Legal professionals, particularly those involved with e-commerce and online privacy, need to pay close attention to a recent decision by the Ninth Circuit Court of Appeals, which could have significant ramifications for companies nationwide. This decision, in Briskin v. Shopify Inc., has broadened the scope of specific personal jurisdiction, potentially allowing plaintiffs to pursue online privacy claims in courts across many states.
In this case, the court determined that Shopify could be held to specific personal jurisdiction in California for installing cookies on a user’s device when it allegedly knew the user was based in that state. This conclusion puts additional pressure on companies, possibly broadening their accountability for data collection practices across state lines. Notably, it challenges the long-held precedent that something beyond mere availability of a website is necessary to establish jurisdiction for tort claims related to online activities.
The court’s decision underscores the importance of understanding individual geolocation and IP addresses in jurisdictional matters. With the Ninth Circuit identifying these as critical elements, companies should carefully consider how they gather and utilize such data.
In contrast, the First and Third Circuits have previously concluded that session replay technology cases failed to meet the “express aiming requirement” for jurisdiction due to the absence of knowledge about the plaintiffs’ locations. This signifies varied interpretations across circuits, potentially leading to more forum-shopping in the wake of the Ninth Circuit’s decision.
Legal counsel for companies operating e-commerce platforms should anticipate heightened scrutiny and take strategic actions to mitigate risks. These may include utilizing comprehensive disclosures and obtaining user consent via cookie banners, incorporating robust forum selection clauses in terms of service, assessing vendor agreements, and considering geofencing where possible to limit jurisdictional exposure.
The broader impact of Briskin remains to be seen, particularly for back-end service providers who lack direct user interactions to present their terms of service. With the ruling perceived as “lowering the bar” for specific personal jurisdiction in the Ninth Circuit, proactive measures are crucial to navigate the evolving landscape of online privacy litigation.
For further information, you can refer to the original discussion and analysis of this decision on the Bloomberg Law website. The nuances of this ruling highlight the critical importance of understanding jurisdictional complexities in the realm of digital commerce.