Minimum Contacts in a Borderless World: Voice Over Internet Protocol and the Coming Implosion of Personal Jurisdiction Theory

Abstract

Modern personal jurisdiction theory rests on the twin pillars of state sovereignty and due process. A nonresident's "minimum contacts" with a forum state are treated as the equivalent of her territorial presence in the state and hence justify a state's exercise of sovereignty over her. At the same time, the nonresident's "purposeful availment" of opportunities within the state is seen as implying her agreement to that state's jurisdiction in exchange for the protection of its laws. This theory presumes that a nonresident directs voice communications to known places by dialing a telephone number's area code.

Voice over Internet Protocol ("VoIP") and the borderless communications of the twenty-first century belie this assumption. Area codes will no longer reliably correspond to known locations; individuals can call, and do mischief in, a state without ever realizing that they are contacting that state. With VoIP and its emerging applications, most means of interstate communications - voice, fax, file-sharing, e-mail, and real-time video conferencing - will lack geographic markers.

The U.S. Supreme Court will be forced to choose which value is paramount: state sovereignty or the implied contract approach to due process. In a few cases arising from cellular-phone calls, lower courts have privileged the implied contract theory. This effectively returns the law of personal jurisdiction to the nineteenth-century formalism of Pennoyer v. Neff by limiting jurisdiction to defendants' home states in cases arising from harmful communications. This evisceration of state sovereignty is unwarranted. Other means can protect a non-resident defendant from abusive process. Securing state sovereignty over harmful borderless communications promotes a healthy federalism, reconciling seemingly inconsistent centrifugal and centripetal themes in the Supreme Court's jurisprudence.

Keywords: Law and technology, jurisdiction, Voice over Internet Protocol