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.1John Perry Barlow, A Declaration of the Independence of Cyberspace, Elec. Frontier Found. (Feb. 8, 1996), https://perma.cc/S2CK-TVSK.
Americans spend over two billion hours online every day.2As of January 2021, there were 298.8 million internet users in the United States. Simon Kemp, We Are Soc. & Hootsuite, Digital 2021: The United States of America 24 (2021), https://perma.cc/W5R8-RX43. On average, internet users in the United States spent seven hours and eleven minutes online each day. Id. at 22. Whether we’re Instagramming the perfect meal,3Although individual users’ preferences vary, #food is the twenty-fifth most popular Instagram hashtag with over 450 million posts. #food, Instagram (search “#food”); Werner Geyser, The Most Popular Instagram Hashtags on the Planet in 2021 (+ Free Tool), Influencer Mktg. Hub (July 13, 2021), https://perma.cc/F4F4-Z7BW. Similarly, #foodporn has over 265 million posts. #foodporn, Instagram (search “#foodporn”). hailing an Uber,4Even during the COVID-19 pandemic, over seventeen percent of US internet users used online ride-sharing services like Uber, Lyft, and Via each month. Kemp, supra note 2, at 79. swiping right in the hopes of meeting “the one,”5Tinder—a dating app known for its swipe left, swipe right choice dichotomy—was the most popular mobile app by consumer spending in the United States in 2020. Id. at 70. or placing another Prime order,6E-commerce annual sales revenue in the United States exceeded $431 billion in 2020. Id. at 78. As of December 2020, there were an estimated 142 million Amazon Prime members in the United States. Tonya Garcia, Amazon Prime Member Total Reaches 142 Million in U.S. with More Shoppers Opting in for a Full Year, Data Shows, MarketWatch (Jan. 20, 2021, 3:12 PM), https://perma.cc/4HQL-GR6S. On average, Prime members in the US spend $1,400 per year on Amazon. Stephanie Chevalier, Average Spending of Amazon Prime and Non-Prime Members 2015–2019, Statista (July 7, 2021), https://perma.cc/7RWA-K8AF. society is increasingly connected to a boundaryless, virtual world.7See Zoe Niesel, #PersonalJurisdiction: A New Age of Internet Contacts, 94 Ind. L.J. 103, 104 (2019). See generally Kemp, supra note 2, at 17–18, 23–87 (compiling annual data and trends on US internet use). The internet’s ubiquity, however, presents unique challenges for a system of laws historically predicated on physical conduct and territorial limitations.8See Alan L. Farkas, Trimming the Claws of the Internet’s Jurisdictional Reach, 46 Tort Trial & Ins. Prac. L.J. 761, 762–63, 779 (2011); Niesel, supra note 7, at 104. See generally Georgios I. Zekos, Demolishing State’s Sole Power Over Sovereignty and Territory via Electronic Technology and Cyberspace, 17 No. 5 J. Internet L. 3 (2013) (discussing the governance challenges presented by the internet).
As society continues to blur once-traditional lines of territorial sovereignty,9See Niesel, supra note 7, at 139; see also TiTi Nguyen, Note, A Survey of Personal Jurisdiction Based on Internet Activity: A Return to Tradition, 19 Berkeley Tech. L.J. 519 (2004). 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 jurisdiction10Personal jurisdiction is “[a] court’s power to bring a person into its adjudicative process.” Jurisdiction, Black’s Law Dictionary (11th ed. 2019). over a defendant?11See Dan L. Burk, Federalism in Cyberspace, 28 Conn. L. Rev. 1095, 1095–96 (1996); David R. Johnson & David Post, Law and Borders—The Rise of Law in Cyberspace, 48 Stan. L. Rev. 1367, 1370–71 (1996); Nguyen, supra note 9, at 525. If laws regulating conduct exist but procedural doctrines insulate defendants from accountability, then the system undermines fundamental fairness.12See J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 906 (2011) (Ginsburg, J., dissenting). 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.13See Walden v. Fiore, 571 U.S. 277, 283 (2014); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291–92, 294, 297 (1980); Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
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.14See Walden, 571 U.S. at 283 (reiterating the “minimum contacts” test for specific jurisdiction); Daimler AG v. Bauman, 571 U.S. 117, 127 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)) (reiterating the “at home” analysis for general jurisdiction); Shaffer v. Heitner, 433 U.S. 186, 209, 212 & n.39 (1977). That focus recognizes two types of personal jurisdiction: general jurisdiction and specific jurisdiction.15Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1024 (2021).
Courts “may exercise general jurisdiction only when a defendant is ‘essentially at home’ in the State.”16Id. (quoting Goodyear, 564 U.S. at 919). Individuals are at home in the state where they are domiciled.17Id. Corporations are at home in their state of incorporation and where they have their principal place of business.18Id.; see also Daimler, 571 U.S. at 139 n.19 (declining to “foreclose the possibility that in an exceptional case, . . . a corporation’s operations in a forum other than its formal place of incorporation or principal place of business may . . . render the corporation at home in that State”). Once a defendant is at home in a state, a court may exercise personal jurisdiction over any claim against the defendant.19Ford, 141 S. Ct. at 1024.
Specific jurisdiction involves a wider range of defendants in a narrower set of cases.20Id. 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.”21Hanson v. Denckla, 357 U.S. 235, 253 (1958). Yet jurisdiction is only proper when the claims “‘arise out of or relate to the defendant’s contacts’ with the forum.”22Ford, 141 S. Ct. at 1026 (citations omitted).
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.23Dig. Equip. Corp. v. AltaVista Tech., Inc., 960 F. Supp. 456, 462–63 (D. Mass. 1997); Niesel, supra note 7, at 104. How a defendant’s virtual conduct translates into a court’s personal jurisdiction analysis remains a question unaddressed by the Supreme Court.24Ford, 141 S. Ct. at 1028 n.4 (declining to “consider internet transactions, which may raise doctrinal questions of their own”); Walden v. Fiore, 571 U.S. 277, 290 n.9 (2014) (declining to decide “whether and how a defendant’s virtual ‘presence’ and conduct translates into ‘contacts’ with a particular State”); see also Ford, 141 S. Ct. at 1032 (Alito, J., concurring in the judgment) (questioning whether the Court’s specific jurisdiction jurisprudence “is well suited for the way in which business is now conducted”); id. at 1039 (Gorsuch, J., concurring in the judgment) (suggesting future cases will need to “sort out a responsible way to address the challenges posed by [the country’s] changing economy in light of the Constitution’s text and the lessons of history”).
For more than twenty years, lower courts and scholars have attempted to address this critical gap in the Court’s specific personal jurisdiction jurisprudence.25See Niesel, supra note 7, at 118; Alan M. Trammell & Derek E. Bambauer, Personal Jurisdiction and the “Interwebs”, 100 Cornell L. Rev. 1129, 1131–33 (2015). Proposed solutions run the gamut from universal jurisdiction in cases involving virtual conduct to a presumption against jurisdiction for activity existing solely online.26See infra Section I.D.3. Nevertheless, the proposed solutions remain inadequate and unsatisfying.27See Trammell & Bambauer, supra note 25, at 1129; infra Section I.D.4.
This Comment proposes a return to constitutional first principles based on the Due Process Clause of the Fourteenth Amendment28U.S. Const. amend XIV, § 1 (“No State . . . shall . . . deprive any person of life, liberty, or property, without due process of law . . . .”).—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 appropriately29See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). while also providing potential plaintiffs with a reasonable number of forums in which to bring suit.30See id. at 292; Kulko v. Superior Ct. of Cal., 436 U.S. 84, 92 (1978); McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223 (1957); Martin H. Redish, Of New Wine and Old Bottles: Personal Jurisdiction, the Internet, and the Nature of Constitutional Evolution, 38 Jurimetrics J. 575, 578 (1998).
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.31See Walden v. Fiore, 571 U.S. 277, 283 (2014). Much like the early law of jurisdiction, however, the minimum contacts analysis continues to focus on tangible conduct.32See id. at 283–84 n.6 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). 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.33See infra Sections I.D.1, I.D.2.a. These varied approaches generated scholarly support and criticism without any individual proposal sufficiently resolving the doctrinal limitations illustrated by the internet’s boundaryless nature.34See infra Sections I.D.2.b, I.D.3.
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.35See 1 Frederick Pollock & Frederic William Maitland, The History of English Law Before the Time of Edward I 512–13 (2d ed. 1899). At early common law, jurisdiction required defendants to appear voluntarily in court.36See Nathan Levy, Jr., Mesne Process in Personal Actions at Common Law and the Power Doctrine, 78 Yale L.J. 52, 58 (1968). Courts often obtained jurisdiction, however, through duress and physical compulsion.37Id.; see also 2 Pollock & Maitland, supra note 35, at 592–93 (“The law wants to be exceedingly fair, but is irritated by contumacy. Instead of saying to the defaulter ‘I don’t care whether you appear or no,’ [sic] it sets its will against his will:—‘But you shall appear.’”).
Courts issued writs summoning defendants to appear and sent the sheriff’s messengers to find the defendants and serve them.38Levy, supra note 36, at 59. 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.”402 Pollock & Maitland, supra note 35, at 592; Levy, supra note 36, at 59–60. Mesne process was a procedure used between the commencement of a lawsuit and a final judgment to compel a defendant to plead. Process, Black’s Law Dictionary, supra note 10. Thus, civil arrest process became integral to civil procedure.41Donald E. Wilkes, Jr., Habeas Corpus Proceedings in the High Court of Parliament in the Reign of James I, 1603–1625, 54 Am. J. Legal Hist. 200, 218 (2014). Although England abolished civil arrest through capias and other forms of mesne process by 1838,42Levy, supra note 36, at 68. 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.43See Picquet v. Swan, 19 F. Cas. 609, 611 (D. Mass. 1828) (noting the general common law principle that “a court created within and for a particular territory is bounded in the exercise of its power by the limits of such territory”). At the inception of the federal court system,44See Judiciary Act of 1789, ch. XX, 1 Stat. 73. Congress could have conferred universal jurisdiction on the federal courts by allowing original process to run into every state.45See U.S. Const. art. III, §§ 1–2 (granting Congress the authority to establish inferior courts and define their jurisdiction); Toland v. Sprague, 37 U.S. 300, 328 (1838). Instead, the Judiciary Act of 1789 placed physical and territorial limitations on the lower courts’ jurisdiction.46Judiciary Act § 11 (“[N]o civil suit shall be brought before [a circuit or district court] . . . by any original process in any district than that whereof [the defendant] is an inhabitant, or in which he shall be found at the time of serving the writ . . . .”).
The Supreme Court first addressed the question of territorial limitations on the lower courts’ authority in Toland v. Sprague.4737 U.S. 300, 329 (1838). Although the practice of the forum state’s courts was to issue writs of attachment48A writ of attachment is a form of mesne process that seizes and holds a defendant’s property until the court resolves the plaintiff’s claims. Attachment, Black’s Law Dictionary, supra note 10. against nonresident defendants, the Court limited federal courts’ use of mesne process to defendants residing or served in the judicial district.49Toland, 37 U.S. at 328–30. In addition to grounding its decision in the Judiciary Act’s text,50Id. at 328–29; see also Judiciary Act § 11. the Court also reasoned that considerations of justice and logic supported territorial limitations on federal courts.51Toland, 37 U.S. at 329. 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.52Id. at 330.
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.53See id. at 329. The Due Process Clause of the Fourteenth Amendment similarly cabins state courts’ power to exercise personal jurisdiction.54See Walden v. Fiore, 571 U.S. 277, 283 (2014); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980); see also Int’l Shoe Co. v. Washington, 326 U.S. 310, 316–17 (1945). 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.55See Douglas D. McFarland, Dictum Run Wild: How Long-Arm Statutes Extended to the Limits of Due Process, 84 B.U. L. Rev. 491, 493–97 (2004). How the Court articulates the due process requirements for exercising personal jurisdiction, however, continues to evolve.56See, e.g., Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1024–30 (2021) (clarifying the “arise out of or relate to” requirement).
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.58Id. at 719–20, 733. 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.59Id. at 720.
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.60Id. at 722 (“[T]he independence of one [state] implies the exclusion of power from all others.”). 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.”61Id. at 722–23. Consequently, the Due Process Clause of the Fourteenth Amendment began to protect defendants from state courts unconstitutionally exercising personal jurisdiction.62Id. at 733.
2. Due Process as a Means of Protecting “Traditional Notions of Fair Play and Substantial Justice”63See Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation marks omitted).
Modern due process extends beyond questions of state sovereignty and affords parties the procedural rights to meaningful notice and an opportunity to be heard64Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). before their rights are affected.65Id. (quoting Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233 (1863)).
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.66See Int’l Shoe, 326 U.S. at 316, 319. In International Shoe Co. v. Washington,67326 U.S. 310 (1945). the Supreme Court created the “minimum contacts” analysis for determining whether exercising personal jurisdiction comported with the requirements of the Due Process Clause.68Id. at 316, 319.
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 personam69In personam jurisdiction is a court’s power “over a defendant’s personal rights.” Jurisdiction, Black’s Law Dictionary, supra note 10. jurisdiction.70Int’l Shoe, 326 U.S. at 316. 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.’”71Id. (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).
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.72See id. at 317 (quoting Hutchinson v. Chase & Gilbert, Inc., 45 F.2d 139, 141 (2d Cir. 1930)). 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.73Id. at 319. 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.74See id. 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.75See id. 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.76See Int’l Shoe, 326 U.S. at 317 (quoting Hutchinson, 45 F.2d at 141). Thus, International Shoe expanded the scope of courts’ personal jurisdiction.77Id. at 319.
By 1977, the minimum contacts analysis applied to all exercises of specific jurisdiction, regardless of whether the proceedings were in personam, in rem,78In rem jurisdiction is “[a] court’s power to adjudicate the rights to a given piece of property.” Jurisdiction, Black’s Law Dictionary, supra note 10. or quasi-in rem.79See Shaffer v. Heitner, 433 U.S. 186, 209 (1977) (holding that the standards outlined in International Shoe apply to all exercises of specific jurisdiction over nonresidents). Quasi-in rem jurisdiction is a court’s power “over a person but based on that person’s interest in property located within the court’s territory.” Jurisdiction, Black’s Law Dictionary, supra note 10. Nevertheless, the minimum contacts analysis continued to present uncertainty as interstate commerce expanded.80See Niesel, supra note 7, at 110.
b. Rejecting the Idea of Universal Jurisdiction and Attempting to Refine the Minimum Contacts Analysis
Acknowledging the uncertainty of the International Shoe standard,81Shaffer, 433 U.S. at 217 (Powell, J., concurring). the Supreme Court attempted to refine the minimum contacts analysis over the next seven decades while also consistently rejecting notions of universal jurisdiction.82See Niesel, supra note 7, at 110; see also, e.g., Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1027 (2021) (rejecting the idea of universal jurisdiction for nationwide corporations); J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 884 (2011) (plurality opinion) (rejecting the idea that targeting a national audience may subject a foreign corporation to a particular state’s jurisdiction without additional evidence the defendant targeted the forum); Asahi Metal Indus. Co. v. Superior Ct. of Cal., 480 U.S. 102, 112 (1987) (plurality opinion) (rejecting the idea that placing a product into the stream of commerce within the United States alone could subject a foreign corporation to the forum state’s jurisdiction); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 293 (1980) (“[W]e have never accepted the proposition that state lines are irrelevant for jurisdictional purposes, nor could we, and remain faithful to the principles of interstate federalism embodied in the Constitution.”); Hanson v. Denckla, 357 U.S. 235, 248 (1958) (rejecting an expansive reading of in rem jurisdiction that would create universal jurisdiction); id. at 260 (Black, J., dissenting) (arguing further relaxation of the strict limitations on states’ ability to exercise personal jurisdiction is inevitable while still rejecting the idea of universal jurisdiction).
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.83Hanson, 357 U.S. at 253. 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.”84Id. at 254. 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.”85Id. at 253 (emphasis added).
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.”86Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (alteration in original) (quoting Shaffer v. Heitner, 433 U.S. 186, 218 (1977) (Stevens, J., concurring in judgment)). Therefore, the fair warning requirement prevents a state from asserting jurisdiction based on a nonresident’s “random, fortuitous, or attenuated contacts” with the forum.87Id. at 475 (internal quotation marks omitted) (first quoting Keeton v. Hustler Mag., Inc., 465 U.S. 770, 774 (1984), and then quoting World-Wide Volkswagen, 444 U.S. at 299). 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.”88World-Wide Volkswagen, 444 U.S. at 297.
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.89See id. at 292. Thus, the Court also clarified how to measure the considerations of justice90See supra note 51 and accompanying text. and estimated inconveniences91See supra note 73 and accompanying text. 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.92World-Wide Volkswagen, 444 U.S. at 292 (citations omitted).
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.93Id. (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)) (internal quotation marks omitted).
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 claim94Int’l Shoe, 326 U.S. at 319. focuses on the connection between “the defendant, the forum, and the litigation.”95Shaffer v. Heitner, 433 U.S. 186, 204 (1977). While a defendant does not need to “physically enter the forum State,”96Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985). she must “deliberately ‘reach out beyond’” her state and into another.97Id. at 479–80, 487 (alteration in original). The contacts satisfying the Due Process Clause must ultimately be the defendant’s choice.98See Keeton v. Hustler Mag., Inc., 465 U.S. 770, 774 (1984).
The inquiry includes examining the privileges and benefits the defendant received from the forum state,99See Hanson v. Denckla, 357 U.S. 235, 253 (1958). as well as the extraterritorial conduct the defendant knowingly aimed at the forum.100See Calder v. Jones, 465 U.S. 783, 787–90 (1984). Intentionally creating tortious effects in the forum state, even when the defendant lacks any other case-specific contacts with the forum, is jurisdictionally relevant.101Id. at 788–89 (citing Hustler Mag., 465 U.S. at 779–81). Simply contracting with a forum-state resident, however, does not create sufficient minimum contacts to justify the exercise of personal jurisdiction.102See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478–79, 487 (1985). 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.103See id. 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.104See supra notes 89–92 and accompanying text.
Although the Court carved out a few bright-line rules under International Shoe’s seemingly flexible standard,105See Burger King, 471 U.S. at 478–79, 487 (establishing that a contract with a nonresident alone is insufficient to establish minimum contacts with the forum state); Hanson v. Denckla, 357 U.S. 235, 253 (1958) (establishing that the unilateral activity of the plaintiff or a third party cannot create the defendant’s contacts with the forum state). the minimum contacts analysis was sometimes criticized for failing to provide a desired level of predictability.106See Shaffer v. Heitner, 433 U.S. 186, 217 (1977) (Powell, J., concurring). Compare Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415–16 (1984) (finding the defendant’s contacts insufficient to establish either general or specific jurisdiction in the forum state), with id. at 420 (Brennan, J., dissenting) (finding the defendant’s contacts sufficient to establish specific jurisdiction in the forum state). 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.107See Asahi Metal Indus. Co. v. Superior Ct. of Cal., 480 U.S. 102, 110 (1987).
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,108444 U.S. 286 (1980). 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.109Id. at 298. 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.110Id. These were not, however, the facts before the Court in World-Wide Volkswagen.111Id. at 288–89, 295–96. 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.”112Id. at 299 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 319 (1945)).
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.114See id. at 105–08 (plurality opinion). 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.115See J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 883 (2011) (plurality opinion); Thomas A. Dickerson, Rodney E. Gould & Mark Chalos, Litigating International Torts in U.S. Courts § 2.5 (2019).
A unanimous Court agreed the case presented a rare instance when exercising jurisdiction—regardless of whether sufficient minimum contacts existed—was unreasonable.116Asahi, 480 U.S. at 113–14. 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.117Id. at 112. In Asahi, Justice O’Connor found the defendant did not purposefully direct any action toward the forum state.118Id. 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.119Id. at 116–19 (Brennan, J., concurring in part and concurring in the judgment). Justice Brennan concluded sufficient minimum contacts existed, even though he agreed that the forum state’s exercise of personal jurisdiction was unreasonable.120Id. at 121.
Almost twenty-five years passed before the Court confronted another close minimum contacts question in J. McIntyre Machinery, Ltd. v. Nicastro.121564 U.S. 873 (2011) (plurality opinion). 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.122Id. at 881–82 (plurality opinion) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295 (1980)). Instead, the plurality framed the relevant inquiry around the nonresident’s “intention to submit to the power of [the] sovereign.”123Id. at 882. 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.124Id. at 883–85.
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;125Id. at 887 (Breyer, J., concurring in the judgment). 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.126Id. at 893–910 (Ginsburg, J., dissenting). Despite criticizing the stream-of-commerce dicta, Nicastro was unable to resolve the “decades-old [foreseeability] questions left open in Asahi.”127Nicastro, 564 U.S. at 877 (plurality opinion) (citation omitted).
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.128See Walden v. Fiore, 571 U.S. 277, 283–84 (2014). 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.130Id. at 283. 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.131Id. at 284. Consequently, the Court clarified the impact of intentionally tortious injury within the forum state—known as the Calder effects test132See Calder v. Jones, 465 U.S. 783, 788–91 (1984).—on the minimum contacts analysis.133Walden, 571 U.S at 286–88. 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.134Id. at 285–86. Instead, a plaintiff’s injury is only jurisdictionally relevant when tethered to the forum state in a meaningful way.135Id. at 287–88, 290. 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.136See, e.g., id.; Calder, 465 U.S. at 789; Restatement (Second) Torts § 577 cmts. b & c (Am. L. Inst. 1977) (explaining that because “reputation is the estimation in which one’s character is held by his neighbors or associates,” defamatory publication only occurs when a third party understands the statement’s impact on the plaintiff’s reputation).
Additionally, while Walden did not involve cross-border commercial transactions, the Court cited a number of precedents involving commercial disputes.137See Walden, 571 U.S. at 284–86 (rearticulating principles from prior cases involving cross-border commercial transactions). 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.139Id. at 1028–30. 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.140Id. at 1027–28.
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.141See id. at 1024–25.
D. Minimum Contacts in the Age of the Internet
While the Court eschews jurisdiction jurisprudence based solely on physicality,142See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985) (finding that a defendant may not avoid the exercise of personal jurisdiction “merely because the defendant did not physically enter the forum State”). its analysis continues to focus on tangible contacts with the forum state.143See Walden, 571 U.S. at 283 (reiterating the “minimum contacts” test for specific jurisdiction); Daimler AG v. Bauman, 571 U.S. 117, 127 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)) (reiterating the “at home” analysis for general jurisdiction); Shaffer v. Heitner, 433 U.S. 186, 209, 212 & n.39 (1977). How a defendant’s virtual conduct translates into a court’s minimum contacts analysis, however, remains a question unaddressed by the Supreme Court.144See supra note 24.
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.”146Id. at 1123–24. On one end of the scale, there are defendants who clearly engage in commercial transactions over the internet.147Id. at 1124. 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.148See id.; supra note 103 and accompanying text. At the opposite end of the scale are defendants who only post information on a website accessible to the forum state’s residents.149Zippo, 952 F. Supp. at 1124. This type of conduct is not enough for a court to exercise jurisdiction.150Id. 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.151Id. These websites require additional inquiry into “the level of interactivity and commercial nature of the exchange.”152Id.
The sliding scale of interactivity, however, was dicta unnecessary to resolve the controversy in Zippo.153See id. at 1125–26 (finding the case only required the district court to determine if the defendant’s e-commerce with forum state residents constituted purposeful availment). 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.154See id. at 1123–24. Instead, the district court should have resolved the case under the Supreme Court’s existing precedents.155See Zippo, 952 F. Supp. at 1125–26 (finding the defendant “repeatedly and consciously” contracted with forum state residents, constituting purposeful availment); supra notes 86, 99–100 and accompanying text. Even though the Zippo sliding scale was not directly applicable to the district court’s analysis,156See id. at 1125–26. the decision became a leading case for analyzing the effect of internet activities on personal jurisdiction jurisprudence.157See Brian E. Daughdrill, Poking Along in the Fast Lane on the Information Super Highway: Territorial-Based Jurisprudence in a Technological World, 52 Mercer L. Rev. 1217, 1222–23 (2001); Niesel, supra note 7, at 118.
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.158See Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 452 (3d Cir. 2003); Niesel, supra note 7, at 118; Trammell & Bambauer, supra note 25, at 1150. 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:159See Kevin F. King, Personal Jurisdiction, Internet Commerce, and Privacy: The Pervasive Legal Consequences of Modern Geolocation Technologies, 21 Alb. L.J. Sci. & Tech. 61, 82–84 (2011) (discussing the Zippo test’s doctrinal developments since 1997); Niesel, supra note 7, at 118–19; Trammell & Bambauer, supra note 25, at 1150–52; Dennis T. Yokoyama, You Can’t Always Use the Zippo Code: The Fallacy of a Uniform Theory of Internet Personal Jurisdiction, 54 DePaul L. Rev. 1147, 1148–49 (2005); infra notes 160–172 and accompanying text.
|Circuit||Use of the Zippo Interactivity Test|
|First||Implicitly endorses160See McBee v. Delica Co., 417 F.3d 107, 124 (1st Cir. 2005) (requiring more than just the existence of a website, such as interactive e-commerce features, to justify the exercise of personal jurisdiction).|
|Second||Rejects as a separate framework for assessing personal jurisdiction161Best Van Lines, Inc. v. Walker, 490 F.3d 239, 252 (2d Cir. 2007) (noting that assessing a website’s interactivity may be helpful only to the extent it informs the purposeful availment analysis).|
|Third||Adopts and requires “something more”162See Toys “R” Us, 318 F.3d at 453–54 (assessing the extent to which the nonresident defendant also engaged in non-internet contacts with the forum state).|
|Fourth||Adapts163ALS Scan, Inc. v. Dig. Serv. Consultants, Inc., 293 F.3d 707, 714 (4th Cir. 2002) (“[A] State may . . . exercise [jurisdiction over a nonresident] when that person (1) directs electronic activity into the State, (2) with the manifested intent of engaging in business or other interactions within the State, and (3) that activity creates, in a person within the State, a potential cause of action . . . .”). But see Fidrych v. Marriott Int’l, Inc., 952 F.3d 124, 141 n.5 (4th Cir. 2020) (indicating that “[g]iven the pace of technological advancement since Zippo and the changes in the way the internet is used, a re-evaluation of the utility of the Zippo approach may be prudent”).|
|Fifth||Rejects as a separate framework for assessing personal jurisdiction164Pervasive Software Inc. v. Lexware GMBH & Co. KG, 688 F.3d 214, 227 n.7 (5th Cir. 2012) (noting Zippo may be a useful tool for analyzing internet-based conduct but cannot serve as a separate framework for analyzing personal jurisdiction).|
|Sixth||Adopts165Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 890 (6th Cir. 2002).|
|Seventh||Expressly rejects166Illinois v. Hemi Grp., 622 F.3d 754, 758–59 (7th Cir. 2010); Tamburo v. Dworkin, 601 F.3d 693, 703–04 n.7 (7th Cir. 2010) (noting a general reluctance to create an internet-specific personal jurisdiction test).|
|Eighth||Adopts167Lakin v. Prudential Sec., Inc., 348 F.3d 704, 711 (8th Cir. 2003).|
|Ninth||Adopts168Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 419 (9th Cir. 1997).|
|Tenth||Does not take a position but has applied the test as a heuristic169See Shrader v. Biddinger, 633 F.3d 1235, 1242 n.5 (10th Cir. 2011).|
|Eleventh||Notes criticism and applies traditional personal jurisdiction analysis170See Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1355 n.10 (11th Cir. 2013) (citing Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1219–20 n.26 (11th Cir. 2009)).|
|D.C.||Does not take a position but cites the test favorably171See Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 513 (D.C. Cir. 2002).|
|Federal||Rejects as a separate framework for assessing personal jurisdiction172See NexLearn v. Allen Interactions, Inc., 859 F.3d 1371, 1378 & n.4 (Fed. Cir. 2017) (agreeing with the district court’s decision not to apply Zippo and instead conduct a traditional minimum contacts analysis).|
Although many courts use Zippo’s interactivity test, internet-specific jurisdictional analysis lacks consistent application and coherence across the federal courts.173See Richard A. Bales & Suzanne Van Wert, Internet Web Site Jurisdiction, 20 J. Marshall J. Comput. & Info. L. 21, 22 (2001); Nguyen, supra note 9, at 533; Niesel, supra note 7, at 119; Amanda Reid, Operationalizing the Law of Jurisdiction: Where in the World Can I Be Sued for Operating a World Wide Web Page?, 8 Comm. L. & Pol’y 227, 260 (2003); John J. Schulze, Jr., Caveat E-Emptor: Solutions to the Jurisdictional Problem of Internet Injury, 29 Am. J. Trial Advoc. 615, 619–27 (2006) (discussing the three approaches courts use to assess internet jurisdiction).
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.174Niesel, supra note 7, at 126. 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.’”175Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1123 (W.D. Pa. 1997) (internal quotation marks omitted) (quoting Panavision Int’l, L.P. v. Toeppen, 938 F. Supp. 616, 618 (C.D. Cal. 1996)). Two decades later, more than 4.66 billion people—almost sixty percent of the world’s population—use the internet.176Kemp, supra note 2, at 7. 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.177Niesel, supra note 7, at 138. For a discussion of the evolution of Web 1.0 to Web 4.0 and its potential impact on specific jurisdiction, see id. at 126–38. Embedding interactivity in every website also “blur[s] the line between content creators and content viewers,” making the Zippo test even less predictable.178Id. at 138–39.
Second, the Zippo test was only created to address commercial websites, not the broad range of conduct that now exists on the internet.179See A. Benjamin Spencer, Jurisdiction and the Internet: Returning to Traditional Principles to Analyze Network-Mediated Contacts, 2006 U. Ill. L. Rev. 71, 87. Uniformly applying the Zippo framework to internet conduct ranging from cybersquatting180Cybersquatting is “the practice of registering a domain name known to be another’s trademark with the intent of selling the domain name to the trademark holder.” Yokoyama, supra note 159, at 1168. to breach of contract to defamation and other intentional torts creates counterintuitive and inconsistent outcomes.181See Niesel, supra note 7, at 121–25; Jenny L. Grantz, Note, A Culture Without Consequences? Redefining Purposeful Availment for Wrongful Online Conduct, 63 Hastings L.J. 1135, 1162 (2012); Yokoyama, supra note 159, at 1173–84 (discussing the imprudence of applying the Zippo test to all cases involving internet activity and illustrating the test’s shortcomings); see also Michael A. Geist, Is There a There There? Toward Greater Certainty for Internet Jurisdiction, 16 Berkeley Tech. L.J. 1345, 1371–80 (2001) (discussing cases where the Zippo interactivity test falls short of providing consistent outcomes). 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).182See Hanson v. Denckla, 357 U.S. 235, 253 (1958); Grantz, supra note 181, at 1162–63.
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.183See Shrader v. Biddinger, 633 F.3d 1235, 1242 n.5 (10th Cir. 2011); Niesel, supra note 7, at 121; Trammell & Bambauer, supra note 25, at 1151. In these instances, courts could forgo the interactivity analysis and simply rely on the specific jurisdiction inquiry used in all other cases.184See Trammell & Bambauer, supra note 25, at 1151.
Fourth, Zippo oversimplifies the internet’s complexity.185See id. at 1151–52. 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.186Id. For a discussion of the technological timidity phenomenon among judges and legislators, see Derek E. Bambauer, Ghost in the Network, 162 U. Pa. L. Rev. 1011, 1038–40 (2014), and Derek E. Bambauer, Rules, Standards, and Geeks, 5 Brook. J. Corp. Fin. & Com. L. 49, 52 (2010).
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.”187Spencer, supra note 179, at 87. 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.188See id. at 87–97.
Sixth, the degree of relevance between a website’s interactivity and the current doctrine on specific jurisdiction remains unclear.189See id. at 87; Grantz, supra note 181, at 1145; Yokoyama, supra note 159, at 1170–72. A commercial website’s degree of interactivity does not determine the extent to which a nonresident has sufficient minimum contacts with the forum state.190See Spencer, supra note 179, at 87; Yokoyama, supra note 159, at 1170. 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.191See Spencer, supra note 179, at 87. The sliding scale of interactivity also presents challenges for intentional tort cases, where the Calder effects test likely impacts the minimum contacts inquiry.192See id. at 87–88; Grantz, supra note 181, at 1145–46 (discussing courts’ disagreement over the interaction between Calder and Zippo); supra notes 132–136 and accompanying text. 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.193See Spencer, supra note 179, at 87–88; supra notes 134–136 and accompanying text.
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.194See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980); see also Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1025 (2021). Predictability is balanced against the practical need to provide plaintiffs with a reasonable number of forums in which to bring suit.195See supra note 30. 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.”196Kulko v. Superior Ct. of Cal., 436 U.S. 84, 92 (1978) (quoting Estin v. Estin, 334 U.S. 541, 545 (1948)). 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.”197Trammell & Bambauer, supra note 25, at 1167. 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.198See id. At a practical level, the narrow approach requires plaintiffs to sue defendants in their state of domicile.199See id.
Scholars who support the narrow approach offer three main rationales. First, the narrow approach enhances predictability by creating a quasi-rule-based test.200See id. 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.201See id. Second, the approach would reduce the administrative costs on the courts202The annual number of jurisdictional challenges continues to increase. As of July 9, 2021, the LexisNexis search terms (dismiss /s “personal jurisdiction”) identified the following case citations: 2008: 2,876 citations; 2009: 3,041 citations; 2010: 3,128 citations; 2011: 3,158 citations; 2012: 3,378 citations; 2013: 3,227 citations; 2014: 3,209 citations; 2015: 3,265 citations; 2016: 3,080 citations; 2017: 3,508 citations; 2018: 3,650 citations; 2019: 3,886 citations; 2020: 3,952 citations. Additionally, the search terms (dismiss /s “personal jurisdiction” and (internet or website)) identified the following case citations: 2008: 661 citations; 2009: 702 citations; 2010: 697 citations; 2011: 773 citations; 2012: 891 citations; 2013: 800 citations; 2014: 745 citations; 2015: 776 citations; 2016: 771 citations; 2017: 813 citations; 2018: 857 citations; 2019: 939 citations; 2020: 935 citations. See also Dustin E. Buehler, Jurisdictional Incentives, 20 Geo. Mason L. Rev. 105, 132–34 (2012) (discussing the economic social loss caused by jurisdictional disputes, regardless of which party prevails); Allyson W. Haynes, The Short Arm of the Law: Simplifying Personal Jurisdiction over Virtually Present Defendants, 64 U. Miami L. Rev. 133, 161 n.182 (2009) (showing the rise in personal jurisdiction cases from 1988 to 2008). because courts would not have to expend as many resources on personal jurisdiction challenges.203See Trammell & Bambauer, supra note 25, at 1167; see also Haynes, supra note 202, at 161 & 161–62 n.183. Proponents argue this is a benefit for both the judicial system and society more broadly.204Trammell & Bambauer, supra note 25, at 1167. Although “some plaintiffs’ costs will increase [because they have] to litigate farther from home,”205But see id. (arguing the internet increases case portability, reducing a party’s burden in traveling to the forum state). using fewer resources to resolve threshold jurisdictional questions will benefit society in the aggregate.206See id. Contra Buehler, supra note 202, at 132–34 (discussing the societal costs associated with jurisdictional disputes). 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.”207Trammell & Bambauer, supra note 25, at 1169. 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.208See id. at 1168–69.
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.209See Niesel, supra note 7, at 139–40; Spencer, supra note 179, at 104–06; supra notes 89–93 and accompanying text; see also Trammell & Bambauer, supra note 25, at 1164. 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.210See Niesel, supra note 7, at 139. 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).211Id. at 139–41; see Spencer, supra note 179, at 109. 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.212See Niesel, supra note 7, at 140; Joel R. Reidenberg, Technology and Internet Jurisdiction, 153 U. Pa. L. Rev. 1951, 1956 (2005).
The broad approach, like its more restrictive foil, also attempts to increase predictability by creating a bright-line rule.213See Niesel, supra note 7, at 144. By adopting a less fact-intensive inquiry, courts can achieve more consistent outcomes and litigants can structure their activities accordingly.214See id. at 143–44. 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.215See id. at 140, 143–44; Spencer, supra note 179, at 112.
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,216For a discussion of how geolocation technology works, as well as its accuracy, cost, and market penetration, see King, supra note 159, at 66–78; and Jean-Pierre Zreik, Geo-Location, Location, Location, 45 Rutgers Comput. & Tech. L.J. 135, 139–43 (2019). one proposed approach expands the Zippo test to include the defendant’s use of geolocation technologies.217See King, supra note 159, at 88–104. 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.218See id. at 88–89; cf. Reidenberg, supra note 212, at 1956.
Fine-tuning Zippo’s sliding scale could also involve requiring “something more” beyond website interactivity to allow the exercise of personal jurisdiction.219See Panavision Int’l v. Toeppen, 141 F.3d 1316, 1322 (9th Cir. 1998) (requiring “‘something more’ to demonstrate that the [nonresident] defendant directed his activity toward the forum state”); Millennium Enters., Inc. v. Millennium Music, LP, 33 F. Supp. 2d. 907, 921 (D. Or. 1999) (refining the Zippo test by assessing whether the defendant deliberately acted within or directed conduct at the forum state); Nguyen, supra note 9, at 530–31; supra notes 162–163. In these cases, “something more” could be virtual or physical conduct that demonstrates intentional behavior by the defendant.220See Nguyen, supra note 9, at 530–31. 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.221See id. at 531.
Rather than modifying Zippo, other approaches advocate aligning a more nuanced virtual contacts analysis with the traditional doctrine.222See Grantz, supra note 181, at 1162–66. Under this analysis, courts would look at the nonresident’s knowledge and intent with relation to the plaintiff.223See id. at 1161. 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.224Id.
This nuanced approach uses reasonable foreseeability as its doctrinal touchstone and attempts to ensure courts can address virtual harms while avoiding universal jurisdiction.225Id. at 1165–66.
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.226See id. at 1165; King, supra note 159, at 96.
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.227See supra note 79 and accompanying text. Doctrinal consistency ensures all assertions of personal jurisdiction comply with “traditional notions of fair play and substantial justice.”228Shaffer v. Heitner, 433 U.S. 186, 203, 212 (1977) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1941)); Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken, 311 U.S. at 463). Therefore, perpetuating an internet-specific jurisdictional inquiry is inconsistent with the current doctrine’s underlying principles.229See Shaffer, 433 U.S. at 203, 212 (quoting Milliken, 311 U.S. at 463); Int’l Shoe, 326 U.S. at 316 (quoting Milliken, 311 U.S. at 463). Similarly, creating an internet exception to the Court’s minimum contacts analysis “renders dubious the continued adherence to [the doctrine] in other contexts.”230Redish, supra note 30, at 605.
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.231See supra Section I.C.2.a. Reverting to quasi-rule-based tests is fundamentally at odds with the jurisprudential shift that occurred in International Shoe.232See supra note 66 and accompanying text.
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 domicile233See supra note 196 and accompanying text. fails to provide plaintiffs with a reasonable number of forums in which to bring suit.234See supra note 30. Consequently, these limitations may make litigation less efficient.235For a discussion of the impact the narrow approach would have on litigation efficiency and arguments in favor of its adoption, see Trammell & Bambauer, supra note 25, at 1181–86. See also Buehler, supra note 202, at 130–31 (noting “any increase in a plaintiff’s costs . . . alter the private incentives of filing suit” and requiring plaintiffs to “file . . . in a less-desirable forum” affects the party’s expected benefit). 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.236See Walden v. Fiore, 571 U.S. 277, 290 n.9 (2014); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980); see also J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 906, 909 (2011) (Ginsburg, J., dissenting); supra note 30.
Conversely, the broad approach is overinclusive. The logical extension of this approach is universal jurisdiction cabined only by the existing reasonableness factors.237See supra notes 209–212 and accompanying text. Not only is universal jurisdiction wholly inconsistent with the Court’s precedents,238See supra note 82 and accompanying text. placing a heavy emphasis on the reasonableness factors is unlikely to have any real effect on limiting states’ assertions of personal jurisdiction.239Asahi is the only case where the Supreme Court concluded the reasonableness factors prohibited the exercise of jurisdiction. See Richard D. Freer, Civil Procedure 103 (4th ed. 2017); see also Asahi Metal Indus. Co. v. Superior Ct. of Cal., 480 U.S. 102, 113–14 (1987). 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.240See World-Wide Volkswagen, 444 U.S. at 293 (quoting McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223 (1957)). 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.241Trammell & Bambauer, supra note 25, at 1165–66. 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.”242Id. at 1166.
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 heard243Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). before their rights are affected.244Id. (quoting Baldwin v. Hale, 68 U.S. (1 Wall.). 223, 233 (1863)). For more than 140 years, exercising personal jurisdiction has involved a due process inquiry.245See Pennoyer v. Neff, 95 U.S. 714, 720, 733 (1877); supra Section I.C. 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.246See supra Section I.C.2.a. Therefore, the minimum contacts analysis was not intended to serve exclusively as a proxy for a nonresident’s presence in the forum state.247Robin J. Effron, The Lost Story of Notice and Personal Jurisdiction, 74 N.Y.U. Ann. Surv. Am. L. 23, 95 (2018); see also Int’l Shoe Co. v. Washington, 326 U.S. 310, 316–17 (1945) (citing Hutchison v. Chase & Gilbert, Inc., 45 F.2d 139, 141 (2d Cir. 1930)). 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,’”248Int’l Shoe, 326 U.S. at 316 (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). which are implicit in due process.249Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (quoting Shaffer v. Heitner, 433 U.S. 186, 218 (1977) (Stevens, J., concurring in judgment)); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980) (“[T]he foreseeability that is critical . . . is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.”); Milliken, 311 U.S. at 463.
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.250Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1025 (2021); Burger King, 471 U.S. at 472 (quoting Shaffer, 433 U.S. at 218 (Stevens, J., concurring in judgment)); World-Wide Volkswagen, 444 U.S. at 297; Milliken, 311 U.S. at 463. Similarly, the reasonableness or fairness factors protect the second due process concern: the nonresident defendant’s right to be heard.251See World-Wide Volkswagen, 444 U.S. at 292.
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.252See infra Sections II.B, II.C. 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,253See supra Section I.C.2.b. advances in technology and transformations in the American economy justify evolutions in the doctrine of personal jurisdiction.254See World-Wide Volkswagen, 444 U.S. at 292–94. The widespread use of the internet and the rise of new social media platforms, artificial intelligence, location- and behavior-targeted advertising, and bots255Bots are “programs built to do automated [online] tasks.” Adrienne LaFrance, The Internet Is Mostly Bots, The Atlantic (Jan. 31, 2017), https://perma.cc/6ZGD-DYDN. Bots can conduct a wide range of internet activity, including refreshing Facebook feeds, ranking search engine results, and carrying out cyberattacks. Id. continue to blur traditional jurisdictional boundaries.256See Niesel, supra note 7, at 104. 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.257See Facebook, Inc. v. ConnectU, No. C 07-01389, 2007 WL 2326090, at *5 (N.D. Cal. Aug. 13, 2007) (“The mere fact that the Internet provided [the defendants] a tool by which they could carry out their conduct . . . without first making efforts to learn [the plaintiff’s] geographic location is not a reason to excuse [the defendants] from jurisdiction to which they would otherwise be subject.”); Grantz, supra note 181, at 1151–56 (arguing a nonresident defendant does not need to know the plaintiff’s location to allow the exercise of specific jurisdiction). 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.258Knowledge, Black’s Law Dictionary, supra note 10. 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.259See Restatement (Third) of Agency § 5.01 cmt. b (Am. L. Inst. 2006); see also, e.g., Keeton v. Hustler Mag., Inc., 465 U.S. 770, 779 (1984) (finding the defendant chose to enter the forum state’s market and could therefore be charged with knowledge of its laws).
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;260See Shaffer v. Heitner, 433 U.S. 186, 207–08 (1977) (discussing the nonresident’s “expected . . . benefit from the State’s protection of his interest[s]”); Hanson v. Denckla, 357 U.S. 235, 253 (1958); Int’l Shoe Co. v. Washington, 326 U.S. 310, 319 (1945).
(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);261See Walden v. Fiore, 571 U.S. 277, 289 (2014) (considering whether the defendant ever “traveled to, conducted activities within, contacted anyone in, or sent anything or anyone” to the forum state to determine if personal jurisdiction was appropriate); McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223 (1957).
(3) Undertook a legal duty that would be performed in the forum state;262See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, 475–76 (1985).
(4) Entered into a continuing contractual relationship connected to the forum state;263See id. at 473.
(5) “[D]eliberately exploit[ed the] market in the forum [s]tate;”264Walden, 571 U.S. at 285 (quoting Keeton, 465 U.S. at 781); see also Calder v. Jones, 465 U.S. 783, 787–90 (1984); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297–98 (1980); cf. J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 882, 886 (2011) (plurality opinion) (holding a defendant’s transmission of goods must target the forum for the state to assert personal jurisdiction). But see Asahi Metal Indus. Co. v. Superior Ct. of Cal., 480 U.S. 102, 112 (1987) (plurality opinion) (“[A] defendant’s awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State.”).
(6) Had property located in the forum state;265See Shaffer, 433 U.S. at 208.
(7) Caused an injury meaningfully tethered to the forum state;266See supra notes 135–136 and accompanying text. or
(8) Failed to make a reasonable inquiry into which forum state would have authority over her.267See Willful Blindness, Black’s Law Dictionary, supra note 10.
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.268Walden, 571 U.S. at 286 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)). When the nonresident defendant demonstrates actual knowledge of interactions with the forum state; allows for reasonable inferences based on her actual knowledge;269For example, if similar conduct occurred in the physical world, the defendant would have known the forum state with which she was interacting. 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,270For a discussion of how geolocation technology could be used by website owners to avoid engaging in conduct with a forum state, see King, supra note 159, at 66–77, 91–92. the presumption is rebutted and a court cannot exercise personal jurisdiction over the defendant.271Cf. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
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.272See supra notes 224–230 and accompanying text. Second, the rearticulated test refocuses the analysis on the nonresident’s forum-related activities, both virtual and physical.273See supra notes 228–232 and accompanying text. 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.274See supra notes 231–236 and accompanying text. 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.275See supra notes 234–242 and accompanying text.
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.276See Bristol-Myers Squibb Co. v. Superior Ct. of Cal., 137 S. Ct. 1773, 1780 (2017). 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.”277See id. (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). The connection, however, does not require a causal relationship between the defendant’s forum-related conduct and the plaintiff’s harm.278Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1026 (2021).
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.279See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980). 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.280See id.
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,281This Comment does not contrast the constructive knowledge inquiry with the broad approach or the proposals in the middle of the spectrum of solutions. The broad approach proposes a shift to near-universal jurisdiction, which the Court is unlikely to adopt. See supra Sections I.C.2.b, I.D.3.b. Similarly, the more nuanced approaches all continue to advocate an internet-specific inquiry inconsistent with the Court’s preference for a single jurisdictional standard. See supra Section I.D.3.c; supra notes 224–230 and accompanying text. this Comment analyzes three difficult test cases originally presented by Professors Alan Trammell and Derek Bambauer: contracts, trademarks, and computer network attacks or hacking.282See Trammell & Bambauer, supra note 25, at 1174–80. 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.
The first test case involves a contract dispute.283See id. at 1174–76. 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.284A choice-of-law clause designates which jurisdiction’s law governs contractual disputes. Choice-of-Law Clause, Black’s Law Dictionary, supra note 10. A forum-selection clause designates the place where litigation between the parties will occur. Forum-Selection Clause, Black’s Law Dictionary, supra note 10. 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.285Trammell & Bambauer, supra note 25, at 1174–76. 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.286Id. at 1176.
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,287See Walden v. Fiore, 571 U.S. 277, 279 (2014). 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.288See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 479–80 (1985). 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.
The second test case involves trademark infringement.289Trammell & Bambauer, supra note 25, at 1176–78. 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.290Id.
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.291Cf. J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 886 (2011) (plurality opinion) (concluding the defendant’s conduct was not targeted at the forum state). 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.292Cf. id. at 882, 886 (holding a defendant’s transmission of goods must target the forum for the state to assert personal jurisdiction). 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.293J. Thomas McCarthy, McCarthy on Trademarks & Unfair Competition §§ 2.1, 2.2, 2.7 (5th ed. 2019). Because likelihood of consumer confusion is an element of a trademark claim,29415 U.S.C. § 1125(a); see supra note 136 and accompanying text. 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.
The final test case involves solely virtual conduct.295Trammell & Bambauer, supra note 25, at 1178–80. 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.296Id. In cases where virtual conduct creates physical effects, the narrow approach defaults to “standard physicality analysis” and allows for the exercise of personal jurisdiction.297Id. at 1179–80.
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.298Contra Calder v. Jones, 465 U.S. 783, 789–90 (1984). Instead, the plaintiff is “the only link between the defendant and the forum.”299Walden v. Fiore, 571 U.S. 277, 285 (2014). 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.300See Verizon Online Servs., Inc. v. Ralsky, 203 F. Supp. 2d 601, 620 (E.D. Va. 2002); cf. Calder, 465 U.S. at 789 (holding that the defendants expressly aimed their actions at the forum state and were therefore subject to the court’s personal jurisdiction). 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.301See Walden, 571 U.S. at 279. 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.
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,302See supra note 66 and accompanying text. 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.