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Almost six years ago, the U.S. District Court for the Western District of Pennsylvania handed down a decision that became the most important case in Internet jurisdiction. Zippo Manufacturing Co. v. Zippo.com Inc.has been followed by nearly all jurisdictions in the country, including Texas. The primary issue facing the Zippocourt was what level or extent of Internet activity is required to subject a litigant to personal jurisdiction in a foreign venue. To answer this inquiry, the Zippocourt devised a three-tier, sliding scale of Internet activity. These three levels are commonly referred to as “passive,” “interactive” and “commercial.” Passive refers to a Web site that provides information only, with no interaction between the site and the Internet user. A good example might be the early firm Web sites that began to show up several years ago. Usually, these consisted of nothing more than online “advertisements” telling about the firm, its practice and its attorneys. These sites rarely offered any exchange between the firm and the visitor and typically would be classified as purely passive. According to Zippoand its progeny, passive sites never should subject their owners to personal jurisdiction in a foreign venue. The next level on this sliding scale describes interactive Web sites, wherein the user and Web site are able to exchange information. At the time of Zippo, this was primarily, if not exclusively, done through e-mail messages. According to Zippo, to determine whether jurisdiction is proper in this context, one examines the “level of interactivity and commercial nature of the exchange of information that occurs on the web site.” The third-tier category is commonly referred to as the commercial Web site or, as Zippodescribed it, “situations where a defendant clearly does business over the Internet.” Under these circumstances, the exercise of jurisdiction is always proper. This analysis has been adopted by courts throughout the country. It has largely proven beneficial, providing courts and litigants with some expectation as to a decision in the exercise of personal jurisdiction. It offers a seemingly straightforward analysis, the hope being that any given Web site can be plugged into one of these three categories and a decision on whether the exercise of personal jurisdiction over a litigant is constitutional easily is determined. There are, however, at least three important factors to keep in mind when evaluating the Zippoanalysis and its continued appropriateness. First, it is vital to consider the motivation behind the Zippocourt in coming up with this sliding scale analysis. Opponents of this position, and even several court cases decided before Zippo, had argued that the existence of any Web site on the Internet should subject the owner of that site to personal jurisdiction anywhere the site is viewed. The rationale for this position was that since it is known that any Web site can be viewed by any user, anywhere with access to the Internet — barring a private site — there should be no surprise over being held to personal jurisdiction where the site is viewed. In one such 1996 decision, Inset Systems Inc. v. Instruction Set, a U.S. District Court in Connecticut found that an Internet advertisement accessible to Connecticut residents, and to anyone with an Internet connection, was sufficient proof that the operator of the Web site had “purposefully availed itself of the privilege of doing business in Connecticut.” Accordingly, the court concluded that the exercise of personal jurisdiction was proper. The Zippocourt and most Internet commentators recognized that placing the bar so low could seriously impede the growth of the Internet and possibly limit a Web site’s interactivity, commercial activity, etc. The logical conclusion of such an argument would have subjected any Web site owner to jurisdiction any place in the world, since the Internet recognizes no international boundaries. Because of this, the Zippocourt came up with its sliding scale approach and a firm statement that simply having a presence on the Internet should not subject someone to personal jurisdiction anywhere that site is viewed. Second, it’s important to remember that for most people the Internet was still in its early stages in January 1997 when Zippowas decided. The number of Web sites worldwide was minuscule compared to what it is now. The number of households in America on the Internet in 1997 was a fraction of what it is now, and the concept of businesses actively selling their goods or services online was still in its infancy. This is especially relevant when considering the concept behind the sliding scale approach to Internet jurisdiction. In 1997, passive Web sites were the norm, whereas this relationship probably has flipped in the subsequent six years. Most sites now attempt to do some level of business on the Internet. Even nonprofits sell merchandise on the Internet. Firm Web sites now commonly have the ability for clients to sign up and pay for legal seminars, to get legal questions answered over the Internet or even to schedule an appointment, etc. Moreover, there are few sites left that do not have some level of interactivity. In 1997, interactivity was largely a question of whether there were e-mail addresses and the ability to communicate with the site. Today, there may be chat rooms, real-time bulletin boards, immediate instant messaging or video and audio connections, just to name a few. Thus, for better or worse, the percentage of Web sites on the Internet today that conceivably could subject someone to jurisdiction under Zippois much higher than it was in 1997. Third, some recent decisions, including the leading case in Texas on Internet jurisdiction, Mink v. AAAA Development LLC, decided by the 5th U.S. Circuit Court of Appeals in 1999, have largely ignored the fact that Zippoand the majority of its progeny through the late ’90s and into 2000 were cases decided solely on the question of specific jurisdiction. Personal jurisdiction is commonly divided into either the exercise of general or specific jurisdiction over a litigant. In a specific jurisdiction case, an examination is made of the nonresident defendant’s contacts with the forum state that are directly related to the litigation or specific cause of action. General jurisdiction, on the other hand, exists when a defendant’s contacts with the forum state, though unrelated to the cause of action, are so continuous and systematic as to warrant an exercise of personal jurisdiction over the litigant. In Mink, the 5th Circuit adopted the Zipposliding scale analysis but did so and analyzed the defendant’s Web site under the guise of general jurisdiction. The court did not discuss whether it felt there was any difference in applying the Zippoanalysis in a specific or general jurisdiction case. This author believes there are at least two important reasons why this is significant and should be the subject of some debate and consideration. It has long been held — in cases such as Hall v. Helicopteros Nacionales day Columbia, S.A., a 1984 U.S. Supreme Court case, and Perkins v. Benguet Consolidated Mine Co., a 1952 U.S. Supreme Court case — that much more activity directed toward the subject forum is required for an assertion of general jurisdiction than for an assertion of specific jurisdiction. Presumably then, the level of commercial nature or interactivity on an Internet site should be much greater before general, as opposed to specific, jurisdiction is attached to the defendant. However, there was no recognition of this in the Minkdecision, nor has there been much discussion in subsequent commentaries. As a result, we may be heading to a time when the concern that motivated, in part, the creation of the Zipposliding scale analysis may be reached. Consider that, given the ever growing nature of interactivity and commercial aspect of almost every Web site, under a strict technical application of the Zippoanalysis, it is possible that in the near future the overwhelming majority of Web sites would subject their owners to general jurisdiction any place the Web site is viewed. Stated differently, due to nothing more than the beneficial and efficient evolution of the Internet, most sites may in the near future subject their owners to general jurisdiction anywhere that site is viewed under the Zippoanalysis. Has the Zippocase run out of fuel or served its usefulness? Given the advance in the nature of Internet activity in this country and abroad, a good case can be made that it has. In the grand scheme, six years is a short period of time. However, when talking about advances in the evolution of the Internet, six years constitutes a complete change in the industry. Given that change, it is probably time for a re-examination of how jurisdiction is exercised over commercial Web sites. A better approach might simply be to do away with the Zippoanalysis and focus more on a deliberate case-by-case analysis of how much commercial activity any given Internet operator has undertaken within, or toward, a specific jurisdiction. The extent to which the Web site might, hypothetically, be able to do business in the jurisdiction should have no importance. Rather, a fully commercial Internet site selling products or services over the Web only should be subjected to general jurisdiction within a given forum if it can be shown that it has done a substantial amount of business in that forum. If by happenstance it has not, the exercise of general jurisdiction over that Web site should not be permitted. This would comport with the general rule that significantly more activity is required for an assertion of general jurisdiction than for specific jurisdiction. It also would ensure that Web operators would be subject to general jurisdiction only in forums in which they actually have received the benefits of doing business. Eric Findlay is a member of Ramey & Flock, www.RameyFlock.com, in Tyler, Texas.

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