District Judge Throws Out Facebook Biometric Suit for Lack of Personal Jurisdiction

On January 21, U.S. District Judge Jorge L. Alonso dismissed a lawsuit against Facebook for lack of personal jurisdiction, holding that Facebook did not target its alleged biometric collection activities at Illinois residents. Judge Alonso did not grant plaintiff Frederick Gullen leave to amend.

The class action complaint, which was filed last August, alleged that Facebook illegally collected, stored, and used Gullen’s biometric information without his informed written consent, in violation of the Illinois Biometric Information Privacy Act (740 Ill. Comp. Stat. 14/1 et seq.). This biometric information included “face templates,” or highly detailed geometric maps of individuals’ faces, which Facebook allegedly created “using sophisticated facial recognition technology that extracts and analyzes data from the points and contours of faces appearing in photos uploaded by their users.” Although Gullen did not have a Facebook account, he claimed that he was tagged in a photo uploaded to Facebook by another user without his permission. He claimed that Facebook subsequently scanned and analyzed his face, extracted his biometric identifiers, and used those identifiers to create a template of his face. According to the complaint, millions of individuals, including Gullen, reside in Illinois and were subject to this conduct.

Gullen argued that Facebook was subject to specific personal jurisdiction in Illinois because it registered to conduct business in Illinois, maintained a physical sales and advertising office in Illinois, and targeted its facial recognition technology to millions of its users who are residents of Illinois.

Judge Alonso disagreed. The court stated that Facebook’s sales, marketing, and other business activity in Illinois, unrelated to its alleged collection of biometric data from user photos, could not support specific personal jurisdiction. The court held that Gullen’s other basis for specific jurisdiction – that Facebook targeted its technology to Illinois residents – was in conflict with the complaint’s other allegations. Specifically, Judge Alonso emphasized the complaint’s allegation that Facebook automatically uses facial recognition technology on every user-uploaded photo, not just on photos uploaded in or by residents of Illinois. Accordingly, the court concluded that Facebook’s collection of biometric data was not targeted at Illinois residents.

Therefore, the court held that Facebook’s only relevant contact with Illinois was its operation of an interactive website available to Illinois residents, and that this alone was insufficient to confer specific jurisdiction over Facebook. The court analogized the operation of a social media site with Seventh Circuit case law regarding an online merchant’s operation of an interactive site. According to Judge Alonso, under Seventh Circuit case law, the operation of such a site is insufficient to confer specific jurisdiction on a business in every state from which the site may be accessed.

The court also rejected Gullen’s “intentional tort theory,” which would still require that Facebook’s conduct be expressly aimed at Illinois.

Commentators have since pointed out that a district judge in the 7th Circuit recently rejected a similar motion to dismiss brought in Norberg v. Shutterfly, No. 15-cv-5351 (N.D. Ill. Dec. 29, 2016) (link to PDF). The differentiating factor between the two cases is likely caused by the fact that the court found dispositive, on the face of the pleadings, that Shutterfly allegedly used the compiled biometric data to target Illinois residents for its various photo products. On the other hand, FaceBook’s collection of photographs was passive, and thus not actively directed at Illinois residents.