Exercising Personal Jurisdiction Over Nonresident Cyberstalkers - August 2008 - Criminal Law

• Jurisdiction: Colorado,United States
• Citation: Vol. 37 No. 8 Pg. 75
• Pages: 75
• Publication year: 2008

37 Colo.Law. 75 Colorado Lawyer 2008.

2008, August, Pg. 75. Exercising Personal Jurisdiction Over Nonresident Cyberstalkers - August 2008 - Criminal Law

The Colorado Lawyer
August 2008
Vol. 37, No. 8 [Page 75]

Articles
Criminal Law
Exercising Personal Jurisdiction Over Nonresident Cyberstalkers
by Roni G. Melamed

Criminal Law articles are sponsored by the CBA Criminal Law Section and generally are written by prosecutors, defense lawyers, and judges to provide information about case law; legislation; and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.

Article Editor

Morris Hoffman, judge for the Second Judicial District Court, Denver

About the Author

Roni G. Melamed is an associate with McKenna Long &amp Aldridge's litigation team. She can be reached at (303) 634-0314 or rmelamed@mckennalong.com.

Protective orders play an integral role in ensuring the physical safety and mental well-being of cyberstalked victims. Obtaining such protective orders however, may prove difficult when the cyberstalker resides in a different state than the victim. This article analyzes the circumstances in which courts may exercise personal jurisdiction over nonresidentcyberstalkers.

Civil protection orders can be important to the physical safety and emotional well-being of those enduring the repeated, unsolicited communications of stalkers. When nonresident stalkers employ the Internet to harass their victims, the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution may limit the victims' right to obtain civil protection orders from courts in the victims' states of residence. This article assesses the personal jurisdiction hurdles victims of nonresident cyberstalkers face when attempting to obtain civil protection orders

Cyberstalking Legislation

In 1999, recognizing the emerging threat of cyberstalking, Vice-President Al Gore requested the U.S. Attorney General to study cyberstalking and to report back with recommendations on how better to protect people from this threat. The Department of Justice's (DOJ) report explained that cyberstalking is the "kind of harassment [that] can be as frightening and as real as being followed and watched in your neighborhood or in your home."(fn1) The DOJ's 1999 study concluded that "cyberstalking is a serious problem that will grow in scope and complexity as more people take advantage of the Internet and other telecommunications technologies."(fn2) The study emphasized that although cyberstalking does not involve physical contact, it is not necessarily more benign than physical stalking.(fn3) Although cyberstalkers usually do not present a clear and present physical danger to their victims, it is the victims' emotional and mental well-being that suffers.

In response to the expanding threat of cyberstalking, forty-six states expressly criminalized cyberstalking by amending their stalking statutes to include harassment by means of repeated "electronic communication" or communication initiated through a computer or computer network. The Colorado stalking statute was amended in 2000 to provide that:

[a] person commits harassment if, with intent to harass, annoy, or alarm another person, he or she . . . [i]nitiates communication with a person . . . by telephone, computer, computer network, or computer system in a manner intended to harass or threaten bodily injury or property damage.(fn4)

If a state's prosecutors do not seek to press charges against a cyberstalker, victims may seek civil protection orders that restrict or prohibit stalkers from communicating with their victims. Such protection orders have "paramount importance . . . because protection orders promote safety, reduce violence, and prevent serious harm and death."(fn5)

Due Process

The Due Process Clause of the Fourteenth Amendment may prevent a victim from obtaining a civil protection order against a nonresident cyberstalker. Two requirements must be satisfied before a forum state may exercise personal jurisdiction over an out-of-state defendant: (1) the defendant must be amenable to service of process under the state's long-arm statute; and (2) the exercise of personal jurisdiction must comport with due process.(fn6) Certain states, such as Colorado, have enacted long-arm statutes that extend personal jurisdiction as far as the constitutional boundaries of due process; therefore, the analysis collapses into a single inquiry: Does exercising personal jurisdiction over a nonresident cyberstalker comport with the constitutional boundaries of the Due Process Clause?(fn7)

Pursuant to the Due Process Clause, a forum state may exercise personal jurisdiction over a nonresident defendant only when the defendant has certain "minimum contacts" with the forum state.(fn8) The minimum contacts test is satisfied, and a court may maintain specific jurisdiction over a nonresident defendant, when the defendant's contacts with the forum state arise from, or are directly related to, the plaintiff's cause of action.(fn9)

The defendant's contacts with the forum state arise from, or are directly related to, the plaintiff's cause of action when: (1) the nonresident defendant "purposefully avails" himself or herself to the forum state; (2) the plaintiff's injuries "arise out of" the defendant's forum-related activities; and (3) exercising jurisdiction does not offend traditional notions of fair play and substantial justice.(fn10) These three factors are analyzed below in the context of cyberstalking.

Purposeful Availment

The defendant's contacts with the forum state must not be random or fortuitous; instead, the defendant must purposefully avail himself or herself of the forum's jurisdiction.(fn11) The U.S. Supreme Court's analysis in Calder v. Jones,(fn12) a defamation case involving a California plaintiff and Florida defendants, crafted the "effects test" for determining whether a nonresident defendant who commits a tort in the forum state purposefully avails himself or herself to jurisdiction in the forum state. In Calder, a California plaintiff sued the National Enquirer and its individual writers and editors in California for publishing an allegedly libelous article. The defendants argued that the court could not exercise personal jurisdiction over them because the article was written and edited in Florida and the writers and editors had few contacts in California.(fn13) The Supreme Court disagreed, and held that the defendants had purposefully availed themselves to the jurisdiction of California.

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