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Alan M. Trammell & Derek E. Bambauer, Personal Jurisdiction and the “Interwebs,” 100 Cornell L. Rev. 1129 (2015).

Conduct channeled through cyberspace can cause harm in physical space. That leakage across a conceptually amorphous border has befuddled courts attempting to adapt personal jurisdiction doctrine to the Internet. At least two distinct problems have combined to produce an inconsistent and unstable jurisprudence. First, the Internet is a buffer between the defendant and the forum. This technological intermediary diffuses the defendant’s geographic reach, complicating analysis of the defendant’s contacts and purpose. Second, activity on the Internet often leads to intangible harm, such as a sullied reputation or devalued trademark. These intangible injuries can manifest in places that are difficult to predict ex ante and to identify ex post.

Accordingly, the Internet creates spatial indeterminacy in a legal context that reifies geographic boundaries. Many courts have reacted by trying to tame complexity with an ostensibly elegant tripartite framework for analyzing jurisdiction. The “Zippo test”—named after an influential yet often-criticized district court decision—posits that jurisdiction based on Internet contacts depends on pigeonholing websites into categories. A “passive” website that merely provides content is a weak basis for jurisdiction, while jurisdiction usually exists over websites that are commercial platforms for repeated transmission of files. Between these extremes are “interactive” sites that require a context-sensitive inquiry into the nature of the interactions.

Alan Trammell and Derek Bambauer’s recent article Personal Jurisdiction and the “Interwebs” eviscerates the Zippo test and similarly stilted efforts to apply personal jurisdiction doctrine to the Internet. Trammell and Bambauer focus on two pathologies that have undermined judicial reactions to suits arising from Internet activity: the tendency of novel technology to “bedazzle[] and bewitch[]” observers, and an emphasis on spatializing virtual conduct rather than addressing the broader problem raised by activity that causes intangible injuries. The result is a jurisdictional inquiry that appears “beautifully simple,” yet is both “superficial” and “indeterminate.”

The article addresses the first pathology by contending that Zippo allows complex technology to obscure the underlying purpose of constraints on personal jurisdiction. The Internet seems unique because it streamlines the transfer of information and facilitates new forms of interaction. Zippo’s tripartite framework reacts to this apparent novelty by fixating on the transmission of files and interaction between Internet users, thus appearing to adapt old doctrine to a new context. But as Trammell and Bambauer explain, the test is superfluous, misleading, and arbitrary. In cases involving extensive commercial activity over the Internet, Zippo is superfluous because prior doctrine addressing “purposeful availment” could adapt to commerce through novel technological means. In cases involving noncommercial activity, Zippo is misleading because it implies that Internet activity is often insufficient to warrant jurisdiction despite the fact that pre-Internet caselaw upheld jurisdiction in many noncommercial disputes. And in both commercial and noncommercial cases, an extensive inquiry into a website’s “interactivity” produces an arbitrary result unmoored from values that animate constitutional limits on state authority.

The Zippo test survives not because it is sensible, but because it provides a “false hope” of rigor for judges seeking to navigate a confusing technological landscape. Indeed, the authors make the interesting observation that the first federal court of appeals to reject Zippo—the Ninth Circuit, “the court with jurisdiction over Silicon Valley”—was likely the circuit with the least anxiety about confronting technological innovations.

The article addresses the second pathology by contending that courts mistakenly focus on aspects of the Internet that are unique rather than traits the Internet shares with other technologies. Courts analyzing jurisdiction in Internet cases devote inordinate effort to considering where conduct occurs. Trammell and Bambauer argue that this is a fruitless exercise because the Internet diffuses activity across geographic borders. Conduct clearly occurs at the location where a person creates content or files disseminated through the Internet, but identifying other locations as salient to jurisdiction seems arbitrary. A natural response to their argument is that one particular location is not arbitrary: the place where an injury occurs. But identifying the place of injury is difficult when the harm is intangible. When the location of injury is intangible, Internet cases are similar to non-Internet cases. For example, regardless of the technology used to defame a person or infringe a trademark, identifying the locus of a person’s reputation or intellectual property requires a theory of how intangible interests map onto physical space. Accordingly, the authors argue that Internet cases are difficult not because the Internet uniquely obscures the location of conduct, but because the Internet is the latest technology to raise the vexing question of where intangible injuries occur.

Having shifted the focus from the location of Internet activity to the location of intangible injuries, Trammell and Bambauer propose a new test. The test relies on what they identify as three “first principles” of personal jurisdiction doctrine: the exercise of state power should not be arbitrary, jurisdiction should be predictable, and the forum should be fair for the defendant. The authors also contend that jurisdictional rules should be “efficient.” From these principles, the authors derive a rule: “Internet-based contacts should rarely, if ever, suffice for personal jurisdiction.” For example, jurisdiction would not exist in the plaintiff’s home state based merely on the local availability of a website infringing a trademark. In contrast, if a seller uses the Internet to facilitate sales of tangible objects to a buyer in the forum, jurisdiction would exist because the physical delivery of goods to the forum would be a relevant contact even if the web-based sales platform is not.

The article makes an important contribution to the literature by pinpointing why the Internet raises difficult personal jurisdiction problems. Courts and commentators have struggled with Internet cases in part because the Internet is often a red herring. When a case involves physical injuries in the forum, the fact that the Internet facilitated the conduct leading to those injuries may be irrelevant because doctrine pre-dating the Internet is available to assess the nexus between conduct and physical harm. In contrast, when a case involves intangible harm, the difficult question is: where did the injury occur? If the harm cannot plausibly be localized, then the fact that the case involves Internet contacts highlights the defendant’s tenuous contact with the forum. In this scenario the use of the Internet does not create a new problem, but rather places an old problem into starker relief. Academic and judicial attention should therefore focus on the older problem by considering how personal jurisdiction doctrine should apply in cases involving intangible harm. That inquiry can, in turn, provide insights that make the newer problem about Internet contacts less confusing.

The authors’ proposals are carefully reasoned, but there is room for debate because the article’s rejection of jurisdiction based on Internet contacts rests on three contestable conclusions. First, the article assumes that localizing intangible harm is difficult. Yet one can imagine arguments that particular types of intangible harms are experienced most acutely in the place where a victim resides or is domiciled, as are many tangible harms. If so, then a distinction between tangible and intangible injuries should not be the basis for a blanket rule deemphasizing Internet-based contacts. Second, if an intangible harm can be localized, then jurisdiction would often be appropriate under precedent considering whether the defendant “aimed” at and caused “effects” in the forum. The authors briefly recommend overruling the effects test, which partially rests their critique of Internet-based jurisdiction on the viability of a broader critique of modern personal jurisdiction jurisprudence.

Finally, some theories of personal jurisdiction (including mine) do not emphasize predictability and efficiency as heavily as this article does, instead placing greater weight on the forum state’s interest in facilitating local adjudication. For example, the article suggests that if a hacker intentionally copies private data from a server in the forum, jurisdiction would not be appropriate because hackers are often “indifferent” to or may not know the server’s location. However, an alternative theory would posit that if a person intentionally hacks into servers without knowing or caring where they are located, he assumes the risk of being sued in the state where injury occurs. (For a non-Internet version of the assumption of risk scenario, imagine that the owner of a small pharmaceutical company sneaks into a competitor’s plant and intentionally adds poison to a bottle of cough syrup with the intent of killing a consumer, but without knowing or caring where the bottle will be sold. Should the poisoner’s geographic indifference immunize him from jurisdiction in the state where the victim purchases and consumes the poison?)

Trammell and Bambauer have developed a thoughtful critique of how current personal jurisdiction doctrine addresses the Internet. Further scholarship will benefit from their distinction between the location of Internet activity and the location of its intangible consequences.

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Cite as: Allan Erbsen, Personal Jurisdiction Based on Intangible Harm, JOTWELL (November 16, 2015) (reviewing Alan M. Trammell & Derek E. Bambauer, Personal Jurisdiction and the “Interwebs,” 100 Cornell L. Rev. 1129 (2015)), http://courtslaw.jotwell.com/personal-jurisdiction-based-on-intangible-harm/.