Surely something as culturally pervasive as Facebook, arguably the Alpha and Omega of social media, is subject to personal jurisdiction in Illinois (or anywhere else for that matter). Wouldn’t it? After all, with over a billion monthly users1 and some 350 million photos uploaded to it daily 2, Facebook’s electronic reach is virtually limitless (pardon the pun).
Wrong – says an Illinois Federal court. In what will be welcome news to on-line merchants the world over, the Northern District of Illinois recently dismissed a privacy lawsuit filed against the social media titan by an Illinois resident for lack of personal jurisdiction.
The plaintiff in Gullen v. Facebook, Inc., 15 C 7681 3 , http://cases.justia.com/federal/district-courts/illinois/ilndce/1:2015cv07681/314962/37/0.pdf?ts=1453468909 sued under the Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/1 et seq. The plaintiff claimed Facebook’s “tag suggestion” feature which culls uploaded photos for facial identifiers, invaded plaintiff’s BIPA privacy rights.
Granting Facebook’s motion to dismiss, the Court gives a useful primer on what a plaintiff must allege to establish an arguable basis for personal jurisdiction over a nonresident corporate defendant.
– Federal courts sitting in diversity may exercise personal jurisdiction over a nonresident defendant only if the forum-state court could do so. Illinois courts can exercise jurisdiction over a nonresident defendant on any basis sanctioned by the Illinois Constitution or the U.S. Constitution;
– For a court to exercise specific personal jurisdiction over an out-of-state defendant, the court looks to whether the defendant has minimum contacts with the forum State and if those contacts create a substantial connection with the forum State;
– In addition, the contacts with the forum must be initiated by the defendant itself and the mere fact that a defendant’s conduct affected a plaintiff who has a connection to the forum isn’t enough for jurisdiction over the nonresident defendant;
– In an intentional tort case, the court looks at whether the defendant (1) engaged in intentional conduct, (2) expressly aimed at the forum state, and (3) had knowledge that the effects of his conduct would be felt in the forum state;
– With intentional torts, the fact that a plaintiff is injured in Illinois can be relevant on the jurisdiction question but only if the defendant has “reached out and touched” Illinois: if the defendant’s conduct does not connect him with Illinois in a meaningful way, jurisdiction over a non-resident won’t lie in Illinois.
– A website’s interactivity however, is a “poor proxy” for adequate in-state contacts. So just because a website happens to be accessible to anyone with an Internet connection (basically, every person on the planet) doesn’t open the website operator to personal jurisdiction in every point of the globe where its site can be accessed.4
In arguing that Facebook’s electronic ubiquity subjected it to Illinois jurisdiction (A Federal court sitting in diversity looks at whether the forum state (Illinois) would have jurisdiction over the non-resident defendant)), the plaintiff catalogued the social media Goliath’s contacts with Illinois: (1) Facebook was registered to do business here, (2) it had an Illinois sales and advertising office, and (3) Facebook applied its facial recognition technology to millions of photo users who are Illinois residents.
The court rejected each of these three contacts as sufficient to confer Illinois jurisdiction over Facebook for the plaintiff’s privacy-based claims. For contacts (1) and (2), the lawsuit didn’t involve either Facebook’s status as an Illinois-registered entity or its Illinois sales and advertising office. With respect to contact (3) – that Facebook collected biometric information from Illinois residents – the Court found this allegation false.
The Court noted that since Plaintiff alleged that Facebook used the recognition technology in all photos – not just in those uploaded by Illinois users – Facebook’s global use of the technology was not enough to subject Facebook to Illinois court jurisdiction.
Afterwords:
Gullen’s fact-pattern is one most of the world can relate to. It intersects with and implicates popular culture and national (if not global) privacy concerns in the context of an ever-present and seemingly innocuous photo tagging feature. The case presents a thorough application of “law school” territorial jurisdiction principles to a definitely post-modern factual context. This case and others like it to come, cement the proposition that wide-spread access to a Website isn’t enough to subject the site operator to personal jurisdiction where it doesn’t specifically focus its on-line activity in a particular state.
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1 http://www.statista.com/statistics/264810/number-of-monthly-active-facebook-users-worldwide/
2 http://www.businessinsider.com/facebook-350-million-photos-each-day-2013-9
3 http://cases.justia.com/federal/district-courts/illinois/ilndce/1:2015cv07681/314962/37/0.pdf?ts=1453468909
4. See Tamburo v. Dworkin, 601 F.3d 693 (7th Cir. 2010), Walden v. Fiore, 134 S.Ct. 1115 (2014).