Minimum virtual contacts: A framework for specific jurisdiction in cyberspace

Abstract

As the ubiquity and importance of the internet continue to grow, courts will address more cases involving online activity. In doing so, courts will confront the threshold issue of whether a defendant can be subject to specific personal jurisdiction. The Supreme Court, however, has yet to speak to this internetjurisdiction issue. Current precedent, when strictly applied to the internet, yields fundamentally unfair results when addressing specific jurisdiction. To better achieve the fairness aim of due process, this must change. This Note argues that, in internet tort cases, the “express aiming” requirement should be discarded from the jurisdictional analysis and that courts should instead consider a defendant’s technological sophistication and the frequency with which a defendant engages in tortious conduct. These factors should guide courts’ determinations about whether a defendant has established “minimum virtual contacts” with a forum state. Additionally, courts should simplify the reasonableness factors articulated in cases like Burger King and apply this simplified reasonableness test seriously. This minimum virtual contacts standard is more flexible and therefore better suited to adapt to the changing technological landscape, analyze close cases, and achieve fair outcomes.