While various courts and numerous legal professionals have addressed the issue of inconsistent application of personal jurisdiction in cyberspace cases, the Supreme Court has yet to discuss the impact that technology might have on the analysis of personal jurisdiction; thus, many details remain unresolved. This Note examines the varying jurisdictional splits between the lower district courts, the courts of appeals, and the federal circuit court of appeals in determining the proper approach to take when dealing with Internet jurisdiction. After an examination of several key cases, this Note will explain why the Supreme Court, or the Legislature, should adopt an expanded version of the Ninth Circuit’s test in Cybersell, Inc. v. Cybersell, Inc., but with one categorical limitation, in order to standardize the test for a state’s exercise of personal jurisdiction over nonresident Internet sites. This solution merges two lines of thought and amounts to the creation of a single standardized and clear objective rule that requires “something more”—interactivity and commercialization—for non-tortious cases and the inclusion of an additional limiting factor for tortious cases in controversy. This solution fully comprehends the needs of the injured party to be made whole and couples it with the need for “something more” in order to satisfy a finding of proper personal jurisdiction over a nonresident defendant in cyberspace. Part I of this Note summarizes the traditional notions of general and specific personal jurisdiction and their applications to the physical and tangible. Part II discusses case law from several different United States district and appellate courts, analyzing the key facts on which each holding turns regarding the application of traditional jurisdiction. Part III examines the Ninth Circuit’s attempt to further clarify proper cyberspace jurisdiction in Cybersell, Inc. v. Cybersell, Inc. Part IV describes a representative sample of the different approaches and solutions legal scholars have posited to potentially solve the issue of how to properly determine cyberspace jurisdiction. Part V sets forth a workable, useful solution. Finally, the conclusion projects how the new approach will effectively adapt to future advances in technology and the positive, consistent, and stable effects a single, clear test would have on cyberspace and the Internet.
Jonathan Spencer Barnard, A Brave New Borderless World: Standardization Would End Decades of Inconsistency in Determining Proper Personal Jurisdiction in Cyberspace Cases, 40 SEATTLE U. L. REV. 249 (2016).