Earlier this week, Judge Edmond Chang of the Northern District of Illinois rejected Google’s arguments that application of the Illinois Biometric Information Privacy Act (BIPA) to facial geometry scanning by Google Photos is, on its face, an improper extraterritorial application of Illinois law. See Rivera v. Google, Inc., Case No. 16-cv-22714, Docket Entry 60. Faced with Google’s arguments that the claims would require extraterritorial application of the statute and/or would violate the Dormant Commerce Clause by reaching beyond state boundaries, the court essentially punted, saying that “[d]iscovery is needed to determine whether there are legitimate extraterritoriality concerns.” Id. at p. 22. The court also rejected Google’s argument that BIPA does not cover facial geometry scans pulled from photographs.
But conspicuously absent from the opinion or any of the briefing is a discussion of personal jurisdiction. As we wrote about last year, Facebook (one of the few online companies that could even attempt to rival Google in terms of online popularity and global reach) was able to duck a similar lawsuit under BIPA when the court held that the Northern District of Illinois lacked specific personal jurisdiction over Facebook. See Gullen v. Facebook.com, Inc., 2016 WL 245910 (N.D. Ill. Jan. 21, 2016). It is, of course, much easier to be an armchair quarterback in situations like this—particularly when not burdened by knowledge of facts that might undermine the argument—but it would seem that Google could have argued, like Facebook did, that because the plaintiffs do not allege (and could not allege) that Google “targets its alleged biometric collection activities at Illinois residents,” there is no specific personal jurisdiction over Google in this instance. As we said last year, if a site like Facebook with “millions” of in-state contacts is not subject to personal jurisdiction, many other Internet companies could successfully challenge personal jurisdiction based on the rationale laid out in Gullen and the authorities that it relied on.
In light of the Gullen decision, as well as the Supreme Court’s decision in Walden v. Fiore, 134 S. Ct. 1115 (2014), and the Seventh Circuit’s decision in Advanced Tactical Ordnance Sys. LLC v. Real Action Paintball, LLC, 751 F.3d 796 (7th Cir. 2014), defendants in cases arising from alleged online conduct should carefully consider challenging personal jurisdiction. This is particularly true because, as the Google case highlights, even meritorious arguments may not be enough to achieve dismissal without incurring the costs of discovery.