SPENCER.DOC 12/7/2005 2:04:03 PM 71 JURISDICTION AND THE INTERNET: RETURNING TO TRADITIONAL PRINCIPLES TO ANALYZE NETWORK-MEDIATED CONTACTS† A. Benjamin Spencer* Courts have been evaluating the issue of personal jurisdiction based on Internet or “network-mediated” contacts for some time. The U.S. Supreme Court has remained silent on this issue, permitting the federal appeals courts to develop standards for determining when personal jurisdiction based on network-mediated contacts is appro-priate. Unfortunately, the circuit approaches—which emphasize a Web site’s “interactivity” and “target audience”—are flawed because they are premised on an outdated view of Internet activity as uncon-trollably ubiquitous. This view has led courts to depart from tradi-tional jurisdictional analysis and impose elevated and misguided ju-risdictional standards. This article argues that courts should reinstitute traditional principles to analyze jurisdiction based on net-work-mediated contacts in light of current technology that enables Internet actors to restrict the geographical reach of their virtual con-duct. Such a return will be fairer for plaintiffs while recognizing the legitimate due process rights of defendants. I. INTRODUCTION Imagine that you are surfing the Web in your home and you come across an article on the Web site of an out-of-state newspaper that makes numerous false statements about you, your views on race, and your work performance. You are outraged and file a complaint in federal court in your state alleging defamation by the newspaper for the libelous remarks published on its Web site. Your attorney has assured you that you can bring a suit against the newspaper in your state based on Calder v. Jones.1 † © 2005 A. Benjamin Spencer. All rights reserved. * Assistant Professor of Law, University of Richmond School of Law. J.D., Harvard Law School, 2001; M.Sc., London School of Economics, 1997; B.A., Morehouse College, 1996. The author would like to thank Carl Tobias, Kurt Meyers, Jim Gibson, Corrina Barrett Lain, Rod Smolla, Kim-berly Jenkins, and Radha Pathak for reviewing this piece. 1. 465 U.S. 783 (1984).SPENCER.DOC 12/7/2005 2:04:03 PM 72 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2006 In that case, the U.S. Supreme Court upheld jurisdiction in California over out-of-state journalists based on a defamatory article they wrote about a California resident that was published in the National Enquirer.2 Although the district court agrees with your attorney, the federal appeals court surprisingly decides that jurisdiction is not appropriate because the intended audience for the Web site was readers in the state where the newspaper is physically located, not people in your state.3 Welcome to the world of Internet-based jurisdiction, a realm in which courts have created new jurisdictional principles for analyzing con-tacts mediated through cyberspace4 that depart from the traditional ju-risdictional principles articulated in cases involving contacts made in real space. In this world, new considerations such as a Web site’s “interactiv-ity” and “target audience” are the essential concepts courts use to deter-mine whether to treat virtual contacts as minimum contacts. The courts believe that these new concepts, which seem to be more suited to the Internet, have supplanted traditional considerations. However, this arti-cle finds that courts have improperly altered traditional analysis in a way that results in an overly restrictive view of when virtual contacts may support jurisdiction. The Supreme Court has consolidated concerns about fairness and the limits of state sovereignty into a law of personal jurisdiction that re-quires the defendant to have “minimum contacts” with the forum state.5 These dual concerns6 have led the Court to require actions by the defen-dant that purposefully affiliate the defendant with the forum before the Court has upheld assertions of jurisdiction over out-of-state defendants.7 This requirement of “purposeful availment” has satisfied both concerns about fairness and about adhering to limits on state sovereignty. It is fair to exercise jurisdiction over a defendant in a forum into which he pur-posefully directs his actions,8 and state sovereignty empowers a state to adjudicate matters arising from conduct directed into its territory9 or in- 2. Id. at 791. 3. See Young v. New Haven Advocate, 315 F.3d 256, 258–59 (4th Cir. 2002). 4. Cyberspace simply is “a metaphor for describing the non-physical terrain created by com-puter systems.” Webopedia, Cyberspace, http://www.webopedia.com/TERM/c/cyberspace.html (last visited Sept. 10, 2005). In this article, cyberspace is used to refer to the nonphysical terrain created by online or networked computer systems. See MIKE GODWIN, CYBER RIGHTS: DEFENDING FREE SPEECH IN THE DIGITAL AGE 5–6 (1998), for a good explanation of the series of “interconnected com-puter forums” that comprise cyberspace. 5. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291–92 (1980) (“The concept of minimum contacts, in turn, can be seen to perform two related, but distinguishable, functions. It pro-tects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.”). 6. The Court has also identified a third concern, individual liberty. See Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982) (“The personal jurisdiction re-quirement recognizes and protects an individual liberty interest.”). 7. See World-Wide Volkswagen, 444 U.S. at 297–98. 8. Hanson v. Denckla, 357 U.S. 235, 253 (1958). 9. See Calder v. Jones, 465 U.S. 783, 789 (1984).SPENCER.DOC 12/7/2005 2:04:03 PM No. 1] JURISDICTION AND THE INTERNET 73 volving defendants substantially connected with,10 or present in,11 that state.12 Together with the requirement of purposeful availment, tradi-tional specific personal jurisdiction analysis mandates that the cause of action arise out of the defendant’s purposeful contacts13 and that an as-sertion of jurisdiction be constitutionally reasonable.14 The advent and extensive use of the Internet have presented new challenges for the law of personal jurisdiction. Many courts and scholars
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