Revisiting Internet Personal Jurisdiction in a Pandemic: A Shift From a Zippo Sliding Scale Test to a Sliding Categorical Test

Revisiting Internet Personal Jurisdiction in a Pandemic: A Shift From a Zippo Sliding Scale Test to a Sliding Categorical Test

Patrick Raya

The COVID-19 pandemic has had a major impact on everyone’s lives. Society, people, and likely even the courts will not be the same afterwards.[1] Our world is shifting away from physical interactions to an increasingly online reality.[2] More day-to-day operations are going virtual.[3] E-commerce has risen to greater heights.[4] Yet the outdated test for internet personal jurisdiction has stayed relatively the same.

The need for a robust internet personal jurisdiction rule is at its peak as the pandemic forced our personal and professional lives to go online.[5] The Supreme Court has not adopted a test for internet personal jurisdiction, leaving lower courts without clear precedent to follow.[6] The most used test for internet personal jurisdiction, the Zippo sliding-scale test, is outdated and should be modernized to reflect our prevalent online presence.[7] Courts cannot rely on the current jurisprudence for internet personal jurisdiction in our increasingly virtual reality. For internet personal jurisdiction to be brought to the modern age, courts need to look “under the hood” and actually parse through a website’s code to see if the website has availed itself of a website visitor’s personal data.

            This Note will propose a new sliding-categorization test for determining when the internet provides sufficient minimum contacts to establish personal jurisdiction. The proposed test takes elements of the original Zippo sliding-scale test,[8] how courts tried to modernize Zippo, and the Calder effects test,[9] and applies them in the context of online trade-offs in which internet users exchange personal data for web services. Part I examines the Supreme Court’s traditional personal jurisdiction jurisprudence and how present-day websites operate. Part II analyzes why courts should move away from the Zippo sliding-scale test and towards a sliding-categorization test. Part III proposes a new way of analyzing internet contacts, by analyzing the effect and role personal data plays in internet personal jurisdiction. Part IV proposes a new internet personal jurisdiction test by shifting from sliding-scale to sliding-categorization.

[1] See Madeline Holcombe, Life Will Never be the Same After the Pandemic Passes, Says Public Health Journalist, CNN (May 8, 2020), (discussing the continued circulation of the novel coronavirus even after a vaccine still influencing our interactions).

[2] See Emily A. Vogels, From Virtual Parties to Ordering Food, how Americans are using the internet during COVID-19, Pew RSCH. Ctr. (Apr. 30, 2020), (discussing the shift of physical activities to a virtual replacement, as demonstrated by increased online purchasing and socializing).

[3] See generally Meera Jagannathan, ‘I Was Told I Could Never Work Remotely’: Before Coronavirus, Workers With Disabilities Say They Implored Employers to Allow Them to Work From Home, MarketWatch (May 5, 2020), (discussing how, prior to COVID, employers did not grant remote work requests from employees with disabilities but have allowed remote work during the pandemic).

[4] See Fareeha Ali, Charts: How the Coronavirus is Changing Ecommerce, Digit. Com. 360 (Aug. 25, 2020), (analyzing data showing the increase in traffic on from 2019 to 2020).

[5] See Thomas O’Rourke & William Lesser, INSIGHT: Virtual Business Contacts Can Create Virtual Personal Jurisdiction, Bloomberg Law (May 21, 2020), (discussing how the pandemic presents courts with the opportunity to assess virtual contacts and reassess minimum contacts).

[6] See Walden v. Fiore, 571 U.S. 277, 290 n.9 (2014) (leaving “questions about virtual contacts for another day”).

[7] Internet personal jurisdiction likely will be a constant changing endeavor. Rather than trying to future proof a rule for internet personal jurisdiction, a change in approach to internet personal jurisdiction would create a better base for future advancements to how we use the internet and its implications towards internet personal jurisdiction. Rather than using a sliding-scale courts should work with a sliding-categorization test. The sliding-categorization test is not an actual term of art, but a new proposed way of working with internet personal jurisdiction.

[8] Zippo Mfg. Co., 952 F. Supp. at 1124.

[9] Walden v. Fiore, 571 U.S. 277, 291 (2014) (“The proper focus of the ‘minimum contacts’ inquiry in intentional-tort cases is ‘the relationship among the defendant, the forum, and the litigation.’”) (citing to Calder v. Jones, 465 U.S. 783, 788 (1985))). 


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