimately gain access to social media accounts every day. In such cases, the intended recipient might not be properly notified and may not even be the one who ends up seeing the documents. If an account is left logged into on someone’s else device, it can be improperly accessed. In that case, not only would the recipient be unable to see the documents, but an unauthorized party would have access to potentially sensitive information.

What Does This Mean for the Legal Profession and the Future of Process Service?

Much of the duties of process servers remain the same. They must still follow the same laws and regulations when making electronic service as they would when effectuating service via traditional means. They cannot create a fake social media account or lie about their identity when communicating with recipients. Process servers must honestly communicate who they are and what they are doing when they contact someone to be served through social media or by any other electronic means.

Service by various electronic means has existed in the U.S. for years, but it is accepted unevenly across the country. A New York case in 2015 allowed a spouse to use Facebook Messenger as her sole means of serving her husband with a divorce summons. By 2020, service by both social media and email became officially recognized in Texas. Florida, however, has not explicitly recognized social media as a means for serving someone, although it may be made in rare circumstances.

A patchwork of rules and practices developed around service via email, and then texting, and now social media. Because social media is so new, precedent is still being set by courts all over the country regarding the process and rules that must be followed. Electronic service may take some time to be fully accepted by the legal community, but courts are increasingly allowing social medial to be used for service of process. As technology continues to evolve and becomes even more integral to the legal field, electronic service could prove to be an effective method of ensuring defendants are properly served, even if only as a last resort.

In any case, we must now brace ourselves whenever we pull up Facebook or open our Instagram app. We might just find out that we’ve been served.