Aliens, the Internet, and "Purposeful Availment": A Reassessment of Fifth Amendment Limits on Personal Jurisdiction

INTRODUCTION The Internet presents some unique challenges for personal jurisdiction. People are able to post material on the Internet that is instantly available worldwide. This has many wonderful applications, but it also means a single person who never leaves home can inflict significant harms on people around the world.1 Moreover, because the Internet brings together people from parts of the world that have very different social policies concerning areas such as free speech, consumer protection, and intellectual property, there is a significant potential for conflict about underlying regulatory policy. The international community has been struggling with questions of who should regulate the Internet and how, but little consensus has emerged. Some observers believe that disagreements over jurisdiction related to e-commerce were largely responsible for the demise of the Hague Convention of jurisdiction and the Recognition and Enforcement of Foreign judgments in Civil and Commercial Matters.2 For the United States, consideration of the pros and cons of the alternative jurisdictional approaches to e-commerce and Cyberspace is complicated by an overlay of constitutional law.3 While the rest of the world considers the policy implications of a country of origin versus a country of destination approach,4 the United States is wrestling with what constitutes "purposeful availment" under the Due Process Clause. Looking at the constraints imposed by our constitutional doctrine of personal jurisdiction, Professor Redish has argued that this doctrine is illsuited to Internet cases and that we should abandon it for those cases.5 I share Professor Redish's dissatisfaction with the constitutional requirement of purposeful availment. However, in this Article, I explore the issue from a different angle. I believe that the most difficult issues arise from the international arena and may ultimately lead Congress to weigh in (as it has in the case of the Anticybersquatting Consumer Protection Act).6 As a result, this Article examines what limits the Fifth Amendment imposes on the exercise of jurisdiction over aliens by the United States.7 The Supreme Court has never squarely considered what limits the Fifth Amendment imposes on assertions of personal jurisdiction in federal court. Commentators have, for the most part, assumed that the limits imposed by the Fifth Amendment are comparable to those imposed on the states by the Fourteenth Amendment. This Article examines that assumption and concludes that the limits imposed by the Fifth Amendment are not comparable to those imposed by the Fourteenth. Specifically, it argues that the Fifth Amendment should not be understood to include the requirement of purposeful availment8 and that jurisdiction should be constitutional on the basis of effects in the United States. This Article first considers the Fourteenth Amendment cases and argues that the constitutional limits on the jurisdictional authority of state courts reflect a view about the limits of state authority. It then turns to the Fifth Amendment and, after considering the practices of other nations and lessons from prescriptive jurisdiction, argues that the United States's sovereign authority should allow it to assert personal jurisdiction solely on the basis of effects in the United States, without a requirement of "purposeful availment." It further argues that concerns about reasonableness should be addressed at the subconstitutional level. This Article is built on two basic premises: that personal jurisdiction is a doctrine that concerns the allocation of sovereign authority, and that the underlying sovereignty considerations of the United States within the world community are quite different from those of the states within our confederation of states. As a result, although the Due Process Clauses of the Fifth and Fourteenth Amendments are worded the same, the limitations that those clauses impose on sovereign authority are different. …