«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 ...»
D. Preservingthe Internetas a DemocraticForum Balanced against the rights of litigants to pursue civil actions is the notion of the Internet as the last true populist forum for unrestricted speech. 246 Attempting to invoke any type of restraint on a Web site could have a chilling effect on the promulgation of Internet speech such as blogs, message board posts, and opinion sites. Courts have shown a great willingness to acknowledge the importance of the Internet as a forum for speech and association. 247 "In the information age, electronic communications may be the most important forum for accessing and discussing topics of concern to the community," and, as such, courts should be wary of allowing governmental regulation of this important medium. 2" The Internet's diversity of viewpoints, characterized as a "universe of information," 249 is one of its core strengths as a forum for unrestricted speech and advocacy. Individual citizens, political candidates, businesses and corporations, community organizations, and government entities "may use the Internet to disseminate information and opinions about matters of local concern. '250 The Internet "help[s] citizens discharge the obligations of citizenship in a democracy. '25' If the standards for establishing personal jurisdiction over the Internet for defamation or libel actions remain vague
244. Id. at 419-20. However, even where courts have had the opportunity to analyze the competing approaches of"effects test" and "purposeful availment," they have not set down an affirmative holding that favors one over the other. See, e.g., Sys. Designs, Inc. v. New Customware Co., 248 F. Supp. 2d 1093, 1099 (D. Utah 2003) ("[T]his court finds it unnecessary to create aperse rule regarding direct trademark infringement [over the Internet].").
245. See, e.g., Rainy Day Books, Inc. v. Rainy Day Books & Cafi, L.L.C., 186 F. Supp. 2d 1158, 1163 (D.
Kan. 2002) (holding that defendant, through its website, purposefully availed itself of the privilege of conducting activities in the forum under the sliding scale analysis developed for Internet activities); Conseco, Inc. v. Hickerson, 698 N.E.2d 816, 820 (Ind. App. 1998) (holding that Indianajurisdiction was improper in a trademark action against a Web site operator whose site shared information about the plaintiff corporation).
246. See Doe v. 2themart.com Inc., 140 F. Supp. 2d 1088, 1092-93 (W.D. Wash. 2001) (holding that defendant could not obtain the identity of speakers who participated anonymously on Intemet message boards).
247. See, e.g., Doe v. Ashcroft, 334 F. Supp. 2d 471, 509 (S.D.N.Y. 2004) (holding that FBI could not compel production of Internet access firms' customer records in connection with terrorism investigations).
248. Urofsky v. Gilmore, 216 F.3d 401, 439 (4th Cir. 2000) (Murnaghan, J., dissenting).
249. Prometheus Radio Project v. FCC, 373 F.3d 372, 407 (3d Cir. 2004) (quoting In re 2002 Biennial Regulatory Review, 18 F.C.C.R. 13,620, 13,789 (June 2, 2003)).
251. Id. (quoting 2002 Biennial RegulatoryReview, 18 F.C.C.R. at 13,776).
NEW MEXICO LAW REVIEW [Vol. 35 and open to question, anonymous Internet speakers may withhold their speech for fear of being unmasked by having to respond to either criminal or civil litigation. 2 It is perhaps preferable that the courts should, if they adopt a standard at all, adopt a very stringent standard for the assertion of personal jurisdiction over the proprietors of Web sites, out of respect for the preservation of the Internet as an open democratic forum. While courts may hesitate to establish "bright-line" rules on any subject,2 53 let alone Web-based personal jurisdiction, the sheer magnitude of Web diversity mandates that a line be drawn somewhere.
E. Due Process Concerns Providing the backdrop for all of the foregoing concerns regarding the exercise of Web-based jurisdiction is the basic notion of due process. 4 In terms of jurisdiction, due process requires that the defendant have minimum contacts with the forum such that the maintenance of the suit does not offend "traditional notions of fairplay and substantial justice." 2 In the wake ofInternational 55 Shoe, the former prerequisite of a party's presence in the forum256 has been eliminated as a requirement for the satisfaction of due process. 2 Naturally, one would tend to believe that a great deal of Internet activity could potentially fall under the umbrella of "minimum contacts" sufficient to satisfy due process. 2 ' However, the predominant minimum contacts tests include an element of knowledge or intent. 9 25 Essentially, defendants must purposefully direct activities to the forum or avail themselves of the benefits of the forum.26 ° Purpose should presume knowledge;
however, it is the Web-based defendants' lack of knowledge that they may be haled into a foreign court for their Internet activities that merits a strict due process analysis of the propriety of Web-based jurisdiction.
Under purposeful direction or availment, defendants intentionally direct activities toward a forum or otherwise make use of the forum in a conscious manner. 1 Web 26 publishers, however, may not be fully cognizant of how individuals in any given forum interact with their sites. To that end, a Web user does not knowingly or purposefully choose to interact within a state several hundred miles away merely by posting on a message board or a blog. To expect a defendant's acquiescence to the laws of a foreign state when that defendant neither knew of nor intended his or her site's interactivity within that state is contrary to International Shoe's notions
252. Doe, 334 F. Supp. 2d at 509.
253. See supra text accompanying notes 100-139.
254. See supra note 173 and accompanying text.
255. Int'l Shoe Co. v. Washington, 326 U.S. 310,316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457,463 (1940)); see supra notes 32-33 and accompanying text.
256. See supra text accompanying note 31.
257. Dunne & Musacchio, supra note 5, at 388.
258. In fact, at least one court has noted that "[tjhere is no reason why the requisite minimum contacts cannot be electronic." Hall v. LaRonde, 66 Cal. Rptr. 2d 399, 402 (Ct. App. 1997) (holding that the use of e-mail and telephone may establish sufficient minimum contacts for purposes ofjurisdiction); see Dunne & Musacchio, supra note 5, at 388.
259. For a discussion of "purposeful direction" and "purposeful availment," see supra notes 34-40 and accompanying text.
260. See supra notes 34-40 and accompanying text.
261. See supra notes 34-40 and accompanying text.
Summer 20051 PERSONAL JURISDICTION of traditional justice and fair play.262 In fact, it has been suggested that courts must look to the subjective intent of the Web publisher in analyzing the due process concerns of Web-based personal jurisdiction. 2 3 According to some scholars, the '2 trend among courts "appears to be to look at the intent of the web site owner. 1 "Where evidence demonstrates an intent to do business or have an effect in the forum state, personal jurisdiction will be found to comport with the requirements If nothing else, this trend suggests that courts should incorporate of due process.
an element of intent as a prerequisite, if not a hard-and-fast requirement, when attempting to assert personal jurisdiction over a defendant via the Web.
In light of the considerations discussed above, it seems proper that fully interactive sites, complete with login information and a commercial transaction element, are the types of sites that merit the "active" label and support the establishment of jurisdiction. As the court in Sublett correctly noted, "passive" sites at the other end of the sliding scale merit no such finding.26 6 Those in the middle are a tougher call-it would be unsurprising to see courts analyzing these sites as one contact among many in a minimum contacts analysis. At the very least, courts should spell these propositions out. However, their hesitance to do so leaves Web site operators in a bit of a legal quandary.
Surprisingly, many legal scholars seem content to conclude that, since a Web site owner/operator publishes with the knowledge that "the world is watching," the site owner is purposefully directing the site's activities to a worldwide audience and, thus, to a worldwide jurisdiction. 2 This conceptualization could effectively transform the Internet into a sort of "self-censorship Olympics. 2 68 That appears to be the safest route to take, given the lack of a discernible standard for basing personal jurisdiction on a defendant's Web presence.
VI. CONCLUSIONThe New Mexico Court of Appeals, in a case of first impression, held that a passive Web site cannot furnish sufficient nminimurn contacts for the establishment of personal jurisdiction in a civil action, at least where certain specific torts, such as defamation, are not involved. 69 Essentially, the court ended its discussion there while many pertinent questions remained, such as what exactly constitutes a "passive" or "active" Web site,270 when does a site become "active" enough to merit personal jurisdiction against its owner, 271' and when does the nature of the legal
262. Int'l Shoe, 326 U.S. at 316.
263. Dunne & Musacchio, supra note 5, at 397 (citing Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414,420 (9th Cir. 1997)).
264. Id. at 398.
266. Sublett, 2004-NMCA-089, 1 33, 94 P.3d at 853.
267. See Steven A. Karg, Has Your Client ExposedItselfto a JurisdictionSmorgasbordby Running a Web Site on the Internet? One Helpful Strategy for Reducing Risk, at http://www.nmmlaw.com/articles/website.html (last visited Mar. 25, 2005).
269. Sublett, 2004-NMCA-089, 33, 94 P.3d at 853.
270. See supra text accompanying notes 207-212.
271. See supra text accompanying notes 207-212.
NEW MEXICO LAW REVIEW [Vol. 35 claim asserted change the analysis."' The Sublett opinion is reflective of the general uncertainty among both state and federal courts about where to draw the bright line separating.Web sites that do merit the assertion of personal jurisdiction from those that do not. 3 All that can be said of Internet-based personal jurisdiction at the moment is that proprietors of passive Web sites are safe, so long as they are not committing the specific torts of libel, defamation, or trademark infringement.7 " Apart from that, the standard is unclear for discerning what type of site, if any, is interactive to the point of subjecting its owner, proprietor, or creator to the jurisdiction of a New Mexico court. In the near future, New Mexico courts should have the opportunity to explore these issues further; with the rapidly growing realm of e-commerce and Internet speech, a resolution reached sooner would be infinitely preferable to later.
272. See supra text accompanying notes 224-245.
273. See supra text accompanying notes 100-129.