Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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As reported by Law360 and several other  sources, on June 7, 2012, in Fortunato v. Chase Bank, a federal district court ruled that defendant Chase Bank could no

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“You Have One New Lawsuit”:  Can You Serve Legal Notice Through Social Media?

“You Have One New Lawsuit”:  Can You Serve Legal Notice Through Social Media? | Socially Aware

Daniel P. Levison

As <a href="http://www.law360.com/commercialcontracts/articles/349177?nl_pk=3d26a680-6f8d-440b-a8de-7a0eb7aa28c3&utm_source=newsletter&utm_medium=email&utm_campaign=commercialcontracts">reported by Law360</a> and several <a href="http://blog.ericgoldman.org/archives/2012/06/ny_court_says_n.htm">other</a>  sources, on June 7, 2012, in Fortunato v. Chase Bank, <a href="http://www.nylj.com/nylawyer/adgifs/decisions/061212keenan.pdf">a federal district court ruled</a> that defendant Chase Bank could not use Facebook to serve a third-party defendant with the complaint that Chase had filed against her.In Fortunato, plaintiff Lorri Fortunato sued Chase Bank, alleging that the defendant had unlawfully garnished her wages to pay a credit card debt that, according to the plaintiff, was actually incurred by her estranged daughter, Nicole (who the plaintiff alleged had lied on a credit card application in order to open an account in her mother’s name).  Chase sought to implead Nicole in the matter, but was having a difficult time physically locating her; indeed, as the court noted, Nicole apparently had a “history of providing fictional or out of date addresses[.]”Chase hired a private investigator, who “searched . . . [Department of Motor Vehicles] records, voter registration records, . . . Department of Corrections records, publicly available wireless phone provider records, and social media websites” for a way to contact Nicole.  The private investigator’s search turned up four possible addresses for Nicole in four different towns, but the defendant remained unable to physically locate her at any of those locations.The private investigator did, however, find what she believed to be Nicole’s Facebook profile, which listed a contact email address and a location in yet a fifth town.  In view of this discovery, and given that Chase’s “numerous attempts to effect personal service” and “diligen[t] . . . search for an alternate residence where Nicole might be served” had not succeeded, the bank suggested a novel alternative to the court:  serving Nicole with notice by sending her a message on <a href="http://www.facebook.com/">Facebook</a>.Chase argued that service through Facebook would meet due process requirements because it was “reasonably calculated to apprise” Nicole of the claims against her (echoing the words of the U.S. Supreme Court in <a href="http://supreme.justia.com/cases/federal/us/339/306/case.html">Mullane v. Central Hanover Bank & Trust Co.</a>), and that it should therefore be an acceptable alternative means of service.  Although the court agreed as an initial matter that some form of alternative service would be appropriate, the court rejected Chase’s argument, ruling that service by Facebook would not be sufficiently “reasonably calculated to apprise” Nicole under the circumstances.  Noting that “anyone can make a Facebook profile using real, fake, or incomplete information,” the court found that “[Chase] ha[d] not set forth any facts that would give . . . a [sufficient] degree of certainty that the Facebook profile . . . [was] in fact maintained by Nicole[.]”  The court then ordered Chase to publish notifications in the local newspapers for all five towns that its private investigator had identified as possible residences for Nicole.The Fortunato court prefaced its analysis by remarking that “[s]ervice by Facebook is unorthodox to say the least,” and that the court was “unaware of any other court that ha[d] authorized such service.”  But, as it turns out, at least a handful of courts—in the United States and abroad—appear to have done just that.  In May 2011, a <a href="http://www.scribd.com/doc/70014426/Mpafe-v-Mpafe-order">local state court in Minnesota</a> permitted service of a petition for divorce by Facebook (or, indeed, “[any] other social networking site”), finding that, compared to the “antiquated . . . and prohibitively expensive” traditional means of publishing notifications in local newspapers, service through social media would be both cheaper and more likely to actually reach the party at issue.  (And, although not a ruling on the issue, official form documents on the Utah State Court system’s website can be read to <a href="http://www.serve-now.com/articles/150/service-via-facebook">suggest</a> the use of Facebook and Twitter as possible alternative means of service.)Outside of the United States, several courts—including courts in New Zealand,  <a href="http://www.telegraph.co.uk/news/newstopics/howaboutthat/3793491/Australian-couple-served-with-legal-documents-via-Facebook.html">Australia</a>, <a href="http://documents.jdsupra.com/5ac10097-f3a5-4c71-b3da-d466e9ef164f.pdf">Canada</a> and the United Kingdom —have affirmed or even endorsed the use of Facebook and other social media sites as acceptable alternative means of serving counterparties with notice of the claims brought against them.The Fortunato court’s approach does not necessarily contradict these examples, given that the Fortunato court did not categorically reject service by Facebook or other social networks.  Rather, the court concluded that service through Facebook would not be appropriate under the circumstances of the case at issue.  Which begs the question:  what might the right circumstances be?As a general matter, the law <a href="http://www.natlawreview.com/article/continuing-relevance-personal-service-process">still favors traditional personal service</a> as its preferred and primary method—the often-depicted “you’ve been served” moment of physically handing a summons and complaint to a party to be served.  Statutes in U.S. jurisdictions also typically expressly authorize other traditional means of service, for example, delivery to a party’s residence or agent.  When these methods prove impractical, statutes typically authorize courts to allow some sort of appropriate alternative means of service.  But in a case like Fortunato, assuming that the complainant has demonstrated that alternative service should be permitted, what might need to be shown in order to demonstrate to the court’s satisfaction that service through social media would be appropriate?The Fortunato court expressly identified a first major hurdle, which some have termed “<a href="http://www.shearsocialmedia.com/2012/02/service-of-process-via-social-media-and.html">authentication</a>.”   In order to demonstrate a reasonable likelihood that the counterparty is actually going to receive notice, the complainant needs to be able to convince the court that the social media profile in question really does belong to the party to be served, and is not under the control of a different person with the same or a similar name (or even, perhaps, an <a href="https://www.sociallyawareblog.com/2012/03/09/vindictive-ex-girlfriend-could-face-18-months-in-prison-for-facebook-e-personation/">impersonator</a>).  This has some parallels to the issues raised when trying to use social media evidence in the context of a trial.A second hurdle, somewhat less explicit in the Fortunato court’s ruling, is whether—even if the social media profile does belong to the party to be served—the profile’s owner regularly (or ever) logs in to or checks that profile.  Being able to demonstrate this fact could help support an argument that “the person to be served would be likely to receive the summons and complaint” through his or her social media profile, which, as the Fortunato court noted, was important in cases where service by email has been accepted.Cases from various countries, coupled with some creative thinking, provide helpful guidance for how a party that wants to serve notice through social media could surmount the hurdles above.  For example, a party could try to demonstrate:<ul><li>That the personal biographical details listed in the profile <a href="http://www.abajournal.com/news/article/in_seeming_first_aussie_court_says_default_judgment_can_be_served_on_facebo/">match</a> the party to be served’s basic personal information (e.g., date of birth, educational history and/or work history);</li><li>That recent photos of the party to be served have been posted to the profile;</li><li>That the profile’s <a href="http://www.abajournal.com/news/article/in_seeming_first_aussie_court_says_default_judgment_can_be_served_on_facebo/">“friend” or contact list</a> corresponds with the party to be served’s known real-world acquaintances;</li><li>That updates, posts and other interactions on the profile’s “wall” identify the user as the party to be served;</li><li>That the profile’s user has <a href="http://www.internationalbusinesslawadvisor.com/2012/02/articles/international-litigation/service-of-process-via-facebook/">responded</a> to recent friend requests, wall posts or private messages; and</li><li>That third-party testimony <a href="http://www.internationalbusinesslawadvisor.com/2012/02/articles/international-litigation/service-of-process-via-facebook/">corroborates</a> the assertion that the profile belongs to the party being served.</li></ul>Depending on the applicable social media profile’s privacy settings, much of this information may be readily accessible to the general public.  (Yes, people do still leave their social media profiles wide open.)  Of course, practitioners should keep in mind <a href="http://www2.nycbar.org/Ethics/eth2010.htm">ethical rules</a> when using social media to obtain information.In the long run, service through social media and other Internet-based means of communication could become a viable alternative to personal service, given that electronic service may have certain distinct advantages over the traditional means of alternative service used where no physical address is available (i.e., publication in local newspapers and posting of public notices).  First, as noted in the <a href="http://www.scribd.com/doc/70014426/Mpafe-v-Mpafe-order">Minnesota case</a> described above, electronic notice can be far quicker, cheaper and easier.  Second, as the Minnesota court also noted, notice may actually be more likely to reach the intended recipient if delivered through social media than if communicated through those more traditional means.  And third, some means of Internet communication enable senders to <a href="http://lettersblogatory.com/2012/02/07/rpost-kagan/">confirm electronically</a> that their messages have been opened or received by the intended recipients.Given the likelihood that attempted service through social media will be around for a while, we look forward to keeping you posted on future developments.