Specific Personal Jurisdiction Principles Still Apply to Cyberspace

Ziqing (Timothy) Wang Johns Hopkins University

Introduction

Section one of the Fourteenth Amendment states that no state shall “deprive any person of life, liberty, or property, without due process of law.”xxiv While the “due process” clause of the Fifth Amendment served as a legal restriction on the federal government, that of the Fourteenth Amendment constrains states. Since its ratification, there have been debates on the interpretation of the state-binding “due-process” clause.xxv One of the critical discussions is the courts’ in personam jurisdiction (whether the court possesses the power to adjudicate cases against a party that is within its jurisdictional reach). The determination of personal jurisdiction is important as it often influences the application of substantive law, the trial of related cases, and the rights and obligations of the related parties.

In 1878, the Supreme Court (SCOTUS), in Pennoyer v. Neff, specified the restriction on the scope of courts’ personal jurisdiction. In delivering the court’s opinion, Justice Stephen Field suggested that “state possesses exclusive jurisdiction and sovereignty over persons and property within its territory,” but not “jurisdiction and authority over persons or property without its territory.”xxvi The Pennoyer case held that the courts’ jurisdictional authority over defendants is bounded by the physical territory of the forum state. However, with the developments of the industrial age, an increasing number of manufacturing and businesses were conducted nationally, putting heavy pressure on the strict territorial restriction set by the Pennoyer case. SCOTUS also realized the need to adapt the personal jurisdiction standard to the changing nature of the economy.xxvii In 1945, in International Shoe Co. v. Washington, the Court held that personal jurisdiction over parties beyond forum state territory is constitutional if they have “minimum contacts” with that state.xxviii The introduction of the minimum contacts doctrine provides a standard by which courts may exercise personal jurisdiction for parties beyond their forum state boundary. Today, in an even more interconnected internet era, courts’ personal jurisdiction again faces challenges. Whether courts should continue their ruling based on the old doctrine or develop a new test to suit the changing contexts remains a vital question.

This paper argues that, when it comes to specific personal jurisdiction in cyberspace, courts should not rely upon a universal test based on the nature of the defendant’s website. Future determination of the courts’ in personam jurisdiction related to the internet should continue to be dictated by the minimum contacts doctrine, which is fact-specific. The paper will be divided into three parts. Part I will introduce the principle of minimum contacts on specific personal jurisdiction. The paper will explain the differences between general and specific personal jurisdiction and how minimum contacts come into play. Part II will present courts’ innovations to determine personal jurisdiction in the internet realm. A specific focus will be put on Inset Rule and the Zippo Sliding Scale test. The paper will also address the deficiencies of each. Finally, Part III argues for a return to the principles of minimum contacts. Specific factors based on the doctrine to determine the court’s personal jurisdiction on the internet will be discussed.

I. Specific Personal Jurisdiction and Minimum Contacts Doctrine

A.General Personal Jurisdiction vs. Specific Personal Jurisdiction

In personam (over a particular person) jurisdiction is defined as the power of the court over persons (parties) before it may issue judgments.xxix In the process of exercising personal jurisdiction, the courts distinguish between two types: general personal jurisdiction and specific personal jurisdiction. The two types describe different applicable conditions and scopes of jurisdiction.

General jurisdiction refers to jurisdiction in which the court does not need to differentiate the causes of action that the plaintiff declares against the defendant.xxx Once the general jurisdiction is established, the court has the power to rule without the need to review the nature of the specific claim presented (meaning that the defendant may be sued for any cause of action regardless of its nature). In general, courts have general jurisdiction over the individuals in the forum state, which includes those within the state territory and citizens of the state (the forum state is the individual’s domiciliary state by choice).xxxi General jurisdiction over corporations is largely determined by their place of incorporation or the location of their headquarters.xxxii

For parties foreign to the forum state, general jurisdiction requires “continuous and systematic” activities of the party in the forum state.xxxiii In Helicopteros Nacionales v. Hall, for example, even though the defendant company conducted transactions, negotiated a contract, and trained employees in the forum state, the court did not automatically have general jurisdiction over it.xxxiv Thus, evidence that the defendant regularly conducts business in the forum state may not be enough unless those contacts are “continuous and systematic.” While SCOTUS defined the standard for courts to have general jurisdiction over the party, it did not provide a universal test for lower courts to apply. Other SCOTUS rulings on general jurisdiction have tended to be fact specific. In Perkins v. Benguet Consolidated Mining Co., the Court determined the presence of general jurisdiction based on the quantum of business activities conducted by the defendant in the forum (dividend payment, machine purchase, business correspondence, etc.) to assess whether the contacts were “continuous and systematic.”xxxv Finally, a court may also have general jurisdiction over a party that voluntarily submits to the court.xxxvi

Specific jurisdiction is defined as “the power to adjudicate with respect to issues deriving from, or connected with, the very controversy that establishes jurisdiction to adjudicate.”xxxvii In comparison with general jurisdiction, specific jurisdiction requires the plaintiff to establish a much lower standard to show “minimum contacts” between the defendant and the forum state.xxxviii However, its applicability is also strictly restricted, as there must be a relationship between the contact and the claim. The court may hear only claims arising from the connection between the defendant and the forum. The internet cases that this paper seeks to investigate generally raise questions about this category of jurisdiction. Before stepping into the internet era, the paper will first discuss the International Shoe Co. case and the traditional minimum contacts doctrine, which sets out the restraints placed on personal jurisdiction.

B International Shoe Co. v. Washington and Minimum Contacts Doctrine

Approaching the 20th century, due to the development of the industrial age and the transportation technologies it brought, the US economy became more interconnected, with most of its commerce happening across state and national borders.xxxix Manufacturing, commercial, and industrial enterprises, in the form of corporations, increasingly operated trans-state and transnationally, putting heavy pressure on the territorial sovereignty principle set out by Pennoyer. Domestic parties may enter into disputes with foreign companies, which often need to be resolved through legal actions. As a result, loosening the territorial restrictions on personal jurisdiction became inevitable.

In 1945, the SCOTUS ruling in International Shoe Co. v. Washington provided the resolution. In delivering the opinion of the Court, Chief Justice Stone suggested that if a party is “not present within the territory of the forum” but has “certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice,’” then specific jurisdiction over the party does not violate the due process requirement.xl The appellant International Shoe Co was a Delaware Corporation with Missouri as its principal place of business,xli so the company was not automatically subject to Washington state courts’ jurisdiction based on territory. The company had no office in Washington, nor did it conduct a significant amount of business in the state (the company had no contracts there), and thus did not have a substantial connection with the forum state for it to justify general jurisdiction.xlii However, because salespersons (compensated by commission from sales) resided in the state, there were sufficient contacts between the International Shoe Co. and Washington to make the company subject to the personal jurisdiction of the state court.xliii Since the cause of action directly arose from the company’s activity in question (the employment of sales staff for whom state unemployment compensation fund payments were made), specific jurisdiction over it did not conflict with due process.

Since International Shoe Co., SCOTUS rulings on personal jurisdiction have applied the minimum contacts doctrine.xliv However, the Supreme Court has never provided a standardized test to decide if the party’s connection with the forum state is substantial enough to meet the minimum contact requirement. Without a mechanical list of judging criteria, lower courts have the liberty to interpret the qualification of minimum contacts on their own. The “minimum contacts” doctrine is flexible in its applicability, which facilitates the plaintiff's litigation and enables the defendant to effectively bear legal liabilities. It should serve as a binding principle for later cases on personal jurisdiction.

II. Specific Personal Jurisdiction on the Internet

While the minimum contacts doctrine effectively regulates personal jurisdiction issues in the context of the modern economy (inter-state and international commerce), the development of internet technologies brought new challenges. US courts have started to realize the upsurge and prevalence of the internet since the 1990s. The number of computers with internet capabilities was about 300 worldwide by 1981, and that number increased to more than 9 million by 1996 (60% of them located in the US) with 40 million internet users.xlv While the trend of the internet age is recognized by the Court, why does the internet require special attention regarding personal jurisdiction issues?

The invention of the internet introduces human civilization to cyberspace, a unique medium that does not have any physical territory and is available to internet users around the world.xlvi

People can share resources globally through the internet, and businessmen can use it to conclude transactions at any time despite being in different locations. The cyber-world marks a revolution in global interconnectivity and has become another realm besides the physical world. Due to the decentralized and borderless nature of the internet, the legal regulation of virtual society cannot be as effective as that in the real world. Therefore, internet-related legal disputes (e-commerce disputes, cyber torts, etc.) will likely occur from time to time. When these cases enter the litigation process, the first thing to consider is the issue of personal jurisdiction standards in the internet context.

Consider the following examples. In McGee v. International Life Ins. Co., SCOTUS confirmed the lower courts’ finding of minimum contacts between the company and California based on the reinsurance certificate mailed to the petitioner's son in that state.xlvii International Life purposefully sent the document to California, thereby intentionally building some connection with the forum.xlviii In the physical world, factors (domicile, place of incorporation, transactions, mail, etc.) to determine courts’ jurisdiction over a party are more tangible and thus can be easily traced and identified. The physical presence of those factors makes the determination of minimum contacts relatively simple.

Now hypothetically consider the same example in the internet age, with International Life sending the document via a Microsoft Outlook email. In this case, the company never specifically intended for the email to be delivered to California, as the recipient could have read the message anywhere. The internet breaks down the boundaries of physical space, and its nature renders parties’ location, citizenship, and commercial activities… uncertain.xlix It is thus more difficult to determine the connection between the party and forum in virtual space.

E. Inset Systems Inc. v. Instruction Set, Inc. and its problem

Starting from 1996, a huge wave of litigation arose over the issue of personal jurisdiction over parties in internet transactions among the lower courts.l Since no precedents have been provided by SCOTUS, the decisions in those cases have largely been based on each court’s own standard. One early trend that requires particular attention is the courts’ effort to determine personal jurisdiction according to people’s ability to access the defendant’s website.li In Inset Systems Inc. v. Instruction Set, Inc., the Connecticut court subjected the defendant (a Massachusetts corporation) to its personal jurisdiction because its website’s advertisement could be reached by the internet users in the forum state.lii The court suggested that “the advertisement is available continuously to any Internet user” and thus decided that this constituted minimum contacts between the defendant and Connecticut.liii

The Connecticut court ruling is quite astonishing. The court held that a single URL accessible to Connecticut citizens was a sufficient basis for exercising personal jurisdiction in cases of internet commerce. According to the logic of the court’s ruling in the Inset case, if the content is intentionally published on the Internet, meaning that the consequences caused by the content can occur anywhere, the publisher would have demonstrated minimum contacts with every forum in the world. This would put all website owners under the specific jurisdiction of every single court in every village, town, city, and country that has internet access.liv Despite the absurdity of the Inset case’s legal implications, several other courts’ rulings followed Inset’s principle to subject the party to their specific personal jurisdiction.lv The Inset Rule would endlessly increase the scope of courts’ potential jurisdiction, making one wonder whether such a ruling is consistent with the “traditional notions of fair play and substantial justice” and the demands of “due process.”lvi

B. Zippo Manufacturing Co. v. Zippo Dot Com, Inc. and the Sliding Scale Test

The overly simplistic approach of the Inset case expanded the scope of courts’ jurisdiction extensively. In Zippo Manufacturing Co. v. Zippo Dot Com, Inc., the U.S. District Court for the Western District of Pennsylvania sought to revise the “Inset principle” by proposing a sliding scale that differentiates websites according to their level of interactivity.lvii Using this sliding scale, “the likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet.”lviii

On one end of the scale are passive websites, which parties use to publish information (telephone number, address, services provided, etc.), and are accessible to whoever is interested.lix Since the publisher cannot anticipate who is going to view the website, it does not purposefully build a connection with the state, and personal jurisdiction over it is thus 44 unjustified. On the other end of the scale are “active” websites, which parties use to solicit or to conduct business transactions and to initiate contracts.lx Specific personal jurisdiction may be exercised over the owners of those websites, as they actively transmit information, offers, and files to the users who are residents of a physical state.lxi

Other websites occupy the middle of the scale: mostly websites with interactive features. In those cases, the courts must examine the degree of interactivity and commercial nature of the website to determine whether specific jurisdiction is proper.lxii The Zippo sliding scale continues to be used to decide the presence of minimum contacts based on the nature and operations of the defendant’s website, yet, unlike the Inset rule, it proposes a metric that limits courts’ jurisdiction authority in the internet realm based on whether the defendant purposefully availed itself of the opportunity to do business in the forum. The scale could serve as a helpful reference when deciding the courts’ power to adjudicate.

In Zippo, the defendant (a Californian company)’s website provided premium subscription services that request customers’ information and credit card payments. After the online payment, the defendant provided its subscribers with news that is available for views and downloads.lxiii

According to the Zippo court, such a website is highly interactive. Zippo dot com directly sold its news service to and entered into agreements with consumers over the internet, which placed the website at the “active” end of the sliding scale, and thus its publisher was subject to court jurisdiction.

One detail of the Zippo case that is worth mentioning is that its adoption of the Zippo sliding scale test to evaluate the nature of the defendant’s website played only a supplemental role in the confirmation of jurisdiction.lxiv Although the Pennsylvania District Court did not use its own invention as a major tool to justify personal jurisdiction, the test became a prevalent reference for later cases.lxv

C. The Zippo Test’s Applications and Problems

From Inset to Zippo, US lower courts’ rules for determining jurisdiction in the internet context have experienced reasonable progress. The flexibility of the Zippo test, by analyzing the specific connection between the defendant’s internet activities and the forum, could help limit the unrestrained personal jurisdiction under Inset. However, despite the Pennsylvania District Court’s effort to conduct a fact-specific inquiry (following the International Shoe standard), later cases have improperly used the Zippo sliding scale as the sole test for the court’s personal jurisdiction authority.

There has been criticism of the minimum contacts doctrine, arguing that the flexible test has led to “ambiguity and incoherence” in the determination of personal jurisdiction.lxvi Several scholars concur with such sentiment, arguing that a universal test should be adopted to determine personal jurisdiction in internet cases.lxvii Several court rulings follow the trend by using the Zippo sliding scale as a universal test to determine their jurisdiction over a defendant. In Mink v. AAAA Development, the court held that the defendant's website was only used to publish information about products, services, address, phone number, and email.lxviii The actual business transactions were conducted through mail-in order and not through the website.lxix Therefore, according to the Zippo sliding scale, the defendant’s website is passive, and the court does not have jurisdiction over it based only on the website.lxx In Mid City Bowling Lanes & Sports Palace, Inc. v. Ivercrest, the court found a lack of personal jurisdiction since the defendant’s website was passive (the website only featuring advertisements, addresses, and phone numbers, with no interactive feature).lxxi Both cases relied mainly on Zippo, which only seeks to determine whether the contents of the website establish contact with the forum

Although it is not within the Zippo court’s original intention to create a universal test for later rulings on personal jurisdiction, the test has inherent flaws, which encourages potential universal application. The problem with the Zippo sliding scale lies in its two ends. The two poles of the sliding scale explicitly categorize websites into active and passive ones, and justify personal jurisdiction without much room for flexibility. The scale errs in the same manner as Inset, which allows universal jurisdiction based only on the nature of the website.

The rigid application of the Zippo scale completely ignores factors beyond the nature of the website, which could lead to incorrect determination of personal jurisdiction. In Barrett v. Catacombs Press, a defamation case, the court relied part of its decision on the Zippo test. Since the defendant “maintain[ed] a website without any contract to sell goods or any active solicitation,” the nature of the website was passive and therefore not enough to trigger personal jurisdiction.lxxii In this case, the use of the Zippo sliding scale is inappropriate, since even though the website was passive (information-only without interactive features), defamatory material could still be published on the website. The technical nature of the website is irrelevant to the potential harm that could be done through defamation speech. The Court adopted the Zippo test since it is an internet-related case, yet the case, in essence, is a defamation lawsuit. Thus, the qualification of personal jurisdiction in Barrett v. Catacombs Press should rely on the Calder test, the SCOTUS-developed personal jurisdiction test for defamation cases.lxxiii Moreover, the general application of the Zippo test in internet-related cases could have consequences beyond the legal realm. Some scholars warned that the adoption of the sliding scale will hinder the development of e-commerce, which runs against Congress’s intention for internet growth.lxxiv

Some courts have already recognized the problem of the Zippo scale and have chosen to examine factors beyond the nature of the website to determine whether they have personal jurisdiction over the defendant. In Millennium Enterprises v. Millennium Music, LP., although the defendant’s website was interactive, which would render its owner subject to the court’s personal jurisdiction under the Zippo sliding scale, the court decided that it could not exercise jurisdiction over the defendant.lxxv The court held that to determine whether it had jurisdiction over the defendant required “something more” than the Zippo test, since the defendant did not pursue “deliberate actions” in the forum state, and contacts between the party and the forum were not substantial enough to qualify as minimum contacts for jurisdiction.lxxvi Millennium Enterprises exposed one of the Zippo test’s major flaws, which is its sole focus on the nature of the website. Complete reliance on the Zippo test will lead to ignoring important factors to determine minimum contact. In determining specific jurisdiction, “the defendant's conduct and connection with the forum state” matters more.lxxvii

One criticism against the Zippo test that this paper seeks to defend is the test’s middle ground (the scale, rather than the end). Some scholars blamed the “ambiguity of the classification” of those interactive websites that are neither active nor passive and ask for clear guidance for tests on those websites.lxxviii However, it is exactly the flexibility inherent in the Zippo test’s middle ground that should be most appreciated. The scale encourages courts to examine the website’s interactivity and commercial nature, which is more fact specific. The Zippo test should not be treated as a panacea for internet jurisdiction but as a reference in the factual investigation to determine minimum contacts.lxxix

III. A Return to the Old Principles: Minimum Contacts Still Apply Today

Seeing the profound social and economic impact brought by the internet over the past years, lower courts have actively sought to establish tests to determine internet personal jurisdiction. While the minimum contacts doctrine successfully resolved the legal challenges brought by earlier changes in the economic environment, courts in the internet age hope another test would achieve a similar purpose. These courts may think that the minimum contacts doctrine is outdated and use either the Inset rule or the Zippo test as a replacement. However, the minimum contacts doctrine does not apply only to physical interstate commerce.lxxx Minimum contacts set by SCOTUS in the International Shoe is a constitutional interpretation of when personal jurisdiction does not violate the due process of law. The invention of the minimum contacts doctrine is consistent with the earlier personal jurisdiction framework (set by Pennoyer), and it refined, rather than undermined, the “legitimate scope of state authority.”lxxxi The Inset principle and improper use of the Zippo test would significantly increase the potential scope of jurisdiction of the state courts, which contradicts the principle of the Fourteenth Amendment.

The minimum contacts doctrine continues to serve as the fundamental principle in determining personal jurisdiction in internet cases. Internet jurisdiction tests originating from the lower courts should not serve as the only source to determine the court’s power to adjudicate, as their constitutionality is not verified. Since its creation, the minimum contacts doctrine has intentionally been left vague. That flexibility encourages fact specific inquiry, by carefully examining “the quality and nature of the activity in question” based on “fair and orderly administration of the laws.”lxxxii To better demonstrate minimum contacts’ application to the internet, the remaining part of the paper will be devoted to important considerations when assessing the contact between the party and forum to determine personal jurisdiction authority.

A. Foreseeability

Foreseeability refers to whether “the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.”lxxxiii The determination of foreseeability of one’s action in relationship with the forum is an integral step of “due process” analysis.lxxxiv In World-Wide Volkswagen Corp. v. Woodson, the Court decided that although the petitioner could foresee that its product (automobiles) might be used in and could cause harm in the forum, since its business activities (through either salesperson or advertising) were not “reasonably calculated to reach” the forum, personal jurisdiction was not supported.lxxxv The SCOTUS’s foreseeability analysis provides two critical guidelines. First, foreseeability, by itself, is not enough to justify specific jurisdiction. Secondly, foreseeability can support jurisdiction if the party can foresee that its activities in relation to the forum could lead to the need to defend itself in a legal suit.lxxxvi

The foreseeability principle from World-Wide Volkswagen was ignored in the Inset ruling and is inconsistent with rigid applications of the Zippo test. In Volkswagen, the petitioner, an automobile dealer, could foresee its presence in all states due to the mobile nature of its product (a car could travel across states), yet that was not sufficient justification for jurisdiction everywhere. Similarly for a website: one may foresee that people may access a website across the global internet network, but to determine jurisdiction, courts should focus not on the technical nature of the activity in question but on the defendant’s specific actions in and connections with the forum.

The Zippo case provides a useful reference for analyzing foreseeability on the internet. In Zippo, the defendant owned a website with business features, yet the design of the website does not determine foreseeability. What supported the personal jurisdiction over the defendant is that the content accessed by the forum’s residents was a direct result of the subscription they ordered from the website.lxxxvii In that case, the defendant could reasonably foresee itself bearing potential legal liabilities in the forum. The court has also provided a hypothetical counterexample: it would not have jurisdiction over the defendant if the subscriber were foreign to the forum, even if he or she accesses the website within the forum territory.lxxxviii

The assessment of purposeful availment is based on whether the party deliberately “avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.”lxxxix When determining “purposeful availment,” the connection between the party’s activity and the forum still needs to be substantial enough to amount to minimum contacts. Thus, the court must pursue a fact-specific inquiry into the nature and quality of the defendant’s action. In Burger King Corp. v. Rudzewicz, the Court suggested that a forum citizen merely having a contract with a foreign party is not enough to justify personal jurisdiction over that party. Justice Brennan’s opinion explained that additional analysis is required to confirm the existence of minimum contacts, looking at factors like “prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing.”xc

Some courts have already chosen to determine the presence of minimum contacts in cases involving the internet by looking at purposeful availment requirements. In CompuServe, Inc. v. Patterson, the Sixth Circuit Court of Appeals carefully analyzed the business activities of the defendant and their connection with the forum.xci The defendant had subscribed to a system headquartered in Ohio (the forum state), uploaded his product (software) to the system for sale, entered a written contract with the company (thus governed by the Ohio law), and continuously sent and advertised his product through the system.xcii His ongoing online activities in the forum state were significant enough to constitute minimum contacts and therefore to justify personal jurisdiction authority of the district court over him. The ruling of CompuServe perfectly demonstrates the need to examine specific facts in order to determine purposeful availment.

Purposeful availment was the “sine qua non” (necessary requirement) for the presence of minimum contacts and thus specific power to adjudicate.xciii In determining purposeful availment in internet cases, the middle section of the Zippo scale provides useful references. It offers flexible guidance to investigate the relationship between internet activities and purposeful availment. Whether a party’s internet activity constitutes purposeful availment is determined by the degree of interactivity (the quality) and its commercial nature (the nature). Determining minimum contacts in the internet context using part of the Zippo scale as a reference is consistent with the past SCOTUS ruling in Burger King. Finally, courts may also take into account the party’s behavior offline when determining whether it has purposefully availed itself of the privilege of doing business in the forum.

C. Calder Effects

Another possible way of identifying minimum contacts is the Calder Effects Test, which focuses on the actual consequences of the party’s forum-related activities. In SCOTUS’s ruling in Calder v. Jones, the Court found that the forum state court had personal jurisdiction over the defendant based on the effects of his conduct in the forum.xciv This rule applies when: the defendant’s actions (1) expressly aim at the forum, and (2) the defendant’s activity inflicts harm, and the “brunt” of the harm was suffered in the forum.xcv

The Calder effects test has already been adopted in internet related cases to determine personal jurisdiction. In EDIAS Software Intern. v. BASIS Intern., the Arizona district court held that it has jurisdiction over the defendant since the defendant intentionally propagated defamatory messages within Arizona through a website, email, and a forum.xcvi Moreover, the plaintiff alleged that it suffered from the economic effects of the defamatory speech in the forum state.xcvii The Calder effect standard was reasonably applied in this case. In future internet-related defamation and intentional tort cases, Calder should serve as the binding precedent.

D. Additional Considerations: Reasonableness and Relatedness

Decisions on specific jurisdiction must not undermine “traditional notions of fair play and substantial justice.”xcviii To guarantee these, besides the considerations above, the determination of specific jurisdiction must also ensure reasonableness and relatedness. For reasonableness, there are generally five factors to evaluate: (1). The “judicial system's interest in obtaining the most efficient resolution of controversies”; (2). the burden on the defendant; (3). the interests of the plaintiff (“in obtaining convenient and effective relief”); (4). the interest of the forum state to adjudicate; and (5). the shared interests of states (“in furthering fundamental substantive social policies”).xcix

For relatedness, the court should follow the requirement of specific jurisdiction.c

Conclusion

The internet age has broken through the boundaries of human civilization, bringing countless changes to our society. However, with the numerous social transformations the internet brings, the standard to determine a court’s specific jurisdiction over people or entities posting material on the internet should not be one of them. During the early years, some lower courts overestimated the internet’s impact on the determination of personal jurisdiction. As a result, many courts improperly adopted tests like the Inset principle and the Zippo sliding scale to justify universal jurisdiction. The applications of these tests that solely focus on the technical nature of the internet significantly expand the potential scope of state jurisdiction, jeopardizing the fundamental principles set by the due process clause of the Fourteenth Amendment. This paper advocates a return to the traditional minimum contacts doctrine in determining specific jurisdiction in the internet context. To determine if a party’s conduct constitutes minimum contacts with the forum, courts should conduct fact-specific inquiries to examine whether the conduct foreseeably subjected the party to challenge within the forum state, whether it purposefully availed itself of the privilege of doing business in that state, and whether the effects of its conduct were felt there. When minimum contacts are found, the court also needs to ensure the reasonableness and relatedness of the contact to justify specific jurisdiction. These considerations are faithful to the constitutional principles as they have been applied in previous SCOTUS rulings. Over the past years, the courts have already applied the minimum contacts doctrine to evaluate the defendant’s internet-related activities when deciding whether there is personal jurisdiction. The traditional doctrines continue to be applicable in the internet age. In the future, the SCOTUS could decide an internet-related personal jurisdiction case to confirm that these principles continue to apply under the internet context, preventing improper justifications of personal jurisdiction and safeguarding the due process of law.

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