Briskin v. Shopify, is a big legal case happening in the data privacy world at the moment concerning website tracking litigation and personal jurisdiction. There is a lot to learn about the case and how this will affect your business one way or the other but it’s something you absolutely can not ignore. With our help we can stop you from stepping into a legal trap based on whats happening with both Shopify right now and other privacy litigation cases that we’ve been researching.
What is a “passive website”?
A passive website is generally defined as a website that primarily presents information to visitors without actively engaging them in interactive features, transactions, or dynamic content generation based on user input or location. Key characteristics often include:
- Static Content: The content is largely fixed and doesn’t change frequently or based on user interaction.
- Informational Focus: The main purpose is to provide information about a business, organization, or topic.
- Limited Interactivity: Features like user accounts, online purchasing, personalized content, or real-time communication are typically absent.
- Broad Accessibility: A passive website aims to be accessible to anyone on the internet without specific targeting.
In the context of personal jurisdiction, the distinction between a passive and an active website has been crucial. Historically, courts have been less likely to find personal jurisdiction over the operator of a purely passive website in a foreign jurisdiction simply because residents of that jurisdiction can access it. The “something more” that the Ninth Circuit previously required was often evidence of active efforts to target users in the forum state.
The Briskin v. Shopify Decision and its Implications:
The Ninth Circuit’s en banc ruling to overrule the prior precedent requiring “differential targeting” for specific personal jurisdiction in California federal courts in online cases is a significant development. Imagine if there were hundreds of thousands of suits a month like the current Pacific Trial Attorneys and Swigart lawsuits thats happening. It’s a scary thought for anybody who runs a website.
- Shift in Precedent: The court has lowered the bar for establishing specific personal jurisdiction in California for out-of-state businesses with an online presence. The fact that Shopify allegedly had geolocation technology and knew the plaintiff was in California seems to have been a key factor in the court’s reasoning that Shopify “deliberately targeted” Briskin in California.
- Increased Litigation Risk: As you pointed out, this decision could open the door for more lawsuits in California against businesses that have a nationwide or international online presence, even if they don’t specifically target California consumers in a demonstrably different way. Plaintiffs’ attorneys may argue that simply operating a website accessible in California and using common tracking technologies is enough to establish jurisdiction, especially if any form of location awareness is present.
- Distinguishing Factors: Your optimism about the distinguishing facts in Briskin is well-founded. The fact that the defendant was a third-party data collector (Shopify, not the website operator Briskin directly interacted with) and Shopify’s alleged use of geolocation technology are crucial.1 This leaves room for non-California website operators who lack such geolocation capabilities and are sued directly for their own website activities to argue a lack of specific personal jurisdiction. They can argue they have no specific knowledge of or intent to target California users differently.
SCOTUS Appeal and Timeline:
Regarding a potential Supreme Court review:
- Likelihood of Appeal: Given the overruling of established Ninth Circuit precedent and the potential for significant impact on interstate commerce and online businesses, it seems highly likely that Shopify will consider appealing to the Supreme Court. The dissent within the Ninth Circuit further strengthens the case for Supreme Court review, as it highlights a disagreement on fundamental principles of personal jurisdiction.
- SCOTUS Decision Timeline: Predicting the Supreme Court’s actions is always challenging. Several factors influence whether SCOTUS grants certiorari (agrees to hear the case) and how long a decision might take:
- Petition for Certiorari: Shopify would need to file a petition for a writ of certiorari with the Supreme Court within 90 days of the Ninth Circuit’s judgment. This timeframe can be extended by a Justice for good cause, but generally not exceeding 60 days.
- Supreme Court Review: The Supreme Court receives thousands of certiorari petitions each year and grants only a small percentage (typically under 5%).2 They are more likely to take cases where there is a circuit split (different federal appellate courts have ruled differently on the same issue) or where the issue is of significant national importance. The Briskin case, with its implications for online commerce and personal jurisdiction, could be seen as meeting this threshold.
- Briefing and Oral Arguments: If SCOTUS grants certiorari, the parties will file briefs, and oral arguments will be scheduled. This process typically takes several months.
- Decision: After oral arguments, the Justices meet in conference to discuss the case and vote. The Court then drafts and issues its opinion, which can take several more months.
Over/Under 2 Years for SCOTUS Decision:
It’s a gamble, but here’s a rough estimation:
- Under 2 Years: This is possible, but might be on the faster side. If Shopify files its petition relatively quickly, SCOTUS grants certiorari without much delay due to the clear overruling of precedent and the importance of the issue, and the Court moves efficiently through briefing and arguments, a decision could potentially be reached within two years.
- Over 2 Years: This might be more likely. The Supreme Court’s docket is often crowded, and the process from petition to decision can easily extend beyond two years, especially if there are delays at any stage (e.g., briefing extensions, longer time for the Court to deliberate).
SCOTUS and the Constitution:
Your point about SCOTUS having a “Constitution to save” is a humorous nod to the Court’s role in addressing fundamental constitutional issues. While personal jurisdiction is rooted in the Due Process Clause of the Fourteenth Amendment (for state court jurisdiction, applied to federal courts through the Fifth Amendment), the Court does have a broad range of significant constitutional matters that frequently demand its attention. Whether they prioritize this specific issue related to online jurisdiction remains to be seen. The fact that the Ninth Circuit’s decision directly alters the application of established due process principles in the online context could raise its priority.
So what do we do now? The Briskin v. Shopify decision is a noteworthy development in the realm of website tracking litigation and personal jurisdiction. It introduces uncertainty for businesses operating online and could lead to increased litigation in California. The distinguishing facts of the case offer some hope for limiting its broader impact, and the potential for Supreme Court review adds another layer of complexity and uncertainty to the future legal landscape in this area.
