INTRODUCTION I. INTERNET GEOLOCATION AND THE EFFECTS OF LOCATION-MASKING TECHNOLOGY A. IP Addresses and Accessing the Internet Without the Aid of Location-Masking Technology B. Using a Virtual Private Network to Evade Geolocation. C. Using a Proxy to Evade Geolocation II. THE DEVELOPMENT OF THE TRADITIONAL PERSONAL JURISDICTION ANALYSIS A. The Beginnings and the Basics 1. The Due Process Clause 2. Case Law B. The Scope Expands with Diverging Opinions III. JUDICIAL RESPONSES TO PERSONAL JURISDICTION IN THE INTERNET AGE A. The Early Days of the Internet and Courts' Rush to Overhaul Personal Jurisdiction B. The Rejection of Zippo and the Recent Return to Traditional Personal Jurisdiction Analyses IV. HOW THE PERSONAL JURISDICTION ANALYSIS SHOULD ADAPT TO ADDRESS LOCATION-MASKING TECHNOLOGY A. The Analysis Based on the Current Personal Jurisdiction Precedent 1. The Analysis Under Nicastro 2. The Analysis Under Calder B. Application of the Fairness Factors. C. Emphasis on Foreseeability from Intentional Conduct D. Potential Shortcomings of Personal Jurisdiction Based on Server Access CONCLUSION INTRODUCTION
The top-rated television shows are illegally downloaded millions of times each week. (1) Game of Thrones, for example, is illegally downloaded more often than it is watched on cable. (2) Pirating this type of content from websites like The Pirate Bay (3) is illegal, which leads many users to take steps to mask their identities using methods like Virtual Private Networks (VPNs). (4) VPNs allow internet users to hide online activity from internet service providers (ISPs) by connecting the users to a remote server. (5) Advertisers on The Pirate Bay encourage users to connect to VPNs by flashing advertisements on the website's homepage, recommending that users connect through a VPN before downloading torrents from the site. (6) While use of this type of technology creates no legal issues in and of itself, any illegal activity remains illegal if it is committed using a VPN or a proxy. (7) In this context, the issue then arises whether an internet user following The Pirate Bay's advice would be subject to personal jurisdiction in the forum state housing the recommended VPN or proxy that the user accessed to disguise his or her IP address. (8) If connecting to a server through a VPN or proxy is sufficient to establish personal jurisdiction, then internet users doing so for the purpose of illegally downloading copyrighted material could be sued where the remote server is located rather than in their home state. This, in turn, raises questions of due process.
An exercise of personal jurisdiction comports with due process when it is consistent with "traditional notions of fair play and substantial justice," (9) which require the defendant to have minimum contacts with the forum state. (10) When a defendant purposefully avails itself of the privilege of conducting activities in the forum state, thereby invoking the benefits and protections of its laws, that defendant establishes the necessary contacts. (11) However, what constitutes "traditional notions of fair play and substantial justice" has not remained static over time. (12)
Pennoyer v. Neff, the seminal case in establishing whether a court has jurisdiction over a particular defendant based on his or her activities, (13) was based entirely on physical presence within a jurisdiction. (14) In 1945, in International Shoe v. Washington, the analysis underwent a major change with the advent of corporations capable of doing business internationally, which necessitated a reconsideration of jurisdictional requirements. (15) That change led the Supreme Court to rule that physical presence in a jurisdiction was not always required after all. (16)
After the adjustments made to the personal jurisdiction analysis in International Shoe, questions began to arise about the extent to which a defendant could be subject to suit in a jurisdiction without having a physical presence in that jurisdiction. (17) The advent of the internet further compounded these uncertainties by enabling instantaneous interstate connection without physical presence. (18) Some early courts responded by treating personal jurisdiction in cases involving the internet with a new, internet-specific analysis; (19) however, the modern trend has been a return to traditional personal jurisdiction analyses of the purposeful availment test. (20)
Even if courts rely on traditional concepts of personal jurisdiction, there is no denying that the internet complicates the analysis. (21) Through technology like VPNs and proxies, internet users can access servers that are physically located elsewhere. (22) The question then arises, if a user knowingly engages in wrongful conduct over the internet when connected to a server physically located elsewhere, does that constitute purposeful availment of the forum where the server is located? (23) If the answer to this question is yes, then internet users making connections through VPNs and proxies run the risk of having to defend themselves in jurisdictions far from home. Allowing courts to assert personal jurisdiction based on VPN and proxy connections could be an effective deterrent to illegal downloading, but such an exercise of jurisdiction may strain the boundaries of due process.
Courts use the personal jurisdiction analysis to determine whether the exercise of jurisdiction over a particular defendant is consistent with due process. Personal jurisdiction evaluations take place with every case that comes before a court, and as a result, the analysis has been forced to adapt to constantly changing technology. (24) The nuances of this analysis have been continuously evaluated and reevaluated by the Supreme Court. (25) This Note does not advocate for a new standard of personal jurisdiction for analyzing cases that involve internet conduct using VPNs or proxies, but it does suggest that "traditional notions" of fair play and substantial justice might not be all that traditional after all. (26) There are a handful of foundational personal jurisdiction cases, but the Supreme Court's frequent reconsideration of the personal jurisdiction standard has dramatically expanded its application, (27) and the future may require further modernization or interpretation of the standard as society and technology continue to develop. (28)
In Part I, this Note provides background information on the methods by which an internet user can disguise an IP address by connecting to servers in other geographic locations. (29) Part II discusses traditional notions of personal jurisdiction and how they have evolved over time to facilitate due process in an increasingly mobile and technological society. (30) Part III then gives an overview of responses courts have taken to integrate the advent of the internet age into the personal jurisdiction analysis. (31) With that background established, the Note turns in Part IV to a discussion of whether an internet user purposefully avails himself or herself of the privilege of conducting activities in a forum, thus invoking the benefits and protections of that forum's laws, by virtue of connecting to a server in that forum and knowingly engaging in wrongful activities. (32) This Note ultimately argues that courts can apply previously established standards for ensuring due process through personal jurisdiction to cases involving the use of geolocation-evading technology. The crux of the analysis becomes the intentionality with which an internet user selects a server when using a VPN or proxy. Focusing on the intentionality of the users' actions is supported by traditional case law's focus on the foreseeability that a defendant's actions would result in the defendant being subject to suit in that jurisdiction. (33) An emphasis on intentionality also helps reduce potential due process concerns. Adapting the already established precedent to cases involving modern technology ensures that the standards for satisfying due process are both predictable and flexible.
INTERNET GEOLOCATION AND THE EFFECTS OF LOCATIONMASKING TECHNOLOGY
The goal of internet geolocation technology is to determine the physical location of internet users and the devices that they use to access the internet. (34) Geolocation can identify the location of a user's IP address, (35) which is a unique identifier for a particular device. (36) There are several different methods by which geolocation can identify the location of a user or a user's IP address. (37) These methods are divided into three general categories: self-reporting methods, IP geolocation, and time-and-distance-based methods. (38) Self-reporting simply requests that the user report his or her own information, (39) IP geolocation considers the IP address that is provided when the user accesses content, (40) and the time-and-distance methods attempt to locate users based on how long it takes for the host to respond to an electronic signal from the website operator. (41)
In spite of the many methods for identifying the location of an internet user or an IP address, there are ways for users to circumvent geolocation techniques and disguise their whereabouts. (42) Although the process of disguising an IP address through location-masking techniques is not itself illegal, the process can be, and often is, used to conduct illegal activity. (43) Two common mechanisms that internet users employ to disguise their locations and the locations of their IP addresses are VPNs and proxies. (44)
IP Addresses and Accessing the Internet Without the Aid of Location-Masking Technology
The internet is a constantly growing hierarchy of networks. (45) An internet service provider (ISP) issues IP addresses, identifiers similar to telephone numbers, to the devices on its network. That ISP is then connected to a larger network, which connects to an even larger network, and so on up the chain. (46) In order to communicate, the various networks rely...