«I. INTRODUCTION We often hear what the Internet can do for us. We should also think about what the Internet can do to us.' An amalgam of ...»
Liability Co. v. Mustang Software, Inc. 9 In Caba, the New Mexico Court of Appeals held that a company that maintained a connection to a New Mexico corporation by phone, fax, and mail while maintaining no physical presence in the state did not conduct business within the state sufficient to establish personal jurisdiction.6" The defendant, Mustang Software, sold products in New Mexico stores but did not itself maintain an office within the state.6' Mustang established a relationship with the plaintiff Caba during a conference in California.62 Subsequent to that meeting, a series of telephone calls, faxes, and mailings (including a Letter of Intent signed by both parties) transpired between the two companies, resulting in an agreement whereby the plaintiff would create software for the defendant.63 When that agreement was broken, plaintiffCaba attempted to bring suit against Mustang, necessitating a personal jurisdiction inquiry.' In determining whether or not a transaction of business under the long-arm statute existed, the court of appeals applied a series of factors listed in the New Mexico federal district court case, Pelton v. Methodist Hospital." Those factors C. Only causes of action arising from acts enumerated in this section may be asserted against a defendant in an action in which jurisdiction is based upon this section.
D. Nothing contained in this section limits or affects the right to serve any process in any other manner now or hereafter provided by law.
54. NMSA 1978, § 38-1-16(A)(I) (1971).
55. Caba, L.L.C. v. Mustang Software, Inc., 1999-NMCA-089, 1l 11,984 P.2d 803, 808.
56. See, e.g., State Farm Mut. Ins. Co. v. Conyers, 109 N.M. 243,245,784 P.2d 986,988 (1989) (holding thatjurisdiction was proper over defendants who purchased insurance in New Mexico and thus transacted business in the state); Salas v. Homestake Enters., Inc., 106 N.M. 344, 345, 742 P.2d 1049, 1050 (1987) (holding that defendant corporation's telephonic invitation to plaintiff to visit defendant for further negotiations out-of-state did not constitute transaction ofbusiness in New Mexico); Kathrein v. Parkview Meadows, Inc., 102 N.M. 75, 77, 691 P.2d 462, 464 (1984) (holding that defendant's solicitation of business within the state, telephone calls to the consumer, and treatment of the consumer's spouse gave rise to the proper exercise ofjurisdiction); Cronin v. Sierra Med. Ctr., 2000-NMCA-082, 21, 10 P.3d 845, 851 (holding that jurisdiction was proper over defendant hospital where its active solicitation of patients in New Mexico constituted intentional, purposeful, and persistent transaction of business in the state).
57. Caba, 1999-NMCA-089, 19, 984 P.2d at 810.
58. See NMSA 1978, § 38-1-16 (2004); supratext accompanying note 52.
59. 1999-NMCA-089, 984 P.2d 803.
60. Id. ft 21-22, 984 P.2d at 810-11.
61. Id. IN 2-3, 984 P.2d at 806.
62. Id. 1 4, 984 P.2d at 806.
63. Id. 6-7, 984 P.2d at 806-07.
64. Id. 1 8, 984 P.2d at 807.
65. 989 F. Supp 1392, 1394 (D.N.M. 1997), quoted in Caba, 1999-NMCA-089, 1 12, 984 P.2d at 888.
NEW MEXICO LAW REVIEWincluded a determination of (1) which party initiated the transaction, (2) "where the transaction was entered into," and (3) where performance of the agreement was to take place.66 The court found that the first Pelton factor was not met, as the parties' initial conversation regarding their deal took place in California. 67 As to the second factor, the court found that the transaction was not entered into in New Mexico when the companies' only interaction came by way of phone, fax, and mail.68 Additionally, with respect to the third factor, the court of appeals held that no transaction of business or minimum contacts existed sufficient to obtain personal jurisdiction because only Caba's specific performance of the agreement was to take place in New Mexico.69 In equating the transaction-of-business element with minimum contacts, the court did not look at these facts in isolation, but instead analyzed them in conjunction with other factors, such as the defendant's purposeful availment of the forum.70 Thus, under Caba, a defendant will be found to have sufficient minimum contacts to satisfy due process where the defendant has a connection with the forum state and has acted in New Mexico in such a manner that the defendant should reasonably anticipate being haled into court there.7' C. The Proliferationof the Internet and Subsequent PersonalJurisdictionIssues In attempting to determine when personal jurisdiction is and is not proper, the rapid proliferation of Internet technology has added new layers of analysis under which federal and state courts must work.72 The U.S. Supreme Court has described the Internet as "'an international network of interconnected computers' that allows users to access a massive amount of information by connecting to a host computer. 73 The Supreme Court further characterized the Internet as "a vast platform from which to address and hear from a world-wide audience of millions of readers, viewers, researchers, and buyers."74 For the past ten years, courts nationwide have struggled to find an appropriate manner to determine what kinds of sites subject a Web operator to the jurisdiction of a foreign state in which a site was accessed or used. 75 As discussed by the U.S. Supreme Court in Reno v. ACLU,76 the Internet applications that are most relevant to the establishment of personal jurisdiction are
66. Caba, 1999-NMCA-089, 1 12, 984 P.2d at 888 (citing Pelton, 989 F. Supp. at 1394).
67. Id. 13, 984 P.2d at 808.
68. Id. I 14-16, 984 P.2d at 809. "[A] nonresident does not engage in business in New Mexico when it enters into contract with a New Mexico resident by mail, fax, and telephone without ever entering the state." Id.
i i6, 984 P.2d at 809.
69. Id.1 18, 984 P.2d at 810.
70. Id.(H 23-25, 984 P.2d at 811. For a discussion of purposeful availment, see supra text accompanying notes 38-40.
71. Caba, 1999-NMCA-089, I 19-20, 984 P.2d at 810.
72. See generally Dunne & Musacchio, supra note 5, at 389-402.
73. Sublett v. Wallin, 2004-NMCA-089, 24,94 P.3d 845, 851 (quoting Reno v. ACLU, 521 U.S. 844, 849-50 (1997)).
74. Reno, 521 U.S. at 853.
75. Dunne & Musacchio, supra note 5, at 389; see, e.g., Telco Communications Group, Inc. v. An Apple a Day, Inc., 977 F. Supp. 404,406 (E.D. Va. 1997); Maritz, Inc. v. Cybergold, Inc., 947 F. Supp. 1328, 1331 (E.D.
76. 521 U.S. 844 (1997).
PERSONAL JURISDICTIONSummer 2005] e-mail, listservs, newsgroups, chat rooms, and the World Wide Web. 7 ' The last of these services, the Web, presents the arm of the Internet with which most ordinary computer users are highly familiar. 7 A Web site consists of one or more pages marked by "a unique 'address' that allows users to locate it" and to find a Web site either by entering this address into an internet browser program or via the use of a commercial search engine.7 9 The World Wide Web itself encompasses an even greater number of interactive applications.80 For example, a Web site may require a user to provide login information, which can range from a simple e-mail address and password to providing a mailing address and/or other traditional contact information, to the storing ofbilling information, including mailing and shipping addresses, credit card numbers, and shopping preferences. Additionally, a Web site's message board or site forum can provide a high degree of interactivity.8 Typically, these forums require permanent login information from a user, thus allowing that user to post and reply to messages on any given topic for public viewing over the Internet. Recently, the promulgation of Web-logging (blogging) software has expanded independent information publishing opportunities, as individuals now have the ability to instantaneously post personalized anecdotes and opinions on their own blog sites.82 "With the Internet, the average computer blogger has, in effect, his or her own printing press to reach the world."83 The broad range of services provided on the Internet can be categorized as proactive and reactive."' Proactive services include e-mail, news groups, and Telnet. 85 With e-mail, one of the Internet's most basic and popular services, a user can send an electronic message to another user from practically any location in the world.86 "News groups are a form of E-Mail through which people who share common interests post messages in a public forum. 8 7 There are over "20,000 news groups to which people can 'subscribe."' 88 In each of these systems, "messages are
78. "The World Wide Web is the most well-known and visible part of the Internet." The Guide, World Wide Web FAQ, at http://www.guide2net.net/articles/static/faqs/www.html (last visited Mar. 25, 2005).
79. Sublett, 2004-NMCA-089, 24, 94 P.3d at 851 (quoting Reno, 521 U.S. at 852).
80. ISP Glossary, World Wide Web, at http://isp.webopedia.com/TERMfWWorld-WideWeb.html (last visited Mar. 25, 2005). Note that, contrary to popular belief, the World Wide Web is not synonymous with the term "Internet." Id.; see also Webopedia, The Difference Between the Internet and the World Wide Web, at http://www.webopedia.com/DidYouKnow/Internet/2002/Web-vs-Internet.asp (last visited Mar. 25, 2005).
81. "[I]nteractive possibilities on the Internet such as message boards and chat rooms permit virtually unlimited viewpoint dissemination from a multitude of independent 'sources."' Prometheus Radio Project v. FCC, 373 F.3d 372, 468 (3d Cir. 2004) (Scirica, C.J., concurring in part and dissenting in part).
82. See, e.g., Blogger, at http://www.blogger.com (last visited Apr. 12, 2005); Live Journal, at http://www.livejournal.com (last visited Apr. 12, 2005).
83. Vo v. City of Garden Grove, 9 Cal. Rptr. 3d 257, 281 (Ct. App. 2004) (Sills, P.J., concurring in part and dissenting in part).
84. Dennis F. Hernandez & David May, Personal Jurisdiction and the Net: Does Your Website Subject You to the Laws ofEvery State in the Union?, L.A. DAILY J., July 15, 1996, available at http://www.gseis.ucla.edu/ iclp/dhdm.html (last visited Mar. 25, 2005).
88. Id. This number has likely gone up since the publication of the Hernandez and May article on July 15, NEW MEXICO LAW REVIEW [Vol. 35 directed by the writer either to a particular person or to a particular group of people."89 Additionally, "[t]he Telnet service allows a user to physically access remote computers as if they were" locally available.90 Reactive services include Gopher,9 Hyper Text Transfer Protocol (HTTP),92 File Transfer Protocol (FTP), and the World Wide Web. FTP allows users to download large-sized files electronically from a host computer.9 3 At its core, the World Wide Web, while encompassing a number of lesser proactive and reactive services, allows users to browse information passively at their leisure from any given location.94 In sum, these reactive services enable searching and acquisition of data from a remote computer known as a "Web server." 95 A Web server is "a program that accepts requests for information framed according to the HyperText Transport Protocol (HTTP). The server processes these requests and sends the requested document." 96 At their most basic level, each of these systems has the potential to transmit information, whether it is public, personal, commercial, or otherwise, across state lines and into a variety of different forums.97 With the rapid pace at which these services have spread, courts have had a difficult time fashioning legal rules in response to the progress of Internet technology. 98 This is particularly true when the discussion turns to Web-based personal jurisdiction, given the Web's preeminence and popularity as a medium for communication and commerce.99 It is no surprise, then, that differing approaches to establishing personal jurisdiction over the World Wide Web have arisen.
D. Two AnalyticalApproaches to Web-Based PersonalJurisdiction
1. The Expansive Approach of Inset Systems, Inc. v. Instruction Set, Inc.
In evaluating approaches to Web-based personal jurisdiction, several federal courts have followed the example set in Inset Systems, Inc. v. Instruction Set, Inc.100 In InsetSystems, the plaintiff, a Connecticut computer software developer/marketer, sued the defendant, a computer technology/support corporation that was neither
91. Gopher is a service that predates the existence of the World Wide Web "for organizing and displaying files on Internet servers. A Gopher server presents its contents as a hierarchically structured list of files. With the ascendance of the [World Wide] Web, many Gopher databases were converted to Web sites which can be more easily accessed via Web search engines" such as Google or Yahoo, thus making Gopher an essentially "dead" technology. ISP Glossary, Gopher,at http://isp.webopedia.com/TERM/G/gopher.html (last visited Mar. 25,2005).
92. HTrP is the Internet protocol that "defines how messages are formatted and transmitted, and what actions [World Wide] Web servers and browsers should take in response to various commands." ISP Glossary, Hyper Text TransferProtocol,at http://isp.webopedia.com/TERM/HfHrrP.html (last visited Mar. 25, 2005).
93. ISP Glossary, File TransferProtocol, availableat http://isp.webopedia.comTERM/F/FTP.htm (last visited Mar. 25, 2005).
94. See supranotes 72-83 and accompanying text.
95. Hernandez & May, supra note 84.