Of Nodes and Power Laws: A Network Theory Approach to Internet Jurisdiction through Data Privacy

INTRODUCTION The question of whether the Internet presents unique legal concerns has been much debated,1 as has, specifically, whether Internet-related harms warrant a fundamentally different personal jurisdiction paradigm.2 As a consequence, courts within the United States have not adopted a uniform approach to personal jurisdiction in cases arising out of Internet activity.3 Further, international consensus on the matter is lacking.4 What remains clear, however, is that questions of jurisdiction arise at the epicenter of the intersection of technology-mediated commerce and social governance; ju risdictional determinations tacitly address the social balance between providing incentives for entrepreneurship and providing recourse for harms. Through jurisdictional determinations, our courts make assessments regarding the social value of competing economic and personal interests. Striking and maintaining a jurisdictional balance between entrepreneurship and recourse becomes increasingly complex in the context of new types of harms that arise as a consequence of new methods of conveying information and conducting commerce.5 In this Article, I introduce a "Trusted Systems" approach to jurisdiction determinations in cases involving allegations of intentional torts and intellectual property infringement that occur through information technology mediated communication networks ("Network Communications").6 This approach hopes to address the flaws of previous Internet-specific jurisdictional frameworks: technological over-determinism and lack of intellectual grounding in traditional jurisdictional precedent. The Trusted Systems approach is a departure from existing approaches because it relies on the naturally occurring structure of human-network communication as the basis for crafting a jurisdictional paradigm. Similarly, it is novel in its intellectual reliance for jurisdictional deep structure on notions of responsibility and consent. It is not novel in its firm grounding and respect for traditional jurisdiction doctrine and minimum contacts analysis. Therefore, unlike the "Internet"7 jurisdiction paradigms currently in widespread use by courts, the Trusted Systems approach provides firmer grounding for the future evolution of jurisdiction precedent in cases involving alleged harms arising out of new media. I conclude by extrapolating the argument to other technology regulation contexts, urging recognition of the importance of all technology regulation acting in tandem with the naturally occurring structures of human-network communications. It might be said that all jurisdictional determinations in civil cases ultimately involve questions of dynamic information transfer, specifically whether the defendant knew or should have known that he or she might be haled into the courts of a particular forum and whether the plaintiff had reason to believe that recourse was available in that forum. Therefore, the goal of a successful jurisdictional regime, particularly in the context of harms arising out of Network Communications, is to maintain the stability of the "trusted system"8 of fair, truthful information exchange in society, regardless of whether the information in question addresses an impending commercial transaction between two parties (and the likelihood that a boiler will explode) or a celebrity's private life. To accomplish this end, courts seek or should seek to maximize predictability in jurisdictional outcomes. jurisdictional determinations can provide clear behavioral cues to actors regarding the extent of their social responsibilities in connection with fair information practices to particular forums. Simultaneously, these cues provide actors with certainty about the ability to be called or to call someone else in front of a particular court system. In other words, a successful jurisdictional regime is one that both preserves the trusted system of information exchange and enables actors to control their exposure to liability in particular jurisdictions, while planning on the ability to seek redress for harms caused to them. …