An Internet jurisdiction case

In October, 2000, the Chicago Board of Election Commissioners became concerned that a Web site located in Austria,, had the potential to corrupt or, at least, to undermine confidence in the general election subsequently held on 7 November 2000 in Chicago and elsewhere in the United States. solicited voters in the then forthcoming election to offer to sell their votes, and also solicited persons interested in buying those votes.  The Web site was constructed so that offers to sell and offers to buy were made by filling out a form that included the address, with a pull down list including Illinois as an option.  Moreover, the Web site also included a summary of outstanding offers with Illinois as a specific listing.  There was, thus, little difficulty in concluding that Illinois courts could exercise jurisdiction over the Web site under the Zippo Continuum [1] and the targeting concept of Millennium Enterprises. [2]

Accordingly, the Board of Election Commissioners filed a civil lawsuit in the Circuit Court of Cook County against and its individual organizers and managers. 

But the existence of theoretical jurisdiction was not enough; any judgment also must be enforced, and the procedures for transnational enforcement of judgments not only are uncertain, they would take months.  The election was scheduled in weeks.

So, the Election Commissioners thought about practicable enforcement measures that might be taken against property located in the jurisdiction, or at least in the United States.  One possibility was to target the domain name, ""  Such an approach had been suggested by the author of this article in "Will the Judgment Proof Own Cyberspace." [3]   The offending domain name was present in Illinois—and hundreds or thousands of domain name servers supporting hundreds or thousands of Internet service providers in the vicinity of Chicago.  But litigating against all those ISPs quickly was ruled out.  Instead,'s domain name registrar, Domain Bank,  was named as a defendant in the lawsuit, and the draft injunction attached to the complaint included a paragraph ordering that the domain name be withdrawn or cancelled.  In October, Judge Murphy of the Circuit Court of Cook County Illinois signed the injunction after a hearing. 

Domain Bank had been notified of the lawsuit, and had engaged in extensive telephonic discussions with counsel for the Election Commissioners.  Domain Bank had, in its standard domain name registration agreement, a provision prohibiting the use of domain names for "illegal purposes."  After the injunction was issued, signifying a judicial determination that the domain name was being used illegally, Domain Bank cancelled the domain name, shutting down all over the world.

But celebrations of victory in Chicago were tentative, and sure enough, about a week later opened up under a new domain name, "," and this domain name was registered in Switzerland with CORE.  But CORE had a similar prohibition against illegal use in its standard domain name registration agreement.  After extensive telephonic and email discussions between counsel for the Election Commissioners and counsel for CORE, CORE also cancelled the domain name, once again shutting the site down.  Subsequently, sought to publicize its IP address, the use of which would avoid the domain name system all together, but by then, the election had been held.

In some theoretical sense, it would have been better to have enforced the injunction against domain name translation in or near Chicago.  That would have kept the enforcement action within the sovereign whose laws were being enforced.  It also would have comported more comfortably with geographic limits on the jurisdiction of the court issuing the injunction.  But doing that was impracticable, given the large number of ISPs and uncertain patterns of use.  It was much easier under tight time deadlines imposed by the proximity of the election, to focus enforcement efforts on a single intermediary, the first located in another state but within the United States, and the second located in a foreign country.  The theoretical jurisdictional grounds were shakier, but enforcement at this level was practicable.

[1]  Zippo Mfg. V. Zippo Dot Com, 952 F. Supp. 1119 (W.D.Pa. 1997) (holding that the defendant purposefully availed itself of doing business in the forum state).

[2]  Millennium Enter. v. Millennium Music, LP, 33 F. Supp. 2d 907, 915-16 (D. Or. 1999) (explaining Zippo continuum as a “sliding scale” under which the “likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet” and suggesting that jurisdiction exists over Web sites only when the forum state is targeted).

[3] Henry H. Perritt, Jr., Will the Judgment-proof Own Cyberspace? 32 Int'l Lawyer 1121 (1998).