Tag Archives: service

FTC can serve foreign defendants via Facebook

FTC v. PCCARE Inc., 12 civ-7189 (S.D.N.Y. Mar. 3, 2013) is a very strange case because it shows how service of process might be altered and in what circumstances.  In this case, the FTC wanted to be able to serve documents other than the Summons and Complaint via Facebook or e-mail.  The Southern District of New York granted this request.

This is a very strange case.  Generally, the Hague Service Convention has guidelines detailing how abroad defendants may be served.  The Hague Service Convention doesn’t expressly authorize service on foreign defendants by email or social media accounts.

So why could you serve documents a foreign defendant over Facebook?

The court explained that “A court in this district has held that the Hague Service Convention only applies to the initial service of process, not subsequent documents.”  See SEC v. Credit Bankcorp., Ltd., 2001 WL 666158, *4 (S.D.N.Y. Feb 14, 2011).  In addition the court relied on Federal Rule of Civil Procedure 4(f)(3), whereby it stated,

a Court may fashion means of service on an individual in a foreign county, so long as the ordered means of service (1) is not prohibited by international agreement; and (2) comports with constitutional notions of due process.”  SEC c. Anticevix, 2009 WL 361739, at *3 (S.D.N.Y. Fec. 13, 2009).

The court reasoned that federal courts need to keep an open mind about technology.

The court acknowledges that service by Facebook is a relatively novel concept, and that it is conceivable that defendants will not in fact receive notice by this means.  But, as noted, the proposed service by Facebook is intended not as the sole method of service, but instead to backstop the service upon each defendant at his, or its, known email address. And history teaches that, as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means of then-recent vintage, rather than dismissing them out of hand as novel.

via FTC can serve foreign defendants via Facebook, federal judge rules – ABA Journal.

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Filed under Appellate, courts, Judges, legal decision, legal research, rules

Wireless networks and the FCC

The Federal Communication Commission has proposed the creation of the Advanced Wireless Services (AWS) H Block, which would extend the Personal Communications Services (PCS) band by 10 megahertz, for flexible use. The PCS is heavily used by Verizon, Sprint, AT&T and T-Mobile, the nations big four providers, as well as their rural counterparts.

The additional spectrum is meant to help maintain the speed and capacity of the nations wireless networks amid the unprecedented demand for mobile service.

If approved, the new rule would mark the FCCs first step in implementing a Congressional directive in the Middle Class Tax Relief and Job Creation Act of 2012, more widely known as the “payroll tax cut.”  The act calls for an establishment of a national public safety broadband network, which will expand high-speed wireless broadband and give better access to first responders, such as fire and police, in an emergency.

“Wireless broadband is a key component of economic growth, job creation and global competitiveness because consumers are increasingly using wireless broadband services to assist them in their everyday lives,” the FCC said in its bandwidth proposal.

The FCC plans to grant new initial licenses for the 1915-1920 MHz and 1995-2000 MHz bands, known as the lower H block and the upper H block, respectively. A system of competitive bidding will determine who is granted the commercial use licenses.

The plan to extend the bandwidth includes licensing the H block as paired five-megahertz blocks, with the upper block used for high-power base stations and the lower block for mobile and low power fixed operations. The licensing will also be based on a geographic and economic area scheme.

“We seek to adopt a service area size for the H Block that meets several statutory goals,” the FCC said in its bandwidth proposal. “These include facilitating access to spectrum by both small and large providers, providing for the efficient use of the spectrum, encouraging deployment of wireless broadband services to consumers, especially those in rural areas, and promoting investment in and rapid deployment of new technologies and services consistent with our obligations under section 309j of the Communications Act.”

via Courthouse News Service.

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Proposed “Cloud Computing Act of 2012”

Sen. Amy Klobuchar has introduced a new bill, the “Cloud Computing Act of 2012” (S.3569), that purports to “improve the enforcement of criminal and civil law with respect to cloud computing.”

The Cloud Computing Act seeks to amend 18 USC 1030 by purporting:

  • It is a separate offense to have unauthorized access (including exceeding the authorized access) to a cloud computing account, or even conspiring to have unauthorized access.
  • Defining “cloud computing account” as “information stored on a cloud computing service that requires a password or similar information to access and is attributable to an individual”
  • Defining “cloud computing service” as a service that “enables convenient, on-demand network access to a shared pool of configurable computing resources (including networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or interaction by the provider of the service.”
  • The losses are (1) the value of the loss of use, information, or aggregated loss to 1 or more persons; or (2) the product obtained by multiplying the number of cloud computing accounts accessed by $500.”

As a reminder, 18 USC 1030, a person who acts or conspires to act in violation of the Act is to be

  • (1) fined or imprisoned for not more than 10 years or both, when the conviction does not occur after another offense under the section; or
  • (2) fined or imprisoned for not more than 20 years or both, when the conviction occurs after another offense

 

The problems with this proposed bill are alarming due to the vagueness of the definitions.  In employment, I can see this Act (if it goes through) being used against employees.

For example, say if your authorized access is limited to “work” use.  If an employee uses the computer network to go to a social network, how would this pan out?  The employee, in this case, uses a password to get into the network of the employer.

Or say that authorized access is limited to using email for work purposes only.  What if the employee sends a personal email or an email to an attorney using the work email?  The email account is, after all, protected by a password and it is in the alleged protected network of the employer.

Or say that authorized access is limited to accessing the email at work.  Yet, the employee and other employees, and say even management, use their smartphones to keep up with work.

I can see potential issues in employment law, where the situation does not arise out of the purported intent of the Act.  None of these cases involve a person getting into a network or service to steal information.  None of these cases involve a disgruntled employee accessing information they are not supposed to have access to.

It is my guess that if the Act gets through, there will be a need for a lot of updates on employee policies, manuals, and trainings.

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Filed under Pending Legislation, technology