Someone is Watching You: The Complexities of Personal Jurisdiction in the Digital Age

June 13, 2024

The internet, characterized by its borderless nature, has introduced significant challenges to the traditional concepts of personal jurisdiction in federal courts. This issue was recently highlighted in the First Circuit Federal Appeals Court, where, after a Motion to Dismiss was upheld, concerns arose about how personal jurisdiction rules apply to cases involving online activities. Comments by First Circuit Judge Ojetta Rogeriee Thompson underscore the pressing need for either the U.S. Supreme Court or Congress to provide clearer guidelines.

Rosenthal vs. Bloomingdales.com

The case, Rosenthal v. Bloomingdales.com, involved a privacy class action lawsuit against Bloomingdales.com. The plaintiff, Scott Rosenthal, alleged that the retailer’s use of a “session replay” code, which tracks users’ activities on its website, violated Massachusetts privacy laws. However, the court found that Rosenthal failed to establish specific personal jurisdiction. The judges ruled that Bloomingdales.com had not specifically targeted Massachusetts residents when it developed its website and implemented the tracking code.

The Dubitante Concurrence

In her dubitante concurrence – a statement of doubt without formal dissent – Judge Thompson acknowledged the ruling’s alignment with current law but expressed deep concerns about broader implications. She noted that the current legal framework could allow website operators to “manipulate and evade” jurisdictional requirements, effectively avoiding accountability for potentially invasive privacy practices.

This also has potential broader implications for other internet related lawsuits, such as e-commerce cases.

The Evolving Nature of Personal Jurisdiction

Personal jurisdiction, a fundamental concept in U.S. law, traditionally hinges on a three-part test:

  1. The defendant must purposefully direct activities towards the forum state.
  2. The claim must arise out of or relate to the defendant’s forum-related activities.
  3. The exercise of jurisdiction must be reasonable and comply with fair play and substantial justice.

This framework, developed in a pre-internet era, is increasingly challenged by the global reach of online activities. Courts have struggled to adapt these principles to the digital landscape, leading to inconsistent rulings across different jurisdictions.

Divergent Approaches in Federal Courts

  • The Ninth Circuit in Axiom Foods v. Acerchem Int’l, Inc. emphasized that a defendant’s own contacts with the forum state are critical, rather than their knowledge of the plaintiff’s connections to the forum.
  • The Second Circuit in Chloe v. Queen Bee of Beverly Hills, LLC. found that offering products for sale to forum residents and making a single sale could establish personal jurisdiction.
  • Conversely, the Eighth Circuit in Sisters in Christ, LLC v. Zazzle, Inc. ruled that a single sale to a forum resident was insufficient for jurisdiction.

These discrepancies highlight the need for a new, revised, clearer and uniform standard that accounts for the realities of internet commerce, either through The U.S. Supreme Court or through Congress.


The Rosenthal vs. Bloomingdales.com case underscores the pressing need to modernize personal jurisdiction principles to reflect the digital age’s realities. As Judge Thompson stated, the internet’s borderless nature necessitates new legal standards to prevent the evasion of accountability by digital platform operators and users.  Whether through judicial clarification or legislative action, it is imperative to adapt the law to ensure fair and just outcomes in the context of global online activities.