How To Find Personal Jurisdiction Over Foreign Website Operators

“Inside the Data Center” by Sterling Ely (CC BY-NC-SA 2.0 DEED)

The Supreme Court’s recent personal jurisdiction decisions have raised more questions than they have answered. Meanwhile, the high Court has studiously avoided explaining how twentieth-century personal jurisdiction doctrine should map onto a twenty-first century world defined by Internet commerce, global supply chains, and cloud computing. The work of maintaining and updating a practical framework for personal jurisdiction has largely been left to the circuit courts.

In its recent decision in Doe v. WebGroup Czech Republic, A.S., the Ninth Circuit offered an analytically defensible and pragmatic approach to the question of personal jurisdiction over foreign defendants engaged in online commerce. The opinion (authored by Judge Daniel Collins) works with the complex framework developed by Supreme Court and Ninth Circuit precedent to reach an end result that stays true to the spirit of International Shoe Co. v. Washington (1945).

Pornography Websites and Underage Sex Trafficking

The allegations in WebGroup are disturbing. The plaintiff is a U.S. citizen and resident of California who, at the age of fourteen, was a victim of sex trafficking in the United States. Videos of her abuse were uploaded to two pornography websites operated by two related Czech entities, WebGroup Czech Republic, a.s., and NKL Associates, s.r.o. (“Czech defendants”). The Czech defendants are based in Prague, and their websites are hosted on servers in the Netherlands that are operated by a U.S.-based company.

The websites are two of the top ten most heavily trafficked websites in the United States and in the world. The United States is in turn the largest single market for both websites, with between 12-19% of their traffic coming from U.S.-based IP addresses. According to the plaintiff, just one of the videos of her abuse was viewed more than 160,000 times on one of the websites. She claims that she contacted the websites several times over several years asking them to remove the videos, but that the videos were not taken down until her attorney sent a cease-and-desist letter in 2020.

She subsequently filed a putative class action in U.S. district court against the Czech defendants and 14 other U.S. and foreign defendants, asserting three private rights of action created by federal statutes to protect victims of sex trafficking and child pornography and a fourth cause of action created by a California statute targeting the unauthorized distribution of private sexually explicit images. The district court granted the Czech defendants’ motion to dismiss for lack of personal jurisdiction, which led it also to dismiss the claims against the other foreign defendants. The plaintiff appealed. Because the Ninth Circuit concluded that personal jurisdiction over the Czech defendants was proper, it vacated the dismissal of all of the foreign defendants (but not the U.S. defendants, the claims against whom were dismissed for failure to state a claim) and remanded the case to the district court.

Structuring the Personal Jurisdiction Analysis

The exercise of personal jurisdiction requires both legislative authorization and constitutional validity. For the federal courts, legislative authorization is found in Federal Rule of Civil Procedure 4(k). The plaintiff relied on Rule 4(k)(2), which provides:

For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if:

(A) the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction; and

(B) exercising jurisdiction is consistent with the United States Constitution and laws.

The parties agreed that no U.S. state court could assert personal jurisdiction over the Czech defendants. Further, three of the causes of action were based on federal statutes. (As for the fourth claim based on state law, the Ninth Circuit held in a footnote that once Rule 4(k)(2) authorizes personal jurisdiction over a defendant with respect to a federal claim, the federal court can also assert personal jurisdiction over the same defendant with respect to a related state law claim—a sort of pendant claim personal jurisdiction.)

That left Rule 4(k)(2)(B), which coincides with the second requirement for personal jurisdiction: that its exercise not violate the Due Process Clause of the Constitution. The relevant Due Process Clause for Rule 4(k)(2) purposes is the Fifth Amendment, which checks the power of the federal government, rather than the Fourteenth Amendment, which checks the power of individual states. Because the Supreme Court developed its personal jurisdiction doctrine in the context of state courts and the Fourteenth Amendment, some courts (most notably the Fifth Circuit) have divided over whether personal jurisdiction under the Fifth Amendment involves a different analysis. The Ninth Circuit wisely avoided that debate, relying on its own precedent to hold that International Shoe’s minimum contacts framework still applies under Rule 4(k)(2), except that the defendant’s contacts are assessed against the United States as a whole.

The court then laid out the Ninth Circuit’s standard three-part test for specific jurisdiction: (1) that the defendant purposefully availed itself of the U.S. forum or purposefully directed its activities toward it, (2) that the claim arises out of or relates to those contacts, and (3) that the exercise of jurisdiction would be reasonable. The Ninth Circuit’s formulation of the specific jurisdiction, though relatively standard, answers three questions my 1Ls ask me every year.

First, the circuit has developed “purposeful direction” as a basis distinct from “purposeful availment” for establishing the first prong. While the Supreme Court has emphasized primarily the idea of “purposeful availment”—that the defendant voluntarily availed itself of the privilege of conducting business in the forum—some of its older decisions used the language of “purposeful direction,” particularly in cases involving intentional torts and stream-of-commerce analogies. The Ninth Circuit has recognized that “purposeful direction” can be a more useful rubric for analyzing some types of cases and has developed a separate line of precedent applying that approach. (So yes, dear students, some circuits do recognize a difference between purposeful availment and purposeful direction.)

Second, reasonableness is still very much a part of the Ninth Circuit’s analysis (just as I suspect it is in the other twelve circuits), even though the Supreme Court has stopped mentioning the reasonableness factors in its personal jurisdiction opinions. (That means, dear students, that you should still address the reasonableness factors on your exam and in your future briefs.) Third, the Ninth Circuit has developed a seven-factor balancing test for this purpose, likely in recognition of the fact that (as my students often identify) the five factors articulated by the Supreme Court are rather vague and difficult to apply. Though still not perfect, the Ninth Circuit’s seven-factor test is a bit more tractable:

(1) the extent of the defendant’s purposeful interjection into the forum state’s affairs; (2) the burden on the defendant of defending in the forum; (3) the extent of conflict with the sovereignty of the defendant’s state; (4) the forum state’s interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to the plaintiff’s interest in convenient and effective relief; and (7) the existence of an alternative forum.

In this case, the Ninth Circuit rather easily found that the plaintiff’s claim arose out of the defendants’ contacts with the United States and that the exercise of jurisdiction would be reasonable. The more difficult question was whether the Czech defendants had purposefully directed activities toward the United States.

Purposeful Direction and the Internet

The Ninth Circuit has developed the idea of purposeful direction into its own three-part test: there must be (1) an intentional act by the defendant that is (2) expressly aimed at the forum state and (3) caused harm that the defendant knew was likely to be suffered in the forum state. Here, no one disputed the intentionality of the Czech defendants’ conduct.

Whether they “expressly aimed” those intentional acts at the United States required grappling with the nature of online commerce and the difference “between passively benefitting from U.S. users of its website and expressly aiming its website at such users.” This was the issue the district court struggled with as well, trying to navigate among prior Ninth Circuit cases. The panel threaded that needle differently, concluding that the Czech defendants actively appealed to and profited from U.S. users based on allegations that the district court did not address: that the Czech defendants contracted with U.S.-based content delivery network services (“CDNs”), which temporarily cache videos on U.S. servers to allow U.S. users to stream the videos more quickly and smoothly. That use of “a U.S.-based operation to facilitate quick delivery of product to nearby consumers demonstrates the sort of differential targeting the constitutes express aiming at the U.S. market.”

The Ninth Circuit was careful to note that other possible indicia of targeting might not on their own be sufficient to establish purposeful direction, but nonetheless bolstered the court’s conclusion. As the district court had noted, a website can passively profit from significant U.S. traffic without engaging in purposeful direction, including through the use of geo-located advertising services that target users no matter where the user is located. But here the fact that almost a fifth of the websites’ users were in the United States supported the conclusion that the use of U.S.-based CDNs to support that user base was a purposeful targeting of U.S. audiences. The court was similarly wary of suggesting that simply registering U.S. trademarks (as the Czech defendants did here) constitutes express aiming at the United States, but such registration does help confirm that the Czech defendants intended to target and profit from the U.S. market. On the other hand, the court reasoned that the use of U.S.-based companies (like Google and PayPal) for generic email and payment services did not help establish purposeful direction because those services were used for managing the websites globally, without differentiation for the U.S. market.

Significantly, the Ninth Circuit made clear that an online business can differentially target multiple markets. For example, even if these defendants used CDNs in other markets outside the United States, that would not alter the finding that use of U.S.-based CDNs constitutes purposeful direction towards the United States. This clarification is important and sensible. The point of the purposeful direction/availment inquiry is to ensure that jurisdiction flows from the defendant’s volitional engagement with the forum. A defendant can choose to engage with multiple forums (and be subject to jurisdiction in each of them). The analysis is thus not a comparative one, but a threshold trigger.

Finally, turning to the last component of the purposeful direction test (whether the defendant caused harm that it knew was likely to be suffered in the forum state), the Ninth Circuit again rejected a comparative approach: it matters only if some harm occurred in the forum, even if the forum is not the location of the greatest amount of harm. The websites’ significant U.S. user base meant both that some of the harm occurred in the United States and that such a result was foreseeable, especially once the plaintiff asked the websites to remove the videos.


The Ninth Circuit’s approach and conclusion in WebGroup is doctrinally defensible as well as pragmatic. One would probably not have designed such a detailed and arguably convoluted personal jurisdiction framework if starting from scratch, but such is the path dependence of the common law working itself out over a series of real cases. And that winding path through real cases is helping lower courts like the Ninth Circuit develop a common-sense approach to when foreign website operators cross the line from passively benefitting from U.S. users to purposefully seeking them out.