Everywhere and Nowhere: Reframing Personal Jurisdiction to Meet the Realities of an Increasingly Boundaryless Society

Category: Print Issues

Everywhere and Nowhere: Reframing Personal Jurisdiction to Meet the Realities of an Increasingly Boundaryless Society

Justin Angotti

Volume 28

, Issue 4

28 GEO. MASON L. REV. 1513 (2021)

Introduction

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone . . . . Ours is a world that is both everywhere and nowhere, but it is not where bodies live . . . . Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are all based on matter, and there is no matter here.¹

Americans spend over two billion hours online every day.² Whether we’re Instagramming the perfect meal,³ hailing an Uber,⁴ swiping right in the hopes of meeting “the one,”⁵ or placing another Prime order,⁶ society is increasingly connected to a boundaryless, virtual world.⁷ The internet’s ubiquity, however, presents unique challenges for a system of laws historically predicated on physical conduct and territorial limitations.⁸

As society continues to blur once-traditional lines of territorial sovereignty,⁹ one question becomes even more fundamental than how to regulate people’s conduct in both the physical and virtual worlds: where can people be called to answer for some alleged wrong—what courts can assert personal jurisdiction¹⁰ over a defendant?¹¹ If laws regulating conduct exist but procedural doctrines insulate defendants from accountability, then the system undermines fundamental fairness.¹² But if procedural doctrines provide plaintiffs with limitless options for haling defendants into courts in unforeseeable forums, the system also runs afoul of due process.¹³

Although personal jurisdiction jurisprudence no longer solely rests on physicality, the analysis continues to focus on the extent to which a defendant’s contacts establish a presence in the forum state.¹⁴ That focus recognizes two types of personal jurisdiction: general jurisdiction and specific jurisdiction.¹⁵

Courts “may exercise general jurisdiction only when a defendant is ‘essentially at home’ in the State.”¹⁶ Individuals are at home in the state where they are domiciled.¹⁷ Corporations are at home in their state of incorporation and where they have their principal place of business.¹⁸ Once a defendant is at home in a state, a court may exercise personal jurisdiction over any claim against the defendant.¹⁹

Specific jurisdiction involves a wider range of defendants in a narrower set of cases.²⁰ Rather than requiring the defendant to be at home in a state, specific jurisdiction only asks whether “the defendant purposefully avail[ed] itself of the privilege of conducting activities within the forum State.”²¹ Yet jurisdiction is only proper when the claims “‘arise out of or relate to the defendant’s contacts’ with the forum.”²²

The internet, however, allows users across the globe to engage with one another at any time, from any place—on the internet people are both everywhere and nowhere at the same time.²³ How a defendant’s virtual conduct translates into a court’s personal jurisdiction analysis remains a question unaddressed by the Supreme Court.²⁴

For more than twenty years, lower courts and scholars have attempted to address this critical gap in the Court’s specific personal jurisdiction jurisprudence.²⁵ Proposed solutions run the gamut from universal jurisdiction in cases involving virtual conduct to a presumption against jurisdiction for activity existing solely online.²⁶ Nevertheless, the proposed solutions remain inadequate and unsatisfying.²⁷

This Comment proposes a return to constitutional first principles based on the Due Process Clause of the Fourteenth Amendment²⁸—a specific jurisdiction analysis predicated on fair notice and a reasonable opportunity to be heard that can be applied to both physical and virtual conduct. Part I reviews the evolution of specific jurisdiction jurisprudence, including recent cases examining its application to internet-based conduct. Part II proposes a reformulated analysis, consistent with the Court’s existing precedents, for all assertions of specific jurisdiction: a court may exercise jurisdiction when (1) a nonresident has constructive knowledge that she may be subject to the forum state’s authority; (2) the cause of action arises out of or relates to the nonresident’s forum-related conduct; and (3) the assertion of jurisdiction is reasonable. Part III of this Comment then applies the constructive knowledge inquiry to three test cases, distinguishing how the reformulated analysis—compared with the current doctrine and other scholars’ proposals—still allows potential defendants to structure their physical and virtual conduct appropriately²⁹ while also providing potential plaintiffs with a reasonable number of forums in which to bring suit.³⁰

I. Background

Modern conceptions of specific jurisdiction rely on a nonresident’s minimum contacts with the forum state to satisfy the requirements of the Fourteenth Amendment’s Due Process Clause.³¹ Much like the early law of jurisdiction, however, the minimum contacts analysis continues to focus on tangible conduct.³² Responding to the birth and growth of the internet, lower courts developed different analyses for examining the extent to which “virtual contacts” can be used to exercise personal jurisdiction.³³ These varied approaches generated scholarly support and criticism without any individual proposal sufficiently resolving the doctrinal limitations illustrated by the internet’s boundaryless nature.³⁴

A. In the Beginning, There Were Men with Writs and Swords

A primitive law of jurisdiction evolved from medieval feudalism and bound concepts of power and sovereignty with land and physicality.³⁵ At early common law, jurisdiction required defendants to appear voluntarily in court.³⁶ Courts often obtained jurisdiction, however, through duress and physical compulsion.³⁷

Courts issued writs summoning defendants to appear and sent the sheriff’s messengers to find the defendants and serve them.³⁸ When defendants failed to obey the original writ, courts physically compelled attendance through capias ad respondendum³⁹Id. at 60. Capias ad respondendum was a writ directing the sheriff to take the defendant into custody to ensure he appeared in court. Capias, Black’s Law Dictionary, supra note 10. and other forms of “imprisonment upon mesne process.”⁴⁰ Thus, civil arrest process became integral to civil procedure.⁴¹ Although England abolished civil arrest through capias and other forms of mesne process by 1838,⁴² the importance of physicality was already embedded in common law understandings of jurisdiction.

B. From Parliament to Independence Hall: Early American Concepts of Jurisdiction

American courts inherited physicality-based concepts of jurisdiction from the English common law.⁴³ At the inception of the federal court system,⁴⁴ Congress could have conferred universal jurisdiction on the federal courts by allowing original process to run into every state.⁴⁵ Instead, the Judiciary Act of 1789 placed physical and territorial limitations on the lower courts’ jurisdiction.⁴⁶

The Supreme Court first addressed the question of territorial limitations on the lower courts’ authority in Toland v. Sprague.⁴⁷ Although the practice of the forum state’s courts was to issue writs of attachment⁴⁸ against nonresident defendants, the Court limited federal courts’ use of mesne process to defendants residing or served in the judicial district.⁴⁹ In addition to grounding its decision in the Judiciary Act’s text,⁵⁰ the Court also reasoned that considerations of justice and logic supported territorial limitations on federal courts.⁵¹ Therefore, exercising jurisdiction over a nonresident defendant required service within the judicial district that provided notice and a reasonable opportunity to defend against the suit.⁵²

C. Constitutionalizing Personal Jurisdiction

The Court’s personal jurisdiction jurisprudence has always relied on background principles of due process for its limitations on federal courts’ authority.⁵³ The Due Process Clause of the Fourteenth Amendment similarly cabins state courts’ power to exercise personal jurisdiction.⁵⁴ Even when states have long-arm statutes allowing courts to exercise personal jurisdiction over nonresident defendants, that power still only extend up to the limits of due process.⁵⁵ How the Court articulates the due process requirements for exercising personal jurisdiction, however, continues to evolve.⁵⁶

1. Due Process Through the Lens of Formalism: Pennoyer v. Neff⁵⁷95 U.S. 714 (1877).

Nine years after the Fourteenth Amendment’s ratification, the Court considered the constitutionality of state statutes allowing courts to exercise personal jurisdiction over nonresidents without service within the state.⁵⁸ Applying territorial conceptions of state sovereignty, the Court created a rule-based analysis for determining whether the exercise of personal jurisdiction comported with due process: personal jurisdiction could only be asserted over a nonresident when he was physically found and served in the forum state or assented to the proceeding.⁵⁹

Because each state, as a co-equal sovereign, had exclusive jurisdiction over the people and property within its territorial boundaries, no other state could exercise jurisdiction and authority over them.⁶⁰ When states exceeded their territorially bound jurisdictional authority, their courts’ orders were “a mere nullity, and incapable of binding [people or property] in any other tribunals.”⁶¹ Consequently, the Due Process Clause of the Fourteenth Amendment began to protect defendants from state courts unconstitutionally exercising personal jurisdiction.⁶²

2. Due Process as a Means of Protecting “Traditional Notions of Fair Play and Substantial Justice”⁶³

Modern due process extends beyond questions of state sovereignty and affords parties the procedural rights to meaningful notice and an opportunity to be heard⁶⁴ before their rights are affected.⁶⁵

a. The Inception and Spread of the Minimum Contacts Analysis

Almost seventy years after Pennoyer articulated a conception of personal jurisdiction rooted in legal formalism, the Court transitioned from the “simply mechanical or quantitative” rule-based analysis to a standards-based regime.⁶⁶ In International Shoe Co. v. Washington,⁶⁷ the Supreme Court created the “minimum contacts” analysis for determining whether exercising personal jurisdiction comported with the requirements of the Due Process Clause.⁶⁸

Because physically compelling a defendant’s participation through capias ad respondendum and arrest by mesne process had already given way to personal service of process and other forms of notice, due process no longer requires the defendant’s presence in the territory for a state to exercise its in personam⁶⁹ jurisdiction.⁷⁰ Instead, the Due Process Clause requires a defendant who is not present in the territory to “have certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”⁷¹

Analyzing minimum contacts asks whether there is sufficient evidence to make it reasonable, in the context of interstate federalism, to require a nonresident to respond to a suit in a particular forum’s court.⁷² The analysis first examines “the quality and nature of the [nonresident’s] activity in relation to the fair and orderly administration of the laws” underlying the Due Process Clause.⁷³ Nonresidents—whether natural people or corporations—conducting activities within a state receive benefits and protections from that state’s laws that may also give rise to certain obligations.⁷⁴ When those obligations arise out of the nonresident’s activities within the state, it does not violate due process to require the nonresident to respond to a suit seeking to enforce those obligations.⁷⁵ Next, the court balances the plaintiff’s and forum state’s interests in the case against the estimated inconvenience of defending a suit outside the nonresident’s home state or away from its principal place of business.⁷⁶ Thus, International Shoe expanded the scope of courts’ personal jurisdiction.⁷⁷

By 1977, the minimum contacts analysis applied to all exercises of specific jurisdiction, regardless of whether the proceedings were in personam, in rem,⁷⁸ or quasi-in rem.⁷⁹ Nevertheless, the minimum contacts analysis continued to present uncertainty as interstate commerce expanded.⁸⁰

b. Rejecting the Idea of Universal Jurisdiction and Attempting to Refine the Minimum Contacts Analysis

Acknowledging the uncertainty of the International Shoe standard,⁸¹ the Supreme Court attempted to refine the minimum contacts analysis over the next seven decades while also consistently rejecting notions of universal jurisdiction.⁸²

First, the Court clarified that the relevant inquiry in the minimum contacts analysis is the extent of the defendant’s contacts with the forum state, rather than the unilateral activity of the plaintiff or a third party.⁸³ A state may not exercise personal jurisdiction simply because it is the “‘center of gravity’ of the controversy, or the most convenient location for litigation.”⁸⁴ Instead, courts must examine the extent to which “the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.”⁸⁵

Courts must analyze a defendant’s contacts with the forum state through the lens of due process and not simply as a threshold question. The Due Process Clause requires individuals to have “fair warning that a particular activity may subject [them] to the jurisdiction of a foreign sovereign.”⁸⁶ Therefore, the fair warning requirement prevents a state from asserting jurisdiction based on a nonresident’s “random, fortuitous, or attenuated contacts” with the forum.⁸⁷ By focusing on the defendant’s contacts with the forum state, the minimum contacts analysis creates some assurance that the nonresident “should reasonably anticipate being haled into court there.”⁸⁸

Next, the Court addressed the doctrine’s fairness. Even when sufficient minimum contacts with the forum state exist, litigation must still be reasonable or fair to the defendant.⁸⁹ Thus, the Court also clarified how to measure the considerations of justice⁹⁰ and estimated inconveniences⁹¹ referenced in Toland and International Shoe. To determine whether exercising personal jurisdiction over a nonresident defendant is reasonable, courts must weigh the burden on the defendant against

the forum State’s interest in adjudicating the dispute; the plaintiff’s interest in obtaining convenient and effective relief . . . ; the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies.⁹²

These reasonableness or fairness factors allow courts to measure when the exercise of specific jurisdiction does not comport with “traditional notions of fair play and substantial justice,” despite the existence of sufficient minimum contacts.⁹³

By the mid-1980s, the Court finished providing most of the substantive refinement to International Shoe’s standards-based analysis. Assessing the defendant’s forum-related contacts giving rise or relating to the plaintiff’s claim⁹⁴ focuses on the connection between “the defendant, the forum, and the litigation.”⁹⁵ While a defendant does not need to “physically enter the forum State,”⁹⁶ she must “deliberately ‘reach[] out beyond’” her state and into another.⁹⁷ The contacts satisfying the Due Process Clause must ultimately be the defendant’s choice.⁹⁸

The inquiry includes examining the privileges and benefits the defendant received from the forum state,⁹⁹ as well as the extraterritorial conduct the defendant knowingly aimed at the forum.¹⁰⁰ Intentionally creating tortious effects in the forum state, even when the defendant lacks any other case-specific contacts with the forum, is jurisdictionally relevant.¹⁰¹ Simply contracting with a forum-state resident, however, does not create sufficient minimum contacts to justify the exercise of personal jurisdiction.¹⁰² Instead, the context surrounding the contract as a whole—the negotiations, contemplated future consequences, terms of the deal, and nature of the parties’ future relationship—determines whether the defendant is subject to a court’s jurisdiction.¹⁰³ Nevertheless, nonresidents can avoid assertions of personal jurisdiction if they can prove that being required to defend the suit in the forum state is unreasonable.¹⁰⁴

Although the Court carved out a few bright-line rules under International Shoe’s seemingly flexible standard,¹⁰⁵ the minimum contacts analysis was sometimes criticized for failing to provide a desired level of predictability.¹⁰⁶ Lower courts also continued to encounter cases presenting issues not yet clarified by the Supreme Court, including how a defendant merely engaging in national commerce—targeting no state in particular—affects the jurisdictional analysis.¹⁰⁷

c. Blurring Jurisdictional Lines: A Quarter Century Without Consensus on the Stream-of-Commerce Theory of Personal Jurisdiction

In World-Wide Volkswagen Corp. v. Woodson,¹⁰⁸ Justice White famously penned the “stream of commerce” metaphor to explain the extent to which foreseeability influences the jurisdictional inquiry in controversies involving national commerce.¹⁰⁹ The Court’s dicta indicates a state could assert personal jurisdiction over a corporation that delivered its products into the stream of commerce with an expectation they would be purchased in the forum state.¹¹⁰ These were not, however, the facts before the Court in World-Wide Volkswagen.¹¹¹ Instead, the Court examined the “contacts, ties, or relations” between the defendant and the forum state, concluding there were not “constitutionally cognizable contact[s] with that State.”¹¹²

Seven years later, the Court revived the stream-of-commerce dicta in Asahi Metal Industry Co. v. Superior Court of California¹¹³480 U.S. 102 (1987).—a case involving two foreign corporations engaged in transactions outside the United States.¹¹⁴ The result: blurred lines of analysis that created considerable confusion in the lower courts and continued to splinter the Supreme Court for over a quarter century.¹¹⁵

A unanimous Court agreed the case presented a rare instance when exercising jurisdiction—regardless of whether sufficient minimum contacts existed—was unreasonable.¹¹⁶ The threshold question of whether there were sufficient minimum contacts with the forum state, however, divided the Justices.

Writing for a plurality, Justice O’Connor articulated an analysis requiring a nonresident’s placement of goods into the stream of commerce and something more: actions purposefully directed at the forum state.¹¹⁷ In Asahi, Justice O’Connor found the defendant did not purposefully direct any action toward the forum state.¹¹⁸ Concurring in the judgment, Justice Brennan, joined by three other Justices, found manufacturing and distributing products for retail sale sufficient for a nonresident to foresee being haled into court in the forum state.¹¹⁹ Justice Brennan concluded sufficient minimum contacts existed, even though he agreed that the forum state’s exercise of personal jurisdiction was unreasonable.¹²⁰

Almost twenty-five years passed before the Court confronted another close minimum contacts question in J. McIntyre Machinery, Ltd. v. Nicastro.¹²¹ Writing for another plurality, Justice Kennedy rejected Asahi’s reliance on the stream-of-commerce dicta, concluding that manufacturing or distributing goods “‘seek[ing] to serve’ a given State’s market” is merely a factor to consider when asserting jurisdiction over a defendant who never entered the forum state.¹²² Instead, the plurality framed the relevant inquiry around the nonresident’s “intention to submit to the power of [the] sovereign.”¹²³ The plurality asserted “that it is the defendant’s actions, not his expectations, that empower a State’s courts to subject him to judgment,” rejecting the idea that foreseeability should play a role in the personal jurisdiction analysis.¹²⁴

Two things prevented Justice Kennedy’s opinion from expressing the view of the Court: (1) a discomfort with shifting the Court’s personal jurisdiction jurisprudence without considering modern-day consequences of a rearticulated doctrine;¹²⁵ and (2) the limitations the Court’s opinion placed on the plaintiff’s ability to seek redress despite the foreign corporation’s commercial activities in the United States.¹²⁶ Despite criticizing the stream-of-commerce dicta, Nicastro was unable to resolve the “decades-old [foreseeability] questions left open in Asahi.”¹²⁷

d. Venturing Away from the Stream of Commerce and Back to a Minimum Contacts Analysis

Rather than resolving the foreseeability questions, the Court pivoted back to familiar territory when faced with its next personal jurisdiction case just a few terms later.¹²⁸ Explaining the Due Process Clause’s limits on a state’s authority to bind nonresident defendants, a unanimous Court in Walden v. Fiore¹²⁹571 U.S. 277 (2014). affirmed the doctrinal underpinnings of the minimum contacts analysis.¹³⁰ The “defendant-focused ‘minimum contacts’ inquiry” continues to analyze the extent to which the nonresident’s conduct creates a connection between her, the forum, and the litigation.¹³¹ Consequently, the Court clarified the impact of intentionally tortious injury within the forum state—known as the Calder effects test¹³²—on the minimum contacts analysis.¹³³ Because the nonresident’s relationship with the forum state cannot exist only through the plaintiff, injury to a forum resident alone is insufficient to render the defendant subject to a court’s jurisdiction.¹³⁴ Instead, a plaintiff’s injury is only jurisdictionally relevant when tethered to the forum state in a meaningful way.¹³⁵ An injury is meaningfully tethered to the forum when the nonresident harms an interest situated in the forum state and the interest’s situs is relevant to the elements of the cause of action.¹³⁶

Additionally, while Walden did not involve cross-border commercial transactions, the Court cited a number of precedents involving commercial disputes.¹³⁷ Absent from the Court’s analysis, however, was any reference to the stream-of-commerce dicta or citation to Asahi or Nicastro.

Similarly, in its 2021 Ford Motor Co. v. Montana Eighth Judicial District Court¹³⁸141 S. Ct. 1017 (2021). decision, the Court did not include any meaningful citation or discussion of Asahi or Nicastro, despite the case involving a nationwide corporation whose product traveled interstate and became the center of the dispute.¹³⁹ Even though the Court relied on other dicta from World-Wide Volkswagen, the majority avoided the stream-of-commerce metaphor and instead focused on the defendant’s contacts with the forum state.¹⁴⁰

Although the extent to which the stream-of-commerce analysis remains a viable part of the Court’s personal jurisdiction jurisprudence is uncertain, the minimum contacts analysis first articulated in International Shoe—with the contours established in the cases that followed—continues to be the lodestar for assessing whether a court’s judgment comports with due process.¹⁴¹

D. Minimum Contacts in the Age of the Internet

While the Court eschews jurisdiction jurisprudence based solely on physicality,¹⁴² its analysis continues to focus on tangible contacts with the forum state.¹⁴³ How a defendant’s virtual conduct translates into a court’s minimum contacts analysis, however, remains a question unaddressed by the Supreme Court.¹⁴⁴

1. The Zippo Interactivity Test

The most prominent approach to assessing virtual minimum contacts is the Zippo interactivity test, which arose from a 1997 case in the United States District Court for the Western District of Pennsylvania: Zippo Manufacturing Co. v. Zippo Dot Com, Inc.¹⁴⁵952 F. Supp. 1119; see also Niesel, supra note 7, at 116. Noting that “the development of the law concerning the permissible scope of personal jurisdiction based on internet use [was] in its infant stages,” the district court fashioned a sliding scale approach for assessing “the nature and quality of commercial activity that an entity conducts over the Internet.”¹⁴⁶ On one end of the scale, there are defendants who clearly engage in commercial transactions over the internet.¹⁴⁷ If these defendants enter into a contract with a forum-state resident and then, through the course of dealing, knowingly and repeatedly transmit data to the resident, jurisdiction is proper.¹⁴⁸ At the opposite end of the scale are defendants who only post information on a website accessible to the forum state’s residents.¹⁴⁹ This type of conduct is not enough for a court to exercise jurisdiction.¹⁵⁰ The middle ground provides the most complicated cases for personal jurisdiction. In these cases, interactive websites provide an opportunity for exchanging information between the forum state’s residents and the host.¹⁵¹ These websites require additional inquiry into “the level of interactivity and commercial nature of the exchange.”¹⁵²

The sliding scale of interactivity, however, was dicta unnecessary to resolve the controversy in Zippo.¹⁵³ Noting that the minimum contacts analysis should produce similar results in cases involving physical conduct or virtual conduct, the opinion nevertheless created an internet-specific inquiry.¹⁵⁴ Instead, the district court should have resolved the case under the Supreme Court’s existing precedents.¹⁵⁵ Even though the Zippo sliding scale was not directly applicable to the district court’s analysis,¹⁵⁶ the decision became a leading case for analyzing the effect of internet activities on personal jurisdiction jurisprudence.¹⁵⁷

2. Zippo’s Adoption, Adaptations, and Limitations

Since its creation, the courts of appeals remain divided over the Zippo test’s direct applicability in cases involving online commercial conduct. The Zippo sliding scale also fails to address how personal conduct online impacts the jurisdictional analysis. Thus, courts and scholars continue to criticize the Zippo decision, adapt its framework, and propose alternative solutions.

a. Adoption and Adaptation Across the Circuits

As the “seminal authority regarding personal jurisdiction based upon the operation of an Internet web site,” Zippo’s jurisprudential impact is significant.¹⁵⁸ The Zippo interactivity test provides a simple analysis intended to make internet jurisdictional inquiries more straightforward, and the majority of the circuit courts have expressly adopted or implicitly applied some form of the framework:¹⁵⁹

Circuit	*Use of the Zippo* Interactivity Test**
First	Implicitly endorses¹⁶⁰
Second	Rejects as a separate framework for assessing personal jurisdiction¹⁶¹
Third	Adopts and requires “something more”¹⁶²
Fourth	Adapts¹⁶³
Fifth	Rejects as a separate framework for assessing personal jurisdiction¹⁶⁴
Sixth	Adopts¹⁶⁵
Seventh	Expressly rejects¹⁶⁶
Eighth	Adopts¹⁶⁷
Ninth	Adopts¹⁶⁸
Tenth	Does not take a position but has applied the test as a heuristic¹⁶⁹
Eleventh	Notes criticism and applies traditional personal jurisdiction analysis¹⁷⁰
D.C.	Does not take a position but cites the test favorably¹⁷¹
Federal	Rejects as a separate framework for assessing personal jurisdiction¹⁷²

Although many courts use Zippo’s interactivity test, internet-specific jurisdictional analysis lacks consistent application and coherence across the federal courts.¹⁷³

b. Criticisms of the Zippo Test

Scholarly criticism of the Zippo test advances six primary arguments. First, Zippo is no longer applicable to the medium it was created to analyze.¹⁷⁴ In 1997, the internet was “a global ‘super network of over 15,000 computer networks used by over 30 million individuals, corporations, organizations, and educational institutions worldwide.’”¹⁷⁵ Two decades later, more than 4.66 billion people—almost sixty percent of the world’s population—use the internet.¹⁷⁶ The internet has also evolved from a primarily passive, information-sharing experience and the “virtual equivalent of brick-and-mortar stores” to websites using artificial intelligence to curate, customize, and share interactive data.¹⁷⁷ Embedding interactivity in every website also “blur[s] the line between content creators and content viewers,” making the Zippo test even less predictable.¹⁷⁸

Second, the Zippo test was only created to address commercial websites, not the broad range of conduct that now exists on the internet.¹⁷⁹ Uniformly applying the Zippo framework to internet conduct ranging from cybersquatting¹⁸⁰ to breach of contract to defamation and other intentional torts creates counterintuitive and inconsistent outcomes.¹⁸¹ Imputing a website’s level of interactivity and intended audience to a nonresident user also runs afoul of the Court’s focus on the defendant’s conduct rather than the unilateral activity of a third party (i.e., the website’s owner).¹⁸²

Third, while the Zippo interactivity test may be a useful heuristic for determining whether a commercial website establishes sufficient minimum contacts under International Shoe, there are a broad range of cases where the inquiry is inconclusive, resulting in a default to traditional personal jurisdiction analysis.¹⁸³ In these instances, courts could forgo the interactivity analysis and simply rely on the specific jurisdiction inquiry used in all other cases.¹⁸⁴

Fourth, Zippo oversimplifies the internet’s complexity.¹⁸⁵ While there is appeal in using a simple test that helps “technologically timid judges to navigate an unfamiliar and technologically complex landscape,” the solution also allows courts to draw inapposite analogies between virtual and physical conduct, muddying personal jurisdiction’s underlying constitutional principles.¹⁸⁶

Fifth, the sliding scale of interactivity adds a scienter element, requiring forum-specific targeting behavior that fails to consider the internet’s inherent “ubiquity that defies geographical boundaries.”¹⁸⁷ The Zippo test, therefore, creates a legal fiction disconnected from the reality of the internet: people and corporations use the internet because of its instantaneous global reach and accessibility—they can reach users everywhere without targeting people anywhere.¹⁸⁸

Sixth, the degree of relevance between a website’s interactivity and the current doctrine on specific jurisdiction remains unclear.¹⁸⁹ A commercial website’s degree of interactivity does not determine the extent to which a nonresident has sufficient minimum contacts with the forum state.¹⁹⁰ By focusing solely on a website’s interactivity, Zippo’s jurisdictional analysis turns on the characteristics of the medium used, rather than the defendant’s virtual conduct.¹⁹¹ The sliding scale of interactivity also presents challenges for intentional tort cases, where the Calder effects test likely impacts the minimum contacts inquiry.¹⁹² Rather than focusing on whether the defendant’s intentionally tortious conduct created harm meaningfully tethered to the forum state, courts applying Zippo focus solely on whether virtual activity targets forum residents.¹⁹³

Despite varying degrees of adoption and application across the courts of appeals, criticism of Zippo’s sliding scale of interactivity continues. Scholarly criticism has generated a variety of proposed approaches to assessing personal jurisdiction in cases involving virtual conduct.

3. The Spectrum of Approaches to Solving the Internet Problem

Anchoring personal jurisdiction jurisprudence in due process considerations provides potential defendants with a degree of predictability and allows them to structure their conduct appropriately.¹⁹⁴ Predictability is balanced against the practical need to provide plaintiffs with a reasonable number of forums in which to bring suit.¹⁹⁵ Consequently, the outcome of jurisdictional inquiries is far from certain. In personal jurisdiction analysis, “[t]he greys are dominant and even among them the shades are innumerable.”¹⁹⁶ The inconsistencies and criticisms of the Zippo test add to those shades of grey.

Scholars propose a spectrum of approaches to solving the problem presented by virtual conduct. At the extremes—the narrow approach and the broad approach—scholars advocate abandoning Zippo’s sliding scale in favor of analyses with seemingly bright-line rules and a closer purported relationship to the traditional doctrine. In the middle, other scholars propose modifications to Zippo or more nuanced approaches.

a. The Narrow Approach

The underlying premise of the narrow approach is that “Internet-based contacts should rarely, if ever, suffice for personal jurisdiction.”¹⁹⁷ Rejecting the idea that virtual conduct and harm create physical contacts with a forum state, proponents of the narrow approach also argue the Calder effects test should be cabined to the case’s limited facts or overruled entirely.¹⁹⁸ At a practical level, the narrow approach requires plaintiffs to sue defendants in their state of domicile.¹⁹⁹

Scholars who support the narrow approach offer three main rationales. First, the narrow approach enhances predictability by creating a quasi-rule-based test.²⁰⁰ Potential defendants who only engage in virtual activity know they are only amenable to suit in their state of domicile and can then structure their activities appropriately.²⁰¹ Second, the approach would reduce the administrative costs on the courts²⁰² because courts would not have to expend as many resources on personal jurisdiction challenges.²⁰³ Proponents argue this is a benefit for both the judicial system and society more broadly.²⁰⁴ Although “some plaintiffs’ costs will increase [because they have] to litigate farther from home,”²⁰⁵ using fewer resources to resolve threshold jurisdictional questions will benefit society in the aggregate.²⁰⁶ Third, the narrow approach achieves valuable policy goals: promoting the unlimited exchange of information on the internet and ensuring “speakers and intermediaries [will] not be chilled by the threat of liability.”²⁰⁷ Proponents of the narrow approach argue substantive internet law tilts in favor of potential defendants to protect the free flow of information, and personal jurisdiction jurisprudence should do the same.²⁰⁸

b. The Broad Approach

At the opposite end of the spectrum, the broad approach argues for a fundamental shift in specific jurisdiction jurisprudence that would allow for near-universal jurisdiction cabined primarily by the reasonableness factors articulated in World-Wide Volkswagen.²⁰⁹ Advocating for a decreased emphasis on territorial sovereignty, the broad approach acknowledges the internet’s ubiquity and seeks to avoid crude attempts to analogize virtual conduct to physical activities.²¹⁰ This approach also abandons Zippo’s obsolete interactivity test and examines only “whether there was a ‘directed online’ connection to the forum and the matter in dispute” (i.e., whether the defendant’s internet activity could reach the forum state).²¹¹ In essence, the broad approach argues that unless a user limits the geographic scope of her online activities, her virtual conduct satisfies the threshold jurisdictional inquiry.²¹²

The broad approach, like its more restrictive foil, also attempts to increase predictability by creating a bright-line rule.²¹³ By adopting a less fact-intensive inquiry, courts can achieve more consistent outcomes and litigants can structure their activities accordingly.²¹⁴ Abandoning the Zippo sliding scale of interactivity also seeks to “avoid arbitrary distinctions drawn based on web activities” while creating space for future technological developments.²¹⁵

c. The Middle Ground

Acknowledging Zippo’s shortcomings, scholars and courts in the middle of the spectrum suggest tweaking the status quo without advocating significant jurisprudential shifts. To address technological advances since Zippo’s adoption,²¹⁶ one proposed approach expands the Zippo test to include the defendant’s use of geolocation technologies.²¹⁷ In the reformulated test, a website’s use of geolocation tools—whether employed to target users or block users from a forum state—provides courts with relevant data for determining whether a nonresident engaged in forum-related virtual conduct.²¹⁸

Fine-tuning Zippo’s sliding scale could also involve requiring “something more” beyond website interactivity to allow the exercise of personal jurisdiction.²¹⁹ In these cases, “something more” could be virtual or physical conduct that demonstrates intentional behavior by the defendant.²²⁰ Ultimately, the analysis goes beyond an indicator of the nonresident’s intent—an interactive website—to assess the nature and quality of the defendant’s forum-related conduct more holistically.²²¹

Rather than modifying Zippo, other approaches advocate aligning a more nuanced virtual contacts analysis with the traditional doctrine.²²² Under this analysis, courts would look at the nonresident’s knowledge and intent with relation to the plaintiff.²²³ This approach articulates three guiding principles:

(1) the interactivity and aim of the website or other medium through which the defendant harmed the plaintiff should not be considered as a separate factor; (2) that the plaintiff might have a national reputation or businesses does not automatically mean she has suffered the same amount of harm in every potential forum; and (3) the defendant need not know where the plaintiff is located in order to intend to cause her harm in that location.²²⁴

This nuanced approach uses reasonable foreseeability as its doctrinal touchstone and attempts to ensure courts can address virtual harms while avoiding universal jurisdiction.²²⁵

The proposed approaches in the center of the spectrum all offer adjustments to either the Zippo test or the current doctrine to address the challenges posed by virtual conduct. Rather than crafting per se rules governing jurisdictional analysis, these approaches—consistent with the Court’s personal jurisdiction jurisprudence—suggest fact-based inquiries to reach more consistent outcomes in internet conduct cases.²²⁶

Although scholars and courts continue to propose approaches that more consistently address the challenges presented by virtual conduct, none of the proposals provides a completely satisfactory resolution to the internet problem.

4. The Inconsistencies Between the Approaches to Solving the Internet Problem and the Underpinnings of Current Doctrine

The proposed approaches to solving the challenges presented by internet-based conduct attempt to create less grey areas in a court’s analysis. Each proposal also argues it better aligns with traditional personal jurisdiction principles. The approaches, however, are inconsistent with the underpinnings of current personal jurisdiction jurisprudence.

For more than forty years, courts have assessed the exercise of specific jurisdiction by a single standard.²²⁷ Doctrinal consistency ensures all assertions of personal jurisdiction comply with “traditional notions of fair play and substantial justice.”²²⁸ Therefore, perpetuating an internet-specific jurisdictional inquiry is inconsistent with the current doctrine’s underlying principles.²²⁹ Similarly, creating an internet exception to the Court’s minimum contacts analysis “renders dubious the continued adherence to [the doctrine] in other contexts.”²³⁰

The approaches at either end of the proposed spectrum of solutions also deviate from the Court’s personal jurisdiction jurisprudence. First, for over seven decades, courts have engaged in the fact-intensive inquiry required to determine whether the nature and quality of a nonresident’s forum-related contacts satisfy due process.²³¹ Reverting to quasi-rule-based tests is fundamentally at odds with the jurisprudential shift that occurred in International Shoe.²³²

Second, at the extremes, the proposed approaches are both underinclusive and overinclusive. In a society increasingly engaged in virtual conduct that reaches beyond territorial boundaries, the narrow approach is underinclusive. Narrowly construing courts’ authority to only allow jurisdiction over virtual conduct in the defendant’s state of domicile²³³ fails to provide plaintiffs with a reasonable number of forums in which to bring suit.²³⁴ Consequently, these limitations may make litigation less efficient.²³⁵ Although “the ‘minimum contacts’ inquiry principally protects the liberty of the nonresident defendant, not the interests of the plaintiff,” the plaintiff’s ability to obtain “convenient and effective relief” remains a consideration in determining the fundamental fairness of any jurisdictional decision.²³⁶

Conversely, the broad approach is overinclusive. The logical extension of this approach is universal jurisdiction cabined only by the existing reasonableness factors.²³⁷ Not only is universal jurisdiction wholly inconsistent with the Court’s precedents,²³⁸ placing a heavy emphasis on the reasonableness factors is unlikely to have any real effect on limiting states’ assertions of personal jurisdiction.²³⁹ Because technological advances “have made it much less burdensome for a [nonresident] to defend” herself in another state, courts are not likely to weigh the reasonableness factors in a nonresident’s favor.²⁴⁰ Therefore, placing significant emphasis on these factors to protect defendants’ liberty interests could allow the exercise of personal jurisdiction in cases involving virtual conduct that would not be proper in cases involving physical conduct. Thus, the broad approach creates a minimum contacts analysis that does not comport with due process.

By increasing the number of forums in which a nonresident may be subject to suit, the broad approach also increases defendants’ litigation costs and reduces predictability.²⁴¹ In this context, however, “[i]nformation asymmetry is likely to produce higher informational costs for defendants, possibly leading to excessive precautions . . . [and] social cost increases.”²⁴²

Because the recent approaches to addressing virtual conduct suggest idiosyncratic, internet-specific inquiries or analyses at odds with the underlying principles of personal jurisdiction jurisprudence, each proposal remains unsuccessful in holistically solving the problem created by boundaryless virtual conduct.

II. Continued Doctrinal Evolution: A Constructive Knowledge Inquiry

Due process affords parties the procedural rights to meaningful notice and an opportunity to be heard²⁴³ before their rights are affected.²⁴⁴ For more than 140 years, exercising personal jurisdiction has involved a due process inquiry.²⁴⁵ Although the doctrine transitioned from a rule-based analysis to a standards-based regime when International Shoe adopted the minimum contacts analysis, the Court did not change the underlying due process considerations for a forum state to exercise specific jurisdiction over a nonresident defendant.²⁴⁶ Therefore, the minimum contacts analysis was not intended to serve exclusively as a proxy for a nonresident’s presence in the forum state.²⁴⁷ Instead, requiring “certain minimum contacts with [the forum state prevents the exercise of personal jurisdiction from offending] ‘traditional notions of fair play and substantial justice,’”²⁴⁸ which are implicit in due process.²⁴⁹

The evolution of the Court’s personal jurisdiction jurisprudence continues to reflect these two primary due process considerations: fair notice and a reasonable opportunity to be heard. In the context of personal jurisdiction, fair notice is the equivalent of fair warning that a nonresident may be subject to a state’s jurisdiction.²⁵⁰ Similarly, the reasonableness or fairness factors protect the second due process concern: the nonresident defendant’s right to be heard.²⁵¹

By examining the underlying due process rationales for the Court’s personal jurisdiction jurisprudence, the minimum contacts analysis can be rearticulated to include virtual contacts without changing the substantive doctrine. Reframed through the lens of the Due Process Clause, a court may exercise specific jurisdiction when (1) a nonresident has constructive knowledge that she may be subject to the forum state’s authority; (2) the cause of action arises out of or relates to the nonresident’s forum-related conduct; and (3) the assertion of jurisdiction is reasonable. The second and third requirements remain unchanged from the current doctrine.²⁵² The rearticulated test, however, reframes the minimum contacts analysis as a constructive knowledge inquiry.

A. Did the Nonresident Defendant Have Constructive Knowledge She May Be Haled into the Forum State’s Court?

Current doctrine examines a nonresident defendant’s minimum contacts with the forum state to determine if exercising personal jurisdiction satisfies the fair warning requirement. Although the Court continues to reject universal jurisdiction,²⁵³ advances in technology and transformations in the American economy justify evolutions in the doctrine of personal jurisdiction.²⁵⁴ The widespread use of the internet and the rise of new social media platforms, artificial intelligence, location- and behavior-targeted advertising, and bots²⁵⁵ continue to blur traditional jurisdictional boundaries.²⁵⁶ As technology advances, the Court’s personal jurisdiction jurisprudence should also evolve.

While examining a defendant’s physical contacts with a forum state remains relevant, the internet’s ubiquity and anonymity justifies expanding beyond these considerations to include virtual conduct that should reasonably provide the defendant with notice she may be haled into a forum state’s court.²⁵⁷ Therefore, the minimum contacts analysis should be reframed as a constructive knowledge inquiry.

Constructive knowledge legally attributes a factual awareness or understanding to a person when someone using reasonable care or diligence would have that knowledge.²⁵⁸ The law may attribute knowledge to a person when the person has actual knowledge of a fact through first-hand experience or effective notice; the person should know a fact exists based on reasonable inferences that can be drawn from her actual knowledge; the person should have known the fact to fulfill a duty; or the law imputes the knowledge of an agent to the person.²⁵⁹

Analyzing a defendant’s constructive knowledge determines whether it is reasonable to legally presume a nonresident knew or should have known she was subject to the forum state’s authority based on the quality and nature of her physical and virtual conduct. Examining the nature and quality of the nonresident’s conduct includes analyzing the extent to which the defendant:

(1) Gained an economic or personal advantage from activities related to the forum state;²⁶⁰

(2) Had physical contact with the forum state (e.g., traveled to, conducted activities within, contacted people within, or sent anything or anyone to the forum state);²⁶¹

(3) Undertook a legal duty that would be performed in the forum state;²⁶²

(4) Entered into a continuing contractual relationship connected to the forum state;²⁶³

(5) “[D]eliberately exploit[ed the] market in the forum [s]tate;”²⁶⁴

(6) Had property located in the forum state;²⁶⁵

(7) Caused an injury meaningfully tethered to the forum state;²⁶⁶ or

(8) Failed to make a reasonable inquiry into which forum state would have authority over her.²⁶⁷

The nature and quality of the nonresident’s conduct must indicate a substantial connection to the forum state, rather than a “random, fortuitous, or attenuated” relationship.²⁶⁸ When the nonresident defendant demonstrates actual knowledge of interactions with the forum state; allows for reasonable inferences based on her actual knowledge;²⁶⁹ indicates she should have known the forum state with which she was interacting to fulfill a duty; or shows willful blindness, a court will presume the defendant had constructive knowledge. Thus, constructive knowledge creates a presumption that the fair warning component of due process is satisfied.

Constructive knowledge, however, is a rebuttable presumption. If the nonresident demonstrates she took reasonable steps to avoid engaging in conduct with the forum state,²⁷⁰ the presumption is rebutted and a court cannot exercise personal jurisdiction over the defendant.²⁷¹

Reframing the minimum contacts analysis as a constructive knowledge inquiry addresses the substantive doctrinal inconsistencies inherent in previously proposed approaches to virtual conduct. First, a modest evolution of personal jurisdiction jurisprudence ensures the internet is not an idiosyncratic area of nonresident activity, once again creating a single standard for courts to apply when assessing the quality and nature of a defendant’s conduct.²⁷² Second, the rearticulated test refocuses the analysis on the nonresident’s forum-related activities, both virtual and physical.²⁷³ Third, this solution creates a reasonable balance between a plaintiff’s interest in selecting convenient forums to obtain effective relief and the defendant’s liberty interests.²⁷⁴ Finally, the constructive knowledge analysis avoids universal jurisdiction without solely relying on the reasonableness factors to cabin the forum state’s exercise of personal jurisdiction.²⁷⁵

B. What Is the Nexus Between the Suit and the Defendant’s Forum-Related Conduct?

In addition to finding the nonresident knew or should have known that she was subject to the forum state’s authority, a court must also determine if the suit arises out of or relates to the defendant’s forum-related conduct.²⁷⁶ Examining case-linked jurisdiction requires “an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence [that is tied to] the forum State and is therefore subject to the State’s regulation.”²⁷⁷ The connection, however, does not require a causal relationship between the defendant’s forum-related conduct and the plaintiff’s harm.²⁷⁸

C. Is the Exercise of Personal Jurisdiction Reasonable?

If a court reasonably concludes the nonresident had constructive knowledge and the suit arises out of or in connection with the nonresident’s forum-related conduct, the court may still find the exercise of personal jurisdiction unreasonable in light of other factors.²⁷⁹ The forum state’s exercise of personal jurisdiction is unreasonable when the nonresident’s burden of defending the suit in a foreign state outweighs:

(1) The forum state’s adjudication interest;

(2) The plaintiff’s interest in convenient and effective relief;

(3) The interstate judicial system’s efficiency interest; or

(4) The substantive policy interests of the several states.²⁸⁰

By finding a nonresident defendant has constructive knowledge that she may be subject to the forum state’s authority and the exercise of personal jurisdiction is reasonable, courts ensure the nonresident receives fair notice and a reasonable opportunity to be heard, consistent with the Due Process Clause.

III. Test Cases: A Comparison Between the Current Doctrine, the Narrow Approach, and the Constructive Knowledge Inquiry

To illustrate the difference between the constructive knowledge inquiry and both the current doctrine and the narrow approach,²⁸¹ this Comment analyzes three difficult test cases originally presented by Professors Alan Trammell and Derek Bambauer: contracts, trademarks, and computer network attacks or hacking.²⁸² Because the constructive knowledge inquiry reframes current doctrine through a due process lens that expands beyond physicality, it should not change the outcome when courts consider traditional minimum contacts. When a nonresident defendant’s contacts with the forum state are completely virtual, however, the proposed inquiry may allow the exercise of personal jurisdiction in more forum states than current doctrine.

A. Contracts

The first test case involves a contract dispute.²⁸³ A new user, located in Phoenix, Arizona, signs up for a social networking service. The service is headquartered in Brooklyn, New York. The terms of the online user agreement do not include a choice-of-law or forum-selection clause.²⁸⁴ The terms of the agreement do, however, covenant that the social networking service will not sell the user’s personal data to third parties. In breach of the agreement, the service sells information about the user’s connections to a third party who wants to mine the data for information relevant to consumer behavior. When the user learns of the breach, where may she sue?

Under the narrow approach, the user can only sue in New York, the company’s principal place of business.²⁸⁵ Although the user agreement does not contain a forum-selection clause, the narrow approach acts as an implied contract term and channels litigation against the company solely to New York, regardless of whether the social networking service collects data on the user’s state of residency.²⁸⁶

Current doctrine similarly allows suit in New York but may also allow the user to bring a claim in Arizona. Because the defendant’s contacts with the forum state cannot go solely through the plaintiff,²⁸⁷ establishing jurisdiction in Arizona requires evidence that the contemplated course of performance would occur in that forum or that the company deliberately engaged with an Arizona user.²⁸⁸ If the service collected data on the user’s state of residency, a court could find the company deliberately reached beyond the boundaries of New York to provide an online service in Arizona, establishing sufficient minimum contacts to allow the exercise of jurisdiction.

Under the proposed approach, however, the user may sue in New York or Arizona. Constructive knowledge makes the company amenable to suit in the user’s state regardless of whether the user is required to disclose her location when she signs the user agreement or registers for the site. If the company requires the user to provide her state of residency, the proposed approach follows the current doctrinal analysis. If the services does not collect data on the user’s location, three factors in the constructive knowledge inquiry justify the exercise of jurisdiction. First, the company’s online networking service creates a deliberate exploitation of the markets in which the service is available. Second, the company gains an economic advantage from its forum-related activities. Because the company exploits the internet’s global accessibility, it makes its product more desirable to potential users in the forums in which the service operates. Third, a reasonable business providing a service would inquire about where its performance will occur and where its clients are located. Therefore, a court can legally impute that knowledge to the company and allow suit in Arizona, provided the exercise of jurisdiction is not unreasonable.

B. Trademarks

The second test case involves trademark infringement.²⁸⁹ Imagine an entrepreneur living in Arizona opens a donut shop, called Cactus Donuts, in her home state near the Nevada border. At a later date, a California entrepreneur opens a donut shop with the same name in his home state near the Nevada border. The owner of the California-based Cactus Donuts shop establishes an aggressive social media marketing campaign and invests heavily in Google Ads to attract new customers. Because of his successful advertising, Nevada residents begin crossing the border into California to visit the shop. In an effort to expand her business, the owner of the Arizona-based Cactus Donuts tries to open a second location in Las Vegas only to find out the customer base actually associates her store with the California-based business. The Arizona business owner wants to sue her competitor for trademark infringement. Where can she bring suit?

Under the narrow approach, the plaintiff can only bring the trademark suit in California, because online activities without additional physical conduct are never sufficient to justify the exercise of personal jurisdiction.²⁹⁰

Current doctrine also allows for suit in California, the defendant’s principal place of business. The plaintiff may be able to bring suit in Nevada as well, but there is less certainty in whether this claim could survive a jurisdictional challenge. If the defendant’s advertising targeted the Nevada market, the Nicastro plurality’s examination of targeting language may allow a Nevada court to exercise jurisdiction. In Nicastro, however, the Court indicated marketing and sales efforts would need to be targeted to a state-specific market to justify the exercise of personal jurisdiction.²⁹¹ Therefore, online advertisements only intended to serve customers generally are likely insufficient evidence of the targeting required by the Nicastro plurality.

Similarly, under the proposed approach, the plaintiff can sue in California and is likely also able to sue in Nevada. The constructive knowledge analysis focuses on three factors to determine whether jurisdiction in Nevada is proper: the defendant’s deliberate exploitation of the Nevada market, the economic advantage he received from forum-related activities, and an injury meaningfully tethered to Nevada. The nature and quality of the California defendant’s Google Ads and social media posts may establish deliberate exploitation of the forum state’s market. If the posts are targeted to the Nevada market—in content or reach—it would be reasonable to conclude the California-based defendant had fair warning he could be subject to Nevada’s authority, particularly if the intent of the advertising was to generate sales from Nevada residents.²⁹² Additionally, because the defendant opened his shop near the Nevada border and intentionally began advertising to generate additional customers, the defendant should have known he was advertising to Nevada residents based on the actual knowledge he possessed. Furthermore, if the California defendant had knowledge about the volume of business generated from Nevada residents—an economic advantage from the forum state—it would be reasonable to extend personal jurisdiction to the Nevada courts.

Finally, the trademark infringement action involves an injury meaningfully tethered to the Nevada forum. Trademark infringement harms consumers and the trademark owner’s reputation and goodwill.²⁹³ Because likelihood of consumer confusion is an element of a trademark claim,²⁹⁴ the situs of the trademark owner’s reputation and goodwill are jurisdictionally relevant. Here, the reputational harm to the Arizona plaintiff occurs in Nevada. Consequently, the constructive knowledge test would allow Nevada to assert jurisdiction over the claim and provide greater predictability for the parties.

C. Hacking

The final test case involves solely virtual conduct.²⁹⁵ A woman living in Brooklyn, New York, uses a dating site. Dissatisfied with the results she receives, the user launches a network attack against the site. The attack overwhelms the site’s servers, the website crashes, and the company loses tens of thousands of dollars during the outage. Unbeknownst to the user, the servers her Trojan attacked are in Virginia and California, and the dating service is headquartered in Atlanta, Georgia.

Under the narrow approach, the user can only be sued in New York because she lives there. Jurisdiction in California, Georgia, or Virginia is not proper, because the defendant has little ability to predict the effects in those states. If the hacking caused physical damage to the computers or servers in California, Georgia, or Virginia, however, jurisdiction would be appropriate.²⁹⁶ In cases where virtual conduct creates physical effects, the narrow approach defaults to “standard physicality analysis” and allows for the exercise of personal jurisdiction.²⁹⁷

The current doctrine supports a similar conclusion: the user can only be sued in New York. Although the effects of her intentional tort were felt in California, Georgia, and Virginia, she did not expressly aim her conduct at any of those states.²⁹⁸ Instead, the plaintiff is “the only link between the defendant and the forum.”²⁹⁹ The reasonableness factors also make suit in those states unfair. Requiring a New York resident to defend against a suit in a state she did not target or enter would likely be unreasonable, despite the plaintiff’s interest in a convenient forum and the state’s interest in addressing the harm.

In a case of solely virtual conduct, the constructive knowledge analysis provides the greatest departure from the current doctrine. Under the proposed approach, the user can be sued in New York or Georgia, regardless of whether her attack causes any physical harm. Her malware attack intentionally targeted the company’s website. Exercising reasonable care, the user could have determined where the company was headquartered and what state would have jurisdiction over her conduct. Failing to make a reasonable inquiry into the location of the company’s headquarters does not shield the nonresident from the forum state’s jurisdiction.³⁰⁰ Consequently, a court can reasonably infer the defendant should have known she was subject to Georgia’s authority. The relationship to California and Virginia, however, is too attenuated from the user’s conduct for her to be amenable to suit in those states. While the defendant’s conduct created harm in the states hosting the company’s servers, the relationship with the forum cannot go solely through the plaintiff.³⁰¹ Unless there is evidence the defendant could have discovered the servers’ locations through reasonable inquiry, a court cannot impute that constructive knowledge to the user. Instead, the company can recover for the harm to the servers in one of the other potential forum states.

Because the constructive knowledge inquiry builds on the Court’s current personal jurisdiction jurisprudence, cases involving virtual conduct analogous to physical conduct create similar outcomes to the existing minimum contacts analysis. In cases involving solely internet-based conduct, however, the constructive knowledge analysis expands the forum states in which a nonresident can be haled into court without violating underlying due process principles, creating universal jurisdiction, or using an idiosyncratic approach to virtual conduct.

Conclusion

Since the advent of the internet, the Supreme Court has declined to decide what role virtual contacts play in the personal jurisdiction inquiry. Instead of developing a consistent test for analyzing personal jurisdiction, the courts of appeals apply a sliding-scale analysis, with traditional personal jurisdiction inquiry on one end and an internet-specific inquiry on the other. Similarly, scholars remain divided over how to best resolve the question of virtual contacts. Should a nonresident defendant’s internet-based conduct ever be used to assert personal jurisdiction or should courts instead rely largely on tangible contacts and the nonresident’s domicile to offer plaintiffs a forum for suit? Should the internet’s ubiquity create universal jurisdiction, relying on courts to exercise discretion to determine if the maintenance of a suit is reasonable in a particular forum state? Neither end of the spectrum, however, provides an answer that is satisfactory or consistent with the continued evolution of the Court’s personal jurisdiction jurisprudence.

Just as the Court recognized the need to evolve from Pennoyer’s rule-based limitations to International Shoe’s standards-based regime,³⁰² the Court should once again evolve its personal jurisdiction jurisprudence to ensure the internet does not continue to raise idiosyncratic questions. Therefore, the Court should reframe the jurisdictional analysis to focus on providing meaningful notice and an opportunity to be heard, consistent with the Fourteenth Amendment’s Due Process Clause. By allowing state courts to exercise personal jurisdiction when (1) a nonresident has constructive knowledge that she may be subject to the forum state’s authority; (2) the cause of action arises out of or relates to the nonresident’s forum-related conduct; and (3) the assertion of jurisdiction is reasonable, the Court would provide a consistent framework for analyzing jurisdictional questions and increase judicial efficiency. The proposed solution also meets the underlying rationale for a limited personal jurisdiction doctrine: allowing potential defendants engaged in both private and commercial action to structure their conduct appropriately and providing potential plaintiffs with a reasonable number of forums in which to bring suit.

Category: Print Issues

Everywhere and Nowhere: Reframing Personal Jurisdiction to Meet the Realities of an Increasingly Boundaryless Society

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