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Is Foreclosure Via Facebook Coming to the US?

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I’m about to reveal that I am a hopeless Old Fart, but I don’t understand why anyone other that a public figure uses Facebook. It has been demonstrated that anything on Facebook can and probably will be used against you. If you have a dispute or someone took an obsessive romantic interest in them, it would normally take some doing (like hiring a private detective) to try to find dirt. By making what would have been private information pubic, Facebook greatly lowers the cost of people with bad intentions toward you making your life miserable.

One development overseas that may be coming to the US is using Facebook to send legal notices, such as foreclosure notices. As Bloomberg informs us (hat tip reader Buzz Potamkin), this practice has been accepted by courts in Australia, Canada, and the UK.

This article triggered my “planted story” detector, since the piece kept stressing how there were no privacy issues involved (well, that’s close to tautological given how Facebook works) and had virtually no negative views expressed about this practice being adopted in the US.

Now some might argue that this development could eliminate some abuses, since in Florida, for instance, there are numerous instances of “sewer service”, meaning the process server falsely claimed that papers were served properly upon a delinquent borrower. But it would also allow for people to be served maliciously, say to initiate litigation they were out of the country and would find it even more difficult and stressful to organize their response. And I’m loath to accept the belief that Facebook is “reliable” and “secure”. The Department of Defense and quite a few companies have had their systems hacked; the latest victim is Lockheed Martin, with the end result that some formerly secure login tokens used by over 40 million corporate users have been compromised. And even though the security breach occurred in March, the company waited months before taking action. From the Wall Street Journal:

RSA Security is offering to provide security monitoring or replace its well-known SecurID tokens—devices used by millions of corporate workers to securely log on to their computers—”for virtually every customer we have,” the company’s Chairman Art Coviello said in an interview.

In a letter to customers Monday, the EMC Corp. unit openly acknowledged for the first time that intruders had breached its security systems at defense contractor Lockheed Martin Corp. using data stolen from RSA.

SecurID tokens have become a fixture of office life at thousands of corporations, used when employees log onto computers or sensitive software systems. The token is an essential piece of security, acting as an ever-changing password that flashes a series of six digits that should be virtually impossible to duplicate…

In March EMC disclosed it had been hit by a sophisticated cyberattack on its SecurID products. It advised customers to beef up their own security, such as making sure no rogue programs had been installed on servers running RSA software. It also suggested users increase the length of employee “PIN” numbers used in tandem with the digits spit out by the RSA token.

EMC believed the ultimate target of the attack was defense contractors. The broader point is that even companies whose business is that of providing secure systems can’t make it foolproof. We’ve had enough snafus from “innovations” like MERS and securitization, which in theory were beneficial but bad implementation undermined their potential, that a lot of Americans would be understandably wary of new measures on the legal front. From Bloomberg:

Two years after an Australian lawyer caused a stir by sending a foreclosure notice via Facebook, the practice of online legal service is spreading as a means for courts to keep their dockets moving.

Courts in New Zealand, Canada and the U.K. have adopted the Australian example to avoid having cases stall when people can’t be located and served in person. Lawyers said the U.S. may not be far behind in using the world’s most popular social- networking service.

“There are people who exist only online,” said Joseph DeMarco, co-chair of the American Bar Association’s criminal justice cyber crime committee, and a lawyer at New York-based DeVore & DeMarco LLP. Being able to serve documents by social- media networks would be a useful tool, he said.

While Facebook Inc. is under regulatory and legal scrutiny in countries including the U.S., South Korea and Germany for failing to protect user data, privacy advocates said that serving court notices by mail or in person often already provokes privacy complaints. Therefore using Facebook doesn’t raise any new issues….

“It seems only logical now that tools like Facebook or Twitter be used” to contact people who can’t be traced using traditional means, said Daniel Hamilton, director of Big Brother Watch in London, noting such efforts don’t violate personal privacy. “Now is it desirable? No.”…

The challenge would be to collect enough proof to convince a court the accountholder is the right person and the page is checked often enough to ensure it’s a fair path of notification, DeMarco said. This would need to be done without violating ethics codes that would prevent lawyers from “friending” the target under false pretenses to get past security settings.

“Nothing on its face in New York state or federal law precludes it,” DeMarco said.

There are countries, like France and Germany, where electronic delivery isn’t allowed in any form. French law requires delivery in person.

“It wouldn’t be admissible procedurally to send a message by Facebook,” said Matthieu Bonduelle, head of France’s Magistrates’ Union.

English court rules permit electronic document service, said Danvers Baillieu, a technology-law specialist in London.

“As far as the law is concerned, it’s just a method of delivery,” he said. “The precise form of technology is neither here nor there.”

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28 comments

  1. Three Wickets

    It is possible to engage actively on Facebook with thousands of people using your real name while revealing next to nothing about your personal life. Similar to what you do here on the blog Yves. The conversations can be quite robust. :)

  2. prostratedragon

    my “planted story” detector

    Keep that tool sharp. Aside from its general value, the same folks who brought us MERS, or their friends, seem to be trying to quicktime [sheeplike acceptance of] the paperless world again.

    1. psychohistorian

      Just like Facebook is a social tracking opiate of the younger set for our new police state, rounding up a subset of the visitors to NC via their IP addresses to stifle “intelligent” dissent is another strategy.

      Got Fear?

  3. Paul Tioxon

    Maybe Facebook can surpass PayPal by issuing currency like the Fed, maybe FaceBook can become the Fed. If 500,000,000 users and counting all agree to use free FaceBookBucks as legal tender with one another, I might even sign up. That would be consistent with a paperless private MERSworld.

    1. hareli

      The majority of those 500,000,000 users are in other countries. They aren’t in the USA. In fact 80% of them are.

      1. Birch

        Wow, an international interest-irrelevant Facebuck trading tally. Sounds like a great idea, and in an arena big enough to be meaningful. Get ebay on board and you’d start to challenge the central banker’s monopoly on currency.

  4. Skippy

    Personally…I’m holding out for the suppository form.

    Skippy…rather DNA arguments.

  5. bob

    This is completely insane. Why on earth would this be allowed?

    Ya know, maybe we are looking at the whole Social Security thing wrong. It could be a PROFIT center.

    If a membership list populated heavily with made up names and addresses is worth as much as they are claiming, imagine what a real, verified system like Social Security is worth?

    Or the post office, where they actually have records of where everyone lives?

    We are clearly not maximizing shareholder value.

  6. MIWill

    I vote for hopeless old farts.

    I have fooled around with Facebook and I don’t get it. I’m slightly outside of the social networking bell curve since I tend toward misanthropy, so I guess that will color my bias a bit (I’m now up to 17 personal enemies).

    But even looking at it as just software, what does it do really?

    1. MIWill

      It doesn’t do much, and yes businesses will pop up to provide notification hacks.

    2. alex

      “I vote for hopeless old farts.”

      You don’t have to be a hopeless old fart (though it helps).

      My experience is that a lot of techies avoid it too. Obviously such people are not technophobes, so it speaks volumes about the value and potential abuses of Facebook. When the techies avoid a certain “technology” (apologies for using such a glorified name for something as idiotic as Facebook) it says volumes.

    3. ScottS

      I find it extremely creepy that Facebook follows me to other web sites. If I go to Yelp, Yelp knows my Facebook account and highlights reviews from friends. You don’t even get a chance to opt-out until after it knows who you are.

      So now if someone knows your Facebook ID, they can subpoena records from Yelp, Google (if they start cross-referencing searches with Facebook ID), etc.

      Time to upgrade my tinfoil hat.

  7. Salviati

    Yves,

    Facebook is fine for the sheeple who would not recognize or care about the difference between living in a democracy and a tyranny. Honestly, thats most of the people I have known and met in my life.

  8. MDBill

    I created a Facebook page for myself a couple of years ago, but I check it infrequently (perhaps once or twice a year, at the most). So, I’m wondering how the nuts and bolts mechanics of this thing work. If a Facebook mediated legal notification were presented only on the FB Website as a private message, I would most likely never see it. Or, in addition, does FB send the email to the account’s registered email address? Perhaps inactive FB users would be well advised to close their accounts if this practice becomes commonplace.

  9. Gerald Muller

    I join the club of non-Facebook users. I violently distrust all these “social networks”. I have friends and I call them or e-mail them and I do not need this tool, only invented to make money for its creator

    1. Dave of Maryland

      I agree completely. I am often asked to join Facebook, or to be a friend to someone on Facebook. I do not understand why anyone would want to do so.

      I have a massive webpage, where I sell books. Everything I want to tell about myself is in there somewhere. You want more, sign up for my newsletter, or email me. There are two email slots per page, there are 200+ pages.

      Otherwise, I live in a home. It has a door. Entry is gained by request and may be refused for any reason. At night I go to bed & do not expect to be disturbed. Inside the home are public spaces & private spaces. You don’t get to my bedroom unless you’re special & unless the moment is right & unless I let you. Very few get that far. When I married the best of them, that space became off limits to everyone else.

      This isn’t about farts, old or young. Facebook is a fad for drunken bachelors. It should not be used for official purposes for any reason whatsoever.

  10. sglasheen

    “‘Nothing on its face in New York state or federal law precludes it’,” DeMarco said.”

    It is unclear if he is talking about personal service to gain personal jurisdiction at the beginning of an action or service of motion papers etc during the action after PJ has been acquired.

    If he is talking about service to gain personal jurisdiction, this is misleading. New York, like any other jurisdiction I can think of, doesn’t prohibit service methods, it enumerates them. So only specifically delineated methods of service are acceptable.

    However, you can use alternate methods of service upon motion, with the permission of court, after you demonstrate inadequacy of the other authorized methods. In which case, this is theoretically comparable to publication in a newspaper. Provided, of course, it is not abused via insufficiently wary judges.

    If it is for service of papers in medias res, then you are required to have the written consent of the other party to serve electronically or by fax.

  11. r.hareli

    Your detector detected right.

    This is bogus: “English court rules permit electronic document service, said Danvers Baillieu, a technology-law specialist in London.
    “As far as the law is concerned, it’s just a method of delivery,” he said. “The precise form of technology is neither here nor there.”

    “The precise form of technology” is absolutely germane. The sender has to digitally sign it, just as the courts demand when you file briefs electronically. That is a particular digital signature identifying the sender. This would no doubt be done by PDF, and locked down with security provisions so that it couldn’t be changed.

    As for slapping it up on Facebook, the server has to guarantee receipt. Where’s the guarantee? I maintain three Facebook names for relatives whose names the family do not want used or abused for various reasons. They are basically names in a URL. That guarantees personhood for the purposes of serving?

  12. hareli

    Your detector detected right.

    This is bogus: “English court rules permit electronic document service, said Danvers Baillieu, a technology-law specialist in London.
    “As far as the law is concerned, it’s just a method of delivery,” he said. “The precise form of technology is neither here nor there.”

    “The precise form of technology” is absolutely germane. The sender has to digitally sign it, just as the courts demand when you file briefs electronically. That is a particular digital signature identifying the sender. This would no doubt be done by PDF, and locked down with security provisions so that it couldn’t be changed.

    As for slapping it up on Facebook, the server has to guarantee receipt. Where’s the guarantee? I maintain three Facebook names for relatives whose names the family do not want used or abused for various reasons. They are basically names in a URL. That guarantees personhood for the purposes of serving?

  13. OregonChris

    This could be useful where someone is actively avoiding service of process, but regularly maintaining an online presence. Perhaps if this method of service was only used in narrow circumstances, and pursuant to a court order. The point of service of process is to give the defendant notice about legal action against them; sadly the best way to do that for some might be via facebook…
    I can see the problems with it, but as a method of last resort I think it makes sense.

  14. Elliot

    A facebook-shunning techie here. There’s nothing in the realm of real contact with my friends that facebook offers, any more than twitter. I don’t need to know what store you are shopping in (twitter pesters its users to add locations to their tweets, and there is no way to opt out of that permanently), I’m not interested in playing farmville or getting badges, and if I wanted to be in touch with more gradeschool chums, I would be.

    I first shunned that stuff because of the massive time-suck involved, and then when it became obviously creepy and invasive. And for anyone who thinks the banks, etc., wouldn’t falsify things to make it look like someone had seen “been served” their posting, I’ve got some swell ocean front property in Florida to sell you.

    One of the weirder tentacles in online stuff is the battery of connected sign-in/commenting platforms; disqus/facebook/open id/etc……. many sites do not allow commenting unless one signs in with one of those accounts. And while I abhor spam, even having to sign in here with email to comment is annoying. Old-fartitude? Maybe.

  15. FatCat!

    Yves,

    Since an old fart like you fails to use Facebook, please kindly allow ME to use your own blog site to serve you notice that I, FatCat!, have just foreclosed on your Manhattan condo. You need not sign any paperwork, as I had one of MY robosigners do that for you, and one of MY judges has already approved it.

    See that you vacate MY property by noon tomorrow, or else. Is that clear?

    Thank you for your obedience.

    FatCat!

  16. Steve

    So much hate for Facebook! I use facebook for more or less the same reason I go to this site–my friends post loads of links about stuff I wouldn’t see elsewhere. Facebook is also a vast improvement over email for keeping in touch with friends, because if I don’t want to get into a discussion I don’t bother and it just goes away (in fact, I get quite irritated when friends use the facebook email system, and, in a return to the bad old days of email, I’m trapped in an inane exchange of messages, often along the lines of ‘me too’ or ‘LOL’). I don’t post much about my personal life.

    Facebook and Twitter have both been widely used by virtually every protest movement around the world this year, easily the biggest year of protest since 1968. Its a lot easier to post a message to a facebook page than to individually phone dozens (let alone thousands) of people.

    Social networking technology is likely here to stay, and techies’ opinion is hardly an important factor, anymore than my car mechanic’s opinion of my car will shape my driving habits. He doesn’t have anything to say about the way the space of society is organized around roads, just as techies have little understanding of the way information in society is organized. Whether social networking should be concentrated on the site of a for-profit corporation is a much more serious question, as is the question of monopoly. Facebook is extremely important because so many people are already on it. Although it is inadequate in some key ways for my own purposes, if I were to move to a different site, I doubt I could get a tenth of my friends to move. So I will probably stay with facebook. But there is clearly a whole discussion that needs to be had about the way the information on social networking sites is used that has barely begun. But most of the comments above don’t strike me as relevant to that discussion.

Comments are closed.