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					TARGETS

Margaret Stewart



Five years ago, an eternity in cyber-time, a law review article raised the question of
whether traditional, geographically based notions of jurisdiction could provide any
reasonable or predictable results when acts with legal significance occurred in
cyberspace.1 The issue continues to bedevil courts and commentators, but a consensus of
sorts is emerging based on a realization that for many years in real time jurisdiction has
been tied to geographical intentions rather than geographical power. Because parties
continue to occupy real space within geographical borders, older notions of jurisdiction
can and are being adapted to govern new technological interactions.

Early notions of personal2 and prescriptive3 jurisdiction were based on the idea that a
sovereign has complete authority over everyone and everything found within its borders;
a corollary to that, of course, was that a sovereign has no authority over anyone or
anything outside its borders, where another sovereign exercises total control. In the
United States, this understanding was reflected in Pennoyer v. Neff,4 which restricted a
state’s assertion of personal jurisdiction over a non-consenting non-citizen primarily5 to
those situations in which the defendant was personally served with process in the forum,6
and in Foley Bros., Inc. v. Filardo,7 noting that acts of Congress are presumed to apply
only to conduct undertaken in the United States.

In the United States, the jurisprudence of personal jurisdiction is much more thoroughly
developed that that of prescriptive jurisdiction and will, therefore, be used to explain the
ancestry of the emerging consensus, which itself is reflected in personal jurisdiction case
law.

Jurisdiction based on the control of physical territory is satisfactory only in a static world.
As long as most people didn’t cross borders, most disputes remained local and logically

1
  David R. Johnson & David Post, Law and Borders – The Rise of Law in Cyberspace, 48 STAN. L. REV.
1367 (1996).
2
  Personal jurisdiction is the authority of a sovereign to insist that a defendant appear before its courts and
answer a complaint brought against her or suffer the entry of an enforceable default judgment.
3
  Prescriptive jurisdiction is the authority of a sovereign to regulate conduct, to insist that an actor abide by
its substantive law and to apply that law to determine the actor’s liability.
4
  95 U.S. 714 (1877).
5
  A state was also allowed to determine the status of a defendant under its law and could exercise
jurisdiction over property of a non-present defendant that had been seized in the forum.
6
  Personal service in the forum continues to satisfy the constitutional requirement of due process. Burnham
v. Superior Court, 495 U.S. 604 (1990). Such “tag” jurisdiction, however, is outlawed by the Convention
on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, Sept. 30, 1968, 1978
O.J. (L 304) [hereinafter Brussels Convention] art. 3, when the defendant is a citizen of a contracting state.
The national laws of many of those states, however, do permit assertions of jurisdiction based on service
within the state when the defendant is from a non-contracting state.
7
  336 U.S. 281 (1949).


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subject only to one law and one court system. Changes in transportation and business
structure, however, long before the advent of the internet, led to a world in which border
crossings were frequent and disputes often touched more than one state. Responding to
the need for a broader understanding of the constitutional scope of state jurisdictional
authority, the Supreme Court in 1945 decided International Shoe Co. v. Washington.8
Because the Full Faith and Credit Clause of the Constitution9 compels every state to
enforce the judgments of a sister state if the judgment comports with due process, it is not
necessary to describe jurisdictional constraints based on the ability of the state rendering
the judgment to enforce it, a basis for limiting jurisdiction to those situations in which a
state has physical power over the defendant.10 Instead, due process requires a focus on
fairness to the defendant, a focus the Court defined as the determination of whether the
defendant had “minimum contacts” with the forum such that its assertion of jurisdiction
did not offend “traditional notions of fair play and substantial justice.”11 The existence of
such contacts, in turn, depended on the “quality and nature” of the defendant’s acts in the
forum “ in relation to the fair and orderly administration of the laws which it was the
purpose of the due process clause to insure.”12

The Shoe Court clearly envisioned assertions of jurisdiction based on the past presence of
a defendant in the forum, generally though not inevitably related to the claim now
brought against him. The Court later formulated the inquiry as whether the defendant
had “purposefully avail[ed] itself of the privilege of conducting activities within the
forum State, thus invoking the benefits and protections of its laws.”13 Jurisdiction
remained tied to geography, but not because the sovereign had physical control over the
defendant at the time suit was brought. Instead, the past choice of the defendant, to enter
and act within the territory and, by virtue of its presence there, to be protected by its laws,
made it fair to insist that it return to the territory to answer claims arising out of its past
presence.14 But it is not always necessary that an individual be physically present in a
state to invoke its laws, interact with its citizens, or cause effects within its territory.
Whether actions undertaken outside the state may justify the assertion of jurisdiction by it



8
  326 U.S. 310 (1945).
9
  U.S. CONST. art IV, section 1.
10
   The lack of such a compulsion to enforce properly rendered judgments between nation states, of course,
raises practical problems when a defendant has no or insufficient assets in the forum to satisfy the
judgment. The Brussels Convention, supra note 6, Title III provides for recognition and enforcement of
judgments rendered by a contracting state by the other contracting states, but countries outside the
European Union are not covered by the convention. The Hague Conference on Private International Law
has proposed a Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters
(May 5, 1992) [hereinafter Hague Convention], which is still being discussed by numerous nations. If
adopted, it would set forth accepted bases of personal jurisdiction and require enforcement by signatories of
judgments rendered against defendants by the courts of other signatories in compliance with those bases.
11
   326 U.S. at 316 (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).
12
   Id. at 319.
13
   Hanson v. Denckla, 357 U.S. 235, 253 (1958).
14
   This step from presence in the forum at the time the suit is brought to presence in the forum in the past
remains troubling in other countries. The Hague Convention, supra note 10, for instance, bases jurisdiction
in article 9 on the existence of a branch, agency or other establishment and rejects past commercial activity
as a basis of jurisdiction in the absence of such a permanent presence.


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has been addressed by courts of the U.S. both before and after the explosion of new
technologies.

The critical pre-internet case in the U.S. is Calder v. Jones.15 A California plaintiff
brought a libel action there against the author and editor of an article about her published
by the National Enquirer. The corporation did not dispute jurisdiction; its papers were
sold in the state. The individual defendants, however, argued that they had never been
present in any jurisdictionally relevant way in California and that, therefore, the state
could not constitutionally assert jurisdiction over them. The Court disagreed because the
article for which they were responsible had targeted the plaintiff in California. She lived
in the state; her career was based in the state; the activities the article reported had
allegedly occurred in the state. The defendants’ acts were intentional; the target was
known.16 Just as shooting a gun across a border will subject a defendant to jurisdiction in
the forum in which the bullet lodges, so too does targeting a local plaintiff with some less
lethal contact.

At issue, then, is what constitutes targeting. Some cases, in which new technology
simply allows the defendant to do something with it that she could have done using a
different medium, are straight-forward. A libel published in an electronic newspaper
subjects the author to jurisdiction just as did a libel published in a paper newspaper.17
Entering into a long-term relationship with a forum resident may subject a defendant to
the forum’s jurisdiction; it doesn’t matter whether the relationship is formed to sell
hamburgers or software.18 For jurisdictional purposes, e-mails and letters are
indistinguishable, even though it is far easier to send multiple copies of the former than of
the latter. But what about a web site?

A technology that owes its name to its ability to communicate world wide might, of
course, be thought to target the world (or at least the wired world). The first reported
U.S. case to deal with jurisdiction based on a web site seemed to assume precisely that.
The judge in Inset Systems, Inc. v. Instruction Set, Inc.,19 obviously impressed with the
ability of a web site to reach all internet users in the forum continuously, found that an
assertion of jurisdiction would not violate due process even though the defendant did no
regular business in the state and was being sued there for trademark infringement.

15
   465 U.S. 783 (1984).
16
   This distinguishes the case from another doctrine used to assert jurisdiction over defendants never
physically present in the state: the stream of commerce. First articulated by the Illinois Supreme Court in
Gray v. American Radiator & Standard Sanitary Corp., 176 N.E.2d 761 (Ill. 1961), the doctrine permits a
consumer injured in her home forum by a product purchased there by her to sue a component parts
manufacturer who does no business in the forum. The theory is that the parts manufacturer has a market
for its parts only because its buyer intends to incorporate them in a final product to be sold to consumers;
the purchase price to the consumer is the (indirect) source of economic benefit to the parts manufacturer as
well as to the final seller. The parts manufacturer, however, has no control over where its parts end up; this
lack of targeting led four members of the Court to question the constitutionality of the theory. Asahi Metal
Industry Co. v. Superior Court, 480 U.S. 102 (1987).
17
   Blumenthal v. Drudge, 992 F.Supp. 44 (D.C. 1998).
18
   Compare Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) with Compuserve, Inc. v. Patterson, 89
F.3d 1257 (6th Cir. 1996).
19
   937 F.Supp. 161 (D. Conn. 1996).


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However, the logic of the opinion would lead to universal jurisdiction over authors of
web sites, which as a practical matter is unlikely to be acceptable to the Court.20 It also,
of course, is unacceptable to those who use the web. Were it to be adopted, it is likely
that either many would forego use of the technology to avoid assertions of jurisdiction in
far-away fora, or judgments rendered by such far-away fora would not be enforced by the
defendants’ home courts, wasting judicial time and money in both fora and drawing
judicial legitimacy into dispute.

Perhaps in response to a perceived need to narrow the scope of jurisdiction, another
district court focused on the nature of the web site itself, distinguishing between passive
sites, interactive sites, and those through which business can actually be conducted.21
The difficulty, however, is that the necessary assumed equivalence between activity and
targeting doesn’t exist. A passive site may target a given individual or forum. A web site
libeling a California actress may be completely passive, but jurisdiction would be
justified as it is when the libel takes place in a newspaper, whether paper or electronic. A
web site advertising securities for sale in Germany that is written in Finnish, quotes
prices in Finnish currency and provides tax information under Finnish law targets
Finland, even if an interested investor can only read the material and must travel to
Germany to make a purchase.22 Similarly, a completely interactive site that permits
purchases to be made using it alone may constitute an invitation to trade to the entire
world, but it may not. Its source may initially attempt to constrain the market the site is
designed to serve; even absent such an initial design, the site author may decide to refuse
to sell to a single distant customer if and when one appears. At the very least, use of the
site by customers in the forum is necessary to justify attributing targeting that forum to
the site author.23

Targeting is critical not only to assertions of personal jurisdiction but also to the authority
of a forum to regulate conduct. The United States requires that there be a reasonable
connection between the forum and the conduct,24 a requirement that is met easily. The
intent to cause substantial effects in the forum, even in the physical absence of the actor,
is sufficient.25 Targeting, of course, satisfies that requirement.

20
   Jurisdictional theories that would result in such universal jurisdiction have been rejected by at least some
members of the Court for that very reason in other contexts. The four Justices who rejected an untargeted
stream of commerce in Asahi, supra note 16, for instance, did so in part because of the breadth of
jurisdiction that would otherwise result. Similarly, in World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286 (1980), one reason for rejecting Justice Brennan’s argument that a local Audi dealership in New York
benefited sufficiently to be subject to jurisdiction in other states from being part of a chain of Audi
dealerships was that such a rationale would subject each dealer to jurisdiction in all states.
21
   Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D. Pa. 1997).
22
   See generally Richard Cameron Blake, Advising Clients on Using the Internet to Make Offers of
Securities in Offshore Offerings, 55 BUS. LAW. 177 (1999).
23
   This was recognized by Judge Edwards in GTE New Media Services, Inc. v. BellSouth Corp., 199 F.3d
1343 (D.C. Cir. 2000). See also Rothschild Berry Farm v. Serendipity Group LLC, 84 F.Supp. 2d 904
(S.D. Ohio 1999) and Millennium Enterprises, Inc. v. Millennium Music LP, 33 F.Supp. 2d 907 (D. Or.
1999).
24
   Home Ins. Co. v. Dick, 281 U.S. 397 (1930).
25
   Hartford Fire Insurance Co. v. California, 509 U.S. 764 (1993). See also United States v. Aluminum Co.
of America, 148 F.2d 416 (2d Cir. 1945). The basis is recognized in the Restatement (Third) of Foreign


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When, then, can a web site be said to target a forum? The ongoing saga of Yahoo! and
two French organizations devoted to wiping out anti-semitism presents a good example
of the difficulties involved in answering that question. As many are already aware, La
Ligue Contre le Racisme et L’Antisemitisme and L’Union des Etudiants Juifs de France
sued Yahoo! in France, alleging that the posting on its .com web site of Nazi-related
propaganda and memorabilia violated French law. Yahoo! argued that its .com site was
not targeted to France, noting that its subsidiary’s .fr site did ban such materials. The
French court, however, found that because French users could access the .com site, the
postings there were in violation of French law and ordered Yahoo! to make such access
impossible. It also ordered substantial daily fines to be imposed if Yahoo! failed to
comply within a specified time with its order.26

There is no dispute that Yahoo.fr targeted France. Yahoo!, of course, maintains that its
.com site was directed to the U.S. audience, although prior to the litigation there was no
attempt to block access to it by others. One set of issues raised by the facts is whether a
site needs to make such attempts in order to restrict its market successfully. If so, another
set of issues involves the level and sophistication of the technology the site must employ
to convince a court that in fact it is attempting such a restriction.27

In fact, however, while the French court did order Yahoo! to block access to its .com site
by French citizens, the court’s determination that Yahoo.com had in fact targeted France
was based on the intentional profiling of French visitors by the California site, the
demand by Yahoo! that its subsidiary provide a link to the .com site, and the display of
banner advertisements in French when the .com site was accessed from France.28 While
its primary target may have been the U.S., the court was clearly not convinced that the
U.S. was its only target.

In a strange twist, a district court in California recently found that the French plaintiffs
were subject to jurisdiction in California in a suit brought there by Yahoo! seeking a
declaratory judgment that the French judgment is not enforceable in California.29 The
purposeful contacts on which the court relied were an initial “cease and desist” letter sent
to Yahoo! prior to the filing of the French suit, the request of the French parties that the
French court order Yahoo! to perform certain actions at its California headquarters, and
the French parties’ use of a U.S. marshal to effect service on Yahoo! in California in the
French case. In other words, by suing a California citizen elsewhere, a party becomes


Relations Law, section 402, and in international law, though its use by the U.S. is frequently criticized
abroad. See generally John A. Trenor, Jurisdiction and the Extraterritorial Application of Antitrust Law
After Hartford Fire, 62 U. CHI. L. REV. 1583, 1601 (1995).
26
   The French case is described in Yahoo! Inc., v. La Ligue Contre le Racisme et L’Antisemitisme, 2001 WL
640418 (N.D. Cal.).
27
   See People v. World Interactive Gaming Corp., 1999 WL 591995 (N.Y. Sup. Ct.) (insufficient to deny
access to those who identified themselves as being from New York, since the refused gambler could merely
access the site again and lay claim to a different location).
28
   See Joel Reidenberg, The Yahoo Case and the International Democratisation of the Internet, posted to
the Social Science Research Network Electronic Library at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=267148.
29
   Yahoo! Inc. v. La Ligue Contre le Racisme et l’Antisemitisme, 2001 WL 640418 (N.D. Cal.).


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subject to California’s jurisdiction to determine the validity of any judgment rendered
against the California defendant. This is simply wrong. True, on the facts of the case it
may not make much practical difference. In order to force Yahoo! to change anything on
its California server or to collect any damages from Yahoo!, it would be necessary for the
French plaintiffs to seek to enforce the French judgment in California. In that case, the
validity of the foreign judgment would clearly be before the court, and the same
arguments that will be heard in the declaratory judgment action would be heard there.
The court was clearly concerned that, were the timing of such a suit left to the French
plaintiffs’ discretion, Yahoo! would be forced to choose between obeying a possibly
unenforceable French judgment or risking substantial financial losses should that
judgment be upheld. However, as a theoretical matter, it is nonsensical to conclude that
the French parties had targeted California. Actions directed by them at a California
company were responsive, not chosen.

Yahoo!, of course, through its subsidiaries designed different sites for different countries.
Many sites, however, are single and, like Yahoo.com, are accessible world-wide. If such
a site allows the purchase of a good over it and a seller known by the site to be located in
California purchases the good, is the site seller subject to jurisdiction in California on a
claim related to the sale? This may be one of the most common, and most troubling,
jurisdictional issues in the digital economy.

Supporting an assertion of jurisdiction is the use by the seller of a technology capable of
reaching across borders, allowing both the theoretical and, given the knowing sale, real
expansion of the seller’s market. However, a local seller might well utilize the new
technology to compete in a local market; if a single sale to a foreign forum subjects her to
jurisdiction there, she may well decide not to make the sale. Furthermore, search engines
allow the buyer to seek out the seller, a change in role that may have jurisdictional
significance. Historically, buyers were presumed to be less powerful than sellers; today,
that may no longer be the case.30

While it is popular to inveigh against the complexities of U.S. jurisdictional law,31 the
common law approach permits courts to reason by analogy and to apply old concepts to
new fact patterns. Targeting is a simple word for a complex concept, but it does go a
long ways toward answering what appeared to be a difficult conundrum: how can a
geographically based concept apply in a non-geographical world?




30
   See Committee on Cyberspace Law, Achieving Legal and Business Order in Cyberspace: A Report on
Global Jurisdiction Issues Created by the Internet, 55 BUS. LAW. 1801, 1829-31 (2000).
31
   See, for example, Kevin M. Clermont, Jurisdictional Salvation and the Hague Treaty, 85 CORNELL L.
REV. 89 (1999).


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