Academic journal article
By Gray, Tricia Leigh
The Journal of High Technology Law , Vol. 1, No. 1
Because no special law yet exits to address jurisdiction issues on the Internet, courts have been forced to apply traditional analyses of jurisdiction to cases in this new environment. Our traditional notions of jurisdiction have made a relatively smooth transition into cyberspace. Historically, jurisdictional requirements have centered on the locus and the activity of the parties as a means of determining which state's law to apply. (1) With the advent of the Internet and the new frontier of cyberspace, established ideas about where and how interactions take place must be re-considered in this unconventional, online environment. These sorts of issues affect a court's jurisdiction over parties interacting in cyberspace.
Surprisingly, our conventional notions of jurisdiction have adapted well to this new cyber-environment. This is illustrated by the report of the American Bar Association, which extends support to the minimum contacts analysis to determine jurisdiction over on-line parties. (2) Cyberspace has expanded the arena for interactions of all sorts, (3) and has provided another forum in which parties can reach out to each other from different locations, and possibly create the minimum contacts necessary for personal jurisdiction. (4) Traditional principles of jurisdiction are adaptable to cyberspace because they consider the physical location of the parties and the conduct they direct at the forum state. (5) These factors remain crucial to our current analysis of jurisdiction in cyberspace. (6)
Individuals and corporations continue to exist in real space, and continue to do business from one state, while targeting other states. We should continue to use the physical status of the parties as a starting point for jurisdictional analysis. This approach makes sense, because the application of the minimum contacts test to Internet jurisdiction simply extends the amenability to suit that already exists for parties. No new rules are necessary, because although the Internet is a new forum, parties, as always, exist in a physical space. The report of the American Bar Association and a review of current caselaw support this proposition.
II. THE MODERN CHALLENGE: PERSONAL JURISDICTION AND THE INTERNET
1. The Report of the American Bar Association
An important, and largely on-target, reexamination of the issue of jurisdiction in cyberspace began with a report by the American Bar Association, published in July 2000. (7) The report, titled ACHIEVING LEGAL AND BUSINESS ORDER IN CYBERSPACE: A REPORT ON GLOBAL JURISDICTION ISSUES CREATED BY THE INTERNET, is the cumulative effort of multiple sections of the bar, working groups, and international commentators. (8) Cyberlaw jurisdiction is discussed in both global and domestic forums. (9) The report tends to be more successful when considering domestic jurisdiction problems.
The goal of the ABA's report is to promote a legal infrastructure that will provide guidance to the new area of cyberlaw and the jurisdiction of courts over Internet-related litigation. (10) Despite its global overtones, the report's analysis stays squarely in the American traditional context of jurisdiction, which is rooted firmly in physicality and minimum contacts. (11) The anatomy of American jurisdiction in the new Internet environment is preserved by the ABA's report. (12) A less conventional approach would seem too far a departure from the caselaw that has already developed, which is discussed below. The notion of "minimum contacts", derived in 1945, has become and will likely remain the benchmark of jurisdiction in cyberlaw cases. (13)
The idea that the minimum contacts standard will continue to underwrite our jurisdictional analysis is reassuring for our domestic cases, but troubling for cases with international parties. The Constitution of the United States and its requirements of Due Process is unique, and is obviously not adopted in other countries. …