Tag: Facebook

Facebook Not Subject to Illinois Long-Arm Jurisdiction For Its Photo “Tagging” Feature – IL ND

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).

Multi-Year Request for Facebook Activity Too Broad – Illinois Federal Court

Ye v. Veissman (1:14-cv-01531)(Memorandum Opinion and Order) examines the scope of Facebook page discovery requests in the context of a wrongful death suit.

There, the plaintiff, whose daughter was killed in a freak traffic accident as she walked on a downtown Chicago street, sued the responsible trucking company and driver for wrongful death and tried to recover for mental anguish resulting from the accident. 

To probe the depths of the plaintiff’s claimed mental malaise, the defendants sought discovery of the decedent’s Facebook communications going back seven years before the accident.  The plaintiff refused on the grounds of relevance and overbreadth (“it’s a fishing expedition”) and the defendants moved to compel the material.

Denying the defendants’ motion, the Court answered important questions on when social media evidence is relevant to a mental distress claim and the case starkly illustrates the importance of narrowly tailoring discovery requests in this computer-drenched society.

The Federal Discovery Rules and Facebook Data

Federal Rule of Civil Procedure 26(b)(1) allows discovery into any nonprivileged matter relevant to a party’s claim or defense that is proportional to the needs of the case.

Facebook discovery requests can present thorny logistical challenges since  the amount of discoverable information is voluminous, data is retained for a long time and the number of people with whom a given Facebook subscriber communicates is potentially limitless.

In spite of these difficulties, social media evidence is still discoverable so long as the requested information meets the test of relevance.  The Illinois and Federal rules of evidence define relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  See Illinois Evidence Rule 401.

The Ye court noted that while “everything posted on social media can reflect a person’s emotional state of mind” at any given snapshot of time, a plaintiff’s injection of his state of mind does not give a requesting party with a “generalized right to rummage at will through [social media] information.”

Seven Years of Facebook Data = Too Broad

Finding the defendants’ discovery requests too broad, the Court noted that the amended discovery rules, effective since December 2015, limit the scope of relevant evidence and required that discovery be proportional to the needs of a given case.

The court allowed that since plaintiff’s damage claims were nebulous by nature – they included mental suffering, grief, sorrow, loss of society, companionship, and consortium – some social media discovery was clearly permitted (and relevant).  This was because the discovery requests sought to shed light on the plaintiff’s mental state and his damages claims.

The court found that “[c]ertainly some social media content during the time period prior to death will be relevant”, this didn’t give the defendants a green light to request unlimited Facebook information.  The court found the seven-year request overbroad as it wasn’t confined to a narrower pre-accident time span.

The extensive request for Facebook data also exceeded relevance restrictions since defendants sought communications between the decedent and third parties who had nothing to do with the accident or the lawsuit.  According to the court, if the discovery requests were pruned to only include communications between the decedent and her immediate family, the requests would likely be focused enough to meet the discovery rules’ relevance and proportionality tests.

However, as the requests currently stood, the minimal relevance of the decedent’s Facebook communications was outweighed by the burden to the plaintiff in producing the data.

To support its findings, the Court cited liberally from recent Federal cases in Indiana and California that found Facebook discovery requests spanning five years (the Indiana case) and seven years (Cal.) too broad under Rule 26.

Afterwords:

This opinion is a good example of a court grappling with the discoverability of social media evidence in a case where a plaintiff’s mental state is clearly at issue.  Like so often, the discovery decision distills to a balancing test: the Court weighs the possible relevance of the requested information against the time, money and energy burden to the plaintiff in producing the information.

While some latitude is allowed in discovery requests, it’s clear from this case and others like it, that discovery requests have limits.  Where the burden of responding to Facebook discovery outweighs the possible relevance of the requests, a court will order the requesting party to constrict its requests.

 

 

 

Stored Communications Act Claim Survives Summary Judgment In Social Media Account Hijacking Case

Maremont v. Fredman, 2014 WL 812401 (N.D.Ill. 2014) examines an employee’s claims under the Stored Communications Act (18 U.S.C. § 2701)(the “SCA”) where the employer accessed the employee’s social media accounts     that she used for both personal and business purposes.

The Court found that plaintiff submitted evidence to raise triable fact questions on each element of the Complaint’s SCA count. 

The SCA aims to deter computer hacking and gives a private right of action to someone whose private electronic information is intentionally breached. 

The SCA plaintiff must establish that the defendant either (a) intentionally accessed the plaintiff’s private computer communication or (b) intentionally exceeded authorized access and obtained, altered or prevented authorized access to plaintiff’s private communications. *6.

For their part, the Defendants argued that Plaintiff voluntarily provided her Twitter and Facebook password information so that Defendants could continue marketing their company from plaintiff’s pages. 

Plaintiff disputed this: she claimed that she kept her Twitter and Facebook passwords in a locked electronic folder on Defendants’ server.  This fact dispute led the court to deny summary judgment on the SCA claim.

Another disputed fact question concerned plaintiff’s damages.  The SCA provides for both actual damages and minimum statutory damages of $1,000.  The case law is in flux as to whether actual damages are required before a plaintiff can recover the statutory minimum damages.  The Court looked to other jurisdictions to find that an SCA plaintiff  does not have to first prove actual damages (e.g. medical bills, lost wages, pain/suffering, etc.) before she can recover statutory damages.

But the Court still found plaintiff raised a disputed and triable fact question on actual damages.  Plaintiff, her husband and her father all testified to plaintiff’s acute mental anguish in the wake of Defendants’ unauthorized Tweeting and Facebooking barrage.  Under Federal Rule of Evidence 701 – witness observations of the Plaintiff’s mental distress was competent “lay opinion testimony”, based on the witnesses’ personal observations.  *7.

Take-aways: Clearly a pro-employee ruling; at least on the SCA claim.  The plaintiff not only stored her computer information on her employer’s computer server, but several witnesses for defendants also claimed that plaintiff willingly gave out her account passwords so that defendants could use the accounts as a marketing platform. 

Still, the Court found that plaintiff’s privacy and commercial interest (the Court found that plaintiff could enhance her reputation in the design community via social media) in her Twitter and Facebook accounts trumped the employers’ right to access those accounts.