As technology has changed the way in which individuals interact with each other, courts have sought to address how non-physical contacts with a forum state should factor into the analysis of whether to exercise personal jurisdiction over an out-of-state defendant. Courts have yet to decide whether a defendant should be subject to personal jurisdiction in a state where the defendant’s only contacts with the forum took place through smartphone apps. The growing prevalence of smartphones and apps, however, has brought with it the need for courts to consider exactly that issue. Apps are in many ways a combination of the Internet and computer software, and courts have addressed the personal jurisdiction implications of both. So should apps be treated the same as the Internet and websites for the minimum contacts inquiry? Should they be treated more like computer software?
This Note applies four personal jurisdiction frameworks to a hypothetical case where the defendant’s only contact with the forum state arises from the download of a smartphone app that he created. Under three of the frameworks, I conclude that a court would likely find that the app created sufficient minimum contacts with the forum state such that exercising personal jurisdiction would be constitutional.
However, establishing minimum contacts does not end the analysis. Courts must also determine whether exercising personal jurisdiction over the defendant would be fair. I argue that the unique circumstances surrounding apps and their creation are such that exercising personal jurisdiction may not always be fair even when minimum contacts have been established.
Courts were originally hostile to finding minimum contacts solely on the basis of a defendant’s Internet contacts with the forum state. However, as the importance and prevalence of the Internet grew, so did courts’ acceptance of Internet contacts as a basis for exercising personal jurisdiction. Smartphone apps are the new frontier for wireless interaction. This Note concludes that the traditional personal jurisdiction analysis remains the best way to assess whether a defendant’s app contacts with a forum state are sufficient to justify the exercise of personal jurisdiction.