Minimum Virtual Contacts: A Framework for Specific Jurisdiction in Cyberspace.

• Author: Kleven, Adam R.

As the ubiquity and importance of the internet continue to grow, courts will address more cases involving online activity. In doing so, courts will confront the threshold issue of whether a defendant can be subject to specific personal jurisdiction. The Supreme Court, however, has yet to speak to this internetjurisdiction issue. Current precedent, when strictly applied to the internet, yields fundamentally unfair results when addressing specific jurisdiction. To better achieve the fairness aim of due process, this must change. This Note argues that, in internet tort cases, the "express aiming" requirement should be discarded from the jurisdictional analysis and that courts should instead consider a defendant's technological sophistication and the frequency with which a defendant engages in tortious conduct. These factors should guide courts' determinations about whether a defendant has established "minimum virtual contacts" with a forum state. Additionally, courts should simplify the reasonableness factors articulated in cases like Burger King and apply this simplified reasonableness test seriously. This minimum virtual contacts standard is more flexible and therefore better suited to adapt to the changing technological landscape, analyze close cases, and achieve fair outcomes.

TABLE OF CONTENTS INTRODUCTION I. THE BASIC PRINCIPLES OF MINIMUM CONTACTS, THE CONFUSION OF CALDER'S EFFECTS TEST, AND THE UNDUE RESTRICTION ON INTERNET JURISDICTION A. The Basic Framework of the Minimum Contacts Analysis Can Be Adapted to Internet-Jurisdiction Cases B. The Confusion of the Calder Effects Test, Walden's Clarification, and the Open Question of Internet Jurisdiction C. Advanced Tactical: An Example of Walden Reining in Calder and Restricting Internet Jurisdiction II. THE NEGATIVE IMPLICATIONS OF A STRICT APPLICATION OF WALDEN TO ONLINE ACTIVITY A. Notions of Territory Are Blurred, but Not Wholly Irrelevant, on the Internet B. The Express-Aiming Requirement Largely Immunizes Defendants from Specific Jurisdiction in Internet Tort Suits III FINDING MINIMUM VIRTUAL CONTACTS WHILE COUNSELING AGAINST UNREASONABLE EXERCISES OF SPECIFIC JURISDICTION A. A Minimum Virtual Contacts Analysis Should Consider a Defendant's Technological Sophistication and the Frequency of the Tortious Conduct 1. When a Defendant Is Unaware of Plaintiff's Location 2. When a Defendant Knows Plaintiff's Location B. Courts Should Simplify the Existing Reasonableness Test and Apply It Seriously 1. Advanced Tactical Reconsidered 2. Gullen Reconsidered CONCLUSION INTRODUCTION

The ubiquity and importance of the internet continue to grow. In a recent case about the FCC's statutory classification of the internet, (1) Judges Tatel and Srinivasan described the importance of internet content and services (e.g., Gmail, Facebook, Venmo) in society: "Over the past two decades, this content has transformed nearly every aspect of our lives, from profound actions like choosing a leader, building a career, and falling in love to more quotidian ones like hailing a cab and watching a movie." (2) The percentage of Americans who have internet access increased from 52% in 2000 to 84% in 2015. (3) The upshot is that the question of what legal framework should be placed upon the internet is an important one, and society recognizes that the stakes are high.

Meanwhile, the legal system struggles to keep pace with rapidly evolving technology. The law of jurisdiction is not immune to this struggle. The Supreme Court, which has heard several cases concerning personal jurisdiction in recent years, (4) has noted how the nature of online activity presents different questions for a jurisdictional analysis. (5) As a preliminary matter, this Note focuses on specific personal jurisdiction--also known as long-arm jurisdiction--rather than general jurisdiction. Specific jurisdiction involves a plaintiff bringing an out-of-state defendant into court in a given state (i.e., the "forum state"), typically the plaintiff's home state, for a cause of action arising out of an activity or an occurrence in the forum state. (6) Under general jurisdiction, a defendant can be sued for any cause of action in the state in which the defendant is "at home" (7)--thus, defendants can always be sued in their home states.

The internet has blurred territorial lines. (8) Originally, the jurisdictional question was answered by the territorial power of a sovereign state, which was deemed to have jurisdiction over all persons and things within its geographic boundary. (9) But changes in commerce and technology have challenged prior conceptions of territory and accompanying jurisdictional rules. (10) More recent changes raise a new jurisdictional question: When a user engages in activity online, where is that activity occurring? Explaining some of the logistics behind online activity will show that cyberspace is not as territorially amorphous as it may appear. Here the term "logistics" is used to reference the physical processes initiated when, for example, a user visits a website or sends an email and, in part, the infrastructure behind those activities. This claim that territory is not wholly irrelevant to questions of jurisdiction related to online activity is not meant to return jurisdiction back to the old Pennoyer-Xype analysis. (11) Rather, it is meant to show that, in some respect, "contact" is made with a forum state via a defendant's online activities.

Scholars and commentators have argued for a variety of solutions to the internet-jurisdiction conundrum. (12) Some advocate for dispelling the "fiction" that online activity creates any meaningful contact with a forum, and they are content with the plaintiff-restrictive results that flow from such a view. (13) Others, perhaps implicitly questioning judges' competency on this issue, advocate for legislative solutions. (14) But an alternative path has yet to be seriously explored.

This Note argues that courts should abandon a strict application of the "express aiming" requirement and adopt a two-pronged "minimum virtual contacts" standard to determine "how a defendant's virtual 'presence' and conduct translate into 'contacts' with a particular State." (15) Courts should subject a defendant to specific jurisdiction when (1) the defendant engages in sophisticated or continuous virtual conduct that causes harm to the plaintiff in the forum and (2) when exercising jurisdiction over the defendant is reasonable--and the reasonableness test should be simplified and applied seriously. Part I provides an overview of the basic framework of the minimum contacts standard, the effects test, and the Seventh Circuit's recent decision in Advanced Tactical v. Real Action Paintball, which addressed establishing specific jurisdiction via online activity. Part II argues that Advanced Tactical demonstrates the need for a modified minimum virtual contacts model that accounts for the nuances presented by changing technology. Courts should recognize that, while notions of territory are blurred on the internet, some virtual contact is established between forums through online transactions. Part III then presents the above-mentioned two-pronged approach as a solution.

1. THE BASIC PRINCIPLES OF MINIMUM CONTACTS, THE CONFUSION OF CALDER'S EFFECTS TEST, AND THE UNDUE RESTRICTION ON INTERNET JURISDICTION

   This Part addresses the Supreme Court's minimum contacts (16) framework and how lower courts assess whether a defendant's online activity brings her within the reach of a state's long-arm jurisdiction. Section I.A outlines the basic framework of the minimum contacts analysis. Section I.B discusses the Calder effects test, which courts have widely applied to online activity, and the Court's recent decision in Walden v. Fiore. Section I.C analyzes Advanced Tactical, which applied Walden to online activity.

   A state's exercise of specific jurisdiction over a foreign defendant must comport with due process of law, but what satisfies due process fluctuates depending on the case. Since International Shoe, the fact-specific minimum contacts analysis has set the constitutionally permissible outer limits of a state's exercise of specific jurisdiction over a foreign defendant. (17) Still, minimum contacts itself is a general analytic proposition and its application has fluctuated over time.

   1. The Basic Framework of the Minimum Contacts Analysis Can Be Adapted to Internet-Jurisdiction Cases

      To subject a defendant to specific jurisdiction, due process requires that, if she is not physically present in the forum state, she must have "certain minimum contacts with [the forum] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" (18)

      Even if a defendant has certain contacts with a forum, a court must ask whether such contacts are jurisdictionally relevant: Are the contacts of the right type? The connection with the forum must arise out of contacts the defendant herself creates with the forum state; (19) a plaintiffs connections with the forum cannot be a decisive factor in the due process inquiry. (20) Moreover, "[the] unilateral activity of another party or a third person is not an appropriate consideration when determining whether a defendant has sufficient contacts with a forum State to justify an assertion of jurisdiction." (21) Finally, courts assess the relationship between the defendant, the forum, and the litigation--that is, the defendant's suit-related connections with the forum--to determine whether a state can exercise specific jurisdiction over a foreign defendant. (22) A defendant's contacts with the forum state must comport with these principles for a state to exercise specific jurisdiction over the defendant.

      A court must also consider whether these contacts, even if they are of the right type, are sufficient to breach the "minimum" threshold. Several cases address transactions and when commercial activity might...