Personal Jurisdiction and the Internet Seeing Due Process Through the… — Volkswagen 309

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Personal Jurisdiction and the Internet: Due Process Through the Lens of Precision

Allan R. Stein

University School of Law,


The courts’ early to grapple with the jurisdictional of the Internet were greeted with academic despair. The seemed to defy our sense governmental authority could to be territorially allocated. Ordinary activity such as the hosting of a web participating in an eBay auction, or to an electronic discussion had potentially impact even though the may have perceived their as essentially local. The technology, overnight, transformed all of us into actors, potentially subject to the and regulatory authority of many Numerous commentators asserted existing jurisdictional doctrine was not up to the of sorting it all out. 1 1

My position is the Internet does not pose jurisdictional challenges. 2 2 People been inflicting injury on other from afar for a time. Although the Internet may increased the quantity of those consequences, it has not created problems are qualitatively more difficult. decisions have borne out my that courts would work through the technological evident in some early and develop a more or less and predictable body of law. 3 3

My optimism is fueled, at least in by what might fairly be an unconventional account of the Court’s due jurisprudence. The Internet has made that a given assertion of must be evaluated in relation to the interests of other states. Due does not simply look to the relationship between a defendant and a Rather, it tests jurisdictional in relation to the nature of defendant’s and the regulatory claims of all states an interest in that activity. It is not bilateral. It is claim-specific, not trans-substantive. In the allotted, I can do little more sketch-out the broad parameters of my In particular, I want to focus on a in due process doctrine between the principles of World-Wide Volkswagen, 4 4 and the enabling principles of Calder v. 5 .5 The key to untangling the jurisdictional challenge of is in understanding the relationship between poles. A. Situating the Internet Calder and Volkswagen

World-Wide poses the biggest constraint on over defendants who have injury over the Internet. The holding that Seaway, a car in New York, was not subject to jurisdiction in the place where the allegedly car caused injury, could be as analogous to Internet-based claims. behavior of a defendant that remote injury will not the defendant to jurisdiction in the place of unless the defendant purposefully itself of the connection with the state. Even a foreseeable consequence of local behavior not suffice unless that is deemed purposeful. Seaway’s to the post-sale location of the car was fatal to the that it acted purposefully Oklahoma.

The central problem with this principle to Internet-based is figuring out how to characterize Internet is it local conduct, analogous to a car in one place that causes in another; or is it interstate behavior, akin to purposely sending a product into the forum 6 6 Has the defendant by virtue of posting to the Internet sought out the resulting with the forum, or is the connection a foreseeable, but not desired consequence?

framing the issue in this way differed in their characterizations in where defendant had caused (typically an intellectual property through its maintenance of a web site. the lead of an early exposition of the 7 7 most courts have now on a particularly arbitrary test of the offending web site is interactive or Thus, if a web site simply information, but does not have the mechanism to consummate a sale, the will not find purposeful Recent decisions have characterized most web pages in as insufficiently interactive, and have jurisdiction. 8 8 But the passive/active doctrine has not all inconsistency, since there is of room to argue about the of the categories. Some courts even found the provision on a web to send an email to the operator to an interactive web site that subject the operator to personal 9 9

This passive/interactive test an egregious failure of legal Lacking an adequate conceptual of why purposeful availment matters, the have reverted to the thinking jurisdiction in Pennoyer-like physical the interactive web site looks the defendant is really operating a store in the forum. If defendant is conveying information, he’s not here.

As Justice Stone did in Shoe, it clearly is time more for the courts to see through a fiction. 10 10 The level of interactivity of a web has no obvious connection to the reasons why it be unreasonable to subject a defendant to Whether a sale is consummated an automated web site, or through a non-cyber contact with the web does not change the nature of the web connection with the forum.

I to suggest, however, an implicit common to all the cases that to do more work: a concern the appropriate allocation of regulatory over the actions of the defendant. In the Court was concerned that assertion of jurisdiction would the New York defendant of its ability to its amenability to jurisdiction; the automobiles it would become its agent for of process. 11 11 Imbedded in this of control is the problem of Oklahoma its appropriate regulatory authority; it as the Court suggested earlier in the stepping on New York’s toes. 12 12 could have indeed its jurisdictional exposure: it did not have to cars in New York, or anywhere within automotive proximity of The problem was not that Seaway not prevent its exposure to Oklahoma rather that Seaway not control its jurisdictional exposure unduly constraining its behavior in New Oklahoma had no right to affect New behavior to that extent. spill-over effect is the central in basing jurisdiction on territorial rather than territorial 13 13

This concern over the effects is clearly reflected in the jurisdiction cases. The courts recognize that the jurisdictional of a forum based solely on the consequence of the defendant’s action in the (compared with its effects on places) will impair the of people to use the Internet. 14 14 It takes than a harmful effect the forum to give that authority to regulate extraterritorial

This jurisdictional constraining is tempered by two jurisdiction-enabling factors. the spill-over effect is implicated when a forum’s jurisdictional is undifferentiated. That is to say, if the conduct did not ex ante endanger residents more directly it threatened residents of any other the forum will normally regulatory authority over conduct. However, a forum’s of regulatory authority over behavior will not inhibit the non-forum directed activity and therefore be permitted. The jurisdictional over forum-directed activity is recognized by Calder v. Jones. In the Court permitted California to jurisdiction over a Florida who could not be said to have availed himself of California but who defamed a California resident. The held that defendant’s in targeting his tortious conduct a California domiciliary gave the right to assert jurisdiction him, just as California have jurisdiction over who shot a bullet into the

The only way to harmonize Volkswagen and is to recognize that they deal with the problem of precision. Both require directed behavior as a predicate to long-arm jurisdiction. Purposeful serves the same function as an tort; both enable jurisdiction without risking spill-over.

Volkswagen 309

The use of the targeted conduct rationale for jurisdiction over defamation is not without problems. While as an intentional tort (at least for plaintiffs), defendants frequently that their speech was not Defendant’s behavior can be considered only if we assume the validity of complaint. It may well turn out trial that defendant’s was not actionable — and thus not yet defendant will have the cost of defending the lawsuit in chosen forum. Assertions of can thus inhibit lawful outside of the forum — the spill-over problem the Court was about in Volkswagen. The courts at one protected against this effect by raising the jurisdictional for defamation claims, 15 15 but it abandoned approach in Calder. Calder represents a potentially problematic in the context of Internet defamation.

It is not surprising that most dealing with defamation over the Internet have, in declawed Calder by concluding the mere fact that would feel the impact of the in his home state does not defendant’s conduct targeted. must affirmatively direct his at defendant’s domicile. 16 16 The distinction merely knowing that will affect plaintiff in his and targeting that defamation at the home state is not obvious to me, given the fact that the of the defamation in Calder had no hand in the defamation in California. 17 17 Nonetheless, the reluctance to extend Calder to speech is consistent with about regulatory spill-over and are a development.

Although less in the cases, I want to suggest a limiting principle on Volkswagen: spill-over is only a problem the underlying activity is of value to states. Suppose a defendant a web site with the sole of spreading a computer virus to any that logged onto the The defendant could not be said per to have purposefully availed of any particular forum (outside of his state). Nor could his behavior be targeted in Calder terms. Yet our is that any victim would be to sue in the state in which injury was and the defendant would not be heard to that he could not control his to jurisdiction. That intuition is with a model of due process to regulatory precision. We don’t about regulatory spill-over no state would be troubled by defendant’s conduct.

It may feel for courts to consider the value of activity in deciding which has authority to regulate the activity, since different states may that value differently. But as the made clear in Volkswagen, the of jurisdiction involves enforcing the interest of the several States in fundamental substantive social as much as it does allocating 18 18 B. Why Redish is Wrong

My disagreement with Professor on jurisdictional matters goes beyond the Internet context. He the notion that the process due the 14th Amendment has anything to do the authority of court in question. he asserts, due process should be only as a guarantee of a litigant’s opportunities in the adjudication. Jurisdiction this measure would be excessive only when it such an enormous burden on the that it effectively denied the opportunity to fully participate in the 19 19 Redish would thus the right guaranteed under Shoe with the procedural due protections of Mathews v. Eldridge 20 .20 To the that Supreme Court has any to play in allocating the regulatory of different states, it should do so by way of controlling choice of law under the Faith and Credit clause. 21 21

I elsewhere discussed some of the with this approach. include the fact that all of the Court’s precedents going to Pennoyer v. Neff are at odds his understanding; that interjurisdictional are not adequately resolved through on choice of law; and that the burden imposed by even the exorbitant assertion of jurisdiction is in comparison with burdens without constitutional difficulty on litigants every day. 22 22

I to focus here on the particular of applying his approach to the Internet. concludes that the Court be forced to reevaluate the wisdom of availment because the test to provide states with the to effectively protect their by providing a convenient forum in to enforce claims against who have caused them 23 23 From my perspective, if there is uniquely problematic about the it is that existing jurisdictional may not confer adequate protection on I know of no case in which the makes it harder to assert than if the comparable injury inflicted through a non-electronic In both cyber and non-cyber courts permit jurisdiction actions targeted at the forum, and resist mere effects-based The Internet makes it potentially for a state to assert jurisdiction an out-of-state defendant on the theory by virtue of participating in a global the defendant might be deemed to targeted its conduct everywhere and availed itself of the benefits of the

If anything, the technologically evolving of the Internet promises to minimize the spill-over problems inherent in assertions of jurisdiction in the molecular Technology offers the promise of a precision that would not be possible. Consider again The case poses a stark between subjecting Seaway to anywhere the car happened to explode, or defendant from the out-of-state consequences of its behavior. There was no way could exercise regulatory without affecting Seaway’s in New York generally. It was not possible to one rule for cars headed for and another for cars staying in New because defendant had no control where the cars were

Much has been made the anonymity of transactions over the 24 But in fact, the Internet makes it for a defendant, in at least some to tailor its conduct in regard to the location of the plaintiff with little spill-over on defendant’s toward others. 25 An Internet of exploding cars — or, realistically, defective software can control where his actions consequences with relative He has the ability to limit access to his web He can choose to exclude people Oklahoma. All he has to do is ask for a credit card or certificate. Oklahoma can thus regulatory authority over transactions with citizens of without substantially affecting other business. Once the recognize that due process, at is a constraint on regulatory spill-over, will be far more empowered to their citizens than are today. 1See, e.g. W. Hamilton Gregory A. Castanias, Web: Personal Jurisdiction and the 24 Litig. 27 (1998); Martin H. Of New Wine and Old Bottles: Personal The Internet, and the Nature of Constitutional 38 Jurimetrics 575 (1998). 1Allan R. The Unexceptional Problem of Jurisdiction in 32 Int’l Lawyer1167 (1998); R. Stein, Frontiers of Jurisdiction: Isolation to Connectedness, 2001 U. Legal F. 373. 1Accord, Sherry, Haste Makes Congress and the Common Law in Cyberspace, 55 L. Rev. 309, 364-74 1World-Wide Volkswagen v. Woodson, 444 286 (1980). 1465 U.S. 783 1See, e.g. Gray v. Radiator Standard Sanitary 22 Ill. 2d 432, 176 N.E.2d 761 1Zippo Manuf. Co. v. Zippo Dot Inc. 952 F. Supp. 1119 Pa. 1997). 1See, e.g. Fix My PC, v. N.F.N. Assoc. Inc. 48 F. 2d. 640 (N.D. Tex. 1999); Mid Bowling Lanes Sports Inc. v. Ivercrest, Inc. 35 F. 2d 507 (E.D. La. 1999); Riviera Corp. v. Riviera Hotel 29 S.W. 3d 905 (Tex. App. Efford v. The Jockey Club, 796 370 (Pa. Super. Ct. 2001). But see Ten Enterprises USA, Inc. v. Enterprises, 138 F. Supp. 2d 449 (2000). e.g, Hasbro, Inc. v. Computing, Inc. 994 F. Supp. 34 (D. 1997); Blumenthal v. Drudge, 992 F. 44 (D.D.C. 1998). 1International Co. v. Washington, 326 U.S. 310 (1945) presence test is legal 1444 U.S. at 297. U.S. at 294. 1Accord, L. Goldsmith, Against Cyberanarchy, 65 U. L. Rev. 1199 (1998). e.g. Digital Equipment v. Altavista Techn. Inc. 960 F. 456, 463 (D. Mass. 1997). American Libraries Assn. v. 969 F. Supp. 160 (S.D.N.Y. 1997) on Commerce Clause grounds New statute criminalizing digital of sexual material). 1See, Curtis Pubg. Co. v. Birdsong, 360 F. 2d 344 Cir. 1966). 1See, Griffis v. Luban, 646 N.W. 2d 527 2002); English Sports Inc. v. Tostigan, 2002 Dist. Lexis 4985 Pa. March 15, 2002). Accord, L. Counts C. Amanda Martin, in Cyberspace: A Framework for Addressing and Jurisdictional Issues in This New 59 Alb. L. Rev. 1083, (1996) 1Calder might be from many subsequent cases to the extent that the of the writer’s employer, the National might be imputable to the writer, as the downstream contacts of a manufacturer are imputed to a componenet manufacturer. See Metal Indus. Co. v. Superior 480 U.S. 102 (1987). 1444 at 292. 1Martin H. Redish, New supra n..1 at 607. U.S. 319 (1976). 1Martin H. Due Process, Federalism and Personal A Theoretical Evaluation, 75 N.W.U.L. 1112 (1981). See Allan R. Styles of Argument and Interstate in the Law of Personal Jurisdiction . 65 Tex. L. 698 (1987); Allan R. Stein, and the Death of Theory in The Law of Personal . 22 Rutgers L. J. 597, 599 n. 13 (1991). New Wine, supra. At 579. e.g. David R. Johnson G. Post, The Rise of Law on the Global in BORDERS IN CYBERSPACE 13 (Kahin and eds. 1997). Accord Lessig, Code and Other of Cyberspace 38-39, 49-53 1999); Jack Goldsmith. O. Sykes, The Internet and the Dormant Clause, 110 Yale L. J. 785, (2001).

Volkswagen 309
Volkswagen 309
Volkswagen 309
Volkswagen 309

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