Internet Jurisdiction: Using Content Delivery Networks to Ascertain Intention

Specific jurisdiction in civil litigation centers on the rather general,yet immutable, concept of intention. Although the word “intention” does not surface prominently in the personal jurisdiction case law, it is clearly intrinsic to the concept of “purposeful availment”. On the Internet, however, intention is hard to ascertain: how does a court, for example, determine whether the defendant intended that its website, application, or advertisement within a mobile application should end up in the forum state? In answering such a question, courts have historically used one of two approaches to establish intent: (i) a targeting test or (ii) a degree of activity test. Both tests require courts to examine the content of the defendant’s website: while the former asks whether a defendant aimed its website at the forum, the latter asks whether a website is passive, interactive or active. No court, however, has looked “under the hood”, at the Internet backbone itself, to establish whether a defendant is using the technological infrastructure of the Internet to purposefully avail itself of – and thereby establish minimum contacts with – the forum. This essay fills that gap: I propose that the purposeful availment test – a necessary element for specific jurisdiction – is satisfied when a defendant employs a content delivery network (“CDN”) to exploit a forum market (“the CDN approach”).