Server Awareness Generates Internet Personal Jurisdiction

Internet server information constitutes a basis for intentional availment and in turn Internet personal jurisdiction.

December 27, 2022   New Jersey Law Journal

By Jonathan Bick | Jonathan Bick is counsel at Brach Eichler in Roseland, and chairman of the firm’s patent, intellectual property and information technology group. He is also an adjunct professor at Pace and Rutgers law schools.

The Internet has intensified the Court’s efforts to apply traditional minimum contact tenets to personal jurisdiction. Since International Shoe v. Washington, 326 U.S. 310 (1945), where the court extended the application of personal jurisdiction to any matter wherein a defendant has minimum contacts with the jurisdiction, so long as fair play and substantial justice are maintained. Consequently, personal jurisdiction may arise when Internet users intentionally avail themselves of access to Internet servers associated with specific jurisdictions. More specifically, Internet server information constitutes a basis for intentional availment and in turn Internet personal jurisdiction.

Internet transactions, including publishing, telecommunications, and broadcasting, may differ depending on their type and protocol configuration. However, each transaction requires Internet servers. These servers may be located both inside and outside the Internet users’ jurisdiction. When an Internet user is aware of intentionally using a server to facilitate an Internet transaction outside their jurisdiction, such awareness resulting in sufficient purposeful availment creates personal jurisdiction.

Traditional Internet servers, Proxy Servers and Virtual Private Networks (VPNs) servers each result in different types of Internet protocol operations. Nevertheless, the use of any type of Internet server will result in one of three communications. The first result is the use of the Internet server to target specific geographic areas in order to obtain and distribute content.

The second result is the use of the Internet server to target specific geographic areas, but learn with whom they have targeted once their connections are made. The third result is to use the Internet server and neither intend to learn nor actually learn with whom they have communicated.

The International Shoe v. Washington Court found that personal jurisdiction is only consistent with due process when it comports with “traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Thus, a party must purposefully avail itself of the privilege of conducting activities in specific jurisdiction, generally by benefiting from the laws of said jurisdiction in order to properly give raise to personal jurisdiction.

The International Shoe Court ruled that physical presences in a jurisdiction was not required for personal jurisdiction. However, various courts have found various Internet transactions will be more likely to result in personal jurisdiction than others. See, e.g., Zippo Mfg. Co. v. Zippo Dot Com, 952 F. Supp. 1119 (1975). More specifically, likelihood that personal jurisdiction will arise is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet.

The Zippo case attempted to quantify purposeful availment through electronic contact. More precisely, the Zippo court divided Internet activities into three kinds—active, passive, and interactive. An “active” Internet use is one which deliberately makes extensive use of the Internet, such as where it enters into contracts with residents of a different jurisdiction (personal jurisdiction applicable). A passive Internet use was only informational and no solicitations were made (personal jurisdiction not applicable). The middle ground, under Zippo Dot Com, was that the Internet use was “interactive” and the level of commercial was neither active nor passive (personal jurisdiction determined on a case by case basis).

The Zippo sliding scale has been cited by a number of district courts. However, the Best Van Lines v. Walker, (490 F.3d 239 (2007) rejected the universal application of the Zippo sliding scale and found that interactivity of an Internet site website should be used only to help determine purposeful availment, rather than relying solely on the presence of the website to make its determination. In short, rather than asking how interactive the website was, the Court suggested asking if the interconnectivity enabled the company to purposefully avail itself of the forum state.

Purposeful availment must be assessed for purposes of the application of personal jurisdiction to an Internet user. Moreover, purposeful availment is directly related to an Internet user’s awareness of the location of the other parties associated with particular Internet transactions. Thus, a determination as to whether the location of the server through which the user connects when using either a VPN or a proxy server, is normally sufficient for the application of personal jurisdiction.

An Internet user may become aware of the location of the server through which the user connects when using either a VPN or a proxy service. Specifically, a VPN server might make that determination due to a screen display. Alternatively, an Internet user might intentionally select a particular jurisdiction for the purpose of viewing geographically restricted content. In any case, both outcomes would result in personal jurisdiction.

In particular, if the Internet user sees the server location on their display, then the J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873 personal jurisdiction test would be applicable. If the Internet user selects a jurisdiction, then the Calder v. Jones, 465 U.S. 783 (1984) personal jurisdiction test would be applicable.

More specifically, the Court found in McIntyre that the focus of the analysis must be on a “defendant’s actions, not … expectations,” when determining whether personal jurisdiction is satisfied. See id. at 883. Similarly, the Court in Calder found that the intentional choice to route an internet connection through a particular state will satisfy the intentional conduct standard.

Consequently, much uncertainty as to the application of personal jurisdiction may be resolved by the determination of an Internet user’s factual awareness of the server enabling said Internet user. It is clear that an intentional choice is indicative of purposeful availment.

This conclusion is further supported by the Court’s findings in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) which supports the application of personal jurisdiction based on foreseeability. Individuals with awareness of VPN or proxy information/knowledge are, in fact, on notice of the intentionality of specify jurisdictional targeting. Said intentionality seems to per se amount to foreseeability under World-Wide Volkswagen.