The Democratic National Committee has obtained leave of court to serve process on Wikileaks via Twitter in its lawsuit against Russia, Wikileaks, Julian Assange and others. I have written previously about the FSIA issue in the case and the issues about serving process on Mr. Assange in the Ecuadoran embassy in London. But serving process on Wikileaks poses difficulties, too.
The DNC’s motion gives several reasons for seeking leave to serve process by Twitter rather than by a more traditional means. Wikileaks, it says, is an “organization of unknown structure” that has “more of a virtual than a physical presence.” It has post office boxes in California and in Australia, but it is unclear to the DNC whether Wikileaks uses them for business. Lawyers who have represented Wikileaks in prior US litigation have said they no longer represent the organization or are not authorized to accept service. And Wikileaks, or someone purporting to act on its behalf, does have an active Twitter presence.
Let’s assume that, as the DNC says, Wikileaks is an unincorporated association. The DNC doesn’t know anything about its structure, nor do I. But one thing I think we do know is that Mr. Assange is an officer or managing agent of Wikileaks if anyone is. With that in mind, how should we analyze the problem?
Under FRCP 4(h)(2), service abroad on an unincorporated association must comply with FRCP 4(f), except that personal service under FRCP 4(f)(2)(C)(i) is unavailable. So the available methods of service are:
- service via a convention such as the Hague Service Convention, FRCP 4(f)(1).
- “if there is no internationally agreed means, or if an international agreement allows but does not specify other means,” then:
- as prescribed by the foreign country’s law, FRCP 4(f)(2)(A).
- as the foreign court directs in response to a letter rogatory, FRCP 4(f)(2)(B).
- unless prohibited by the foreign country’s law, by mail addressed and sent by the clerk, in a form that requires a signed receipt, FRCP 4(f)(2)(C)(ii).
- by alternate means, with leave of court, FRCP 4(f)(3).
But note that the Hague Service Convention is exclusive, and so if it applies, any method of service must be authorized or at least permitted by the Convention. A court, under the heading of FRCP 4(f)(3), can authorize a method of service forbidden by foreign law, but not a method of service forbidden by the Convention.
If one thinks of Wikileaks as an organization whose location is unknown and whose officers are unknown, then subject to Due Process considerations, the service seems valid: the Convention does not apply because the address of the person to be served is unknown.[efn_note]The Convention applies whenever there is occasion to transmit a judicial document for service abroad, and its scope is therefore not dependent on the nature of the person or entity to be served. On the other hand, Article 1 provides that the Convention does not apply if the address of the “person” to be served is unknown. I don’t know of any cases or authorities that have considered the issue, but one of the difficult things about unincorporated associations is that they are not legal persons.[/efn_note]
But if I were Wikileaks, I might argue as follows: Wikileaks is Mr. Assange’s project, and he is in charge of it. So to serve Wikileaks, you should serve Mr. Assange, whose location at any hour of the day can be known with greater certainty than the location of most people on the planets who are not prisoners. And thus the analysis I suggested in the prior post applies. I will not repeat my reasons, which I’ve given many times, for saying that the Convention does not permit service by email, Twitter, etc., if it applies. The DNC should either attempt service via the UK central authority, service via the Ecuadoran authorities, or service by mail to Mr. Assange at the embassy. And if Wikileaks is, for relevant purposes, Mr. Assange, there is a pretty good due process argument here, too, insofar as according to news reports, the Ecuadorans have not been allowing him access to the Internet and thus to Twitter.
The merits of this argument depend, really, on what goes on behind the scenes at Wikileaks. I think we won’t know the answer unless Wikileaks decides to appear in the case and contest the service. (Psst … call me!)