“Jurisdiction” means (among other things) "what law must I obey."

Whose Law? Activity on the Internet and the Problem(s) of JurisdictionDavid G. PostI. Herman Stern Professor of Law, Beasley School of Law, Temple University andVisiting Professor of Law (Fall 2005)New York Law SchoolDavid.Post@temple.edu

“Jurisdiction” means (among other things) "what law must I obey." As Holmes put it: “Law is a statement of circumstances in which the public force is brought to bear upon men through the courts. . . People want to know under what circumstances they will run the risk of coming against what is so much stronger than themselves, and hence it becomes [the lawyer’s] business to find out when this danger is to be feared. . . The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.”

Jurisdiction matters. • As Holmes understood, it’s fundamentally what our clients want to know: Who can throw my ass in jail (or fine me, or shut my business down, . . .)? • And wars have been fought over it. • “He [King George III] has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation . . .” Declaration of Independence.

The Internet • . . . makes something of a mess of our existing jurisdictional notions and principles. • Strangely enough (to me), many (probably most) of my colleagues would disagree with that statement. Conduct on the Internet does not, in their view, present especially intractable “jurisdictional” problems. • See, e.g., Goldsmith, Against Cyberanarchy, 65 U. Chi. L. Rev. 1199 (1998) • Joel Reidenberg, Technology and Internet Jurisdiction, 153 U. Pa. L. Rev. 1951 (2005) • All I can say is: I think that I’m right and they’re wrong. And: here’s how I see it.

The “jurisdictional” paradigm problem • Bits on Server A, owned and operated by Mr. Holmes in location X, are transmitted to machine B in location Y. • They cause machine B to do something – to display a file, to produce an image or musical sounds, etc. – that is unlawful under the laws of Y. • Holmes’ question: Can someone haul my ass into jail [or otherwise bring the force of ‘Law” to bear upon me] for this?”

Why do I keep putting “jurisdiction” in quotation marks? • Because it is a word used to describe multiple concepts in the law, all of which bear on Holmes’ question. The question “In what forum could someone obtain an enforceable judgment against me?” involves questions of personal jurisdiction, “prescriptive” jurisdiction (otherwise known as “choice of law”), and “enforcement jurisdiction.”

The domestic context • Let’s assume that X and Y are both within the United States. Here’s how we answer Holmes’ question. • First, generally speaking, you are subject to “personal jurisdiction” in any State whose laws you have “purposefully availed” yourself of and with which your contacts satisfy the minimum required by due process.

Personal jurisdiction • From what you’ve told me thus far, Holmes, X is clearly such a State (operation of the server in X almost certainly satisfies the Constitutional standard of a “minimum contact” with X). • From what you’ve told me thus far, Y is not such a State. The mere transmission of bits into a jurisdiction has never been held (and, I predict, will not in the future be held) to constitute enough of a “contact” to satisfy due process. Something more is required.

Lots of cases stand for the principle that without “more,” transmission of harm-causing bits into a State is not sufficient for personal jurisdiction • ALS SCAN v. DIGITAL SERVICE CONSULTANTS, 293 F.3d 707 (4th Cir. 2002) (“electronically transmitting or enabling transmission of information via the Internet, causing injury in a state, not alone sufficient for personal jurisdiction) • TOYS "R" US, v. STEP TWO, 318 F.3d 446 (3d Cir. 2003) (operation of commercial website accessible in forum state is not alone sufficient to establish personal jurisdiction) • REVELL v. LIDOFF, 317 F.3d 467 (5th Cir. 2002) (Columbia University website “directed at the entire world” does not subject operator to personal jurisdiction in Texas)

What constitutes “more”? Hard to say; the cases are all over the map on that question. • Clearly, “interactivity,” and the commercial v. noncommercial nature of the activity, matter in the balance • e.g., the “Zippo” sliding scale, 952 F. Supp 1119 (W.D. PA 1997) probably still has some force • the nature of the wrong asserted in Y may matter, too – special rules for trademark infringement? defamation (the Calder v. Jones problem)?

Choice of Law • If the court has personal jurisdiction, it can proceed to ask whether the law of Y (which is allegedly being violated) applies to the dispute at all. • Another way to ask this: do the law-makers of Y (whoever they may be) have “prescriptive jurisdiction” over Holmes’ conduct? • Answer to this can, of course, be outcome-determinative (e.g., if A’s bits are lawfully sent under the laws of X but not under the laws of Y)

Choice of Law, II • Alas, the relatively straightforward rules of yesteryear – e.g., lex locus delictii [the law of the place of the wrong] and lex locus contractu [the law of the place of the contract – have been superceded by a more nuanced, but also more indeterminate, “significant relationship” test • (Pssst. Be sure to tell Holmes that in actual fact a court in Y is much more likely to apply the law of Y to the dispute, ceterus paribus, than is a court in X, even though, in theory, they’re both doing the same “balancing of interests.”)

Restatement (2d), Conflicts of Law (1971) • “The earlier Restatement treated choice of law in torts and contracts by articulating a closed set of rules derived from vested-rights analysis. The governing law in torts was determined by the place in which the injury occurred; that in contracts by the place in which the contract became binding or, when performance was in issue, where the contract was to be performed. • “Restatement Second supplants these rules by the broad principle that rights and liabilities with respect to the particular issue are determined by the local law of the State which, as to that issue, has "the most significant relationship" to the occurrence and the parties. The factors relevant to that appraisal . . . include: • (a) the needs of the interstate and international systems, • (b) the relevant policies of the forum, • (c) the relevant policies of other interested states and the relative interests of hose states in the determination of the particular issue, • (d) the protection of justified expectation, • (e) the basic policies underlying the particular field of law, • (f) certainty, predictability and uniformity of result, and • (g) ease in the determination and application of the law to be applied."

Your answer thus far • So, Holmes, a court in Y (or in X) might deem you to be subject to Y’s laws. A court in Y is more likely to do so than a court in X.

Enforcement of Judgments • Finally, if you are adjudged, in either forum, to be violating Y’s law, the question becomes: can whomever obtained this judgment against you (whether in a court in X or Y) enforce it against Holmes?

Domestically, this collapses into the personal jurisdiction inquiry. • If the court issuing the judgment had personal jurisdiction over you, it can order you, or your property, seized. • If it were the court in X, we know that it can lawfully grab your server • If it were the court in Y, the judgment can be brought to X and must be honored by the court in X under the Constitutional “Full Faith and Credit Clause.” • so even if you have no property in Y, your property in X can be (lawfully) seized if you’ve been adjudged to have violated Y law, UNLESS • the court in Y did not have personal jurisdiction over you (or there were some other violation of your due process rights)

A test case: Facts • The New Haven Advocate is a print newspaper in Connecticut. It has no subscribers in Virginia (although it could). • It also has a website at www.newhavenadvocate.com • It publishes a series of articles about conditions in Virginia’s prisons. • It calls the prison warden a “racist” who “encourages abuse of his prisoners.” • The warden sues for libel in Virginia.

Young v. New Haven Advocate 315 F.3d 256 (4th Cir. 2002) • Does the Virginia court have personal jurisdiction over the newspaper? • Plaintiff points to these “contacts between the newspapers and Virginia: • (1) the newspapers, knowing that Young was a Virginia resident, intentionally discussed and defamed him in their articles, • (2) the newspapers posted the articles on their websites, which were accessible in Virginia, and • (3) the primary effects of the defamatory statements on Young's reputation were felt in Virginia.”

The 4th Circuit decision • The court cannot exercise personal jurisdiction over the defendant newspaper • "a person's act of placing information on the Internet" is not sufficient by itself to "subject[] that person to personal jurisdiction in each State in which the information is accessed." Id. at 712. Otherwise, a "person placing information on the Internet would be subject to personal jurisdiction in every State," and the traditional due process principles governing a State's jurisdiction over persons outside of its borders would be subverted • the court can exercise jurisdiction only if a person (1) directs electronic activity into the State, (2) with the manifested intent of engaging in business or other interactions within the State, and (3) that activity creates, in a person within the State, a potential cause of action cognizable in the State's courts." • The facts in this case establish that the newspapers' websites, as well as the articles in question, were aimed at a Connecticut audience.

The International Context • What if X and Y are not merely different States of the Union, but different countries? Does Holmes have to obey Y’s law? • The personal jurisdiction, choice of law, and enforcement questions remain – though they are now somewhat more difficult to answer – without either (a) a common “due process” framework or (b) a full faith and credit clause to guide our thinking.

Answering the questions • without knowing anything about Y, or about Y’s law, it is difficult to give Holmes a coherent answer to his question • However a court in Y might answer the personal jurisdiction or choice of law questions, enforcement of a judgment will turn on whether Holmes has assets in Y or not

Answering the Questions, II • If Holmes has assets in Y, he’s at risk • If Holmes has no assets in Y, plaintiffs will have to come to X to seek enforcement – but this time, without a “full faith and credit” enforcement right • Instead, plaintiffs will have to rely on notions of “international comity” [pending, at least, revision and execution of the new Hague Convention on the Enforcement of Judgments]

The cases • The paradigmatic recent cases: • Gutnick v. Dow Jones, Inc. (Australia) • Australian citizen and resident files suit in Australia (Y) alleging that he was defamed, under the laws of Australia, by an article appearing in Dow Jones’ “Barron’s Online Edition” • LICRA (League against Racism and Antisemitism) v. Yahoo! Inc. (France) • LICRA files suit in France asserting that Yahoo’s auction website (auctions.yahoo.com), located in California (X), displays Nazi memorabilia in violation of the law of Y (France) (the “Nazi Symbols Act”), which declares that it is “a violation [to] exhibit in public a uniform, an insignia or an emblem which evokes the uniforms, insignia or the emblems which were worn or exhibited [by the Nazis]” (Criminal Code, article R. 645-1) and French Criminal Code article L. 113-2, which states that "French Criminal law is applicable to all offences committed on the territory of the French Republic. An offence is deemed to have been committed on the territory of the French Republic where one of its constituent elements was committed on that territory"

Do the foreign courts have personal jurisdiction over the defendants (both said ‘yes’). • Does the law of France/Australia apply to the dispute (both courts said “yes”) • Can the plaintiffs enforce their judgments against the defendants in Australia/France? In the United States? Are Dow Jones’, or Yahoo’s, United States assets at risk from these judgments?

Interview with Justice Gomez (the French judge in the Yahoo case): “For me, the issue was never whether this was an American site, whether Yahoo had a subsidiary in France, the only issue was whether the image was accessible in France. It is true that the Internet creates virtual images, but to the extent that the images are available in France, a French judge has jurisdiction for harm causedin France or violations of French law. “[I]n the case of my decision, it was extremely simple: the Nazi collectibles were visible in France, this is a violation of French law, and therefore I had no choice but to decide on the face of the issue. Whether the site is all in English or not makes no difference. The issue of visibility in a given country is the only relevant issue. Even if the image is virtual, if it is accessible on a computer monitor in France, a French judge has jurisdiction to intervene if the image violates French law. The issue is strictly a geographic one. Even an American in France violates French law by consulting a site prohibited by French law” (Emphasis added. Quoted in Marc Greenberg, “A Return to Lilliput: The LICRA v. Yahoo! Case and the Regulation of Online Content in the World Market,” 18 Berkeley Tech. L.J. 1223).

Self-evident truths That in a networked world, where all points are equidistant from all others and all are accessible from anywhere, the principles of the international legal system cannot impose obligations on everyone to comply with all law. That governments derive their just power from the consent of the governed.

“Jurisdiction” means (among other things) "what law must I obey."