John H. Messing is an attorney and founder of Law-on-Line, Inc., a consulting and development firm with primary focus upon electronic signature, security, and encryption technologies. Mr. Messing serves as the Chair of the American Bar Association's Electronic Filing Committee in the Science and Technology Section. He can be reached at jmessing@law-on-line.com.
"Electronic Service of Process" -The concept sounds anomalous. One might think that service of process would always have to be performed in person.
This conventional wisdom is true for natural persons, but the law also recognizes fictive persons, which are corporations for the most part. They are incorporeal entities. They could be served electronically using an email address, for example. They often have registered agents, which are companies that perform services on their behalf, including receiving service of process for them. Approximately 2-3 million documents annually are legally served in the United States upon registered agents or corporations themselves.
In July 2004, South Carolina passed its version of the Uniform Electronic Transactions Act. It includes several provisions for service of electronic service of process upon corporations and registered agents, some of which appear below.
In August 2004, the Electronic Service of Process subcommittee of the American Bar Association met in Atlanta. It considered excerpts of the South Carolina legislation, and adopted Best Practices for Electronic Service of Process by consensus, which are reproduced below. The two largest registered agent companies and the largest national association of professional process servers in the United States participated. Also present and active were information security lawyers, a judge, a law professor, and companies that specialize in technology. On the telephone line into the room were observers from the administrative offices of the U.S. courts, other lawyers, and technology companies.
The Best Practices themselves were adopted by unanimous consensus of the subcommittee members. One goal of the Best Practices is to introduce sufficiently robust technology into the emerging infrastructure to allow the historic roles of the courts, the process servers, and registered agents to continue unabated and with minimal disruption as electronic methods are introduced and take hold.
There were also proposed commentaries on certain sections, which under ABA House of Delegates practice are technically not considered part of the Best Practices themselves. One commentary is still being finalized at the time of this writing, and the Best Practices themselves have been posted to the ABA website. They are as follows:
Best Practices for Electronic Service of Process (adopted as of 9/1/04)
1. Service of process should include methods to prevent undetectable modifications to electronic files and identity spoofing of senders.
2. Scope
a. Service of process as used in these Best Practices includes in-person service of process by an official or private process server that files a return of service with the court.
3. Waiver of Service
a. Where allowed by statute or court rule, a waiver of service of process obtained through transmission of pleadings by postal mail or other electronic means and the filing of an affidavit attesting to the waiver, similar to FRCP Rule 4(d)(2), should be encouraged.
4. Constitutional Requirements
"To be sure, the Constitution does not require any particular means of service of process, only that the method selected be reasonably calculated to provide notice and an opportunity to respond." Hollow v. Hollow, citing Mullane v. Central Hanover Trust Co., 339 U.S. 306 at 314, 70 S.Ct. 652.
5. Goal
A goal of Best Practices is to retain the traditional advantages to courts associated with returns of service or waivers of service of process.
6. ABA Standard 1.65
Best Practices should be fashioned consistently with ABA Standard 1.65 relating to electronic filing processes adopted in 2004.
7. Receipted Transaction
Electronic service of process or waivers should include reliable proof that notice was actually received by a person who was authorized to accept it.
8. Cryptographic Security
a. Transmitted documents should be encrypted for privacy and confidentiality in transit, consistently with privacy and access policies governing Internet access to electronic court records.
b. Technological means should be required to safeguard the authenticity of the transmitted documents and to reliably memorialize the receipt of notice by an authorized recipient, using such methods as FIPS 180-2 message digesting, digital signatures and/or MAC's as tamper-evident seals, as set forth in ABA Standard 1.65.
c. Technology neutrality should be encouraged.
Discussion of the South Carolina legislation as included in the minutes of the meeting was as follows:
Charles Merrill gave a summary of the South Carolina law, which defines a United States Postal Service Electronic Postmark as "an electronic service provided by the United States Postal Service that provides evidentiary proof that an electronic document existed in a certain form at a certain time and the electronic document was opened or the contents of the electronic document were displayed at a time and date documented by the United States Post Office."
This definition includes features that go beyond a conventional timestamp in that the EPM of the statute must also prove that the document was opened or displayed on a date and time as documented by the Post Office.
In the course of the discussion the consensus was that this was not really necessary and was not essential. The important point was to reliably establish that an authorized person on behalf of the defendant was given actual notice, as for example by a signed electronic receipt for it.
Merrill pointed out that the system was voluntary. Only consenting participants could be electronically served. (Section 26-6-40).
Discussion was had around Sections 26-190(C) and 26-195, which discussion is reflected in the Amended(1) Draft Best Practices for Electronic Service of Process [now adopted].
registered or certified mail-return receipt requested, addressed to the office of the registered agent;
registered or certified mail-return receipt requested, addressed to the office of the secretary of the corporation at its principal office;
e-mailing the service of process that has been postmarked by a United States Postal Service Electronic Postmark in a manner approved by the South Carolina Supreme Court to an e-mail address registered with the Secretary of State for the corporation; or
e-mailing the service of process that has been postmarked by a United States Postal Service Electronic Postmark in a manner approved by the South Carolina Supreme Court to an e-mail address registered with the Secretary of State for the agent for service of process for the corporation.
"Section 26-6-195. Notwithstanding any other provisions in this chapter, a governmental agency may use, in accordance with policies and procedures developed by the South Carolina Budget and Control Board and as circumstances allow, in order to perfect service of process of any communication, an e-mail address from any vendor, entity, or individual the governmental agency regulates or does business with, or an e-mail address from the agent for service of process of that vendor, entity, or individual. Such communication postmarked by a United States Postal Service Electronic Postmark shall have the same force of law as the United States Post Office certified mail-return receipt requested. The South Carolina Budget and Control Board shall devise policies and procedures for the use of the United States Postal Service Electronic Postmark in respect to state agencies and operations. These policies and procedures, where necessary, must consider the persons or entities which do not have an e-mail address. "
The minutes of the subcommittee meeting also reflect that federal bankruptcy rules are in the process of being amended to allow for the issuance of electronic summonses in adversary proceedings.
"You've got e-mail" may just turn out to be, "You've been e-served."
