The First Circuit Court of appeals has affirmed that specific personal jurisdiction must be based on defendants’ intentional conduct. In affirming the dismissal of a consumer class action that alleged “wiretapping” claims based on ordinary website activity, the federal appeals court’s decision reflects growing judicial skepticism toward the proliferation of class action claims applying old statutes to ubiquitous Internet technologies.

The Recent Trend of Electronic Wiretapping Lawsuits

Rosenthal v., LLC exemplifies the flood of statutory wiretapping claims inundating website operators and federal courts these days. A website visitor claimed that when he navigated to the defendant retailer’s website, it recorded his site visit and shared that information with analytics vendors. The plaintiff argued that this activity represents electronic wiretapping—a criminal offense under state and federal law in most jurisdictions. Such statutory claims have gained in popularity in recent years because they authorize plaintiffs to seek liquidated damages without proving measurable economic harm.

This and similar recent claims seek to contort decades-old “wiretapping” statutes and other laws to impose serious criminal liability on thousands of businesses who use ordinary website analytics tools. Website operators have strongly objected to these suits. And in the last two years, skeptical courts have begun to dismiss these claims on a number of grounds.


In this case, the U.S. District Court for the District of Massachusetts dismissed the plaintiff’s lawsuit without addressing the statutory wiretapping issue. Instead, it ruled that it did not have personal jurisdiction in Massachusetts over an out-of-state retail website operator whose related conduct did not target the state. The court held that in order for it to exercise specific jurisdiction over the retailer, the retailer had to voluntarily conduct activities in the state, and the lawsuit had to arise from those activities. Here, the allegedly harmful activities were the retailer’s incorporation of vendor-provided analytics tools into its website—an action that was not intentionally directed at Massachusetts. The district court distinguished between plaintiff’s intentional actions in accessing the website while in Massachusetts and the retailer’s maintenance of the site and related vendor contracts. Thus, it found no “demonstrable nexus” between the plaintiff’s claims and the retailer’s relevant contacts with Massachusetts. The Court of Appeals affirmed. Even where the retailer did business in the Bay State—both online and in stores—the court observed that such general contacts were unrelated to the plaintiff’s specific claims. The retailer’s website was available nationwide and configured in a way that it treated all visitors the same, wherever they were from. It did not intentionally target users in Massachusetts. Had the plaintiff shown otherwise or identified a connection to Massachusetts beyond the plaintiff’s mere browsing of the website, the result might have been different.

Applying Long-Established Jurisdictional Principles to Novel Theories of Liability

The Rosenthal decision comes closely on the heels of the U.S. Court of Appeals for the Ninth Circuit’s recent decision in Briskin v. Shopify, Inc., which affirmed a similar dismissal. Both cases demonstrate that fleeting Internet contacts—as opposed to substantial, intentional local contacts—face an uphill climb. Personal jurisdiction doctrine is rooted in basic notions of due process and fairness: where a defendant is not at home, it is unfair to be dragged into court in a place where the defendant did not target specific conduct. By protecting businesses from being sued in states where they did not direct specific, intentional conduct, courts may curtail the class action plaintiff’s bar’s efforts to funnel cases into courts they expect to be more receptive to their theories.