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9/27. The Department of Justice's (DOJ) Civil Rights
Division (CRD) entered into a
settlement agreement
[PDF] with Sylvan Learning Centers that
imposes obligations upon Sylvan with respect to its online tutoring services, pursuant to the
public accommodations title of the Americans with Disabilities Act (ADA).
The statute does not include online activities within the meaning of "public
accommodations". This area of law is far from settled. There is little judicial
precedent. Some of it is directly contrary to the position taken by the DOJ/CRD.
Judicial Precedent. The settlement agreement
does not discuss or cite any of what little case authority exists.
First, there are two opinions in Access Now v. Southwest Airlines that
suggest that the DOJ/CRD lacks authority to regulate Sylvan's online tutoring services.
Access Now filed a complaint in the U.S. District
Court (SDFl) against Southwest Airlines, which
maintains a web site the enables users to check airline fares and schedule and book airline
and hotel reservations, alleging violation of Title III of the ADA. Access Now alleged that
the Southwest has not made its web site accessible to blind persons using a screen reader.
The District Court dismissed the complaint for failure to state a claim, pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure (FRCP). The Court wrote that this was a case
of first impression, and reached its decision on the basis of statutory construction. It
held that "the plain and unambiguous language of the statute and relevant
regulations does not include Internet websites among the definitions of ``places
of public accommodation´´".
The District Court also applied the "rule of ejusdem generis" which
provides that "where general words follow a specific enumeration of persons or
things, the general words should be limited to persons or things similar to
those specifically enumerated." (Citations omitted.)
The District Court elaborated that "Where Congress has created specifically
enumerated rights and expressed the intent of setting forth "clear, strong,
consistent, enforceable standards," courts must follow the law as written and
wait for Congress to adopt or revise legislatively defined standards that apply
to those rights. Here, to fall within the scope of the ADA as presently drafted,
a public accommodation must be a physical, concrete structure. To expand the ADA
to cover ``virtual´´ spaces would be to create new rights without
well-defined standards."
See, October 18, 2002,
Order
Granting Defendant's Motion to Dismiss, which is also published at 227 F.Supp.2d 1312, and
story
titled "District Court Holds ADA Does Not Apply to Web Site" in
TLJ Daily E-Mail
Alert No. 538, October 30, 2002.
Then, on September 24, 2004, the
U.S. Court of Appeals (11thCir) issued its
opinion [PDF]
dismissing the appeal, without addressing the merits of the case, on the basis that the
"none of the issues on appeal are properly before us".
The District Court case number is 02-21734 CV-PAS. The Court of Appeals case number is
02-16163.
Second, there is National Federation of the Blind v. Target, a civil action
against Target alleging that its web site violates the ADA. It is pending in the
U.S. District Court (NDCal). The District Court,
Judge Marilyn Patel presiding, denied a motion to dismiss
the complaint, holding that the web site is a service of the stores, which are public
accommodations, and hence Target must comply with the ADA in its web operations.
See, September 5, 2006,
Memorandum and Order [26 pages in PDF] denying motion to dismiss. This case
is D.C. No. C 06-01802 MHP.
The National Federal of the Blind (NFB) is represented by
Daniel Goldstein of Brown
Goldstein & Levy.
TLJ spoke with Goldstein. He distinguishes the Southwest Airlines and Target
case. He said that former case was framed as the "web site as public
accommodation". He said that the District Court held that the web site is not
covered by the ADA because it is not a public accommodation. In contrast, he
said that the later case is framed as a brick and mortar public accommodation
(stores) that also offer online services. He said that this is a "bricks and
clicks theory".
TLJ also spoke with Chris Danielsen of the NFB. He said that "we believe the
the ADA applies to internet based activity", especially "where the general
public has access".
The settlement agreement is not specific enough to ascertain whether the DOJ/CRD's
understanding is that Title III applies to all internet based services available
to the public, or only to the internet based activities that support physical
brick and mortar public accommodations.
The distinction is important because many internet based businesses, such as
Google, Amazon, MySpace, and YouTube are pure internet plays. That is, there is
no physical Google store in Silicon Valley where one can go to search dead tree
indices or card catalogues. One cannot drive to a MySpace storefront, open and
account, and deposit audio tapes.
Patrick Letter. There is also the matter of
Deval Patrick's
September 9, 1996,
letter to
Sen. Tom Harkin (D-IA). Patrick is now the Governor
of the state of Massachusetts. He was previously head of the CRD in the administration of
former President Clinton.
 Patrick (at right)
wrote in this letter that "The Americans with Disabilities Act (ADA) requires ...
places of public accommodation to furnish appropriate auxiliary aids and
services where necessary to ensure effective communication with individuals with
disabilities ... Covered entities under the ADA are required to provide
effective communication, regardless of whether they generally communicate
through print media, audio media, or computerized media such as the Internet.
Covered entities that use the Internet for communications regarding their
programs, goods, or services must be prepared to offer those communications
through accessible means as well."
Patrick wrote that web site operators could comply by providing audio tapes
and Braille copies of their web sites.
Extension of DOJ/CRD Analysis. The agreement between Sylvan and the DOJ/CRD only
applies to Subsection 12181(7)(J) and "education". However, if the CRD were to
extend its interpretation of the ADA to other "education", then perhaps private
universities that publish course materials online in visual format that cannot be converted
to audio by screen reader software, must also publish them in screen readable, Braille, and/or
audio format for blind persons. And if they publish audio of lectures online, then they must
also publish text versions for deaf persons.
However, one might also extend the CRD's method of
analysis to the other categories of "public accommodations" that have online
variants. For example, (7)(C) includes not only a "motion picture house", but
also any "or other place of exhibition or entertainment". If one adds in the
word "online", then this might be construed by the CRD to cover any internet
protocol based video download service, or any multichannel video over IP service.
As another example, (7)(E) includes not only a "grocery
store", but also any "other sales ... establishment". If one adds the word
"online", then online sales establishment might be construed by the CRD to cover
any e-commerce activity. In the interpretation of a CRD attorney, this might mean that all
e-commerce sites must have audio or screen readable versions all text in the web site
for blind persons, must have audio descriptions of all graphics and video for blind persons,
must have text versions of all audio clips for deaf persons, and so forth.
As another example, (7)(H) includes not only a "library", but also any "or
other place of public display or collection". If one adds the word "online",
then an online collection of books sounds like Google's, Amazon's and Microsoft's online book
programs.
That is, under the CRD's method of analysis, when Google makes a book available online
in a visual format that cannot be converted to audio by screen reader software, to satisfy the
public accommodations requirements of the ADA, it must also produce and distribute screen
readable, Braille and/or audio copies, at no extra charge, to vision impaired persons.
As another example, (7)(D) includes not only an "auditorium", but also any
"other place of public gathering". If one adds the word "online", then
an online place of public gathering sounds like MySpace, any social networking web site, or
any other interactive fora where persons meet and exchange information.
Google Books, Snippets and Copyright. TLJ spoke
with Goldstein (NFB's attorney) about Google's book programs. He did not offer any
opinion as to Google's potential liability under the ADA. However, he predicted
that there will not be litigation against Google because it is aware of, and is
addressing, accessibility issues.
He added that one needs to consider the formats in which the content of books
are made available to online users. When the content is in a text format that
can be converted to audio by screen reader software, there is no accessibility
problem. However, when the content is made available in a graphics format, such
as with what Google has named "snippets", the content is not accessible. But, he
added that Google is aware of this, and working on a solution.
It may also be the case that when Google, Amazon, or others make the content
of books viewable online, or available for download, providing the content in
text format not only makes the content accessible to disabled persons. It also
makes the content accessible to copyright infringers, or others who would free
ride on the efforts of the providers of book content.
That is, the service provider has incentives to convert books into a digital
text format, so that is can provide search and retrieval functions to users, but
then only make the retrieved content available to users in graphical format, to
protect the copyright, proprietary, and advertising interests of the copyright
holders and service providers.
The NFB has already negotiated an agreement with
Amazon.com. The NFB announced this
agreement in a
release on March 27, 2007. However, this release does not provide details
from the agreement pertaining to providing the content of books to users online.
The release does state that "Blind persons access Web sites by using
keyboards in conjunction with screen access software, which vocalizes or
translates into Braille the visual information displayed on a computer screen by
Web browsers and other computer applications. If not designed properly, however,
Web sites can present barriers that do not allow the information contained on
them to be translated properly for blind users, and emerging Internet
technologies are presenting new accessibility challenges."
It is also important to consider what theory of liability might eventually
become established law. If the law were to evolved to a "bricks and clicks
theory", then a Google like program would not be affected by the ADA,
while a nearly identical program offered by a private university, which has
physical public accommodations, would be covered by the ADA.
User Posted Content. It is hypothetically possible that the sort of analysis applied
in the Sylvan case would be applied to any online "place of public gathering".
The operators of these "place of public gathering" web sites generally to not
create or post the vast majority of the content found in their web sites. Their users do.
Moreover,
47 U.S.C. § 230 provides that "No provider or
user of an interactive computer service shall be treated as the publisher or
speaker of any information provided by another information content provider."
That is, the web site operator cannot be held liable for something posted by a user.
However, the DOJ/CRD has demonstrated that it will pursue the operator of
an interactive web site under the civil rights laws for content posted by its users.
See, for example, story titled "DOJ Settles Case Against Interactive Computer Service" in
TLJ Daily E-Mail
Alert No. 808, December 31, 2003.
Moreover, the U.S. Court of Appeals (9thCir)
recently allowed two state anti-discrimination agencies to escape the exclusion of Section
230. The two agencies sought to enforce the federal Fair Housing Act and various state laws
against an interactive web site for information posted by its users.
The defendant operated a web site named Roommates.com. Its users published information
about themselves, including their age and sex. This, the state agencies argued, is
discrimination in housing on the basis of age and sex, and the web site is responsible. This,
the Court of Appeals held, creates an exception to Section 230.
See, May 15, 2007,
opinion [23 pages in PDF] in FHCSFV v. Roommates.com. See also, story
titled "9th Circuit Holds Roommates.com May be Liable for Speech of Users" in
TLJ Daily E-Mail
Alert No. 1,581, May 15, 2007.
That is, if the law evolves in the direction sought by the DOJ/CRD and 9th
Circuit, then when users post material to MySpace or YouTube the web site
operators themselves might be responsible complying with multiple format
requirements, and for taking down any content that does not.
TLJ asked the NFB's Chris Danielson regarding web sites with user generated
content. He said that "what we have focused on in the National Federation of the
Blind is the situation where you have a business that is providing a service on
the internet ... or university". He would not speculate on the liability
under the ADA of operators of web sites for user generated content.
However, having said that, he added that to create a MySpace account
you have to pass a visual test. He said that "those are not accessible to screen
readers", and the NFB is concerned about that.
Lack of Process and Transparency. It may also be worth noting the process by which
the DOJ/CRD is proceeding with respect to regulation of online activities.
It has initiated no rule making proceedings, which would provide the public
with notice, an opportunity to submit comments, and an opportunity for
judicial review of unlawful rules.
Nor has the CRD issued any notice of inquiry, to provide opportunity to comment.
Nor has the CRD held any public workshops or seminars, at which legal scholars,
technologists, and representatives of interested parties could make presentations.
Nor has the CRD held any public hearings, roundtables or discussion groups.
In short, the CRD is making policy without an informational basis for making
policy.
Also, whatever the understanding of the CRD is regarding the applicability of
Title III to internet activities, it is secretive and non-transparent about it.
It has published no rules, no guidances, no opinions, no circulars, no business
review letters, and no statements of intent to take no action.
The DOJ/CRD is extending Title III to internet activity without statutory
authority. However, while some government agencies adopt technology related
policies without statutory authority, they usually pursue multiple processes to
assist them in developing these policies. The DOJ/CRD, in contrast, is not following
formal or informal procedures and
processes relied upon by other federal agencies when considering new policies.
Conclusion. This is an unsettled and developing area of law. Yet the
direction that the DOJ/CRD appears intent upon taking the law, as evidenced by
Patrick's letter, previous settlement agreements, and the just announced Sylvan
agreement, is to broadly apply ADA public accommodations treatment to online activities.
If the law were to develop in a way that the DOJ/CRD seeks, several
consequences might follow. For example, web site operators and web speakers
might face private litigation.
Also, persons, companies, or government agencies who seek to suppress online speech might
employ the tactic of complaining that the web site, blog, or YouTube posting
fails to comply with the ADA, and must therefore be taken down. Companies that
seek to suppress criticism of their business practices, politicians who seek to
suppress political criticism, and others who seek to limit the free flow of
ideas, might resort to filing ADA complaints. The class of speakers most unable
to bear the costs of ADA compliance, and hence most likely to refrain from
online speech, would be individuals.
Also, the costs of ADA related compliance and litigation could deter use of
the internet, and inhibit innovation. The House Judiciary Committee's (HJC)
Subcommittee on the Constitution, Civil Rights and Civil Liberties (SCCRCL) held
a hearing in 2000 on the applicability of the ADA to online activities. One of
the witnesses (Walter Olson, a
Senior Fellow at the Manhattan Institute) testified then that if the ADA were
applied to web sites, then "Hundreds of millions of existing pages would be torn
down. Some of these would eventually be put back up after being made compliant.
Countless others never would." He also predicted that "Many widely used and
highly useful features on websites would be compromised in functionality or
simply dispensed with for reasons of cost, delay or cumbersomeness." See also,
story titled "Do
Web Sites Violate the Americans with Disabilities Act?", February 10, 2000.
The HJC/SCCRCL will hold a hearing on Thursday, October 4, 2007, on HR 3195
[LOC |
WW], the "ADA
Restoration Act of 2007". The bill is a reaction to several opinions of the Supreme
Court of the US regarding the meaning of physical or mental disability. However, this bill
does not address the meaning of "public accommodations".
Sylvan did not take or return telephone calls from TLJ. It asserted in an e-mail to TLJ
that the "settlement agreement is proprietary information". The settlement agreement
is a public record that the DOJ/CRD has published in its web site. See,
settlement agreement. The DOJ/CRD
did not respond to TLJ's questions regarding this case. The DOJ/CRD has never responded to
any of TLJ's questions, or granted interviews, regarding application of the ADA to internet
activities, except for the purpose of stating that it will not respond to any
questions.
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