Minimum Virtual Contacts: A Framework for Specific Jurisdiction in Cyberspace

By Kleven, Adam R. | Michigan Law Review, March 2018 | Go to article overview

Minimum Virtual Contacts: A Framework for Specific Jurisdiction in Cyberspace


Kleven, Adam R., Michigan Law Review


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-type 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. …

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