Copyright (c) 1999 The Maryland Journal of International Law & Trade

The Maryland Journal of International Law & Trade

Spring / Summer, 1999

23 Md. J. Int'l L. & Trade 127

LENGTH: 32877 words

COMMENT: IT'S A SMALL WORLD AFTER ALL: PERSONAL JURISDICTION, THE INTERNET AND THE GLOBAL MARKETPLACE

NAME: Michael S. Rothman

SUMMARY:

.. Incorporating such varied technologies as the World Wide Web, electronic mail, chat rooms, video conferencing, and newsgroups, the modern day Internet has blossomed into a powerful, global communications medium. ... Proceeding under the state's consumer fraud and deceptive trade-practices laws, Humphrey attacked a variety of fraudulent schemes including: "credit repaid" operations, pyramid schemes, and a promotion for a "miracle drug" for cancer and AIDS. ... As it now stands, these categories only consider web site contacts in the personal jurisdiction analysis.... Next, it is uncertain why some courts seem to require additional contacts with the forum state while others seem to find that the web site alone is sufficient to confer jurisdiction. ... As a result, the court found that its exercise of jurisdiction in the District of Columbia based on the newspaper advertisement, and especially the web site, would not be unreasonable. ...

TEXT:

[*127]

Introduction

Has the Internet really broadened the power of courts to exercise personal jurisdiction over a foreign defendant? This is the question that has recently faced courts across this country for the first time. As judges and jurors have grappled with the difficult issues surrounding this revolutionary form of communication, new and interesting patterns are emerging. As expected, the results are mixed. On the one hand, electronic contacts are finally being accorded legal effect in courts around the world. On the other hand, individuals are incurring liability in places and countries they never dreamed possible.

When the United States Department of Defense began a project to link military computers with computer networks in industry and academia in 1969, its creators could have hardly envisioned today's Internet. n1 Incorporating such varied technologies as the World Wide Web, electronic mail, chat rooms, video conferencing, and newsgroups, the modern day Internet has blossomed into a powerful, global communications medium. Yet, as this medium has reached mainstream acceptance, its users have begun to turn to the courts to protect their "on-line" rights. As a result, the first wave of Internet-based cases has reached the courts, announcing the legal maturation of this medium. Not coincidentally, it has also elevated the threshold legal issue of personal jurisdiction to primary importance.

Because courts, both foreign and domestic, have set forth few concrete rules concerning the exercise of personal jurisdiction based on Internet-related contacts, the battle has centered around two emerging models--one theoretical and one traditional. In the theoretical model, Internet visionaries claim that interaction in "cyberspace" n2 does not involve any [*128] contact with the physical world and, as a result, traditional notions of personal jurisdiction do not apply. n3 Under the other model, traditionalists note that cyberspace does not lack a physical location any more than does the telephone system. n4 As cyberspace is really interconnected lines and hardware based in fixed locations around the world, courts have the power to exercise personal jurisdiction over a cyberspace-based action in the same manner as it would any other case.

This Comment attempts to illustrate how courts are applying existing personal jurisdiction precedent in today's electronic world. Although the Internet provides a revolutionary new medium by which a party may engage in sophisticated transactions across state and national borders without leaving home, a new body of law is not needed to decide issues of personal jurisdiction. Courts have faced and surmounted similar obstacles after inventions such as the telephone, radio, and television. While the Internet may pose novel questions with regard to the medium used to connect to a jurisdiction, fundamental fairness to the defendant remains the guiding principle in any personal jurisdiction analysis, foreign or domestic. n5 [*129]

In the United States, the Supreme Court's 1945 decision in International Shoe Co. v. Washington n6 ushered in the modern era with regard to the personal jurisdiction analysis. The International Shoe Court recognized that advances in communications, travel, and commerce were putting immense pressure on the old territorial notion of personal jurisdiction articulated most famously by the Court in Pennoyer v. Neff. n7 In International Shoe, the Court announced a new standard for the exercise of personal jurisdiction in the United States. This standard foresaw the rapid changes taking place in the country and sought to address this new transience with a flexible standard. In addition this standard balanced the convenience of the forum against the fairness to the defendant. Eventually, the modern personal jurisdiction analysis came to rest upon these two prongs.

Today, those two prongs are once again in conflict. The Internet, in all its forms, permits a user, for a minimal investment, to literally broadcast his or her message to the entire world. This property has meant revolutionary changes for communication as well as commerce. But there has been a price. Although more people can now communicate and purchase goods and services electronically, more people can now be injured electronically as well. The causes of action have not changed, only the medium has changed. And that is where we find ourselves today--at the threshold of an information revolution with only past precedent to guide us. But as this Comment will argue, we need not abandon the existing personal jurisdiction models. In fact, those models are still viable and need only to be adapted to the new communications medium.

This Comment will discuss the exercise of personal jurisdiction by countries around the world based on Internet-related contacts. As there are no concrete international standards guiding international courts other than "reasonableness," this Comment will extrapolate from the United States' standards. In analyzing the existing case law, this Comment will argue that existing personal jurisdiction standards are flexible enough to adequately protect the rights of defendants based on Internet contacts. However, this Comment will also suggest that, when Internet-related contacts are implicated, the second prong of the traditional personal jurisdiction analysis, the factors of "fair play and substantial justice," will become the primary consideration for courts. As a defendant can conduct business or cause effects in a variety of distant forums with little more than a telephone, a modem, and an Internet connection, the "minimum contacts" prong of the due process analysis will wither. Consequently, [*130] courts will analyze the bulk of Internet-related cases using "other factors" in the due process analysis.

In Part I, this Comment will describe recent incidents, both in the United States and abroad, involving the exercise of personal jurisdiction. Part II will describe the medium known as the Internet, in all its forms, and discuss why it is creating questions regarding the exercise of personal jurisdiction. Part III will describe the standards for the exercise of personal jurisdiction, internationally and here in the United States. Part IV discusses the existing case law regarding the exercise of personal jurisdiction based on Internet contacts. In Part A, the Comment will discuss how the existing distinctions between active and passive web pages are an inadequate model for determining whether to exercise jurisdiction. Part B divides the case law into three categories based on the holdings in those cases. Part V discusses how the Internet is decreasing the significance of the "minimum contacts" analysis to the exercise of personal jurisdiction. As defendants can now "purposefully avail" themselves of the benefits and protections of a foreign state either inadvertently or accidentally, courts must now look to the "other factors" to determine whether the exercise of jurisdiction over a foreign defendant is reasonable. Finally, in Part VI, this Comment argues that "purposeful availment" remains a viable standard, even in this new electronic age. Although an electronic posting may be received world-wide, it is still possible to conduct a "purely local" business on the Internet while not subjecting oneself to jurisdiction everywhere the posting can be received.

Part I: Recent Incidents

A. Minnesota

WARNING TO ALL INTERNET USERS AND PROVIDERS

Persons outside of Minnesota who transmit information via the Internet knowing that information will be disseminated in Minnesota are subject to jurisdiction in Minnesota courts for violations of state criminal and civil laws. n8 [*131]

In July 1995 the Minnesota Attorney General's Office posted this warning statement to the Internet. On July 18, 1995, Minnesota Attorney General Hubert "Skip" Humphrey, III, announced the filing of six civil lawsuits against Internet advertisers. n9 Proceeding under the state's consumer fraud and deceptive trade-practices laws, Humphrey attacked a variety of fraudulent schemes including: "credit repaid" operations, pyramid schemes, and a promotion for a "miracle drug" for cancer and AIDS. n10

Amongst the many online consumer protection actions, Attorney General Humphrey filed suit against Granite Gate Resorts, Inc., an Internet sports wagering site based in Belize. n11 Drawing on the classic scenario of international criminal jurisdiction regarding someone acting outside the state causing effects in the state, n12 the Attorney General of Minnesota filed the first in a series of consumer protection lawsuits. n13 Just as Minnesota could exercise jurisdiction over someone outside the state who fired a rifle at someone in the state, the Attorney General argued in the Minnesota Memorandum, so Minnesota had the power to enforce its laws against purveyors of online fraud. n14 A Minnesota trial court and the Minnesota Court of Appeals agreed, permitting the Attorney General to exercise personal jurisdiction over the defendant based strictly on the availability of its web site within the State. n15

B. France

In January 1997, two private French organizations filed suit against the Georgia Institute of Technology's European campus in Metz, France ("Georgia Tech-Lorraine"). n16 The two organizations claimed that Georgia Tech-Lorraine's web site, which advertised its French campus, violated [*132] Article 2 of France's Toubon Law. n17 That language purity law required French, or a French translation, be used in all advertisements for goods or services that appeared in France. n18 This suit marked the first time the Toubon Law was applied to the Internet. n19

The prosecutors argued that the Toubon Law applied to the Georgia Tech-Lorraine web site because the Metz campus was incorporated and operated under French law. n20 In addition, the Web site was accessible in France over the Internet. n21 Georgia Tech defended on the ground that the law did not apply to the web site because it was private. The Web site was intended for students enrolled in the Lorraine program, who were required to be fluent in English and to attend classes in English. n22 As penalty for violation of the Toubon Law, Georgia Tech faced fines of as much as 25,000 francs ($ 4,300 US) for each time the English-only page was accessed. n23

On June 9, 1997, the Tribunal del Police de Paris dismissed the suit against Georgia Tech on procedural grounds. n24 In particular, the court declined to move forward with the prosecution because of the plaintiff's initial failure to report the violations to the police, as required by law. n25 In addition, the court concluded that prosecutions under the Toubon Law could only be initiated by the government and not by private organizations. n26 Despite the favorable ruling, Georgia Tech has redesigned its web [*133] site to include French translations. n27 However, it still remains to be seen whether the French language purity law applies to the Internet.

Part II: Don't Kill The Messenger

A. The Medium

To understand why the Internet represents a challenge to the exercise of personal jurisdiction, one must first understand the medium. The Internet was originally designed by the United States Department of Defense to operate as a nation-wide communications medium for the exchange of information in the event of an attack. n28 Designed to be a decentralized, self-maintaining series of redundant links, the Internet was capable of rapidly transmitting communications between connected computers without human involvement. n29 Regardless of the size of the file, the transmission of every message occurred in the same manner.

The transmission of information occurred in a number of steps. First, the information would be broken down into smaller packets of information, and each packet would be independently sent to a unique address located on the network. To get to that address, the information would travel over a series of linked computers through dedicated communications lines. If any one link in the network was damaged, the information would be re-routed until it eventually reached its unique destination. [*134] Once at the destination, the receiving computer would automatically re-assemble the message packets into their original order. n30 Using this method, no two parts of a single message might ever have traveled the same route to arrive at its eventual destination.

As ARPANET grew in popularity, similar networks were developed to link universities, research facilities, businesses, and individuals around the world. Eventually, these networks were all linked together, allowing users from any computer linked to any one of the networks to transmit communications to any other user on any other linked network. This series of redundantly linked computers comprises what is commonly referred to today as the Internet. n31

Today, access to the Internet is fairly simple and occurs in one of two ways. The first type of connection occurs when individuals can use a computer that is directly (and most likely permanently) connected to the computer network that is connected to the Internet. This type of connection is usually found at universities, research institutions, or, increasingly, at many large corporations. The other type of access occurs remotely, where an individual uses a personal computer and a modem to connect over an existing telephone line to a larger computer or computer network that is itself directly or indirectly connected to the Internet. n32 This type of access is most commonly provided by commercial or non-commercial Internet Service Providers, or ISPs. Other methods of access in this category include the "online" service providers, such as America Online, which provide indirect access to the Internet through their own proprietary networks.

As access has become easier, the growth of the Internet has been nothing short of explosive. According to recent estimates, "In 1981, fewer than 300 computers were linked to the Internet, and by 1989, the number stood at fewer than 90,000 computers. By 1993, over 1,000,000 computers were linked. Today, over 9,400,000 host computers worldwide . . . are estimated to be linked to the Internet." n33 Some estimate that world-wide Internet access is greater than 180 million users, with over 82 million users accessing the Internet from non-English speaking countries. n34 [*135]

B. The Many Faces of the Internet

The Internet consistently defies categorization mainly because it is really a generic term for a number of very different methods of communications. The most common methods of communication on the Internet (as well as within the online services) can be roughly organized into six categories: (1) point-to-point messaging (such as "e-mail"); (2) point-to multipoint messaging (such as "listserv"); (3) distributed message databases (such as "USENET newsgroups"); (4) real time communication (such as "Internet Relay Chat" or IRC); (5) real time remote computer utilization (such as "telnet"); and (6) remote information retrieval (such as "ftp," "gopher," and the "World Wide Web"). n35

Point-to-Point Messaging--One of the most basic communications mediums on the Internet is electronic mail, or "e-mail." In the first category, e-mail functions much like a letter through the postal service. It is addressed and sent to one or many unique addresses. However, unlike a letter delivered through the postal service, e-mail is not routed through a central control point and is not secure unless it is encrypted.

Point-to-Multipoint Messaging--In this category, an individual can use e-mail to send a message to an automatic mailing list service, called a "listserv." In this type of communication, an individual subscribes to a listserv mailing list on a topic of interest. Then, a subscriber can send messages on the topic to the listserv and that message will be forwarded, either automatically or through a human moderator, to all members of that list (via e-mail). There are thousands of mailing listservs on the Internet, with thousands of subscribers.

Distributed Message Databases--This group of communications functions similarly to the listserv mailing, but it operates quite differently. Like listservs, USENET newsgroups are open discussions and exchanges on particular topics. Unlike the listservs, however, users of the USENET newsgroups need not subscribe to the discussion group in advance, but can access the database at any time. When an individual with access to a USENET server posts a message to a newsgroup, the message is automatically forwarded to approximately 200,000 USENET servers around the world. n36 The message is then temporarily stored on that server where it is available for viewing by subscribers. There are newsgroups on more than 15,000 different subjects, and more than 100,000 new articles posted to newsgroups each day. n37 [*136]

Real time communication--In addition to sending messages that can be later read or accessed, individuals can also engage in an immediate dialog with others in "real time." The Internet Relay Chat program, or IRC, allows two or more people to type messages to each other, and those messages will appear almost instantly on the other's computer screen. IRC is analogous to a telephone party line, using a computer and a keyboard in place of the telephone. n38 Additionally, commercial online providers, such as America Online, have their own "chat" systems, allowing their members to converse.

Real time remote computer utilization--Using a program called "telnet," individuals can access and remotely operate another computer in "real time."

Remote information retrieval--The final major category of communication has undoubtedly become the most popular and, in some cases, has become virtually synonymous with the term Internet. One type of program in this category is called "ftp" (or file transfer protocol). Using this program, an individual accesses another computer at a designated address and the lists of files available on that remote computer. The individual can then use the program to transfer one or more of those files to the individual's local computer. Another type of communication in this category is named "gopher." This program uses a unique format to guide an individual's search through a remote computer. The third type of Internet communication, and undoubtedly the most popular, is the "World Wide Web." n39 In this form of communication, information is stored in a special formatting language on remote computers with their own unique address. Individuals then access this information using a program called a "browser." Such a document can contain text, images, sound, animation, and video to be viewed by users on their local computer. More importantly, [*137] this information is available to a person with access to the Internet at any time, day or night, during any day of the year.

Increasingly, these web documents have become very sophisticated. In fact, the author of a web page can program a particular link to automatically execute instructions when accessed. These instructions may include executing a search on a defined database, compiling information and mailing it to a user, or even conducting a commercial transaction. It is these complex activities, in particular, which are causing courts great consternation with regard to personal jurisdiction.

C. Why the Internet is Unbalancing the Personal Jurisdiction Analysis

As one might expect, commentators and practitioners who have been watching the development of the Internet fall into two distinct camps with regard to the exercise of personal jurisdiction based on Internet-related contacts--the theorists and the realists. Some theorists have argued that the Internet raises unique questions about the proper forum for an electronic contact because such contacts occur in "cyberspace." As electronic contacts over the Internet do not involve any contact with the physical world, they argue, traditional notions of personal jurisdiction do not apply. n40 These theorists argue that an entirely new set of rules, based entirely on the type of contacts that occur over the Internet, is needed to bridge this gap. n41 Understandably, such arguments have fallen on deaf ears as courts around the world have begun to move forward with claims resulting from Internet-related contacts.

Other theorists have more correctly noted that the Internet does not lack a physical location any more than does the telephone system. n42 The [*138] information that appears on a web page still travels through communications lines and hardware, in fixed locations around the globe. Web sites and information are not stored in "cyberspace," but rather on computers and servers located in some country, state, or municipality. Furthermore, users connect to the Internet from physical locations around the globe. While these users might be accessing the Internet remotely, the call still emanates from a fixed location and ends at a fixed location. n43 Finally, the harm created by these Internet contacts must produce effects in some tangible place. Accordingly, Internet contacts do not require the courts to deviate from its precedent in any significant way. The only foreseeable difficulty for courts is applying existing precedent correctly to an analogous situation.

So why has the Internet stirred up such a hornet's nest with regard to jurisdiction? The answer is simple. Using the various technologies of the Internet, an individual can electronically visit another forum, transact business in that forum, and cause effects in that forum--yet still be unaware that he has subjected himself to the laws of any particular forum. Even more perplexing is the fact that all of these seemingly sophisticated transactions can be accomplished using little more than a personal computer, a telephone, a modem, and a connection to the Internet. While the telephone, television, or radio might be as pervasive as the Internet, none can approach the ease or efficiency with which an individual can communicate using the Internet.

An advertisement placed on the web would be available to anyone who could find it, twenty-four hours a day, seven days a week. An Internet advertisement could reach an individual (e-mail), a specifically defined user group (point-to-multipoint messaging), or a community of users extending around the world with some common interest (distributed message database) all with a few strokes on the keyboard. This is where the similarities with traditional forms of media end.

First, Internet media is more durable than traditional media. Traditional media advertisements or content in a newspaper, magazine, or periodical could easily be thrown away and thereby lost forever. Internet media, on the other hand, is accessible every hour of every day and can be transmitted to anyone who can find it. Next, Internet media is much more pervasive than traditional media. Traditional media in a newspaper, magazine, or periodical is often directed towards a market with limited subscribership, such as a newspaper which serves a city or a magazine [*139] which serves a particular audience base. Internet media, on the other hand, is available to anyone around the world capable of connecting to the information. Subscribership is irrelevant to the Internet medium. Finally, while some traditional forms of media approach the durability and pervasiveness of the Internet medium, such as a toll-free number, none are as self-supportive. Toll-free numbers often depend upon other forms of media to advertise its existence, thereby limiting its reach. In contrast, the Internet is self-advertising. It offers all the durability and communicative force of traditional media, without a large investment and without any advertisement.

Part III: Personal Jurisdiction Law

A. International Limitations on the Exercise of Personal Jurisdiction

Without a doubt, the power of United States courts to exercise jurisdiction over foreign defendants incorporates special considerations of territoriality and sovereignty, not otherwise indicated in solely domestic cases. Unfortunately, there are no international treaties regarding the exercise of personal jurisdiction over a foreign interest, although one has been proposed numerous times. n44 As a result, the standards for the exercise of jurisdiction remain rather amorphous, relying on the discretion of the individual nations and the precepts of international comity. Oddly, in the four United States Supreme Court cases that have dealt with personal jurisdiction over foreign interests in civil cases during the modern era, the Court has simply assumed that the United States Constitution provided the limits on the exercise of jurisdiction. n45 This has led some commentators to suggest that any customary international law of jurisdiction is now devoid of content. n46 But while the content of international jurisdiction law is perhaps unclear, most authorities agree that this category [*140] of international law does exist. n47

As the Restatement (Third) of Foreign Relations Law explains, a State's authority to subject foreign interests or activities to its laws is bounded by certain limitations. n48 A state's judicial power over a foreign party can be said to hinge on its power to adjudicate. n49 Jurisdiction to adjudicate has been described as a State's authority to subject persons or things to the process of its courts or administrative tribunals, whether in civil or criminal proceedings, whether or not the State is a party to the proceedings. n50 This power over a defendant requires a sufficient or reasonable relation with the forum state. n51 However, it is important to note [*141] that this standard under the Restatement--reasonableness--differs in some significant ways from the United States' standard, crafted in International Shoe Co. v. Washington. n52 As a result, jurisdictional analyses over foreign defendants will almost always require closer prelitigation contacts between the defendant and the forum than would otherwise be required in a domestic case. n53 And, as in domestic cases, there is no clear boundary as to which activities subject a foreign defendant to jurisdiction in the United States. The court's determination will always be on a caseby-case basis and "cannot be simply mechanical or quantitative." n54

But international cyberspace cases that call for international law principles relating to jurisdiction are rare. For guidance, then, this Comment will extrapolate from the "minimum contacts" standard in domestic cases. This will provide a starting point for determining how to apply the limiting factor of "reasonableness" in the international context.

B. United States Limitations on the Exercise of Personal Jurisdiction

Ironically, United States constitutional limitations on the exercise of judicial jurisdiction in United States courts can be traced to 19th century perceptions about public international law. In Pennoyer v. Neff, n55 the Supreme Court relied on two related principles of international law in articulating constitutional limits on state court judicial jurisdiction: (1) "every State possesses exclusive jurisdiction and sovereignty over persons and [*142] property within its territory;" n56 and (2) "no State can exercise direct jurisdiction and authority over persons and property without its territory." n57 The Court reasoned that these principles of international law also applied to every state in the Union, limiting the judicial jurisdiction of state courts. Under this territorial theory of sovereignty, a state court could exercise personal jurisdiction over any defendant who was served with process within the territory of the state. n58 According to Pennoyer, however, the Constitution provides limitations on the ability of a state to exercise personal jurisdiction over persons located outside the state's territory, regardless of that person's connection to the state. n59 The Supreme Court cited the Fourteenth Amendment's Due Process Clause as the source of this limitation. n60 This limitation accorded with the dual system of federalism and was intended to preserve the sovereign power of the independent states. n61

The twentieth century brought dramatic expansion in the amount of interstate communication and transportation, placing increasing strain on the territorial limitations of state court jurisdiction. Gradually, the rigid territorialism of the Pennoyer model gave way to the "minimum contacts" standard for personal jurisdiction announced in International Shoe Co. v. Washington. n62 This shift allowed the lower courts to concentrate on the activities of the defendant in relation to the forum state, rather than relying on the old fictions of the strict territorial model under Pennoyer. The results were dramatic and made sense for a rapidly expanding, newly mobile society.

In International Shoe, the Supreme Court shifted the focus of the personal jurisdiction analysis to the defendant's activities and its relationship to the forum state. The Court noted that a foreign party may be sued in a state if the party has "certain minimum contacts with [the state] such that maintenance of the suit does not offend "traditional notions of [*143] fair play and substantial justice." n63 Dispensing with the legal fictions of the past, the Court announced that the personal jurisdiction analysis should focus upon the "nature and quality" of the activities of the defendant. n64 In such an analysis, courts should consider both the quantity of the party's contacts with the state and the relationship between those contacts and the party's claims when determining whether the court could exercise personal jurisdiction over the party. n65

In dicta, the Court also indicated that courts should also consider relevant an "estimate of the inconveniences," n66 to the defendant in defending a suit away from its principal place of business. n67 In the end, the Court held that the appellant was properly amenable to suit in the State of Washington because its activities there were "systematic and continuous" and the suit arose out of those activities. n68

After a brief period in which the exercise of personal jurisdiction expanded rapidly, n69 the Supreme Court refocused its analysis on the activities of the defendant in Hanson v. Denckla. n70 Brushing aside the convenience [*144] of the forum reservations expressed in the dissent, the Court concluded that there were no minimum contacts between the nonresident defendant and the forum. n71 Simply stated, the majority found that the unilateral activities of the plaintiffs alone could not transform this into a case where Florida could exercise jurisdiction. n72 In addition, the Court refused to attach any importance to Florida's interest in adjudicating this kind of lawsuit. n73 In the end, the Court left no doubt that future personal jurisdiction analyses based on minimum contacts should focus on two aspects: (1) the relationship between the forum and the defendant; and (2) the contacts which reflected purposeful action by the defendant. n74 However, the Court left unanswered important questions regarding how the [*145] "quality and nature of defendant's activity" should be measured. n75

Almost twelve years later, the court answered at least some lingering questions about the minimum contacts analysis in World-Wide Volkswagen Corporation v. Woodson. n76 In this product liability suit, the plaintiffs, New York residents, brought suit in Oklahoma based on a car they had purchased from the defendants in New York. n77 The Court found that the exercise of personal jurisdiction over the New York regional distributor and retailer would offend due process. n78 The Court held that because the defendants did not conduct or solicit business from Oklahoma in any way, shape, or form, the mere fact that their product ended up there is not sufficient to make them liable to suit there. n79 Rather, it was the defendant's "conduct and connection" with the forum state that was important. n80 When courts adhered to this standard, defendants could find some minimal level of assurance when their conduct would render them liable to suit in a foreign jurisdiction. n81 In the end, the Court found that a defendant's contacts with a forum must not be "fortuitous," n82 "isolated," n83 or "attenuated." n84 Rather, the contract must "arise from the efforts of the manufacturer or distributor to serve directly or indirectly, the market for its product in other States. . . ." n85 At that point, it would not be "unreasonable" to subject a defendant to suit in one of those States. n86

Five years later in Burger King v. Rudzewicz, the Supreme Court began to explore the second part of the due process analysis--namely, when granting personal jurisdiction would not offend "traditional notions of fair play and substantial justice." n87 Although the defendant did not physically enter the forum State, the Court nonetheless found that the defendant had "purposefully" established the requisite minimum contacts with the state of Florida. n88 The Court listed five factors which it would [*146] consider when determining whether assertion of jurisdiction was fundamentally fair: (1) "the burden on the defendant;" (2) "the forum State's interest in adjudicating the dispute;" (3) "the plaintiff's interest in obtaining convenient and effective relief;" (4) "the interstate judicial system's interest in obtaining the most efficient resolution of controversies;" and (5) "the shared interests of the several States in furthering fundamental substantive social policies." n89 In the end, the Supreme Court permitted Florida to exercise personal jurisdiction over the nonresident defendant from Michigan who had voluntarily contracted with a Florida corporation. n90

Finally, any discussion of personal jurisdiction over a nonresident foreign defendant would be incomplete without mention of Asahi Metal Industry Company v. Superior Court of California. n91 Although the significance of Asahi as a minimum contacts case is, at best, uncertain, n92 the Court did invalidate jurisdiction over a foreign, nonresident defendant in a due process holding. n93

In Asahi, seven justices joined in Justice O'Connor's conclusion that whether or not minimum contacts existed between the forum and Asahi, California's attempt to exert personal jurisdiction exceeded a so-called "reasonableness" standard, which incorporated the same five factors of "fair play and substantial justice" listed in Burger King. n94 Yet, in this [*147] case, the Court reached the opposite conclusion with regard to jurisdiction. Moreover, the Court remained sharply divided over the stream of commerce analysis with regard to products liability cases. n95 At this point, however, it remains unclear whether the holding of Asahi is limited to its unique factual situation. n96

Part IV: Personal Jurisdiction and the Internet

A. Misleading Models

As the Supreme Court aptly noted in International Shoe, "It is evident that the criteria by which we mark the boundary line between those activities which justify the subjection of a [nonresident defendant] to suit, and those which do not, cannot be simply mechanical or quantitative." n97 Amazingly, after over fifty years, we still have not escaped the fact dependent nature of the due process analysis. Despite all of the advances in communication, travel, and commerce, the courts are still left with a fact-specific test which must be analyzed on a case-by-case basis. This is the only way to assure that the defendant receives the minimum guarantees of fairness under the law.

Presently, as courts begin to wade into the Internet medium, judges and practitioners around the world are looking for a shorthand analysis to gauge if, and when, Internet activity will subject a defendant to specific jurisdiction in a foreign forum. This search has led courts to a very confusing model, dividing web sites into two fuzzy categories and a broad, indeterminate middle ground. n98 [*148]

At one end of the scale are web sites where a defendant clearly does business over the Internet. If the defendant entered into contracts with residents of a foreign jurisdiction that involved the knowing and repeated transmission of files to another computer, personal jurisdiction would be proper. n99

At the other end of the scale are web sites where a defendant has posted information which is simply accessible to users in foreign jurisdictions. According to this model, a passive web site that does little more than make information available to those who are interested in it is not grounds for the exercise of jurisdiction. n100

The middle ground is occupied by "interactive" web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and the information that gets exchanged. n101 While these three categories might put courts on notice about what to watch for when examining a web site in a personal jurisdiction analysis, these categories are hardly determinative. In fact, they are downright misleading.

These categories are enigmatic for two main reasons. First, the categories do not take into account contacts from other Internet communications medium, such as e-mail and distributed message databases. n102 Even the most interactive web page will often require additional contacts to demonstrate that "something more" which courts have found necessary for the exercise of jurisdiction. n103 As it now stands, these categories only consider web site contacts in the personal jurisdiction analysis. Second, the categories do not take into account the cause of action. The harm in an intentional tort action is quite different from the injury caused in a breach of contract suit. Generally speaking, the injury is the key. The harm in a trademark infringement case may come from a press release on [*149] a "passive" web site, whereas a breach of contract case may require a persistent course of conduct between the participants before a court will exercise jurisdiction. Accordingly, the nature of the web site is often not a very good indicator as to whether the exercise of jurisdiction is permissible.

As the next section will indicate, personal jurisdiction is often dependent upon whom the nonresident defendant determined was the intended audience. While the case law is muddled in many respects, there is at least one unifying concept the intent of the defendant. Oftentimes, this intent is quite clear from the nature of the advertisement or content. n104 Sometimes it is not and other affiliating circumstances are required. n105 The next section classifies the existing personal jurisdiction cases based on Internet contacts into three categories--each defined by the end result of the personal jurisdiction question.

B. Cases

As the cases below demonstrate, the existing body of decisions regarding in personam jurisdiction based on Internet contacts is inconsistent and incoherent on many levels. First, there is an openly acknowledged split between the districts regarding the weight to be afforded to electronic contacts over the Internet. n106 Next, it is uncertain why some courts seem to require additional contacts with the forum state while others seem to find that the web site alone is sufficient to confer jurisdiction. n107 Finally, and most importantly, the very significance of Internet contacts is in dispute. The court in Zippo analyzed the defendant's contacts by looking at the number of Pennsylvania residents using the defendant's Internet-based [*150] service. n108 On the other hand, the court in Granite Gate looked at the number of residents from the State of Minnesota accessing the site as well as which States produced the most frequent users of the service. n109

For ease of analysis, the following cases have been divided into three categories based on how the jurisdictional question was resolved. These categories include: (1) electronic contacts not supporting the exercise of jurisdiction; (2) electronic contacts plus "something more" supporting personal jurisdiction; and (3) electronic contacts alone supporting the exercise of jurisdiction.

1. Electronic Contacts Not Supporting Exercise of Personal Jurisdiction

a. Bensusan Restaurant Corp. v. King

One of the most widely cited cases in which the court found that a web site did not constitute the necessary minimum contacts is Bensusan Restaurant Corporation v. King. n110 Bensusan was the operator of "The Blue Note" jazz club in New York City. King was the owner and operator of the "The Blue Note" club in Columbia, Missouri. n111 Even though Bensusan owned the rights to the federally registered mark "The Blue Note," nonetheless, King posted a web site that advertised his Columbia Blue Note club. n112 The web site included a local Missouri telephone number and ticket information. n113 Bensusan brought an action in the U.S. District Court for the Southern District of New York. In that suit he claimed that King's web site, which had both "The Blue Note" name and a logo similar to Bensusan's, constituted trademark infringement. n114

The court granted King's motion to dismiss for lack of personal jurisdiction. n115 First the court examined Bensusan's assertion of jurisdiction [*151] under the New York long arm statute. n116 The court found that due to the nature of the infringement cause of action, the deception occurred in Missouri and not New York. n117 Accordingly, the injury could not have occurred in New York, fulfilling a precondition of the long-arm statute. n118

The court noted that if a customer wanted to attend a show at the defendant's club in Missouri, he would have had to find the web site, order tickets from a Missouri phone number, and pick the tickets up in Missouri (because King did not mail or transmit the tickets). n119 Even if there was confusion about the product, that confusion occurred in Missouri, not New York. n120 Additionally, the court also did not accept Bensusan's argument that King should have foreseen that the web site would be viewed in New York and have consequences in that State. n121

Finally, the court found that even if New York's long-arm statute conferred jurisdiction, the exercise of jurisdiction would have violated the limits of the Due Process Clause. n122 King did nothing to purposefully avail himself of the benefits and protections of the laws of New York. Borrowing from the Supreme Court's plurality opinion in Asahi, the Bensusan court compared creating a web site to "placing a product into the stream of commerce," in that its effects "may be felt nationwide--or even worldwide--but, without more, it is not an act purposefully directed towards the forum state." n123 In the end, there was no indication that King sought or encouraged New Yorkers to access his site. n124

Almost two years later, the Second Circuit Court of Appeals affirmed the district court's holding on fairly narrow grounds. n125 This holding [*152] was not very instructive, however, because the court decided the case strictly on the basis of New York's long-arm statute. n126 The Second Circuit found that if any tortious acts were committed by King, under the New York long-arm statute, they occurred in Missouri. n127 Moreover, King's club should be considered a local operation because it did not "derive substantial revenue from interstate commerce." n128

This case remains one of the premier examples of the entirely "local" use of a web site. As the court found, the defendant used his Internet web site in a manner which solicited only local business. Defendant made no attempt to market to anyone outside the State of Missouri. This type of local business solicitation is consistent throughout this category.

b. Cybersell, Inc. v. Cybersell, Inc.

A recent Ninth Circuit opinion reinforced the notion, begun in the Bensusan line of cases, that a web site or other electronic contact alone, was not purposeful availment of the benefits and protections of the laws of a forum state. In Cybersell, Inc. v. Cybersell, Inc., n129 the plaintiff, an Arizona corporation ("Cybersell Arizona"), sued a Florida Corporation ("Cybersell Florida"), for the latter's trademark infringement through a web site. n130 When the defendants placed their home page on the web in October 1995, the page included a logo and a local Orlando telephone number. n131

The court's analysis began with a nod to the Arizona long-arm statute, which extended to the full limits of the Due Process Clause. n132 Essentially, Cybersell Arizona argued that because the harm of trademark infringement occurs where the "passing off" of the mark occurs, jurisdiction was permissible over the defendants based on their solicitation over the Internet. n133 In response, Cybersell Florida argued that this would mean they would be subject to nationwide, or even worldwide, jurisdiction [*153] simply for using the Internet. n134

In its analysis, the court reasoned that while "anyone, anywhere could access defendants home page," that fact alone could not demonstrate that Cybersell Florida was trying to target Arizona residents. n135 Examining the existing Internet personal jurisdiction cases, the court found that "no court has ever held that an Internet advertisement alone was sufficient to subject the advertiser to jurisdiction in the plaintiff's home state." n136 The Ninth Circuit noted that in each case where the court exercised jurisdiction on the basis of a web site, there was always "something more' to indicate that the defendant purposefully (albeit electronically) directed his activity in a substantial way to the forum state." n137 The court found that Cybersell Florida did nothing to encourage people in Arizona to access its site, and did not seek or gain any business in Arizona. n138 Additionally, the court found the " "effects' test" employed by the Supreme Court in Calder v. Jones to be inapplicable to the case at bar. n139

c. Other cases of note

In Hearst v. Goldberger, the Southern District of New York reinforced its decision in Bensusan by declining to exercise personal jurisdiction over a lawyer residing in New Jersey. n140 That case also involved a domain name dispute in which the court also held that the exercise of jurisdiction was limited by the New York long arm statute. n141 Ironically, the [*154] court also noted that jurisdiction might well have been proper if the plaintiff had just waited until the defendant's business was operational and New Yorkers had begun to respond to the advertisement. n142

Another case in which the court found that a web site could not confer jurisdiction over a foreign non-resident defendant was Weber v. Jolly Hotels. n143 In that case, a New Jersey plaintiff was injured in a fall while at one of the defendant's hotels in Italy and attempted to bring suit against the defendant in the United States District Court for the District of New Jersey. n144 The plaintiff tried to assert general jurisdiction over the defendant hotel chain based on a "passive" web site. n145 The court analogized the plaintiff's claim to advertising in a national magazine and refused to exercise jurisdiction on that basis. n146

Finally, the case of McDonough v. Fallon McElligott, Inc., n147 involved a suit over copyright infringement and unfair competition regarding the misuse of a photograph. n148 The plaintiff, McDonough, was a California sports photographer and the defendant, Fallon McElligott, Inc., was an advertising agency based in Minnesota. n149 The plaintiff claimed that the defendants knowingly reproduced a photo taken by the plaintiff without its permission for use in one of its national advertising campaigns and then never gave the plaintiff credit for taking the photograph. n150 Although the defendant's principal place of business was in Minnesota, the plaintiff brought suit in the United States District Court for the Southern District of California. n151 Plaintiff asserted that although the defendant had no clients in California and didn't maintain any employees in California, the court should nonetheless find jurisdiction over the defendant. n152 The plaintiff reasoned that because the defendant operated a web site which was accessible in California, its operations in California were sufficient to support general jurisdiction. n153 Refusing to exercise either general or specific jurisdiction, the court stated that "allowing [*155] computer interaction via the web to supply sufficient contacts to establish jurisdiction would eviscerate the personal jurisdiction requirement as it currently exists." n154

2. Electronic Contacts Plus "Something More" Supporting Personal Jurisdiction

In Cybersell, n155 the court examined the trend in personal jurisdiction decisions involving the Internet, explaining that courts have not found Internet advertising alone to be sufficient to confer personal jurisdiction. n156 In the cases finding jurisdiction, the Cybersell court noted that there was always "something more' to indicate that the defendant purposefully (albeit electronically) directed his activity in a substantial way to the forum state." n157 The "something more" that the court pointed to was an additional fact or affiliating contact by the defendant which indicated that the defendant intended to serve or intended to direct its activities towards the forum. This section looks at those cases in which the courts identified additional contacts, beyond the contact cited in the cause of action, to exercise personal jurisdiction.

a. California Software, Inc. v. Reliability Research, Inc.

In perhaps the first case to address the issue of electronic contacts and its effect on the "minimum contacts" analysis, California Software, Inc. v. Reliability Research, Inc., foreshadowed the analytical problems of the new information age. n158

In this case, California Software, Inc. ("California Software"), a California corporation, sued Reliability Research, Inc., ("RRI") a Nevada corporation with its principal place of business in Vermont, for alleged false statements made by the latter. California Software claimed that RRI made false statements to prospective California Software customers over the telephone, through the mail, and over a distributed message database n159 known as the Computer Reliability Forum ("CRF"), which constituted tortious interference with their right to contract. n160 The court [*156] ultimately refused to confer general jurisdiction over the defendants based on the CRF, but did find specific jurisdiction based on the telephone calls, the mail, and the CRF. n161

Using the Supreme Court's analysis in Calder v. Jones, n162 the court found that the use of the mail and the telephone by the defendants provided specific jurisdiction in California because those communications were purposefully directed to cause harm in California. n163 The court also found that the communications over the CRF by the defendants conferred specific jurisdiction. n164 Although RRI argued that it was just responding to a question posed on the CRF by a third person outside of California, the court found that the defendants intended for their communication to have a direct effect in California. n165 The communication over the CRF by the defendant was intentionally designed to manipulate others to not buy the plaintiff's product in California, thereby causing harm in California. n166

In a bit of foreshadowing, the court discussed how modern technology was again pressing the boundaries of personal jurisdiction outwards. n167 Noting the expansion of personal jurisdiction that the Supreme Court had exercised in McGee v. Int'l Life Ins. Co., n168 the court stated, "While modern technology has made nationwide commercial transactions simpler and more feasible, even for small businesses, it must broaden correspondingly the permissible scope of jurisdiction exercisable by the courts." n169

b. CompuServe, Inc. v. Patterson

Regularly recognized as the prototypical electronic "minimum contacts" case, the Sixth Circuit in CompuServe, Inc. v. Patterson n170 also used the "something more" approach to exercise jurisdiction. In this [*157] case, CompuServe, Inc. ("CompuServe"), an Ohio corporation and online service provider, sought a declaratory judgment in a matter involving Richard Patterson, a Texas resident and CompuServe subscriber. n171 Patterson claimed that CompuServe was marketing and distributing "shareware" on its system in violation of the common law trademarks which he and his company owned and enjoyed. n172 After Patterson demanded money to settle his potential claims, CompuServe filed a declaratory judgment action in the United States District Court for the Southern District of Ohio. n173 In response, Patterson filed a motion to dismiss for lack of personal jurisdiction in which he claimed to have never visited Ohio. n174

In 1991, Patterson placed his shareware on CompuServe's system for others to use and purchase. n175 When Patterson became a shareware provider, he entered into a "Shareware Registration Agreement" ("SRA") with CompuServe. n176 From 1991 through 1994, Patterson transmitted (from Texas) thirty-two master software files to CompuServe (in Ohio), which CompuServe then placed on its server for all of its subscribers to access. n177 In December 1993, Patterson notified CompuServe by e-mail that it was infringing on his common law trademarks. n178 CompuServe changed the name of its program, but to no avail. Patterson continued to complain and CompuServe brought this declaratory judgment. n179 [*158] The district court granted Patterson's motion to dismiss for lack of personal jurisdiction. n180 Subsequently, the Sixth Circuit reversed. n181

The Sixth Circuit began its opinion by noting that technology has dramatically expanded commerce, communications, and, consequently, the limits on the exercise of personal jurisdiction. n182 "There is less perceived need today for the federal constitution to protect defendants from "inconvenient litigation,' because all but the most remote forums are easily accessible for the pursuit of both business and litigation." n183 Driving this most recent expansion of the courts' power over nonresident defendants, the court noted that the Internet is "perhaps the latest and greatest manifestation of these historical, globe-shrinking trends." n184

In its analysis, the court reasoned that Patterson purposefully contracted with an Ohio company to distribute his product. n185 Far from being "random," "fortuitous," or "attenuated," Patterson perpetuated the relationship with CompuServe by repeatedly communicating with its system in Ohio. n186 This relationship was intended to be ongoing in nature and not merely a "one-shot affair." n187 The court also made special note that it was not deciding this case based on simply the existence of the contract with CompuServe or the fact that Patterson put his software on CompuServe's system. The court noted that while either of these activities, taken alone, might not subject Patterson to jurisdiction, deliberately doing both plus the other factors mentioned supported the exercise of jurisdiction. n188

These "plus factors" included the repeated e-mail and regular mail messages, a message about the infringement action on one of CompuServe's distributed message forums, and Patterson's demand for money. n189 In addition, the court had no problem finding that the cause of action arose from Patterson's forum-related activities and that the exercise of jurisdiction was reasonable. n190 [*159]

c. Panavision International, L.P. v. Toeppen

In Panavision International, L.P. v. Toeppen, n191 Panavision (a California corporation) sued Dennis Toeppen (an Illinois resident) for his registration and appropriation of the corporation's trademark as a domain name. Of particular interest in this decision is the court's approval of the lower court's findings that Toeppen's registration of Panavision's trademark was part of a larger scheme to obtain money from Panavision. n192 As the Ninth Circuit noted, this deliberate scheme to extort money from Panavision provided the "something more" which was conspicuously absent in the court's earlier case in Cybersell. n193

Using the "effects doctrine" first announced in Calder, n194 the court found that Toeppen had met the "purposeful availment" requirement necessary for personal jurisdiction. n195 Distinguishing the present case from its holding in Cybersell, n196 the Panavision court found that Toeppen had purposefully registered Panavision's trademarks "to force Panavision to pay him money." n197

In an analysis of the harm caused by Toeppen's infringement, the court found that Toeppen knew that the brunt of the harm to Panavision would be in California because that was where they conducted their business. n198 Toeppen countered by arguing that if an injury occurred at all, it [*160] occurred in "cyberspace." n199 As he had not entered the State of California and did not direct any activity there, the injury could not have occurred in California. n200 The Panavision court disagreed. They found that the "something more," which the Ninth Circuit required in Cybersell, was provided by the evidence that Toeppen was running a scheme directed at California. n201 The court also found that the cause of action arose out of Toeppen's forum-related activities and that the exercise of jurisdiction over Toeppen, an Illinois resident, would not be unreasonable. n202 Although the burden on Toeppen to litigate in California would be significant, the burden would not be so great as to deprive him of due process. n203

d. Zippo Manufacturing Co. v. Zippo Dot Com

In Zippo Manufacturing Company v. Zippo Dot Com, Inc., n204 Zippo Manufacturing Co. ("Manufacturing"), a Pennsylvania Corporation, brought suit against Zippo Dot Com, Inc. ("Dot Com"), a California corporation, for the latter's alleged violations of federal and state trademark protection laws. n205 The claims arose from Dot Com's use of the trademarked word "Zippo" in the domain names "zippo.com," "zippo.net," and "zipponews.com," on its web site; and in the headers of the news service messages it posted. n206 In its analysis, the court acknowledged that most of Dot Com's contacts with Pennsylvania occurred almost exclusively over the Internet n207--but not entirely. n208 [*161]

In Zippo, the court found that the cause of action arose out of the defendant's contact with the forum and that the exercise of jurisdiction over the defendant was reasonable. n209 On its behalf, Dot Com argued that although its web site was accessible by Pennsylvania residents, "advertising" or "operating a Web site" was not equal to "doing business in Pennsylvania." n210 The court found Dot Com's argument that it had not purposefully availed itself of the laws of Pennsylvania to be "wholly unpersuasive." n211 Dot Com had sold passwords to about 3,000 Pennsylvania subscribers and entered into seven contracts with ISPs to provide their service to customers. n212 Defendant also asserted that its contacts with the forum were "fortuitous" within the meaning of World Wide Volkswagen. n213 But again the court disagreed. n214 Dot Com "repeatedly and consciously" chose to process the applications from Pennsylvania residents and assign them passwords. The transmission of those files was entirely within the defendant's discretion. n215

Zippo is a fairly unique opinion because the court attempted to fashion a three-category, sliding scale framework to help future courts analyze personal jurisdiction suits involving Internet contacts. n216 Under this classification system, the court felt that this case was most analogous to the line of cases which included "doing business over the Internet," evident in Compuserve, Inc. v. Patterson. n217

e. Heroes, Inc. v. Heroes Foundation

In Heroes, Inc. v. Heroes Foundation, n218 the plaintiff Heroes, Inc. ("Heroes") sued Heroes Foundation ("Foundation") for trademark infringement [*162] and unfair competition. n219 Plaintiff Heroes was a District of Columbia charity begun in 1964 which registered and owned the service mark "Heroes." n220 The defendant Foundation was a New York charity begun in 1990 which began using the "Heroes Foundation" name and logo in 1993. n221 Claiming that Foundation's use of the name "Heroes Foundation" and related names was likely to cause potential contributors to be confused, Heroes brought this lawsuit raising state and federal claims of trademark infringement and unfair competition. n222

First, the court examined the defendant's contacts with the forum state to ensure that it met the District of Columbia's long-arm statute. Foundation claimed that its only contact with the forum was a newspaper advertisement published in The Washington Post and a web site with the trademarked name and logo. n223 The court found that both of these contacts, taken together, were sufficient to indicate that Foundation had purposefully availed itself of the "privilege of conducting activities within the District." n224 Even without the newspaper advertisement, however, the court implied that the District of Columbia could assert personal jurisdiction over Foundation as its "home page was certainly a sustained contact within the district." n225

Initially, the court found that the newspaper advertisement sufficiently indicated that Foundation intended to solicit donations in the District. n226 Although the advertisement in The Washington Post was actually placed by Proctor & Gamble, it had the Foundation's name and telephone number. n227 The court found Proctor & Gamble's involvement insignificant. Because the Foundation "knew the advertisement was placed, approved of it, and received publicity and substantial contributions as a result of it," n228 the placement of the advertisement met the requirements for [*163] purposefulness under Asahi. n229

With regard to the web page, the court found Foundation's web page equally as indicative of the charity's intent to operate in the District of Columbia. n230 The Foundation tried to characterize its home page as "essentially passive" and "not really targeted at any particular forum." n231 However, the court was unconvinced. n232 As the web site was not the only contact with the forum the court declined to decide if the web site alone would provide the "minimum contacts" necessary to establish personal jurisdiction. n233 Taking a page from Inset Systems, Inc. v. Instruction Set, Inc., n234 the court emphasized the durable nature of the information contained on web sites. While hard copy advertisements are quickly disposed of and reach a limited number of potential customers, Internet advertisements can be accessed again and again by many potential customers. n235 As a result, the court found that its exercise of jurisdiction in the District of Columbia based on the newspaper advertisement, and especially the web site, would not be unreasonable. n236

f. American Network, Inc. v. Access America/Connect Atlanta

In another case from the United States District Court for the Southern District of New York, a New York Internet Service Provider, American Network, Inc. ("ANI"), brought this suit for trademark infringement and unfair competition against Access America/Connect Atlanta, Inc. ("Access"), a Georgia Internet Service Provider. n237 In its suit, ANI claimed that a mark used by Access, "America.Net," had infringed upon a mark that ANI owned, "American.Net." n238 The defendant moved to dismiss for lack of personal jurisdiction. n239 The court found that the exercise [*164] of personal jurisdiction was proper both under the New York longarm statute and the Due Process Clause. n240

As the cause of action arose from Access' web site, ANI claimed that the New York court had personal jurisdiction over the defendant based on the New York long-arm statute. n241 Access reduced its argument to two simple points: (1) ANI did not suffer an injury in New York, and (2) it was not reasonably foreseeable that Access' acts in Georgia would have New York consequences. n242 The defendant argued that all of its offices, employees, and business facilities, including its server, were located in Georgia. n243 In addition, it owned no property in New York. n244 Contrary to that position, ANI claimed that Access' home page contained the allegedly infringing mark and provided the minimum contacts with the forum. n245 The court agreed with ANI on both points.

First, the court found that ANI suffered injury in New York because New York users had seen the mark on the defendant's web site on their computer screens in New York and had been "confused and deceived" by the mark. n246 With regard to the defendant's second contention, the court found that it was reasonably foreseeable that ANI would suffer consequences in New York by Access publishing its home page. n247 Access stated twice on its home page that it could help customers "across the U.S." and it had signed up six New York subscribers. n248 Access argued that it had 7500 subscribers worldwide and only six in New York, which constituted only 0.08% of its membership. n249 These six New York customers contributed only $ 150 per month out of its monthly revenue of $ 195,000. n250 As a result, the court found that Access was trying to reach a New York market. n251

With regard to the due process analysis, the court found that Access had sufficient contacts with New York to demonstrate that it had purposefully availed itself of that State's laws. n252 Access had signed up six New York subscribers to its service and derived $ 150 a month from [*165] those subscribers. n253 Moreover, the court assumed from the information contained on Access' web site that it had mailed those six New York customers a copy of its software package and a written copy of the service agreement. n254 From this information, the court determined that Access had sought to serve a nationwide market which lent support to the inference that the New York contacts were not "random or fortuitous." n255 Finally, the court found that the other portions of the due process analysis did not prevent the exercise of jurisdiction over the defendants. n256 The court found: (1) there was a nexus between Access' contacts with New York residents and the cause of action; (2) that Access could have reasonably foreseen going to court in New York to defend itself from claims arising from the mark; and (3) that other reasonableness factors did not weigh against holding Access amenable to suit. n257

In distinguishing this opinion from the court's holding in Bensusan, n258 the court found that Access derived "substantial revenue from interstate commerce." n259 From the language on its home page, Access made clear that it was able to serve customers across the United States. n260 By enrolling six New York customers in its service, sending them software and agreements, providing them service, and receiving revenue from them, Access had made it clear that it was doing business in New York. n261

g. Blumenthal v. Drudge

In another case from the United States District Court for the District of Columbia, Blumenthal v. Drudge, n262 two White House employees ("Blumenthals") who were also District of Columbia residents, brought a defamation action against the now infamous Internet reporter Matt Drudge ("Drudge"), a State of California resident. n263 In 1995 the defendant Drudge created an electronic gossip column focusing on news from Hollywood and Washington, D.C., known as the Drudge Report. n264 Originally, [*166] Drudge distributed his column by means of his web site and by email. n265 Later, in late May or early June 1997, Drudge signed an agreement to began distributing his column over America Online, an online service provider. n266 On August 10, 1997, Drudge wrote and transmitted the edition of the Drudge Report that contained an allegedly defamatory statement about the Blumenthals. n267 After receiving a letter from the Blumenthals' counsel the next day, Drudge retracted the story. n268 The Blumenthals then brought this defamation action.

In its analysis, the court relied primarily on the District of Columbia's long-arm statute, n269 but it also claimed that the exercise of jurisdiction comported with due process. n270 Initially, the court found that [*167] Drudge's connections with the District were significant: Drudge's web site was available to D.C. residents continuously, his e-mail list was sent to D.C. residents, he solicited money from D.C. residents, he traveled to D.C. twice for interviews to promote his publication, and he had regularly been in contact with D.C. residents (via e-mail, telephone, and the U.S. mail). n271

The defendant claimed that his course of conduct was not persistent and did not specifically target the District of Columbia. n272 But the court disagreed. First, examining the case law, the court found that Drudge's web site was "interactive" rather than "passive." n273 Drudge had a web site where users could add their e-mail addresses to the service subscription list. n274 Next, the court found that subject of the column was uniquely targeted to the District. n275 As the column dealt almost exclusively with "inside the Beltway gossip and rumor," Drudge knew that the brunt of his statement would be felt in the District of Columbia. n276 Furthermore, Drudge solicited money for his Report on his web page and received money from fifteen D.C. residents. n277 Finally, the court found that Drudge had other non-Internet related contacts that made the exercise of jurisdiction reasonable. He had an interview with C-Span in Washington, D.C., a nationally distributed cable show, and visited the District of Columbia on at least one other occasion. n278 He also regularly maintained contacts with D.C. residents as the source of his column's news. n279 As a result, the court found that the Internet contacts coupled with the nonInternet contacts made the exercise of jurisdiction permissible. n280As the cases in this category illustrate, many courts are still uncertain whether electronic contacts alone can provide the minimum contacts [*168] necessary to exercise personal jurisdiction. The "something more" analysis allows courts to place a finger on the scale in favor of the exercise of jurisdiction. This "something more" analysis can quite rightly be seen as the first timid steps into the world of Internet-related contacts.

As the courts have become more comfortable applying the minimum contacts test of International Shoe to personal jurisdiction cases involving the Internet, the opinions demonstrate a reduced reliance on these affiliating factors. For example, some courts needed very little additional supporting evidence to find the exercise of jurisdiction reasonable. n281 Other times, a court went to great lengths to ensure that the alleged harm in a suit actually was felt in the district. n282 Despite these often contradictory results and the open split between the districts regarding the significance of an electronic contact, courts are beginning to find their footing in cases that involve internet-related contacts. n283

The next section showcases a number of cases which have completely severed their reliance on the affiliating circumstances. Far from being aberrational, these cases actually represent the "high-water" mark of the Internet-related contact, much like the case of McGee v. International Life Insurance. Co. was the logical outer limits of the Court's doctrine under International Shoe.

3. Electronic Contacts Alone Supporting the Exercise of Jurisdiction

a. Inset Systems, Inc. v. Instruction Set, Inc.

The United States District Court for the District of Connecticut's decision in Inset Systems, Inc. v. Instruction Set, Inc. n284 is a prime example of a broader, more expansive framework for personal jurisdiction. In that [*169] case, Inset Systems, Inc. ("Inset"), a Connecticut corporation, sued Instruction Set, Inc. ("ISI"), a Massachusetts company, for the latter's use of "Inset" as its domain name (INSET.COM) and toll-free number (1800-US-INSET). n285 Inset alleged that Instruction's domain name and tollfree number both constituted violations of federal and state trademark law. n286 The defendant ISI moved to dismiss the action for lack of personal jurisdiction and improper venue. n287 The defendant asserted that it did not have the requisite minimum contacts with Connecticut to make it amenable to suit in Connecticut. n288 It had no offices in Connecticut nor did it conduct businesses there on a regular basis. n289 Inset claimed that ISI was using the Internet and the toll-free telephone number to try to conduct business within the State of Connecticut. n290

Turning to the State's long arm analysis, the court found that ISI was soliciting business within Connecticut via its Internet advertisement and its toll-free number. n291 The court compared the near-constant availability of ISI's web site to a case in which a company placed "six franchise ads over a six-month period in a newspaper whose circulation clearly included Connecticut." n292 With regard to the durability of an Internet solicitation the court noted, "Unlike hard-copy advertisements . . . which are often quickly disposed of and reach a limited number of potential customers, Internet advertisements are in electronic printed form so that they can be accessed again and again by many more potential consumers." n293

Turning to the minimum contacts analysis, the court found that ISI "purposefully availed" itself of the privileges of conducting business within the State of Connecticut through use of its web site and a tollnumber. n294 The court compared ISI's solicitation of Connecticut residents with a case in which a company had advertised in thirty (non-Internet) publications known to have been circulated in Connecticut over the course of a year and a half, had delivered thirty allegedly infringing catalogs to Connecticut residents, and had made two sales to Connecticut residents [*170] which may or may not have been due to the solicitation. n295 In its comparison, the court noted that ISI had not only directed its advertising activities to Connecticut but "to all states." n296 In this case, ISI's solicitation could not only reach 10,000 Connecticut residents with its advertising, but moreover this advertising was available to residents "continuously." n297

Finally, the court examined the "fair play and substantial justice" factors which might have worked to limit the exercise of jurisdiction. n298 The court noted that travel from Natick, Massachusetts, to Hartford, Connecticut, was not so excessive as to render suit in the forum inconvenient. n299 In its analysis, the court engaged in a limited "something more" analysis by including mention of the 1-800 number on the web site. Courts deciding this case today would almost certainly have inquired into the actual sales or contacts with Connecticut residents. This does not make this case an aberration. Rather, it marks an early leap of faith in the application of the minimum contacts analysis to a case based on Internet-related contacts.

b. Maritz, Inc. v. CyberGold, Inc.

In Maritz, Inc. v. CyberGold, Inc., n300 Maritz, Inc. ("Maritz") brought this action against CyberGold, Inc. ("CyberGold") to enjoin the latter's alleged trademark infringement. n301 Maritz claimed that CyberGold's web site contained an allegedly infringing trademark. n302 Although CyberGold disputed that it had the minimum contacts necessary for the court to exercise specific jurisdiction, the court disagreed. It noted that the disputed web site was "continually accessible to every internet-connected computer in Missouri." n303 Moreover, the web site was primarily used for advertising and any one of 12,000 Internet users in Missouri could access the site. n304

In the long-arm portion of the analysis, Maritz suggested that the court could exercise jurisdiction using the "transaction of any business" [*171] requirement. n305 CyberGold's use of its web site to advertise its business, it argued, was analogous to the use of mass mailings to advertise a business. n306 The court disagreed. n307 Such a comparison was unnecessary as the presence of the web site satisfied the "commission of a tortious act" provision of Missouri's long-arm statute. n308 Even assuming the allegedly infringing activities were wholly outside of Missouri, the court concluded, the activities produced a tortious effect in Missouri. n309

Turning to the due process analysis, the court explained the unique properties exhibited by Internet communications and disavowed any comparisons to more traditional forms of media. n310 The court explained how the due process standards for mail or the telephone were not applicable to Internet communications. n311 While telephone numbers (such as a tollfree number) still relied on print media to advertise its existence, Internet web sites were "a tremendously more efficient, quicker, and vast means of reaching a global audience." n312 Unlike the limited information provided by toll-free numbers, Internet web sites offered a more comprehensive level of information exchange, including downloading and printing. n313 In addition, once an Internet web site had been published, anyone could find its location using a simple search. n314

In its five-part analysis of minimum contacts, the court rejected CyberGold's characterization of its activities as "merely maintaining a "passive website." n315 First, the court found that CyberGold used its web site to attract business to its service, "regardless of [the user's] geographic location." n316 CyberGold "consciously decided to transmit advertising [*172] information to all internet users, knowing that such information would be transmitted globally." n317 Secondly, based on the quantity of contacts with the State, the court found that CyberGold used its web site as a promotional tool to solicit Missouri Internet users. n318 CyberGold transmitted information regarding its web site to Missouri 131 times since the site became operational. n319 Thirdly, the cause of action arose out of the defendant's allegedly infringing activities. The defendant was using its web site to promote its upcoming service, and that web site contained the allegedly infringing trademark. n320 Finally, the court concluded that CyberGold, based on its Internet activities, should have "reasonably anticipated the possibility of being haled into court [in Missouri]." n321 Maritz and the State of Missouri had an interest in resolving the case in the State. Moreover, CyberGold did not demonstrate that it would be burdened by having to defend in Missouri. n322

c. State v. Granite Gate Resorts, Inc.

In State v. Granite Gate Resorts, Inc., n323 the Minnesota Attorney General's office sued the provider of an online wagering service, alleging that it engaged in deceptive trade practices, false advertising, and consumer fraud when it asserted that online gambling was "legal" in Minnesota. n324

Granite Gate Resorts, Inc. ("Granite Gate") was a Nevada corporation doing business as On Ramp, an Internet advertising service providing Nevada tourism information. n325 Among the advertisers on this Nevada site was WagerNet, an online wagering service. n326 Upon visiting the [*173] WagerNet home page, a user would enter his or her name into a mailing list or use a toll-free number (or a Nevada telephone number) to obtain information about the soon-to-be-available wagering service. n327 A linked web page listed the terms and conditions of becoming a member, and stated that any claim against WagerNet by a customer must be brought before a Belizian court. n328

In July 1995, an investigator from the Minnesota Attorney General's office called the toll-free number listed on the On Ramp site, and expressed an interest in subscribing to the online gambling service. n329 An On Ramp employee told the investigator to call the Nevada number, the same one listed on the WagerNet site. n330 At that number, an officer of WagerNet told the investigator that the gambling service was "legal" and would be up and running in a few months. n331 Shortly thereafter, the Attorney General's office filed suit against Granite Gate and its related companies for misrepresenting that online gambling was lawful in Minnesota. n332 Thereafter, in October 1995, the investigator subscribed to the WagerNet mailing list and received an online confirmation. n333

The defendant moved for dismissal, asserting lack of personal jurisdiction. n334 The district court granted limited discovery to determine the quantity and quality of Granite Gate's contacts with the State of Minnesota. n335 Subsequently, the defendant refused to produce the names of the persons on the WagerNet mailing list, claiming that the information was the sole property of a Belizian corporation. n336 As a sanction, the trial court found that the mailing list contained at least one Minnesota resident, n337 and eventually denied Granite Gate's motion to dismiss. n338 On appeal, the Minnesota Court of Appeals affirmed the ruling of the district court. In affirming, the appeals court applied a five-factor minimum contacts [*174] test formulated by the Minnesota Supreme Court n339 and determined that the totality of the evidence weighed in favor of asserting personal jurisdiction over Granite Gate. n340

With regard to the quantity of contacts, the court followed the United States district court's reasoning in Maritz, Inc. v. CyberGold, Inc. n341. That court found that each time a Missouri user accessed defendant's web site in California, it was conversely a transmission of information into the State of Missouri. n342 Similarly, the Granite Gate court of appeals cited with approval the findings of the Minnesota district court. Specifically, that court found that: (1) Minnesota computers had indeed accessed Granite Gate's web site, (2) during a two week period in 1996 at least 248 Minnesota computers accessed and received transmissions from Granite Gate's web site, (3) computers located in Minnesota were among the 500 most frequent accessors of Granite Gate's web site, (4) persons throughout the United States and Minnesota called Granite Gate's telephone numbers advertised on its web site, and (5) the WagerNet mailing list contained the name and address of at least one Minnesota resident. n343

Next, in its assessment of the quality of Granite Gate's contacts with Minnesota, the court noted that Granite Gate's web site amounted to advertising in Minnesota, thus subjecting them to suit in that state. n344 Although Granite Gate argued that it had not actively solicited business in Minnesota, the court noted that a web site demonstrated an affirmative intent to solicit business from all Internet users. n345 This intent to serve a broad geographic market was buttressed by the WagerNet site itself which advertised that it was "open to International markets." n346 Moreover, the fact that WagerNet had paid for advertising in English on an American commercial web site and included a toll-free number indicated [*175] an intent to reach out to and solicit business from the American market. n347

Thirdly, the court found that the cause of action arose from Granite Gate's contacts with Minnesota, the forum state. As the misleading advertisement (stating that online gambling was "legal" in Minnesota) was the source of the consumer protection action, and that advertisement was accessible in Minnesota, the court claimed the nexus requirement was satisfied. n348 In the fourth factor of the minimum contacts test, the court found that Minnesota had an interest in regulating gambling within its state and enforcing consumer protection laws. n349 Finally, with regard to the convenience of the parties, the court noted that Granite Gate would not be inconvenienced by defending itself in Minnesota. As the company itself noted on its web site, Granite Gate reserved the right to sue the customers of WagerNet in either the customer's home forum or in Belize. n350 Granite Gate argued that this fact alone should not be determinative. n351 While the court of appeals agreed, it also found that the district court did not rely on this fact alone to determine that Granite Gate would not be inconvenienced by defending suit in Minnesota. n352

Part V: Purposeful Availment vs. Reasonableness

A. Serving the Global Marketplace

As the cases above indicate, electronic media, known collectively as the Internet, has given the individual an almost incomprehensible power to communicate with a potential audience of millions. The Internet has also reduced the cost and convenience of communicating with a worldwide audience to virtually nil. Yet, this medium may carry with it the seeds of its own demise. While an individual may now be able to contact millions of people with a minimal investment, that same individual may now unwittingly expose himself to the laws of countries around the world. This puzzle is forcing courts to re-examine the touchstones of jurisdictional fairness. It also seems to have stirred up the age-old tug-of war built into the personal jurisdiction analysis between the defendant's interest in determining in which forums he may be liable to suit and the legal system's interest in determining the most convenient forum for the suit. Each interest presents its own difficulties. [*176]

With regard to electronic contacts and the minimum contacts analysis, the question becomes even more difficult. On a web site advertising a product, for example, a court may choose one of three paths. First, a court may decide that a web site will always serve as a minimum contact in any forum able to receive the message. This path would mean essentially world-wide personal jurisdiction. Realistically, it would eviscerate the protections to the defendant inherent in the minimum contacts doctrine. This path unfairly favors the interests of forum citizens over the interests of the likely defendant. Conversely, a court may also come to the opposite conclusion--that a web site might never serve as a minimum contact necessary for the exercise of personal jurisdiction. In this view, a defendant would be permitted to conduct business around the world while never being forced to defend in any jurisdiction other than its own. This path would present a major problem to individuals who had been injured by the defendant, but could not afford to pursue their claims in a distant forum. This option unfairly favors the interests of the defendant over the interests of forum citizens. Finally, there is the middle path--the case-by-case assessment. This is the path to which the courts have steered since the Supreme Court declared in International Shoe that the test for personal jurisdiction cannot be simply "mechanical or quantitative." n353 This is the path that respects existing precedent, but incorporates the changing notions of fairness to the defendant.

As has already been stated, existing personal jurisdiction precedent is still viable and provides a worthwhile model for the present-day analysis. Yet, the delicate balance of the minimum contacts analysis is shifting in very important ways and courts and practitioners should take note of two very important changes. First, courts must realize that the "purposeful availment" requirement first articulated in Hanson v. Denckla n354 might not present such a high hurdle in the information age. Secondly, and more importantly, the balance of jurisdictional analysis will increasingly shift to the second part of the due process standard--whether the exercise of jurisdiction comports with traditional notions of "fair play and substantial justice." The Internet is expanding the notion of what constitutes a "minimum contact" within the Supreme Court's analytical framework. As a result, courts will begin to measure whether the exercise of personal jurisdiction is fair to the defendant based on the "other factors" noted in such cases as Burger King v. Rudzewicz. n355 While "purposeful availment" is still a viable requirement to be strongly considered [*177] in any due process analysis, its use as a leading indicator will be greatly diminished during the information age.

The modern analysis for personal jurisdiction has undergone many alterations over the years as courts around the world seek to be fair to defendants in the face of technological change. The United States is a perfect example of how courts have adjusted their doctrines to fit with reality. The Supreme Court's decision in Hanson v. Denckla was a tremendous leap forward for the rights of defendants, requiring courts to inquire about the activities of the individual and the convenience of the forum. At that time, no one could have foreseen the changes that would develop in communications, travel and commerce. Yet, the purposeful availment standard has served courts well over the years, distinguishing between individuals who were only tangentially connected to the forum and those that had deliberately sought to serve its citizens. This is an important distinction because, as I point out in Part VI, it is still possible to serve a local market over the Internet.

With the advent of the Internet, it is as easy to serve customers around the world as it is to serve customers around the block. Make no mistake, "minimum contacts" and the "purposeful availment" standard are still viable markers when gauging whether the exercise of jurisdiction comports with due process. Yet, the minimum contacts requirement is becoming a smaller hurdle for plaintiffs to overcome. And for some intentional torts, this hurdle is nothing more than a speed bump.

By way of example, consider the diminishing importance of the minimum contacts standard based on two previously mentioned cases, Cybersell, Inc. n356 and Maritz, Inc. v. CyberGold, Inc. n357 In Cybersell, the Ninth Circuit found that Cybersell Florida had not "purposefully availed" itself of the privilege of conducting activities in Arizona and proceeded no further in the analysis. n358 In this trademark infringement action, two Florida residents set up a consulting business to help other businesses market products on the web. As part of their marketing effort, they used a web site. The web site contained the allegedly infringing trademark and a local Orlando, Florida, telephone number as well as a link by which customers could e-mail the two defendants with questions.

In finding that Cybersell Florida had not purposefully availed itself of the laws of Arizona, the Ninth Circuit found it significant that there was no evidence adduced which showed any contacts with Arizona residents, other than the plaintiffs. n359 Although Cybersell Florida's web site [*178] was accessible in Arizona, the defendants closed no deals, signed no contracts, received no telephone calls, sent no e-mail messages, and earned no income from Arizona. As a result, the court found that the defendants had made no effort to market to Arizona. Yet these factors are quite suspect when determining whether the defendants had "purposefully availed" themselves of the benefits and protections of the laws of Arizona. Many of these contacts, such as a telephone call or e-mail from Arizona by a prospective client, would have exclusively been within the control of a prospective client who might have contacted the defendants. These type of activities seem to be the type of unilateral activities which the court in Hanson v. Denckla n360 decided could not incur jurisdiction.

Compare that result with the results in Maritz. n361 In that trademark infringement action, the court found that the California defendant had "purposefully availed" itself of the benefits and privileges of the laws of Missouri. n362 The source of the trademark infringement was the defendant's web site. CyberGold had no businesses, offices, or employees in Missouri, and the only connection with the state was the fact that its web site was accessible there. n363 While the defendants did not have a toll-free number, they did have a link by which subscribers could contact the defendants and get more information about its soon-to-be-operational service. n364 The court also found it significant that there were 12,000 persons in Missouri with Internet access, and that Internet users from Missouri had accessed the defendant's web site 131 times since it became operational. n365 In its opinion, the court emphasized the durable nature of an Internet advertisement, and how comparisons to traditional forms of media were less than satisfactory. n366

When these two cases are boiled down to their essentials, it appears that the different results were determined by whether anyone from the forum state answered the web advertisement. If the defendants in Cybersell had indeed received any inquiries regarding its business from Arizona, that case may have been resolved entirely differently. More perplexing is the status of unilateral contacts. The Supreme Court made it clear that the plaintiff or a third party, by his actions, cannot render the defendant liable to suit. n367 Rather it must be the activities of the defendant which [*179] makes the contact with the forum. In each of these cases, the court's inquiry actually revolved around who answered the defendant's advertisement and what the defendant did with that information. The courts that have found the exercise of jurisdiction based on web contacts seem to emphasize the communicative power of the medium more so than those that do not. n368

Some commentators have suggested that cases such as Inset, Maritz, and Granite Gate are an aberration, well outside the boundaries of established personal jurisdiction practice. n369 But upon closer examination, they are consistent with the ever-developing laws regarding personal jurisdiction and the Internet. In these cases, one can see that the defendants were seeking to serve a national or even international clientele. For example, while the court in Inset may not have made all the possible inquiries into the electronic contacts with the forum state (e.g., how many Connecticut citizens were accessing the Massachusetts company's web site, did the defendant have any Connecticut customers, etc.), the defendant was looking to sell products to a larger audience than simply Massachusetts, as evidenced by the toll-free number. The same held true in the Maritz decision. In that case, the defendant's business was to provide access to a distributed message database--a service that could be provided to and purchased by anyone in the world. Similarly, in Granite Gate, the defendants sought to offer a betting service to a wide audience. This service was not confined by the limitations of a state's or country's boundaries. As the court found, the defendants were seeking to market their service to "international markets." n370

But in these cases, as in all personal jurisdiction analyses, this was not the end of the due process inquiry. Courts must also weigh the reasonableness of exercising jurisdiction. The Inset decision is a good example of a case in which the minimum contacts analysis and the reasonableness [*180] inquiry both strongly support the exercise of personal jurisdiction. In its due process analysis, the Inset court properly noted that the minimum requirements of "fair play and substantial justice" could still work to defeat the reasonable exercise of jurisdiction even if there were "minimum contacts" with the forum state. n371 As the distance between Connecticut and Massachusetts was minimal, the court found that the finding of minimum contacts was in line with "notions of fair play and substantial justice." n372 But, consider a case in which the minimum contact factors pointed to the reasonable exercise of jurisdiction and the "fair play and substantial justice" factors did not. What would happen then? As suggested in the next section, the Internet is raising these questions with increasing frequency.

B. The Shift to Reasonableness

To understand the push towards reasonableness is to understand the underlying forces driving this sea change in personal jurisdiction analysis. Many individuals will be making their first online purchases over the next few years. With the Internet, individuals can communicate and conduct commerce with people they have never seen and in places they have never been. And unlike a fleeting advertisement in a trade publication that happens to circulate in a state or country, this advertisement will run twenty-four hours a day, seven days a week. Paradoxically, courts are being asked to consider whether defendants can be everywhere and nowhere at once. Can a court reasonably acknowledge that a persistent, continuous advertising campaign is being run in their state or country by a foreign entity, yet deny its own residents the power to protect themselves in their own court system? While these questions may sound novel, they are not. In fact, the only new fact in this equation is the medium itself.

Courts across the country and around the world have both addressed and successfully surmounted these same situations numerous times. The only real difference is that virtually every Internet case presents a unique case near the outermost borders of the due process analysis. As states and countries become more comfortable with the Internet, these sovereign entities will increasingly find that electronic contacts meet the requirement [*181] for minimum contacts. Without adequate protections, however, defendants will most certainly suffer from this rapid expansion of the definition of minimum contacts. However, the due process analysis has provided the defendant protection under this exact scenario. The second half of the due process analysis, whether the exercise of jurisdiction comports with "traditional notions of fair play and substantial justice," provides courts with the power to protect a defendant in cases where he or she may have the requisite minimum contacts, but the exercise of jurisdiction would not be reasonable.

Recently, a United States District Court case was decided in the Northern District of California which underscores this exact approach to the personal jurisdiction analysis. In Expert Pages v. Buckalew, n373 the plaintiff ("Expert Pages"), a California corporation, brought an action in the United States District Court for the Northern District of California, against the defendant Jason Buckalew ("Buckalew"), a Virginia resident, for copyright infringement, unfair trade practices, breach of contract, trespass, and misappropriation. n374 Expert Pages was in the business of advertising litigation-related services on its web site. n375 On this site, consultants and expert witnesses paid the plaintiff a fee to be listed on the web site. In February 1997, Expert pages registered a copyright for its database. n376 The defendant, whom the court described as a "young adult," n377 created a web site that provided similar information to that included on Expert Pages' site. n378 The complaint alleged that Buckalew violated Expert Pages' copyright by making an unauthorized copy of the website for the purpose of sending e-mail messages to the persons who advertised on the site. n379 The e-mail messages allegedly disparaged Expert Pages and offered Buckalew's service as an alternative. n380 The defendant filed a motion to dismiss for lack of personal jurisdiction. n381 In its analysis, the court found that Buckalew had the requisite minimum contacts with California, but that the factors of "reasonableness" militated against exercising jurisdiction over Buckalew and the motion to dismiss was granted. n382 [*182]

In its analysis, the court found that Buckalew had minimum contacts with California because his actions were calculated to cause injury to a California company. n383 Under a Calder n384-type analysis, the court found that Buckalew had directed his actions at the State, n385 but, the court also found that the exercise of jurisdiction must accord with the reasonableness factors inherent in a due process analysis. n386 And these factors, weighted equally, did not favor the exercise of jurisdiction.

First, the court found that Buckalew had purposefully availed himself of the benefits and protections of California's laws, but only to "a very small extent." n387 However, the court found that the burden on Buckalew to defend in California against such a suit would be very high. n388 The court found that while Buckalew did have minimum contacts with California, those contacts were "barely greater than the constitutional threshold." n389 Moreover, the exercise of jurisdiction in this case would likely be determinative, because either party would face a substantial burden to litigate outside of its home jurisdiction. n390 As a result, the court found that Expert Pages, as a successful web business, was more capable of prosecuting an action in Virginia than Buckalew would be in California. n391 The court found that if the court would exercise jurisdiction, Buckalew would be "deprived of an opportunity to defend himself." n392 As Buckalew's contact with California was fairly limited, the court held that the exercise of jurisdiction would be unreasonable and granted his motion to dismiss. n393

This case, once again, raises the specter of that age-old debate in personal jurisdiction analysis regarding the power of the individual to choose where he is amenable to suit (purposefulness) and the forum's [*183] power to protect its residents (reasonableness). And, as this case demonstrates, the winner still remains to be determined.

Part VI: Serving the Local Market

Based on the aforementioned discussion, it may now appear that advertising on the Internet makes a business or individual amenable to service anywhere that their advertisement may reach. This assumption is simply untrue.

Compare a case like Bensusan n394 with a case like Zippo. n395 Both are trademark infringement suits. In Bensusan, the defendant King ran an entirely local operation in Columbia, Missouri, albeit over the Internet. n396 Although the court found that King published a web site which advertised his jazz club and that web site was accessible in New York, the defendant had not specifically targeted New York for business. n397 While the district court relied on the New York long-arm statute for much of its analysis, it did apply the due process analysis. n398 The court found that King had not purposefully availed himself of the benefits and protections of operating a business in New York. n399 This was evident from numerous facts both on and off the web site. First, the web site contained a disclaimer that King's club should not be confused with "The Blue Note" in New York. n400 Next, the web site only had a local Missouri phone number. n401 Furthermore, King had a ticketing policy which was targeted at local residents. n402 If a customer wanted to purchase tickets to a show at King's club, he would have to come to the club himself because King did not mail tickets out. n403 Finally, the court found that 99 percent of King's revenue was derived from local residents of Columbia, Missouri. n404 As a result, King was able to demonstrate, through his web site and his administrative policies, his deliberate and unambiguous attempt to market his services only to local residents. n405 [*184]

In Zippo, on the other hand, Dot Com clearly attempted to market its service over the Internet using its web site. The service was an entirely web-based service that reached out across the country and quite possibly around the world. n406 Dot Com demonstrated its willingness to take subscribers wherever they were to be found. n407 Although the court used a "something more" analysis in its opinion, finding that Dot Com had 3,000 customers in Pennsylvania and that it had contracted with three Pennsylvania Internet Service Providers, there was little doubt that it was a business relying on interstate commerce.

As these cases illustrate, it is quite possible for an individual to run a local business, even if its web site is accessible in almost every jurisdiction around the world. This fact is not complicated in the least bit by an "interactive" web site. Even if the site contains an interactive link such as that described as the middle group of the three category models proposed in Zippo, n408 such a link does not immediately confer worldwide jurisdiction.

Interactive links are the one true danger of this medium. However, the importance of an automatic link cannot be underemphasized enough. In these cases, courts should ask questions that give determinative answers: what is the cause of action alleged and whom did the defendant seek to serve or reach with its web site or Internet contact? Many times the answer is inherent in the nature of the business advertised.

In Maritz and Zippo, the business was primarily dependent upon the web site for advertising a nationwide or worldwide service. The interactive web site was used to automatically solicit and add customers to its service. The interactive nature of the web site did not make these services national or international--it was the nature of the service offered. Compare this result with cases such as Bensusan and Cybersell. In each of these cases, an interactive link adding the user's name to a mailing list may have tilted the court towards exercising jurisdiction, but it probably would not have been determinative. The reason is that these were inherently local services which could have only been provided locally. The presence of the Internet did not change that character one bit.

It is also noteworthy to consider what might have happened in some of the cases if the facts were changed slightly. In the Cybersell case, it is easy to imagine the defendants being held amenable to service in Arizona with a slight change of facts. Suppose Cybersell Florida put a tollfree [*185] number on their web site. Furthermore, suppose the defendants had been in business a little longer and had begun to receive calls and accept business from Arizona residents. At that point, it would be hard to argue that the defendants had not indeed availed themselves of the privilege of doing business in Arizona. Yet, the only difference would have been that Arizona residents had begun to respond to the advertisement which had been accessible to them. The defendant's would not have changed their marketing strategy. Instead, they would have been in business long enough to have had such a business opportunity. Similarly, in Hearst v. Goldberger, n409 the United States District Court for the Southern District of New York noted ironically that if Hearst had just waited until the defendant had begun to conduct business in the State of New York, the court would have likely been able to exercise jurisdiction based on the defendant's web site. n410

Based on the personal jurisdiction cases which have been decided by United States courts to date, some patterns appear to be emerging with regard to the Internet. These decisions point to the likely conclusion that if an individual advertises a service on the Internet, that individual should have a fairly good idea of the market he seeks to serve--either local or national. If an individual seeks to serve a local market, that individual's web site and policies should reflect that decision. While a third party or a potential plaintiff may not unilaterally cause an individual to be amenable to jurisdiction in a forum, those activities may be highly indicative. If an individual starts out serving a local market and then begins to receive offers to do business in another jurisdiction, the individual should take care that his activities are lawful in the other jurisdiction. Ancillary spillover into the nationwide or worldwide market might well lead to the exercise of national or even international personal jurisdiction, regardless of deliberate intent. [*186]

Part VII: Conclusion

With all the changes that the multifaceted Internet has brought, it still has not altered the standards or definitions of the personal jurisdiction analysis. The traditional model of personal jurisdiction extending from International Shoe is still intact. Those precedents are still good law, and should successfully guide courts well into the next century. On the other hand, the Internet is pushing the envelope with regard to the outermost boundaries of personal jurisdiction. More specifically, the Internet is challenging an individual's ability to maintain careful control over where his activities may render him amenable to personal jurisdiction. With increasing frequency, courts are being faced with factual situations where a defendant's contacts with the forum state meet the requirements of "minimum contacts," yet do not comport with traditional notions of "fair play and substantial justice" inherent in the due process analysis (or the international standard of reasonableness). Consequently, cases involving the Internet will increase pressure on this second prong of the due process analysis and courts should use this prong to successfully protect defendants.

FOOTNOTES:

n1 The Internet can best be described as an intangible network of networks interconnecting millions of computers around the world. See discussion of the Internet, infra PART II.

n2 See Edward A. Cavazos & Gavino Morin, Cyberspace and the Law: Your Rights and Duties in the On-Line World 1 (1993) (defining "cyberspace"). The term "cyberspace" was originally coined in the early 1980's by science-fiction writer William Gibson in his award-winning science fiction novel, Neuromancer. See id. Today, the word "cyberspace" more commonly refers to the collection of on-line virtual communities as a whole. See William S. Byassee, Jurisdiction of Cyberspace: Applying Real World Precedent to the Virtual Community, 30 Wake Forest L. Rev. 197, 199 n.5 (1995) ("s commonly used today, cyberspace is the conceptual "location' of the electronic interactivity available using one's computer.").

n3 See David R. Johnston & David Post, Law and Borders--The Rise of Law in Cyberspace, 48 Stan. L. Rev. 1367, 1370-71 (1996) ("Cyberspace has no territorially based boundaries, because the cost and speed of message transmission on the Net is almost entirely independent of physical location. Messages can be transmitted from one physical location to any other location . . . without any physical cues or barriers that might otherwise keep geographically remote places and people separate from one another."); see also Byassee, supra note 2, at 198 n.5 ("Cyberspace is a place "without physical walls or even physical dimensions' in which interaction occurs as if it happened in the real world and in real time, but constitutes only a "virtual reality."' (quoting Lawrence H. Tribe, The Constitution in Cyberspace: Law and Liberty Beyond the Electronic Frontier, The Humanist, Mar. 26, 1991, at 15)).

n4 See Byassee, supra note 2, at 199 (stating that although cyberspace transcends geographical boundaries, "it cannot exist independently of the real world"); see also Erik J. Heels & Richard P. Klau, Let's Make a Few Things Perfectly Clear: Cyberspace, the Internet, and That Superhighway, Student Lawyer, May 1995, at 17 ("Never forget that the Internet is simply a bunch of interconnected wires, with computers at the ends of the wires, and with people in front of the computers.").

n5 In the United States, the Due Process Clause provides the outermost limits for the exercise of personal jurisdiction. U.S. Const. amend. XIV, ß 1, cl. 3. For the exercise of personal jurisdiction over foreign defendants, reasonableness is the guiding standard under the Restatement (Third) of the Foreign Relations Law of the United States. For a more detailed discussion, refer to Part III A, infra.

n6 326 U.S. 310 (1945).

n7 95 U.S. 714 (1877).

n8 Warning to All Internet Users and Providers, Mem. Minn. Att'y Gen. (visited May 14, 1999) http://www.ag.state.mn.us/home/consumer/consumernews/onlinescams/memo.html [hereinafter Minnesota Memorandum]. The assertion of jurisdiction rested on the Minnesota general criminal statute which provides that "a person may be convicted and sentenced under the law of this State if the person. . . (3) Being without the state, intentionally causes a result within the state prohibited by the criminal laws of this state." Minn. Stat. Ann. ß 609.025 (West 1987).

n9 See Mark Eckenwiler, States Get Entangled in the Web, Legal Times, January 22, 1996, at S35.

n10 See id..

n11 Id.

n12 League of Nations, Committee of Experts for the Progressive Codification of International Law, Report to the Council of the League of Nations (1926).

n13 See Eckenwiler, supra note 9.

n14 The power to enforce presupposes jurisdiction to enforce. See Restatement (Third) of the Foreign Relations Law of the U.S. ß 432 Introductory note (1987). [hereinafter Restatement]

n15 State v. Granite Gate Resorts, Inc., 1996 WL 767431 (Minn. Ramsey County Dist. Ct. Dec. 11, 1996), aff'd, 568 N.W. 2d 715 (Minn. Ct. App. 1997), aff'd by an equally divided state supreme court, 576 N.W. 2d 747 (Minn. 1998).

n16 See Tom Lander, The French Say Non to English Language Website, (visited May 14, 1999) http://www.wired.com/news/story/911.html.

n17 The Toubon Law was enacted on July 1, 1994. See Law No. 94-665 of Aug. 4, 1994, Relative a l'emploi de la lengue francaise. J.O., Aug. 5, 1994 [hereinafter Toubon Law]. Article 2 requires the use of French for the name, offer, presentation, or instruction of goods, including any written, spoken, or audio-visual advertising. Slogans and messages associated with registered trademarks are also encompassed by Article 2. See Stacy Amity Feld, Language and the Globalization of the Economic Market: The Regulation of Language as a Barrier to Free Trade, 31 Vand. J. Transnat'l L.153, 167 (1998).

n18 The Georgia Tech-Lorriane web site was located on a French web server and had a French domain name: http://www.georgiatech-metz.fr/. See French Internet Suit Dismissed English-Only Web Site Illegal, Groups Charge, Chicago Tribune, June 10, 1997, at 1, available in 1997 WL 3557201.

n19 Id. See also Tom Ladner, The French Say Non to English-Language Web Site, (visited November 14, 1999) http://www.wired.com/news/story/911.html.

n20 Id.

n21 Id.

n22 See Chicago Tribune supra note 18.

n23 See Feld, supra note 17, at 171.

n24 See Chicago Tribune, supra note 18.

n25 See id.

n26 See id. at 171 n. 88. See also Multimedia Docket Sheet: Recent and Pending Cases, Multimedia and Web Strategist, June 9, 1997, at 8, available in LEXIS, News Library, NWLTRS File. Additionally, it was reported that the suit was dismissed because the prosecuting organization was not authorized to bring such a claim on behalf of the government.

n27 See Feld, supra note 17, at 170 n.89.

n28 The forerunner of the Internet was created in the summer of 1969 by the Department of Defense's Advanced Research Project Agency ("DARPA"). Originally termed the "RPANET," this network linked defense researchers with remote computer centers, allowing them to share hardware and software resources such as computer disk space, databases, and computers. As the Internet continued to grow, the National Science Foundation subsumed the project when it contracted with private corporations to upgrade and expand the national network to create the National Science Foundation Network ("NSFNet"). NSFNet was intended for non-commercial use by research and educational institutions. See Tracy LaQuey, The Internet Companion 3-6 (1993). For one of the best descriptions of the Internet and its inception, see ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996) [hereinafter ACLU]. Today an estimated 40 million people have access to the Internet, and 60 percent of those computers are located in the United States. The government has speculated that the number of users will grow to 200 million by the year 1999. See ACLU, 929 F. Supp. at 831; See also Shea v. Reno, 930 F. Supp. 916, 926 (S.D.N.Y. 1996). At least 75 countries have full Internet access, and another 77 countries can send and receive e-mail. The Internet Affects All Areas of Modern Life, Online Product News, May 1995, available in LEXIS, Market Library, IACNWS File. For a comprehensive discussion of the Internet and its origins, see generally Peter H. Salus, Casting the Net (1995); Edwin Diamond & Stephen Bates, The Ancient History of the Internet, Am. Heritage, Oct. 1995, at 34-35.

n29 See ACLU, 929 F. Supp. 831.

n30 See id. at 831-32.

n31 See id.

n32 See id. at 832-33.

n33 Id. at 831. Host computers are the computers which are permanently linked to the Internet. The host computers do not give an actual indication as to the real number of users because a university or a corporation might count as a single host.

n34 Global Internet Statistics (by Language) (visited May 14, 1999) http://www.euromktg.com/globalstats/.

n35 ACLU, 929 F. Supp. at 834.

n36 Id. at 835.

n37 Id.

n38 Id.

n39 "[The World Wide Web] is currently the most advanced information system deployed on the Internet." An Executive Summary of the World Wide Web Initiative (visited May 14, 1999) http://www.w3.org/pub/www/summary.html. The information contained in these documents, called "Web pages," can be stored in different formats such as text, sound, graphics, or video. Each Web page has its own "address" indicating on which "server" computer the page is stored. Web pages often contain "links," which are highlighted sections of text or images that refer to a related Web page. See id. When a person viewing the Web page "clicks" on the link (or selects the link with a mouse), the browser automatically contacts the server upon which the selected page is stored and allows the user to view the linked Web page. See id. The World Wide Web is the creation of a European think tank, Conseil European pour la Recherche Nucleaire ("CERN") made up of computer scientists, for the purpose of facilitating the work of physics researchers. Bryan Pfaffenberger, Publish It on the Web 32-33 (1996).

n40 See Johnston & Post, supra note 2 at 1370-71 ("Cyberspace has no territorially based boundaries, because the cost and speed of message transmission on the Net is almost entirely independent of physical location. Messages can be transmitted from one physical location to any other location . . . without any physical cues or barriers that might otherwise keep geographically remote places and people separate from one another."); see also Byassee, supra note 2, at 198 n.5 ("Cyberspace is a place "without physical walls or even physical dimensions' in which interaction occurs as if it happened in the real world and in real time, but constitutes only a "virtual reality." (quoting Lawrence H. Tribe, The Constitution in Cyberspace: Law and Liberty Beyond the Electronic Frontier, The Humanist, Mar. 26, 1991, at 15)).

n41 See Johnston & Post, supra note 3, at 1400-02 (arguing that "cyberspace" has created new spaces without territorial boundaries in which a distinct set of rules applies).

n42 See Byassee, supra note 2, at 199 (stating that although cyberspace transcends geographical boundaries, "it cannot exist independently of the real world"); see also Erik J. Heels & Richard P. Klau, Let's Make a Few Things Perfectly Clear: Cyberspace, the Internet, and That Superhighway, Student Lawyer, May 1995, at 17 ("Never forget that the Internet is simply a bunch of interconnected wires, with computers at the ends of the wires, and with people in front of the computers.").

n43 See Ryan Yagura, Does Cyberspace Expand the Boundaries of Personal Jurisdiction, 38 IDEA: J. L. & Tech. 301, 302 (1998).

n44 See Andrew L. Strauss, Where America Ends and the International Order Begins: Interpreting the Jurisdictional Reach of the U.S. Constitution in Light of a Proposed Hague Convention on Jurisdiction and Satisfaction of Judgments, 61 Alb. L. Rev. 1237 (1998) (discussing the prospects of a Hague Convention to develop standards for personal jurisdiction in international cases) [hereinafter Strauss, Hague Convention].

n45 Andrew L. Strauss, Beyond National Law: The Neglected Role of the International Law of Personal Jurisdiction in Domestic Courts, 36 Harv. Int'l L. J. 373, 386-87 (1995) [hereinafter Strauss, Neglected Role]. This note examined four Supreme Court cases in the minimum contacts era: Perkins v. Benguet Consolidated Mining Company, 342 U.S. 437 (1952); Insurance Corporation of Ireland, Ltd., v. Compagnie Des Bauxites De Guinee, 456 U.S. 694 (1982); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984); and Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987).

n46 See Strauss, Neglected Role, supra note 44 at 375 n.9.

n47 Id.; see also Restatement, supra note 14 ß 401 cmt. a (1987).

n48 Restatement, supra note 14 ß 401 cmt. a. The Restatement divides the exercise of jurisdiction over a foreign defendant into three different categories: jurisdiction to prescribe, jurisdiction to adjudicate, and jurisdiction to enforce. These roughly fall along the traditional divisions of government--namely, the legislative, judicial, and executive branches. However, the fit is not exact and it is important to note that power of jurisdiction over foreign parties differs significantly from that over domestic parties. As it is used in the Restatement and this Comment, the three categories of jurisdiction will be described by the following: (a) jurisdiction to prescribe, i.e., the authority of a state to make its laws applicable to persons or activities; (b) jurisdiction to adjudicate, i.e., the authority of a state to subject particular persons or things to its judicial process; and (c) jurisdiction to enforce, i.e., the authority of a state to use the resources of government to induce or compel compliance with its law. These categories of jurisdiction are often interdependent.

n49 Id., at ß 401(b).

n50 Id.

n51 Id., at ß 421(1). This section of the Restatement states, "(1) A state may exercise jurisdiction through its courts to adjudicate with respect to a person or thing if the relationship of the state to the person or thing is such as to make the exercise of jurisdiction reasonable." According to subsection (2) of section 421 of the Restatement, a state's exercise of jurisdiction to adjudicate is generally reasonable, if at the time jurisdiction is asserted:

1. the person or thing is present in the territory of the state, other than transitorily;

2. the person, if a natural person, is domiciled in the state;

3. the person, if a natural person, is resident in the state;

4. the person, if a natural person, is a national in the state;

5. the person, if a corporation or comparable juridical person, is organized pursuant to the law of the state;

6. a ship, aircraft or other vehicle to which the adjudication relates is registered under the laws of the state;

7. the person, whether natural or personal, has consented to the exercise of jurisdiction;

8. the person, whether natural or juridical, regularly carries on business in the state;

9. the person, whether natural or juridical, had carried on activity in the state, but only in respect to such activity;

10. the person, whether natural or juridical, had carried on outside the state an activity having a substantial, direct, and foreseeable effect within the state, but only in respect of such activity; or

11. the thing that is the subject of adjudication is owned, possessed, or used in the state, but only in respect of a claim reasonably connected with that thing. Restatement ß 421(2).

n52 326 U.S. 310, 316 (1945). In International Shoe, the Supreme Court first enunciated what was to become the modern standard for personal jurisdiction analysis. "Due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice."' See Gary B. Born, Reflections on Judicial Jurisdiction in International Cases, 17 Ga. J. Int'l & Comp. L. 1, 35-36 (1987). Noting that transitory presence, for instance, is not a sufficient basis for the exercise of jurisdiction to adjudicate under international law, see Restatement, supra note 14, ß 421 cmt. e; even though "tag" jurisdiction may be in accordance with U.S. law. Cf. Burnham v. Superior Ct. of Cal., 495 U.S. 604, 615 (1990) (Scalia, J.) ("We do not know of a single state or federal statute, or a single judicial decision resting upon state law, that has abandoned in-state service as a basis of jurisdiction. Many recent cases affirm it.")

n53 Born, supra note 52, at 36.

n54 International Shoe, 326 U.S. at 319.

n55 95 U.S. 714 (1877).

n56 Id. at 722.

n57 Id.

n58 Writing for the Court in Pennoyer, Justice Field was greatly influenced by the theories of Joseph Story. See Hazard, A General Theory of State-Court Jurisdiction, 1965 Sup. Ct. Rev. 241, 262. Story urged a strong relationship between territory and legal authority. One of the ideas he advanced was that the geographical origin of case facts determined whether legal authority existed. This idea gained increased cache during the second half of the nineteenth century. See Gene R. Shreve & Peter Raven-Hansen, Understanding Civil Procedure ß 12A at 43 (2nd ed. 1994).

n59 Pennoyer, 95 U.S. at 727 ("Process from the tribunals of one State cannot run into another State").

n60 See id. at 733.

n61 See id.

n62 326 U.S. 310 (1945).

n63 Id. at 316.

n64 Id. at 318.

n65 Id.

n66 Id. at 317.

n67 Id. This second prong of the analysis, which received only glancing treatment in International Shoe, would live on in later opinions. This theory focused on the logic or convenience of a forum. The Court fleshed out the logic/convenience theory in Traveler's Health Ass'n v. Virginia, 339 U.S. 643 (1950). In that case, defendant Travelers sold insurance in Virginia without registering as required by state law. Virginia sued for an order forbidding Travelers from doing business in the state. Travelers was served by mail in its home state of Nebraska. The corporation appeared specially to challenge jurisdiction in Virginia. Virginia's highest court upheld jurisdiction over Travelers and the United States Supreme Court affirmed, holding the result to be "consistent with fair play and substantial justice" and "not offensive to the Due Process Clause." Id. at 649. The Court found that the "state has a legitimate interest in all insurance policies protecting its residents against risks," id. at 647, an interest sufficient to support personal jurisdiction even if the defendant cannot be found and served within the forum state. In addition, Travelers expanded upon International Shoe's suggestion that courts address the actual degree of inconvenience to the defendant when evaluating minimum contacts in each case. The Court indicated that an examination of both sides of the convenience question might be in order, and that the inquiry might be expanded to take into account reasons why the present forum might be more convenient to plaintiff. Id. at 649.

n68 Id. at 320.

n69 See McGee v. Int'l Life Ins. Co., 355 U.S. 220 (1957) (finding the exercise of jurisdiction by a California state court over a Texas insurance company to be permissible although the insurance company neither solicited nor conducted business in California, except for the single policy with McGee, and its only contact with the state was the single policy with McGee).

n70 357 U.S. 235 (1958).

n71 Dissenting from the Court's refusal to permit personal jurisdiction, Justice Black argued the logic/convenience theory--that Florida would be a logical and convenient place for the lawsuit. "Florida, the home of the principal contenders for Mrs. Donner's largess, was a reasonably convenient forum for all." 357 U.S. at 259 (Black, J., dissenting). The majority found that it was unnecessary to even reach that question of the logic or convenience of the forum because there were no minimum contacts between the defendant and the forum state. See id. at 251

n72 See id. at 253. "The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State." Id. Hanson was a complicated case involving a nonresident trust based in Delaware. In that case, the two factions fought over distribution of a $ 400,000 estate. The Denckla group claimed that the money passed to them through the decedent's will. The Hanson group claimed that the funds were not affected by the will because they were the subject of a trust (with the Hanson group as beneficiaries) created by the decedent before her death. The Denckla group brought suit in Florida to have the trust declared invalid. Most of the Hanson-group defendants were Florida domiciliaries and were served there. However, the Delaware-trustee defendants were foreign corporations who maintained no office in Florida and had to be served out-of-state by mail. The Florida Supreme Court eventually declared the trust invalid. It also ruled that personal jurisdiction existed over two Delaware trust companies, defendants in the case who had been appointed trustees for the disputed trust. On review, a narrowly divided Supreme Court disagreed, finding that the Florida courts lacked personal jurisdiction over the trustees. Although the settlor and most of the appointees and beneficiaries of the trust were domiciled in Florida, this still did not unilaterally move the Delaware trustee in charge of the trust to Florida. Thus, the Court found the exercise of jurisdiction impermissible.

n73 See id. at 253. The Hanson Court entertained the possibility that the facts of the controversy might so involve Florida State interests as to justify application of Florida law, but instead found that Florida "does note acquire [] jurisdiction by being the "center of gravity' of the controversy, or the most convenient location for litigation. The issue is personal jurisdiction, not choice of law." Id.

n74 See id. at 253. "The application of that rule will vary with the nature and quality of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Id.

n75 Id.

n76 444 U.S. 286 (1980).

n77 Id.

n78 See id. at 298-299.

n79 See generally id. at 295-98.

n80 See id. at 297.

n81 See id. ("The Due Process Clause, by ensuring the "orderly administration of the laws,' gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where the conduct will and will not render them liable to suit.") (citation omitted). Id. at 297.

n82 Id. at 295.

n83 Id. at 297.

n84 Id. at 299.

n85 Id. at 297.

n86 See id.

n87 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985).

n88 Id. at 478.

n89 Id. at 477. Most of the balancing factors mentioned in Burger King previously appeared as factors to be considered in a "reasonableness" analysis. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980) [hereinafter World-Wide Volkswagen]. Factors two through five appeared as factors to be weighed against the burden on the nonresident defendant of defending suit in a foreign jurisdiction. These factors in World-Wide Volkswagen are clearly a surviving remnant of the logic/convenience analysis begun in International Shoe and continued in Hanson. See supra note 71. However, when these factors reappeared in Burger King in a "fair play and substantial justice" analysis, the Court had added factor one, "burden to the defendant," to the list of countervailing factors to be weighed against the minimum contacts. See Burger King v. Rudzewicz, supra note 87, at 476.

n90 Id. at 487.

n91 Asahi Metal Indus. Co. v. Supreme Court of California, 480 U.S. 102 (1987).

n92 Only the Chief Justice and Justices Powell and Scalia joined Part II-A of Justice O'Connor's opinion which concluded that the California forum lacked the minimum contacts to exercise personal jurisdiction over the defendant. See id. at 105. Justice Brennan (joined by Justices White, Marshall, and Blackmun) argued in a concurring opinion that there were minimum contacts. See id. at 116. Justice Stevens (joined by Justices White and Blackmun) suggested in another concurring opinion that California may have had minimum contacts, but it was unnecessary for the Court to rule on this issue. See id. at 121.

n93 See id. at 113-16.

n94 Id. at 113.

n95 Four Justices (Justice O'Connor, joined in the majority opinion by the Chief Justice, and Justices Powell and Scalia) believed that mere foreseeability or awareness that a product would enter into the stream of commerce was not an act purposefully directed at the forum state. In fact, Justice O'Connor believed that some additional conduct was required by the defendant to indicate an intent or purpose to serve the marketplace. See id. at 112. Four other Justices (Justice Brennan, joined by Justices White, Marshall, and Blackmun) suggested in a concurring opinion that the "additional conduct" requirement suggested by Justice O'Connor's opinion was an unnecessary addition to the stream of commerce analysis. As long as a defendant was aware that the final product was being marketed in a forum State, the possibility of a lawsuit there could not come as a surprise. In such a case, the defendant had clearly inured himself of the benefits of that State's laws and it would not be unfair to subject the defendant to jurisdiction there. See id. at 117.

n96 In this case, the California Court may have had minimum contacts over a nonresident defendant, yet was unable to exercise personal jurisdiction without offending notions of "fair play and substantial justice." Even to the Court this case seemed an anomaly. See id. at 116 ("one of those rare cases.") (Brennan, J., concurring).

n97 International Shoe Co. v. Washington, 326 U.S. 310, 319 (1945).