International Shoe meets the World Wide Web: whither personal jurisdiction in Florida in the age of the Internet?

• Author: Fitzmaurice, Kevin M.

Your client, a Delaware corporation, has joined the thousands of others to establish a World Wide Website in its Atlanta-based main office computer in order to advertise itself to the growing millions nation- and worldwide connected to the Internet. Although your client has sold no product in Florida, its Orlando-based competitor sues your client in Florida for trademark infringement, basing jurisdiction and its claim on the website and the information it contains. Perhaps the plaintiffs German corporate parent, seeking a friendly judge, asserts jurisdiction over your client in Berlin, based on the ability of personal computer owners in that city to access your client's website. Should your client be amenable to suit in Florida, or, for that matter, Germany, or anywhere its website may be viewed? This article addresses the personal jurisdiction issues created by individual or corporate presence on the Internet.

The General Problem

The United States Supreme Court has described the analysis it requires before a court may exercise personal jurisdiction over nonresidents as "an already imprecise inquiry," Calder v. Jones, 465 U.S. 783, 790 (1984), and has admitted that, since it has disallowed any "clear-cut jurisdictional rules ... `few answers will be written in black and white. The greys are dominant and even among them the shades are innumerable.'" Burger King v. Rudzewicz, 471 U.S. 462, 486 n.29 (1985) (quoting Kulko v. California Superior Court, 436 U.S. 84, 92 (1978)). In other words, as Justice Black, in his dissent to International Shoe Co. v. Washington, 326 U.S. 310, 324 (1945), exclaimed in impotent frustration, "[t]he criteria adopted insofar as they can be identified ... will `permit' the State to act if upon an `estimate of the inconveniences' ... we conclude it is `reasonable.'"

It is in this fundamentally uncertain context that long-arm jurisdiction has been asserted under the Due Process Clause of the Fourteenth Amendment for the past 52 years. The consideration underlying this analysis is the protection of the individual's liberty interest, to allow a person to structure his or her basic conduct to predictably avoid being subject to suit in a particular forum.[1] It also has the secondary effect of limiting conflicting jurisdictional authority of the states and thus preserving each one's sovereignty.[2]

The Internet Wild Card

Enter the Internet. Originally a military-academic research cooperative effort begun in 1969 as ARPANET, this computer "network of networks" has grown from 300 computers linked in 1981 to an estimated 9.4 million in 1996, with 40 million people accessing the (now) Internet, with an estimated growth to five times that amount by 1999.[3] As the number of people gaining access to the Internet has surged almost exponentially, so has online commercial presence and activity increased.[4]

By its very nature, the Internet is "technologically indifferent" to the physical location of its users.[5] Because of its "geographic transparency" and unlimited adaptability to commercial uses, the Internet has begun to test the limits and underlying legitimacy of territorial concepts of personal jurisdiction.[6] Commentators and several courts have suggested the traditional, territorially based theories of sovereignty, on which International Shoe and its familiar "minimum contacts" standard for the exercise of specific jurisdiction rely, must either adapt and evolve to account for the ephemeral but real "contacts" of "cyberspace,"[7] or give way to new, possibly extra-national legal systems specifically created to address these transborder jurisdictional disputes, both domestic and international.[8]

The Florida Attorney General issued an advisory opinion that appears to support the latter option. Florida Att'y Gen. Advisory Op. 95-70 (Oct. 18, 1995). In that opinion, which specifically related to Internet gambling and possible law enforcement there of Attorney General Butterworth noted that "[r]apid changes in technology ... appear to be outstripping both the law and law enforcement's ability to effectively regulate this activity."[9] He further noted that "The Internet is the first truly global communications network [and] any effort to regulate the use of the Internet is better suited to federal regulation than to patchwork attention by the individual states."[10]

His concern is well-founded. If jurisdiction may be based on a mere presence on the Internet (in the context of e-mail, Usenet postings, or a website, for which differing standards often apply[11]), a position accepted by several courts[12] and attorneys general,[13] inevitably jurisdictional and sovereignty "leakage" or overlap occur. Taken to the logical extreme, this would lead to amenability to jurisdiction everywhere in the country, perhaps the world.[14] This would eviscerate the personal jurisdiction requirement as it currently exists."[15]

Personal Jurisdiction Reviewed

The U.S. Supreme Court has gradually receded from a concept of personal jurisdiction strictly determined by geographic boundaries to one in which the realities of "the increasing nationalization of commerce" and "modern transportation and communication" are recognized to reduce such artificial barriers to exercising personal jurisdiction." While the Supreme Court continues to emphasize that due process rights of defendants are of primary concern in personal jurisdiction issues, the Court has determined that the federal constitutional protection from "inconvenient litigation" is not today as compelling as in the past.[17] In addition, in a case interpreting the Florida long-arm statute, F.S. [sections] 48.193,[18] the Court held that modern technological advances in communication, transportation, and the media have allowed a vast increase in gainful interstate business and commercial activity between remote locations by mail and wire, which now must allow personal jurisdiction on a defendant that has never had any physical presence whatsoever in the forum state.[19]

A court in Florida must engage in a two-part,[20] sequential analysis to determine whether it may exercise personal jurisdiction over the nonresident party.[21] The court must first determine whether the Florida long-arm statute permits the assertion of jurisdiction, and if so, the court must then decide whether the defendant's contacts with Florida provide minimum contacts sufficient under the Fourteenth Amendment to satisfy the "traditional notions of fair play and substantial...