Excerpt from
Personal Jurisdiction in Cyberspace: Where Can You Be Sued, And Whose Laws Apply?
George M.Perry
LeBoeuf, Lamb, Greene & MacRae, L.L.P.

Short of closing down one's Web site, is there anything an operator can do to mitigate this risk? One obvious course of action is to minimize the "interactive" nature of the Web site (assuming that does not destroy the reason for its being) by avoiding the inclusion of ordering functionality, 800 telephone numbers, and other ways in which users can make direct contact with the site operator. If there are particular states that represent a greater threat than others, the Web site operator might consider specific language on the site disclaiming any intention of advertising to or soliciting business or orders from the residents of that state, and ensuring that orders and other requests are not accepted or fulfilled to residents of those states.

Another partial answer might lie in the law of contracts. Many Web sites have "conditions of use" or other types of agreements that set forth the conditions upon which the Web site may be accessed. In some sites, the user is required to provide an affirmative assent to the conditions of use such as clicking on "I agree," but, in most sites, the conditions of use are simply made available for users to read, usually accessed through a link on the Home Page. Web site operators should consider placing a provision in their conditions of use or other user agreements that not only establishes the law of their state of domicile as the applicable law for purposes of any disputes arising from the site, but also establishes the courts of the state of domicile as the only courts in which suit may be brought. Whether such a provision would be honored by a court depends upon many factors, including the degree to which it felt there was a true contract between the parties. If it can be shown that the user affirmatively agreed to the provision, rather than merely being invited to read it if she wished, the Web site operator's argument will have a greater likelihood of prevailing. Even if a valid contract can be shown to exist with users, the provision would not be effective against a litigant who is not suing in the capacity of a user of the site. However, even in such a case, the provision might have some favorable influence on the question of whether the Web site operator has "purposefully availed" herself "of the privilege of conducting activities within the forum State" and "should reasonably anticipate being haled into court there."