4/22. The House Judiciary Committee's (HJC) Subcommittee on the Constitution, Civil Rights, and Civil Liberties held a hearing titled "Achieving the Promise of the Americans with Disabilities Act in the Digital Age -- Current Issues, Challenges, and Opportunities".

Introduction. Samuel Bagenstos, the Department of Justice's (DOJ) Civil Rights Division's (CRD) Principal Deputy (PD) Assistant Attorney General (AAG), testified. He stated in response to questions that the CRD intends to write regulations that will expand the reach of the Americans with Disabilities Act (ADA) to regulate the internet and new technologies.

The plain language of the ADA limits the reach of Title III to the physical facilities of enumerated public accommodations. See, related story in this issue titled "Summary of the ADA".

Moreover, were Title III to apply to web sites, software, electronics devices, and other information technologies, it would wreak havoc for these technologies, and their providers and users.

In recent decades, information technologies taken as a whole have provided substantial benefits to persons with various disabilities. Electronic commerce, telework, and distance learning are made possible by information technologies, and provide new opportunities, especially to persons with mobility disabilities. Computing and software provide opportunities to enlarge text, and convert text into audio, to the advantage of persons with vision disabilities. The software in computing devices also enables devices, applications and services to be accessed by persons with various disabilities.

However, many new technologies taken individually, if covered by the ADA, can be asserted to discriminate against one or more categories of persons with disabilities. Audio, and voice based services, cannot be heard by deaf people. Video, and sight based services, cannot be seen by blind people. Computing devices and software can confound persons with cognitive disabilities.

Many new IT based products or services are either very cheap or free. Requiring producers to make equivalent products or services for all disability groups would render many products or services prohibitively expensive, and drive them out of the market, to the detriment of consumers as a whole, and disabled persons.

Nevertheless, Bagenstos was adamant and moralistic in his assertions regarding the need to redress discrimination in new technologies via government action. However, he was vague and confusing as to details of forthcoming actions by the CRD.

Bagenstos repeatedly stated the CRD's position "has been clear". Actually, the CRD has a long history of being evasive, secretive, and inconsistent. It made an apparently clear statement in 1996. However, it was in a letter to a Senator, and not in binding regulations, or enforcement actions. Moreover, the CRD did not follow through. In retrospect, it bore many attributes of empty election year political promises.

One possibility is that the CRD is again engaging in election year politics. On the other hand, Bagenstos said that the CRD intends to write regulations. But then, he also hedged this statement. Moreover, the CRD actually concluded a set of significant enforcement actions in January, February and March directed at the Amazon Kindle DX. Hence, the CRD may actually be on course to implement a major policy change via writing regulations and enforcing its interpretation that the ADA now applies to web sites and new technologies. Or perhaps, the Kindle DX actions were an isolated election year stunt. Notably, the CRD took no action directly against Amazon.

Bagenstos said that the CRD does not seek legislation. So, if the CRD does actively attempt to enforce its interpretation of the ADA, it risks being stopped by judicial opinions that hold that it is acting without statutory authority.

This was not a legislative hearing. While there were a few references to HR 3101 [LOC | WW], and a bill that may be introduced in the future by Rep. Sheila Lee (D-TX), the hearing did not address pending bills, or possible legislative approaches.

The witness panel was stacked with disability rights proponents. The Subcommittee heard from no representatives of companies or trade groups whose products and services would be regulated, or from groups that advocate First Amendment rights, or internet freedom. Few company or group representatives attended the hearing.

See, prepared testimony of Mark Richert (Director of the American Foundation for the Blind), prepared testimony of Daniel Goldstein (a lawyer who has represented the AFB), prepared testimony of Steve Jacobs (IDEAL Group), and prepared testimony of Judy Brewer (Director of the Web Accessibility Initiative of the World Wide Web Consortium).

The HJC's witness panels frequently include one or more law professors or other legal experts who provide detailed explanations of the judicial opinions interpreting the statute or issue that is the subject of the hearing. This hearing included no such witnesses. Bagenstos, Richert and Goldstein offered the legal conclusions that Title III covers the internet, including web only operations, without providing any analysis of the language of the statute, or the judicial opinions on point. With no opposing witnesses, or legal experts, these conclusions went uncontested.

Also absent from the witness panels and audience were representatives of the many other government agencies involved in disability issues. The Department of Education (DOE) is involved in disability education issues. The Copyright Office (CO) is involved in disability related exemptions to copyright infringement. The Federal Communications Commission (FCC) is the agency designated by Title IV of the ADA to regulate telecommunications services for benefit of hearing and speech impaired persons. The FCC, NTIA, DHS, and NHTSA all have responsibilities with respect to 911/E911 regulation and grants, which have a disability component. Numerous agencies are involved in procurement, which can be used to address disability issues for government employment and services; however, procurement can also be leveraged to affect products and services sold to the private sector.

That is, the Subcommittee held this hearing, without almost no prior notice, and no attempt to include input or even attendance by stakeholders and experts in the field.

This hearing focused on one disability -- blindness and visual impairment. However, witnesses often spoke of this as "text based" disability. There was almost no discussion of regulation for the benefit of persons with mobility, hearing, age or mental related disabilities.

Only three reporters attended.

Finally, while the CRD submitted prepared testimony, Bagenstos testified in person, and the DOJ has released several settlement agreements in recent months, the CRD has yet to disclose any set of principles regarding the applicability of Title III to web site operators, software producers, electronic device makers, and other providers of products or services via information technologies, that would enable these businesses to analyze if and how the ADA would apply to their business operations.

Bagenstos Testimony. Bagenstos' nine page single spaced prepared testimony [PDF] is silent on the subject of writing new regulations.

However, he said in response to questions that "it is certainly our intention to update our regulations". But shortly thereafter he said that "we intend to issue technical assistance about all of these issues at some point. We are also looking into the regulatory solution." He did not identify which statement was correct.

He wrote in his prepared testimony that "Title III applies to the internet sites and services of private entities that meet the definition of ``public accommodations´´ set forth in the statute and implementing regulations".

He also said, in response to questions, that "The legal requirements are the requirements that apply to any business, first of all, that is covered by the public accommodations provisions of the ADA. So, they have to provide individuals with disabilities the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations of the business. When a business is operating through a web site, whether as an adjunct to a bricks and mortar operation, or simply on a web site, those principles imply a set of requirements, requirements to make sure that everything on the web site is fully accessible, or, we have said in the past, there are ways that it is conceivable theoretically for a business to provide the exact equivalent of what is on the web site".

He added that "that might be by having someone available 24 hours per day to answer questions". He further stated that the equivalent "must be equally effective".

He also stated that "we haven't asked for some legislative changes", because "we think that the statute is clear".

Bagenstos did not provide details regarding the content of prospective regulations in either his written or his oral testimony. Members of the the Subcommittee did not question him on this.

He did not address the process that the CRD would follow to write rules. Nor did he address timing, other than to say that "we intend to make an announcement on something like this in the months ahead".

Bagenstos wrote in his prepared testimony that "As to private places of public accommodation, only two cases -- both in Federal district courts -- have specifically addressed the application of ADA Title III to their websites, and those cases have reached different conclusions."

Then, he wrote that "Title III applies to the internet sites and services" and that "a business providing services solely over the internet is subject to the ADA's prohibitions on discrimination on the basis of disability." He reiterated this argument in his oral testimony, quoted above.

Bagenstos failed to disclose to the Subcommittee the extent to which judicial precedent precludes the legal interpretation that he offered in both his written and oral testimony. He did not name the two cases with "different conclusions". They are Access Now v. Southwest Airlines and NFB v. Target, and are discussed in more detail in the related story in this issue titled "Interpretation of the ADA". Nor did he mention the Court of Appeals opinion in Weyer v. Twentieth Century Fox, also discussed in the related story, which held that under Title III public accommodations are "actual, physical places".

Southwest Airlines held that "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". Target held that Title III can apply to a store's web site, but only if its also maintains a physical store, and there is a nexus between the two, such that the services offered in the allegedly inaccessible web site are also offered in the physical store. All of these opinions are inconsistent with Bagenstos's assertion that Title III applies internet only businesses.

TLJ spoke with Bagenstos outside the hearing room after his testimony. He refused to answer questions.

TLJ has made numerous attempts for over a decade to learn from the CRD its understanding of the applicability of the ADA to web sites, software, and other information technologies. TLJ has met with, phoned and e-mailed CRD personnel, and contacted former CRD personnel after their departure from the CRD. Current and former CRD personnel, like Bagenstos, have consistently refused to discuss the matter with TLJ.

DOJ Divisions, such as the CRD, are headed by an AAG. Thomas Perez is the CRD AAG. Sections within Divisions are typically headed by a Deputy AAG. AAGs are political appointees subject to Senate confirmation. Most DAAGs are non-career political appointees not requiring Senate confirmation. The second ranking official in a Division, such as Bagenstos, is the PDAAG.

Statements of Subcommittee Members. Rep. Jerrold Nadler (D-NY), the Chairman of the Subcommittee, presided. He was the only Representative present for the entire hearing. He urged the DOJ to "update its regulations". He asked Bagenstos if the CRD seeks legislation. Bagenstos said no. Otherwise, Rep. Nadler avoided the subject of Congressional legislation.

He said that "The notion that the Congress prohibited discrimination only when it occurs at a physical place, or required structural changes only to physical places is inconsistent with the spirit and the plain language of the law."

"Congress certainly did require changes to physical structures. But that was not all", said Rep. Nadler (at right).

Computers, software, the internet, and e-mail were all in existence at the time that the ADA was enacted. Yet, the ADA makes no reference to any of these. The Congress revised the ADA in 2008, but made no reference to internet or information technologies. Hence, Rep. Nadler and others at this hearing devoted almost no attention to the wording of the statute. Instead, they frequently spoke of the "spirit" or "promise" of the ADA.

Rep. Nadler's goals are not apparent. The plain wording of Title III of the ADA limits its reach to physical places, yet he asserts that the plain language of Title III goes beyond physical places. What is significant is not that his statutory interpretation is untenable, but that he is in a position to do something about the language of the statute, but does not. He has not introduced a bill that would give Title III an expanded reach. He is not a cosponsor of HR 3101, which would clearly provide for disability based regulation of information technologies. Nor did he advocate passage of HR 3101. All that he did was urge the DOJ to write regulations, and extract weakly worded statements from Bagenstos that the CRD would write regulations.

Rep. Nadler may seek a new legal regime that extends disability enforcement and litigation to information technologies, but is possessed of a sense of political realism that leads him to believe that there is insufficient support in the Congress for legislation, so the most that he can seek is a new legal regime built upon de facto legislation from the CRD. The CRD may not comply, and if it does, its efforts could be struck down by the courts; but this is the most that Rep. Nadler can realistically seek.

A second possibility is that Rep. Nadler is engaging in the minimum level of rhetorical activity to keep his party in the good graces of interest groups that represent blind and vision impaired people, without bringing about any significant changes to the legal and litigation environment for providers and users of information technologies, or causing his party to fall from their grace.

Third, Rep. Nadler may be pinned in the cross fire of an ancient intramural rivalry between Committees. That is, there is only one bill in play, HR 3101, a House Commerce Committee (HCC) bill. While it would expand federal government authority to regulate the internet and new technologies in the cause of access for the disabled, it would do so by expanding Federal Communications Commission (FCC) authority -- not DOJ/CRD authority. The HCC oversees the FCC, while the HJC oversees the DOJ/CRD. The HCC and its members have a long history of aggressively seeking to expand their authority at the expense of the HJC. Hence, Rep. Nadler's avoidance of a legislative solution may reflect the circumstance that he is reluctant to take any action that might enable the HCC to seize territory from the HJC.

Rep. James Sensenbrenner (R-WI), the ranking Republican on the Subcommittee, praised the ADA. He was eloquent, but avoided taking positions.

He said that the "The advance of technology makes former excuse making incredibly untenable. The ADA has been one of the most effective pieces of civil rights law passed by the Congress. Its continued effectiveness is paramount to ensuring that the transformation that our nation has undergone continues in the future, and that the guarantees and promises on which this country was established continue to be recognized on behalf of all of our citizens."

He delivered his opening statement, and then left. No other Republicans participated. Few Republican staff attended.

Rep. Bobby Scott (D-VA), Rep. Judy Chu (D-CA), and Rep. Sheila Lee (D-TX) also made brief appearances.

Rep. Lee stated that she will introduce a bill, to be titled the WONDER Act, at some unspecified time. She explained that the title will be a near acronym for "Ways to OpeN Doors", and a reference to the blind professional singer, Stevie Wonder. However, she did not explain its contents.

Some members of the HJC are skilled at developing complex legislation, reaching out to other members, working with all affected groups, developing bipartisan support, refining the legislation to obtain broad backing, and navigating the bill through the Congress. Rep. Sheila Lee is not one of these members.

Prospects for Legislation. On June 26, 2009, Rep. Ed Markey (D-MA), a senior member of the HCC, introduced HR 3101 [LOC | WW], the "Twenty-first Century Communications and Video Accessibility Act of 2009".

It now has 46 mostly Democratic cosponsors. This is a long and complex bill that would greatly expand FCC authority to regulate not only communications connected to the PSTN, but also a wide range on new and emerging information technologies, including consumer electronics devices. Also, while it is directed at disability issues, it would also have the effect of expanding FCC authority in other areas.

There has been no hearing on or markup of HR 3101 by any Subcommittee or by the full HCC.

There is no House or Senate bill directed at amending the ADA to extend Title III to cover the internet and information technologies. Rep. Sheila Lee has not introduced her bill.

There are numerous bills in the present Congress, as there are in every Congress, that would change provisions of the ADA unrelated to the internet and information technologies.

Given the lack of activity, and proximity of midterm elections, it is highly unlikely that the Congress will enact legislation in this Congress.

2000 Hearing. This hearing was conducted differently from a related hearing of the same Subcommittee on February 10, 2000. That hearing included a large group of proponents of expanding the reach of the ADA to include web sites. However, the Subcommittee also heard testimony from two opponents.

One witness, Walter Olson, a Senior Fellow at the Manhattan Institute, testified 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 testified that "The posting of new pages, by the tens of millions, would screech to a near-halt", and "Parties subject to the ADA will feel pressure to use government-approved authoring tools".

See also, article in the Reason Online May 2000 edition by Olson titled "Access Excess: The Americans with Disabilities Act goes online".

Also, the 2000 hearing was attended by a large public audience, and included more participation by members. Former Rep. Charles Canady (R-FL) chaired that hearing. See, story titled "Do Web Sites Violate the Americans with Disabilities Act?", Tech Law Journal, February 10, 2000.

Perez Testimony on April 20. The Senate Judiciary Committee (SJC) held an oversight hearing on the CRD on Tuesday, April 20, 2010. Thomas Perez, head of the CRD, was the sole witness. See, prepared testimony.

The ADA is just one of many statutes enforced by the CRD. This hearing covered a wide range of statutes and issues, including voting rights, hate crimes, gay rights, and lending discrimination by financial institutions.

However, application of the ADA to web sites, software, devices, or other information technologies was not addressed, except that Perez inserted a few sentences about the Amazon Kindle cases into his prepared testimony.

Perez (at left) discussed the ADA several times, but in the context of institutionalization of mentally ill people.

This hearing reflected the different interests and goals of Democrats and Republicans in civil rights statutes. For example, Sen. Jeff Sessions (R-AL) repeatedly pressured Perez on the voting rights of oversees voters (members of the military lean Republican) and cleaning up fraudulent voter registration roles (deceased voters lean Democratic).

In contrast, Democrats questioned Perez about issues of concern to constituent groups of the Democratic party. Sen. Ben Cardin (D-MD) focused on lending discrimination, while Sen. Al Franken (D-MN) focused on gay and abortion rights.

4/22. In January the Department of Justice's (DOJ) Civil Rights Division (CRD) announced a three settlement agreements, all of which contain mandates that pertain to the design of Amazon's Kindle DX, and other ebook readers. It announced two more in February and March.

All five agreements settle administrative proceedings initiated by the filing of complaints by the National Federation of the Blind (NFB) and the American Council of the Blind (ACB). All of the complaints alleged violation of Title III of the ADA (except for the Arizona State University complaint, which alleged violation of Title II) and Section 504 of the Rehabilitation Act.

See, related stories in this issue titled "Summary of the ADA" and "Summary of Disability Related Statutes Other Than The ADA That Affect IT". See also,

• settlement agreement with Pace University (signed by CRD on December 17, 2009, and released on January 13, 2010)
• settlement agreement with Reed College (signed by the CRD on December 18, 2009, and released on January 13, 2010)
• settlement agreement with Case Western Reserve University (signed by the CRD on December 22, 2009, and released on January 13, 2010)
• settlement agreement with Arizona State University (undated, and released on February 2, 2010)
• settlement agreement with Princeton University (signed by the CRD on March 24, 2010, and released on April 15, 2010)

These agreements are not identical. The Princeton document, for example, states that Princeton "will not require, purchase, or incorporate in its curriculum the Kindle DX or any other dedicated electronic book reader for use by students in its classes or other coursework unless or until such electronic book reader is fully accessible to individuals with visual impairments".

It adds that "The phrase ``other dedicated electronic book reader´´ means any wireless, hand-held, electronic book reader that has been or will in the future be produced or offered by Amazon.com or any other corporation, such as but not limited to the Barnes and Noble nook, the Sony PRS-600, PRS-700, PRS 505 or upcoming Sony Daily Edition, and others."

The DX is Amazon's 10.4" by 7.2" reader with a screen that measures 9.7" diagonally. Blind persons cannot read the screen of an e-book. However, the Amazon web site sites states that the Kindle DX "can read newspapers, magazines, blogs, and books out loud to you, unless the book's rights holder made the feature unavailable".

All of the agreements recite the allegation that the DX is not accessible to students with visual impairments. However, they do not explain.

The DOJ offered this explanation in a release on January 13, 2010: "the Kindle DX has the capability to read texts aloud, so that the materials would be accessible to blind individuals, but the device does not include a similar text-to-speech function for the menu and navigational controls. Without access to the menus, students who are blind have no way to know which book they have selected or how to access the Kindle DX Web browser or its other functions."

The CRD did not initiate an action against Amazon. It only has authority to enforce Title III against commercial "places of public accommodation". The ADA's enumeration of public accommodations includes schools. The CRD pursued every university that entered into a trial e-book program with Amazon.

The DOJ nominally took action against "public accommodations", while its de facto purpose was to regulate the design of Amazon's new technology.

Most of the public debate and pertinent judicial precedent has focused on the question of whether private companies that operate web sites, write software, make electronic devices, or provide other information technologies are places of public accommodation covered by Title III of the ADA.

These cases suggests that the CRD may recognize that there are either fundamental and insurmountable legal obstacles, or huge risks, to bringing Title III actions against web site operators and other providers of new information technologies, and is therefore focusing on the strategy of regulating these businesses indirectly.

In these Kindle DX cases the CRD has targeted consumers of IT products who are themselves public accommodations within the meaning of Title III. Another strategy would be to target state and local governments under Title II, who are consumers of the IT products that the CRD seeks to regulate.

Another strategy would be to target federal government entities under Section 508 of Rehabilitation Act which is codified at 29 U.S.C. § 794d. It requires that "electronic and information technology" used by federal agencies must provide access to people with disabilities that is comparable to access provided to people without disabilities.

Yet another strategy would be to target entities that receive federal financial assistance under Section 504 of the Rehabilitation Act, which is codified at 29 U.S.C. § 794. It provides, in part, that "No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency ..."

Universities, schools, and state, local and federal government consumers of IT products and services are likely to make far more compliant defendants than the businesses whose success depends on sales of its products and services. Moreover, the CRD can attempt to leverage regulatory control over one part of a market to in effect control the entire market. Many companies will not produce multiple versions. These companies will end up making only one version which satisfies CRD design specifications.

Another notable attribute of these administrative proceedings involving universities is that some would not be unjusticiable under the case or controversy requirement of Article III of the Constitution. For example, the settlement agreements do not recite the factual allegation that any blind or visually impaired student was harmed by the use of Kindle DXs.

Thomas Perez, the Assistant Attorney General (AAG) in charge of the CRD, testified at a Senate Judiciary Committee (SJC) oversight hearing on the CRD on Tuesday, April 20, 2010. See, prepared testimony.

The hearing covered issues other than the applicability of the ADA to the internet and information technologies. However, Perez inserted a brief statement about the Kindle cases into his written testimony.

He wrote that "Another recent highlight was the announcement of settlement agreements with several institutions of higher education regarding the use of inaccessible electronic book readers, such as the Kindle DX. The universities agreed not to purchase, recommend, or promote use of any dedicated electronic book reader, unless the devices are fully accessible to students who are blind and have low vision. The universities agree that if they use dedicated electronic book readers, they will ensure that students with vision disabilities are able to access and acquire the same materials and information, engage in the same interactions, and enjoy the same services as sighted students with substantially equivalent ease of use."

In addition, Perez stated in the DOJ release on January 13 that "Advancing technology is systematically changing the way universities approach education, but we must be sure that emerging technologies offer individuals with disabilities the same opportunities as other students".

Samuel Bagenstos, the CRD's Principal Deputy AAG, testified at the House Judiciary Committee's (HJC) Subcommittee on the Constitution, Civil Rights, and Civil Liberties hearing on April 22, 2010, titled "Achieving the Promise of the Americans with Disabilities Act in the Digital Age -- Current Issues, Challenges, and Opportunities".

He wrote in his prepared testimony that "These settlement agreements provide that the universities will not purchase, require, or in any way incorporate into the curriculum the Kindle DX or any other dedicated electronic book reader that is not fully accessible to individuals who are blind or have low vision. The agreements become effective at the end of the pilot projects. The agreements also contain a functional definition of accessibility when applied to dedicated electronic book readers -- the universities must ensure that students who are blind or have low vision are able to access and acquire the same information, engage in the same interactions, and enjoy the same services as sighted students with substantially equivalent ease of use. The purpose behind these agreements is to underscore that requiring use of an emerging technology in the classroom that is inaccessible to an entire population of individuals with disabilities -- individuals with visual disabilities -- is discrimination that is prohibited by " the ADA and Section 504.

Bagenstos' written testimony also contains this statement: "Title III applies to the internet sites and services of private entities that meet the definition of ``public accommodations´´ set forth in the statute and implementing regulations". This might be interpreted to mean that if a business maintains a physical operation that is enumerated in Title III, such as a restaurant or hotel, then its web site is also covered by the ADA. Alternatively, this might be interpreted to mean that a business that operates no facility that is enumerated in the ADA, but operates a web site, is covered by the ADA because the CRD now defines web sites as "public accommodations", notwithstanding the absence of any supporting language in the statute. The former interpretation would visit less violence upon wording of the statute. However, Bagenstos then made a further statement that is consistent with the conclusion that the CRD follows the later interpretation, and not the former. He wrote that "a business providing services solely over the internet is subject to the ADA's prohibitions".

But then, he addressed Amazon, which provides via its web site both the sale of digital books by wireless technology and the sale of Kindle ebook reading devices. He wrote in his carefully worded prepared testimony that "Amazon.com, Inc. ... is not covered by the ADA ... in its capacity as the manufacturer of the Kindle DX".

If in fact the CRD believes that "a business providing services solely over the internet is subject to the ADA's prohibitions", then the CRD could have taken action directly against Amazon. That is, the allegation was that blind people could not use the device to order books via Amazon's web site. The CRD could have proceeded on the theory that the web site itself was inaccessible (if one accepts the notion that "a business providing services solely over the internet is subject to the ADA's prohibitions"). Perhaps the CRD lacks confidence in its own interpretation that "a business providing services solely over the internet is subject to the ADA's prohibitions". Or perhaps, it is concerned that there may not be a violation where the barrier to accessibility to the web site arises in the design of the Kindle DX, rather than the design of the web site and/or ebook download operation. But, since Amazon provides both the Kindle DX and web site and ebook download operation, the CRD might have asserted the holding in the Rendon case. See, related story in this issue titled "Interpretation of the ADA".

Rather, the CRD pursued a collection of universities, which are "public accommodations". Moreover, the CRD proceeded under a theory that is suspect, even if one accepts the notion that "a business providing services solely over the internet is subject to the ADA's prohibitions". The universities are public accommodations within the meaning of Title III. Barriers to access to the universities are prohibited. But, there were no barrier to access to the universities. The alleged barrier was to ordering books from the web site -- of Amazon, not the universities.

Also, while Bagenstos wrote that the corporate entity of Amazon is not covered by the ADA "in its capacity as the manufacturer of the Kindle DX", this still leaves unanswered the question of whether the CRD understands that the company is covered by the ADA in its capacity as the operator of the Amazon web site and/or provider of ebook downloads.

Whatever the CRD's understanding of the ADA is in matters such as this, it has failed to disclose it to the public.

4/7. The Department of Justice's (DOJ) Civil Rights Division (CRD) required that the local government entity for Kansas City, Kansas, modify its 911 service.

The DOJ initiated an investigation of the Unified Government of Wyandotte County and Kansas City, Kansas under the rubric of the Americans with Disabilities Act (ADA).

On April 7, 2010, the DOJ and Kansas City entered into a settlement agreement that requires, among other things, that "each 9-1-1 call station is equipped with a TTY or computer equivalent".

The DOJ also issued a release that states that Kansas City "will take several important steps", including "Officially recognizing the Kansas telephone relay service as a key means of communicating with individuals who are deaf, are hard-of-hearing, or have speech impairments and training staff in using the relay service for telephone communications".

This agreement also addresses the web site design and content, police questioning of suspects and custodial interrogations, and other matters.

Lack of Statutory Authority. The ADA is a 1990 statute that requires the removal of architectural barriers to disabled people in public accommodations (Title III), and prohibits employment discrimination against disabled people (Title I). In addition, Title IV of the ADA, which is codified at 47 U.S.C. § 225, addresses telecommunications. It gives rulemaking and enforcement authority to the Federal Communications Commission (FCC), not the DOJ.

The CRD proceeded in this Kansas City matter under the theory that Title II, which in general prohibits discrimination by state and local governments against disabled people, gives the CRD telecommunications related authority, notwithstanding the ADA's specific grant of telecommunications related authority to the FCC.

Moreover, there is the "Ensuring Needed Help Arrives Near Callers Employing 911 (ENHANCE 911) Act of 2004", enacted as Title I of HR 5419 in the 108th Congress. It is now Public Law No. 108-494. It is codified at 47 U.S.C. § 942. It was amended by the 110th Congress in 2008 by HR 3403 [LOC | WW], the "NET 911 Improvement Act of 2008", Public Law No: 110-283 to include language regarding disabilities access to 911/E911 services.

This legislation creates an "E–911 Implementation Coordination Office". It provides for federal matching grants to state and local governments "for the implementation and operation of Phase II E–911 services and for migration to an IP-enabled emergency network". It provides for the writing of a national plan to identify, among other things, "solutions for providing 9–1–1 and enhanced 9–1–1 access to those with disabilities and needed steps to implement such solutions".

This Act, as amended, assigns functions to the Federal Communications Commission (FCC), National Telecommunications and Information Administration (NTIA), Department of Homeland Security (DHS), and the National Highway Traffic Safety Administration (NHTSA). But, the statute assigns no powers or authority to the CRD or any other unit of the DOJ.

The DOJ's proceeding involving Kansas City, and another proceeding in 2006, suggest that the CRD may be operating beyond the scope of its statutory mandate, for the purpose of regulating the design of certain new and emerging communications and information technologies.

It should be noted that Title IV of the ADA gives the FCC authority over carriers. However, the CRD did not take action against Kansas City pursuant to a referral from the FCC.

Kansas City Mandate. The just announced action also requires that Kansas City "develop procedures for answering 9-1-1 calls that include training all call takers to use a TTY to take 9-1-1 calls".

TTY is a rough acronym for TeleTYpewriter. It is one form of TDD. TDD is defined by 47 U.S.C. § 225 as "Telecommunications Device for the Deaf", and "a machine that employs graphic communication in the transmission of coded signals through a wire or radio communication system". Section 225 also defines TRS or Telecommunications Relay Service as "telephone transmission services that provide the ability for an individual who has a hearing impairment or speech impairment to engage in communication by wire or radio with a hearing individual in a manner that is functionally equivalent to the ability of an individual who does not have a hearing impairment or speech impairment to communicate using voice communication services by wire or radio. Such term includes services that enable two-way communication between an individual who uses a TDD or other nonvoice terminal device and an individual who does not use such a device."

The mandate also requires that Kansas City "monitor its incoming 9-1-1 TTY calls to ensure they are answered as quickly and accurately as other calls received".

It also requires that Kansas City institute "disciplinary procedures for call takers who fail to perform TTY call-taking consistent with training and procedures".

It also requires that Kansas City "report to the Department" of Justice.

The mandate also requires Kansas City to comply with an attached policy statement, that more broadly addresses communications with deaf persons. This also extends to police questioning of suspects, custodial interrogations, and issuing parking and traffic tickets.

This statement requires that, "In situations when a nondisabled person would have access to a telephone, officers must provide persons who are deaf or hard of hearing the opportunity to place calls using a text telephone (TTY, also known as a telecommunications device for deaf people, or TDD). Officers must also accept telephone calls placed by persons who are deaf or hard of hearing through the Telecommunications Relay Service." (Parentheses in original.)

The mandate also requires that "all new and modified web pages and content are accessible". An attached DOJ document titled "Accessibility of State and Local Government Websites to People with Disabilities" provides examples of accessibility.

For example, it states that "When posting documents on the website, always provide them in HTML or a text-based format".

This Kansas City mandate covers 911 and TRS services. These are both matters that the Congress has committed to another federal agencies. Moreover, the FCC and other agencies, but not the CRD, possess expertise and experience in telecommunications, 911 and E911 services, and TRS.

To the extent that the Kansas City mandate addresses the procedural rights of deaf persons in the criminal justice system, one should bear in mind that the DOJ contains many units whose functions are to investigate and prosecute crimes. The DOJ, in both Republican and Democratic administrations, has endeavored to reduce the due process and other Constitutional rights of defendants and suspects in criminal investigations and prosecutions. Yet, the DOJ's CRD is now asserting itself as protector of the procedural rights of deaf persons in the criminal process. Whether the DOJ can be relied upon to perform this function is suspect.

Also, to the extent that the Kansas City mandate would regulate state government web site design, its proscriptions reflect a lack of understanding of the subject matter.

That is, the DOJ wants governments to publish all web pages in a text based format. A text based format does facilitate the use of text to audio software by blind people. On the other hand, governmental agencies receive documents that are on paper, or are electronic, but not in a text based format. This DOJ principle would preclude agencies from publishing these documents. This would substantially degrade the transparency and openness of government activities and operations, such as rule making proceedings.

Kanawha 911 Mandate. The recently announced action against Kansas City is not the CRD's first 911/E911 mandate. On December 5, 2006, the CRD compelled Metro 911 of Kanawha County, in the state of West Virginia, to modify its 911 service. Unlike the Kansas City mandate, this one addresses only 911 service.

The CRD, acting under the rubric of Title II of the ADA, entered into a Settlement Agreement that requires the county "to provide direct access via TTY (text telephone) or computer-to-telephone emergency services, including 9-1-1 services, for persons who use TTY's and computer modems". (Parentheses in original.)

DOJ, FCC and VOIP Based Emergency Communications. While the FCC and CRD now both congratulate themselves on their service to disabled persons, both have a history of suppressing technologies that could have benefited disabled persons.

Consider, for example, the the FCC's proceedings regarding the classification of broadband services, its CALEA proceedings, its omnibus IP enabled services proceeding, and its proceedings regarding location surveillance and extending E911 mandates to VOIP service providers.

The FCC, with input and pressure from the DOJ, classified various broadband internet access services as information services, and declined to apply the Title II telecommunications regulatory regime to them. However, the FCC also extended certain components of its legacy telecommunications regulatory regime to broadband service, and services and applications facilitated by broadband service.

In the case of VOIP service, the FCC imposed a draconian regime, beginning in May of 2005, just after Kevin Martin's ascension, ordering that all interconnected VOIP service providers promptly comply with legacy voice 911/E911 system.

VOIP service providers, and the groups that advocated their interests, who were sometimes represented by former FCC personnel, argued in comments, ex parte meetings, and elsewhere that new technologies offered new opportunities for emergency services. See for example, April 15, 2005, ex parte filing [25 pages in PDF] of the VON Coalition.

For example, computers with broadband connections that ran VOIP applications could provide a range of functions that dumb phones could not. Data, such as digital medical records, could be automatically transferred with a 911 communication to first responders and emergency health care service providers. Deaf persons could communicate via text. Persons with devices with cameras could send images or video.

However, while computer based and IP enabled services could excel over the legacy voice system in many respects, it presented several concerns for the DOJ and other law enforcement agencies.

First, there was intercept capability. Computer users, with no billing relationship with a carrier, could communicate anonymously and/or beyond the interception capabilities of the FBI with VOIP applications, frustrating the DOJ's goal of maintaining universal intercept capability.

Second, there was location detection capability. The DOJ wanted to know where everyone was. Some VOIP service providers wanted to rely upon user self-reporting of the locations of their computers. For the vast majority of users, and particularly people interested in enhanced emergency communications services, such data would be reliable. However, the DOJ could not rely upon the people that it targeted for surveillance to self-report accurate location information.

In the end, the FCC, through its VOIP and CALEA orders, rejected offers by VOIP service providers to assist in the development of new and advanced computer based and IP enabled emergency communications services. The FCC's actions had the effect of suppressing potential services.

The DOJ and FCC got a fine surveillance system -- more capable than the old POTS wiretap system.

John Morris of the Center for Democracy and Technology testified before two of the House Commerce Committee's (HCC) Subcommittees on February 24, 2010. He wrote in his prepared testimony that "Because individuals often carry their mobile devices with them, location data may be collected everywhere and at any time, often without user interaction, and it may describe both what a person is doing and where he or she is doing it."

Intercept capability and location detection, combined with law enforcement use of new information technologies to store, merge, query and mine data, have greatly advanced the surveillance capabilities of the DOJ.

But, along the way, the DOJ acquired all this, with the FCC's help, by discriminating against, and harming, a range of service providers, and prospective users of those services.

There is also the related matter that when the FCC imposes requirements on service providers to fulfill some public service goal, such as 911 service, disability access, or universal service, the FCC sometimes designs a regulatory regime that imposes burdens that are more easily borne by large and/or incumbent services providers. Such regulatory regimes are sometimes sought and manipulated by incumbents as a means to limit competition from new entrants and disruption by new technologies. Such incumbents gain competitive advantages through regulatory processes, and then congratulate themselves for their own altruistic commitment to the public interest.

4/22. The 101st Congress enacted the Americans with Disabilities Act (ADA) in 1990. It is Public Law No. 101-336. It enacted this Act primarily to require the removal of architectural barriers to disabled persons in public accommodations, physical locations such as restaurants, movie theaters, and hotels, and to bar discrimination against disabled persons, especially in employment.

Title I: Employment. Title I of the ADA bars employment discrimination. It is not central to current policy debates regarding regulation of the internet and new technologies.

Title II: State and Local Governments. Title II prohibits discrimination by state and local governments. The Department of Justice's (DOJ) Civil Rights Division (CRD) has asserted Title II as authority for its 911 related actions against Kansas City and Kanawha County. See, related story in this issue titled "Civil Rights Division Requires Kansas City to Modify its 911 Service".

Also, if CRD efforts to regulate private sector produced or operated web sites, software, devices, and other information technologies is blocked by the Obama administration or by judicial review, the CRD could attempt to leverage Title II for the same purpose.

That is, the CRD could target procurement of information technology products and services by state and local government agencies, state universities, and public schools, with the expectation that many companies would not make two separate product lines -- one for government entities and another for private sector users or customers.

Title III: Public Accommodations. Title III regulates the physical architecture and construction of public accommodations, and requires the removal of barriers. It is codified at 42 U.S.C. §§ 12181-12189.

42 U.S.C. § 12182 provides, in part, that "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation". 42 U.S.C. § 12183 provides that "as applied to public accommodations ... discrimination ... includes ... a failure to design and construct facilities for first occupancy ... that are readily accessible to and usable by individuals with disabilities ..."

Title III only affect "public accommodations". The statute lists the covered items. It provides, in full, as follows:

"The following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce--
  (A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;
  (B) a restaurant, bar, or other establishment serving food or drink;
  (C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
  (D) an auditorium, convention center, lecture hall, or other place of public gathering;
  (E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
  (F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
  (G) a terminal, depot, or other station used for specified public transportation;
  (H) a museum, library, gallery, or other place of public display or collection;
  (I) a park, zoo, amusement park, or other place of recreation;
  (J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
  (K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
  (L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation."

Proponents of expanding the reach of the ADA argue that information technologies did not exist when the Congress passed the ADA, and therefore were not enumerated. And for this reason, they should now be considered as covered.

There are several counter-arguments. First, the internet, e-mail, computers, and software all existed when the ADA was enacted. Yet, the Congress choose not to enumerate any of them in this definition, or elsewhere in the ADA.

Second, Title III of the ADA enumerates only facilities that are in the nature of public accommodations, such as restaurants and hotels. Each and every item is also a physical location. None of the new technologies that the CRD seeks to regulate are in the nature of public accommodations. None is a physical location.

Third, Title III applies only to a long and detailed enumeration of "public accommodations". The Congress choose not to include any general language, or any reference to evolving forms of public accommodation. The Congress knows how to write legislation that anticipates future innovations. See, for example, the universal service section of the Telecommunications Act of 1996, now codified at 47 U.S.C. § 253, which provides, in part, that "Universal service is an evolving level ..."

Title IV: Telecommunications. Title IV regulates telecommunications services for hearing and speech impaired persons. It is codified at 47 U.S.C. § 225.

This section provides, in part, that the Federal Communications Commission (FCC) "shall ensure that interstate and intrastate telecommunications relay services are available, to the extent possible and in the most efficient manner, to hearing-impaired and speech-impaired individuals in the United States".

This section also gives the FCC rulemaking and enforcement authority. See, FCC's TRS rules, which are codified at 47 C.F.R. § 64.601-64.606. However, the FCC's regulatory authority is limited to "common carriers".

The Congress has also designated, in separate legislation, the FCC as the agency with responsibility for development of 911 and E911 systems.

4/22. The following is a summary of major court opinions and statements by the Department of Justice's (DOJ) Civil Rights Division (CRD) regarding the application of Title III of the ADA to the internet, web sites, software, electronic devices, and other information technologies.

The CRD asserts that Title III applies to the internet and new technologies. Moreover, it takes the position that web sites are a "place of public accommodation", even when there is no actual physical public accommodation.

The cases reviewed in this article suggest that the weight of authority is that the CRD is now making statements that are contradicted by judicial opinion. Many cases have held that Title III applies only to physical places.

Moreover, to the extent that a few opinions have held that Title III can reach non-physical places, they have done so only when an actual physical place is involved in the case. One such case held very narrowly that if a disabled person is barred from accessing a physical facility covered by Title III, it does not matter that the means of barring access was a telephone system that discriminated against deaf people. Another case held that Title III reaches web sites there is "a nexus between a challenged service and an actual physical place of public accommodation", such that "many of the benefits and privileges of the website are services of the" physical public accommodation.

No opinion goes as far as the CRD's recent statements.

1995: Stoutenborough v. NFL. The U.S. Court of Appeals (6thCir) held in its 1995 opinion in Stoutenborough v. National Football League, Inc., 59 F.3d 580, that televised broadcast of football games is not covered by Title III.

This case concerned the NFL's blackout rule, which prohibits live TV broadcast of football games in the localities of games when stadium tickets have not sold out; although, radio broadcast are allowed. Deaf plaintiffs argued that they could not hear radio broadcasts, but could see TV broadcasts, thus the blackout rule discriminated against them under Title III.

The Court of Appeals held, among other things, that Title III does not reach broadcasting. It is not a public accommodation within the meaning of Title III.

1996: CRD Letter. Just prior to the 1996 election, the CRD sent a short letter to a Senator asserting that the ADA does apply to web sites. The then Assistant Attorney General in charge of the Civil Rights Division, Deval Patrick, wrote a letter on September 9, 1996 to Sen. Tom Harkin (D-IA) in which he stated 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.

This was a letter to a legislator. It had no legal consequence. Moreover, the CRD did not follow up with enforcement actions, or drafting of regulations.

At that time, former President Clinton was running for re-election against a physically disabled man, former Sen. Bob Dole (R-KS). Patrick (at left) is a partisan politician who is now the Democratic Governor of the state of Massachusetts. The letter may have been a politically motivated tactic to win votes of disabled voters.

Likewise, it is possible that the CRD's latest round of announcements and actions are more a reflection of the Obama administration's effort to win the votes of disabled persons in the 2010 midterm elections, and retain large Democratic majorities in the House and Senate, than a manifestation of a permanent change in ADA enforcement policy.

1999: Doe v. Mutual of Omaha. This case did not involve a web site, or any physical facility. It involved the question of whether Title III of the ADA reaches the content of insurance policies. The plaintiffs in this case argued that an AIDS cap violated the statute.

The U.S. Court of Appeals (7thCir) held that there was no violation of the ADA. See, Doe v. Mutual of Omaha Insurance Company, 179 F. 3d 557 (1999).

However, this opinion contains a reference to web sites and "electronic space" that was unrelated to the facts of the case, and unnecessary to the holding. The Court wrote in dicta that "The core meaning of this provision, plainly enough, is that the owner or operator of a store, hotel, restaurant, dentist's office, travel agency, theater, Web site, or other facility (whether in physical space or in electronic space, ...) that is open to the public cannot exclude disabled persons from entering the facility and, once in, from using the facility in the same way that the nondisabled do." (Parentheses in original.)

Judge Richard Posner wrote this opinion. Judge Frank Easterbrook (at right) joined. A third Judge dissented. Back then, Posner and Easterbrook were arguing that there is no law of cyberspace, nor anything special about cyberspace. See, for example, Easterbrook's 1996 speech titled "Cyberspace and the Law of the Horse". Rather, there are general principles of law that apply to cyberspace, and to horses, but no law of cyberspace, and no law of the horse.

So perhaps, these two Judges tossed this gratuitous reference to cyberspace into this opinion to apply some general principles of discrimination law to cyberspace, not bothered by the fact the Congress had plainly declined to extend these principles to cyberspace, as well as many other types of businesses.

Easterbrook concluded that "Error in legislation is common, and never more so than when the technology is galloping forward." This dicta seeks to correct, rather than interpret, the ADA.

On the other hand, both are respected Judges who remain on the Court. The 7th Circuit may follow their dicta in future cases.

2000: Hooks v. OKbridge. For four years the CRD took no action to enforce or implement the conclusions contained in its 1996 letter. Then, just months before the 2000 election, the CRD filed an amicus brief in Hooks v. OKbridge arguing that Title III not only applies to the internet, but even applies to businesses that offer theirs services solely through a web site. This case involved a subscription based web site devoted to the card game of bridge.

The U.S. District Court (WDTex) granted summary judgment to the web site operator on multiple grounds. It held, among other things, that Title III applies only to physical places, and the Title III exception for private clubs applies to this web site operator.

The U.S. Court of Appeals (5thCir) affirmed the judgment of the District Court, in an unpublished per curiam opinion, without reaching the question of whether Title III applies to web sites. See, Hooks v. OKbridge, 232 F.3d 208 (2000).

Bagenstos' prepared testimony of April 22 fails to disclose the holding of the District Court, or that it remains undisturbed by the Court of Appeals.

Nevertheless, this amicus brief may provide the most detailed publicly disclosed analysis offered by the CRD of the applicability of Title III to the internet. In this brief, the CRD acknowledged the statute's reference to "place of public accommodation", and judicial precedent holding that Title III only applies to physical places. The CRD argued that while the defendant only offered its service via its web site, "OKBridge has a physical facility in San Diego, California, where it houses its computers and personnel", and the Court can leverage this fact to impose Title III liability.

The CRD also wrote that "The Act covers the services ``of´´ a place of public accommodation, not the services ``at´´ or ``in´´ a place of public accommodation. If Congress had intended to limit Title III to services provided at a business's physical premises, it presumably would have used the words ``at´´ or ``in´´ rather than ``of.´´"

Otherwise, the CRD's argument rested more upon policy argument than statutory analysis, judicial precedent, and legal reasoning. The CRD wrote that "the district court's interpretation excludes from coverage the wide, and growing, range of services provided over the internet -- from shopping to online banking and brokerage services to university degree courses -- at a time when such modes of commerce are beginning to replace reliance on physical business locations".

The CRD also took the position that subscription based web sites are not private clubs within the meaning of Title III.

2000: Weyer v. Twentieth Century Fox. In 2000, the U.S. Court of Appeals (9thCir) held that "public accommodations" within the meaning of Title III of the ADA are "actual, physical places where goods or services are open to the public, and places where the public gets those goods or services". See, Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104.

This was not a web site case. However, there are many methods of selling goods and services to the public in which the business does not open to the public its physical places, or web sites. For example, some businesses sell things via telephone or mail order catalogue. Yet the legal analysis for not applying Title III to a web site is the same as that for not applying Title III to telephone or mail sales.

(Telephone and mail sales operations are common. There are other hypothetical examples. A wide range of business provide services to their customers in offices or places of business of their customers without offering multiple versions to accommodate various disabilities. Similarly, a business may provide services in the homes of its customers, such as installing computer, teleworking and/or home entertainment equipment, without offering sign language interpretation for deaf customers. Also, a business may offer services to its customers within the public accommodations of third party businesses, such as in hotel rooms.)

This is not the only Court of Appeals opinion to hold that Title III only applies to physical places. See for example, Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006 (6thCir 1997). However, the Weyer opinion may be the most important because the 9th Circuit is the largest circuit, and because a disproportionate number of ADA suits are brought in California, which is in the 9th Circuit.

2001: Torres v. AT&T Broadband. The U.S. District Court (NDCal) held in 2001 in Torres v. AT&T Broadband, 158 F.Supp.2d 1035, that Title III does not apply to AT&T's cable service. A visually impaired plaintiff complained about the channel listing program.

A significant part of the Court's reasoning was that not only the language of Title III, but also the language of the CRD's implementing regulations, extend only to physical places. See, CRD's Title III regulations, codified at 28 U.S.C. Part 36.

2002: Rendon v. Valleycrest. This is a case in which hearing and mobility disabled plaintiffs sought access to a physical accommodation, but to do so, had to first use a telephone system that they alleged was inaccessible to them.

The defendants, Valleycrest Productions and ABC, operated a televised game show titled "Who Wants to Be A Millionaire" that took place in a physical TV studio. (Title III's enumeration includes theaters and places of entertainment.) The plaintiffs wanted to be a contestants on the show in the studio. But, to become contestants they first had to use an automated dial in system. The Court of Appeals wrote that they "could not register their entries, either because they were deaf and could not hear the questions on the automated system, or because they could not move their fingers rapidly enough to record their answers on their telephone key pads".

The plaintiffs alleged violation of Title III. The District Court dismissed the complaint for failure to state a claim. The U.S. Court of Appeals (11thCir) reversed. See, Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279.

The Court of Appeals wrote that the issue is "whether Title III encompasses a claim involving telephonic procedures that, in this case, tend to screen out disabled persons from participation in a competition held in a tangible public accommodation".

It held that "in order to state a valid claim, Plaintiffs must allege that they suffer from disabilities, and that Defendants' imposition or application of unnecessary eligibility criteria has screened them out or tended to screen them out from accessing a privilege or advantage of Defendants' public accommodation".

The Court distinguished this case from the Stoutenborough case, discussed above. In Rendon, the plaintiffs sought and were denied access to a physical facility, a TV studio, which is enumerated in Title III, while in Stoutenborough the plaintiff wanted a TV broadcast (not enumerated in Title III) rather than access to the physical stadium (enumerated in Title III).

While the plaintiff prevailed in this case, the holding is quite limited. In most situations where one might argue that discrimination lies in the provider's phone system, web site, software, or electronic device, one is not using the phone system, web site, software, or electronic device to gain access to a physical facility of the provider enumerated in Title III. For example, one does not visit the Google, eBay, or Amazon web sites for the purpose of gaining access to public physical facilities operated by Google, eBay or Amazon, or use Microsoft Office to gain access to any Microsoft office.

The CRD filed an amicus brief in support of the plaintiffs in this case

2002: Southwest Airlines. On October 18, 2002, the U.S. District Court (SDFl) issued its Order Granting Defendant's Motion to Dismiss in Access Now v. Southwest Airlines, holding that the Americans with Disabilities Act (ADA) ban on discrimination in public accommodations does not apply to Southwest's web site.

The Court 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´´".

It 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."

That opinion is reported at 227 F.Supp.2d 1312. See also, story titled "District Court Holds ADA Does Not Apply to Web Site" in TLJ Daily E-Mail Alert No. 538, October 30, 2002.

The CRD did not intervene, or file an amicus brief, in this case.

2006: NFB v. Target. In 2006 the National Federation for the Blind (NFB) filed a complaint against Target, that was removed to the U.S. District Court (NDCal), alleging violation of the ADA in connection with the design of its web site. The parties settled in 2008. See, Settlement Agreement [16 pages in PDF]. However, on September 5, 2006 the District Court, Judge Marilyn Patel presiding, issued an opinion denying in part Target's motion to dismiss.

Target operates a chang of large physical stores. It also operates a web site. The complaint alleged that the web site was inaccessible to blind people.

Judge Patel noted the 9th Circuit's Weyer holding (see above), but continued that Title III refers to discrimination "of any place of public accommodation", not discrimination "in any place of accommodation". She reasoned that Title III applies only to public accommodations, and these are physical places, but the discrimination need not occur "on the premises". She also wrote that it does not matter that Target did not discriminate against blind people in access to its physical stores.

She argued that there must be "a nexus between a challenged service and an actual physical place of public accommodation", and such nexus is present in this case. She wrote that "many of the benefits and privileges of the website are services of the Target stores".

But, she denied in part, and granted in part, the motion to dismiss. She wrote that "To the extent that Target.com offers information and services unconnected to Target stores, which do not affect the enjoyment of goods and services offered in Target stores, the plaintiffs fail to state a claim under Title III of the ADA."

Patel relied upon, but expanded, the 6th Circuit's holding in Rendon, discussed above. Both involve situations where the alleged lack of access lies in something not covered by Title III, but there is also a physical facility involved that is covered by Title III. In Rendon, the Court held that there can be a Title III violation where the non-covered thing (i.e., a phone hotline) is used to block access to a cover thing (i.e., a TV studio). In Target, Patel loosened the requisite nexus between the non-covered and covered things.

Judge Patel argued briefly that the Target opinion and the Southwest Airlines opinion are distinguishable.

A distinction my lie in the circumstance that Title III covers "a terminal, depot, or other station used for specified public transportation", but defines "specified public transportation" as "transportation by bus, rail, or any other conveyance (other than by aircraft)". (Parentheses in original.)

That case is numbered C 06-1802 MHP. See also, stories titled "District Court Issues Ruling in Case Involving Claim That Web Site Violates the ADA" in TLJ Daily E-Mail Alert No. 1,657, October 18, 2007, and "9th Circuit Rules on Standing and Discovery in ADA Cases" in TLJ Daily E-Mail Alert No. 1,678, November 20, 2007.

This opinion provides support for the CRD and others when they allege violation of Title III and the defendant operates both a physical facility and a web site.

However, this opinion provides no support for the Title III claims of the CRD or plaintiffs where the defendant is an online only business, such as Amazon, eBay, Google, or Facebook.

Nor would it support any action against a software company under Title III based on the allegation that the software is not accessible. If the software company also maintained a physical store to sell copies of its software, the service of the store would be selling software, while the service of the software would be word processing, bookkeeping, or something else that would likely fail to meet Judge Patel's nexus requirement. But, if the software company maintains a store, and a web site, both of which sell the same software, then under Patel's reasoning, the CRD could maintain an action under Title III against the company for failure to make the web site accessible.

Of course, Judge Patel had to stretch the statute to deny in part the motion to dismiss. Future 9th Circuit judicial opinions may stretch the statute even further, perhaps eventually writing out of the statute the physical place requirement altogether.

It should also be noted that the NFB filed a similar complaint against AOL in 1999. However, that suit settled without the Court writing any relevant opinion. See, NFB v. AOL, U.S. District Court (DMass), D.C. No. 99-CV-12303-EFH.

2007: Sylvan Learning Centers. On September 27, 2007, the CRD entered into a settlement agreement [PDF] with Sylvan Learning Centers. The gist of this agreement is that since this case pertains to a deaf person, if Sylvan provides an online service by voice or audio, it must also provide "written materials ... videotext displays, or any other effective methods of making aurally delivered materials available to students with hearing disabilities."

See, story titled "DOJ Applies ADA Public Accommodations Status to Online Educational Service" and story titled "Commentary: Extending ADA Public Accommodations Treatment to Online Activities", both in TLJ Daily E-Mail Alert No. 1,649, October 2, 2007.

2008: ADA Restoration Act. The 110th Congress enacted HR 3195 [LOC | WW], the "ADA Restoration Act of 2008". This bill had the effect of overturning several Supreme Court opinions regarding the ADA. However, nothing in this Act relates to "public accommodations" or the application of the ADA to web sites, software, electronic devices, or information technologies.

Different Judges would attach different significance to this. Some, such as Supreme Court Justice Antonin Scalia, give no attention to legislative intent. Some argue that when the Congress revisits a statute, and does not make a particular change, that is some evidence of Congressional intent not to make that change. For such judges, the argument that the Congress would have extended the ADA to web sites like eBay and Google, had they existed in 1990, would have no merit, because they did exist in 2008 when the Congress enacted the ADA Restoration Act without expanding the ADA to include these web sites.

2010: Kindle DX. See, related story in this issue titled "DOJ Regulates eBook Reader Design".

2010: Testimony of CRD's Bagenstos. See, related story in this issue titled "DOJ CRD May Write Regulations to Expand the ADA to Cover the Internet and Information Technologies".

Partisan Patterns in ADA Cases. There is a partisan pattern in ADA cases. Judges appointed by Democratic Presidents tend to side with ADA plaintiffs. Judges appointed by Republican Presidents tend to side with ADA defendants. See, subsection titled "Partisan Patterns in ADA Cases" in story titled "9th Circuit Rules in ADA Cases" in TLJ Daily E-Mail Alert No. 1,816, August 20, 2008.

One notable exception is Judge Patricia Seitz, a Clinton appointee, who wrote the landmark opinion in Access Now v. Southwest Airlines.

To the extent that a Democratic President is now appointing Judges, and a Democratic controlled Senate is confirming those Judges, the balance in the federal judiciary on ADA cases is likely in the process of swinging away from a plain reading of Title III, and towards judicial expansion of the scope of Title III.

4/22. The following is a partial summary of some statutes other than the Americans with Disabilities Act (ADA) that relate to disabled persons and the internet and information technologies.

Rehabilitation Act of 1973. The full title of this Act is the "Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978".

Section 504 of the Rehabilitation Act, which is codified at 29 U.S.C. § 794, pertains to "Nondiscrimination under Federal grants and programs". It was enacted with the original statute.

It provides, in part, that "No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency ..."

Section 508 of Rehabilitation Act was added by the 105th Congress in 1998 by HR 1385, the "Workforce Investment Act of 1998", which is now Public Law No. 105-220.

This was a huge bill that contained many amendments to the Rehabilitation Act and other statutes. Section 508 is now codified at 29 U.S.C. § 794d. It requires that "electronic and information technology" used by federal agencies must provide access to people with disabilities that is comparable to access provided to people without disabilities.

More specifically, it provides that "When developing, procuring, maintaining, or using electronic and information technology, each Federal department or agency, including the United States Postal Service, shall ensure, unless an undue burden would be imposed on the department or agency, that the electronic and information technology allows, regardless of the type of medium of the technology ... individuals with disabilities who are Federal employees to have access to and use of information and data that is comparable to the access to and use of the information and data by Federal employees who are not individuals with disabilities; and ... individuals with disabilities who are members of the public seeking information or services from a Federal department or agency to have access to and use of information and data that is comparable to the access to and use of the information and data by such members of the public who are not individuals with disabilities ..."

Copyright Act. The Copyright Act provides exclusive rights to authors for limited terms. It gives authors and rights holders a cause of action for infringement of these exclusive rights. It also provides several limitations on these exclusive rights that relate to persons with disabilities.

First, 17 U.S.C. § 121 pertains to "Limitations on exclusive rights: Reproduction for blind or other people with disabilities".

It provides, in part, that "it is not an infringement of copyright for an authorized entity to reproduce or to distribute copies or phonorecords of a previously published, nondramatic literary work if such copies or phonorecords are reproduced or distributed in specialized formats exclusively for use by blind or other persons with disabilities".

17 U.S.C. § 110 pertains to "Limitations on exclusive rights: Exemption of certain performances and displays".

Subsection 8 provides, in part, that "the following are not infringements of copyright ... performance of a nondramatic literary work, by or in the course of a transmission specifically designed for and primarily directed to blind or other handicapped persons who are unable to read normal printed material as a result of their handicap, or deaf or other handicapped persons who are unable to hear the aural signals accompanying a transmission of visual signals, if the performance is made without any purpose of direct or indirect commercial advantage and its transmission is made through the facilities of ..."

Subsection 9 provides, in part, that "the following are not infringements of copyright ... performance on a single occasion of a dramatic literary work published at least ten years before the date of the performance, by or in the course of a transmission specifically designed for and primarily directed to blind or other handicapped persons who are unable to read normal printed material as a result of their handicap, if the performance is made without any purpose of direct or indirect commercial advantage and ..."

Fair Housing Act. The Fair Housing Act (FHA), which is Title VIII of the Civil Rights Act of 1968, and which is codified at 42 U.S.C. §§ 3601-3619, prevents discrimination in the sale, lease, or financing of dwellings on the basis of many things, such as "race, religion, sex, or family status", but also "handicap".

This statute is directed at discrimination by sellers, landlords and others with respect to whom they sell, lease or do business. However, many tech related cases involve allegations of violation of the FHA. This is because people post notices to interactive web sites seeking room mates, or regarding rooms and apartments for rent, that contain statements such as "no children". The complaining plaintiffs sue the web site operators, such as Craigslist, rather than the individuals who post the notices.

Similarly, the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, creed or national origin, has given rise to lawsuits against web site operators for third party postings denigrating other people's religious beliefs.

Section 230. 47 U.S.C. § 230 provides immunity for interactive computer service providers. It 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."

This section does not reference any disabilities. However, it is central to debates over IT and disabilities. Governments and private litigants sometimes sue interactive web site operators for content posted by third parties, alleging violation of various civil rights and disability related statutes. Under the plain language of Section 230, the web site operators are not liable for statement made by third party users of their interactive web sites.

Numerous private parties have brought suits, usually without success. The Department of Justice's (DOJ) Civil Rights Division (CRD) has sued at least one interactive web site under the FHA, which it settled before judgment.

There is a fundamental looming issue. If the CRD is successful in extending liability under Title III of the ADA to the internet and information technologies, and its sues an interactive web site, alleging that content posted by third parties is not accessible to persons with disabilities, does Section 230 immunize the web site operator?

For example, if someone were to post to an interactive web site a letter in image format, but not in a text based format that is convertible by software to audio, could a blind person who has filed a lawsuit against the web site operator for violation of Title III prevail against a Section 230 motion to dismiss?

Similarly, what of a suit brought by a deaf person against the operator of a web site where a third party posted audio of a speech, but no transcription?

The CRD's action against Spyder Web Enterprises suggests that the CRD's position may be that such Section 230 motions to dismiss must be denied. The opinion of the U.S. Court of Appeals (7thCir) in the Craigslist case suggests that Section 230 would compel dismissal.

In 2003 the CRD filed a civil complaint in the U.S. District Court (DNJ) against Spyder Web Enterprises, LLC, the operator of the Sublet.com web site, alleging violation of the FHA. This was not an ADA case. Nor was there a Court opinion. It is significant to the extent that it may reflect the views of the CRD regarding non-applicability of Section 230 in the context of all statutes enforced by the CRD.

This case involved an interactive website that allowed landlords, leaseholders and property managers to post notices of apartments and rooms for rent. Spyder Web Enterprises and the CRD settled, with the defendant agreeing to pay $15,000 and "adopt adopt a non-discrimination policy".

If the CRD asserted then that Section 230 does not apply to FHA claims (a conclusion later squarely rejected by the 7th Circuit in the Craigslist case), then it may argue today that Section 230 does not apply to ADA claims.

See also, story titled "DOJ Settles Case Against Interactive Computer Service" in TLJ Daily E-Mail Alert No. 808, December 31, 2003.

The U.S. Court of Appeals (4thCir) held in a 2004 "non-precedential" opinion in Saad Noah v. AOL Time Warner that Section 230 does immunize an interactive computer service from a private civil action alleging violation of the Civil Rights Act of 1964. This was not an ADA case, or even a case related to disabilities. However, it may reflect how the 4th Circuit would rule today if the CRD were to refuse to extend Section 230 immunity in ADA cases.

See, story titled "4th Circuit Affirms That Section 230 Immunity Extends to Federal Civil Rights Action" in TLJ Daily E-Mail Alert No. 863, March 25, 2004.

In 2007 the U.S. Court of Appeals (7thCir) held in the Craigslist case that Section 230 immunity does apply in private civil actions brought under the FHA.

See, opinion [10 pages in PDF] in Chicago Lawyers v. Craigslist, and story titled "7th Circuit Applies Section 230 Immunity in Craigslist Case" in TLJ Daily E-Mail Alert No. 1,731, March 17, 2008.

In 2007 the U.S. Court of Appeals (9thCir) in FHCSFV v. Roommates.com created limited exceptions to Section 230 in a private civil action alleging violation of the FHA. In 2008, an en banc panel reached the same conclusion.

See, 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, and story titled "En Banc 9th Circuit Panel Rejects Section 230 Immunity in Roommates.com Case" in TLJ Daily E-Mail Alert No. 1,741, April 2, 2008.

Judge Alex Kozinski wrote both opinions. See also, story titled "3rd Circuit Admonishes Judge Kozinski for Publishing Porn in His Web Site" in TLJ Daily E-Mail Alert No. 1,964, July 1, 2009.

Perhaps it should also be noted that HR 3101 provides a limited exemption for certain third party content. If enacted into law, this would give rise to the argument that Congress must have intended that Section 230 is inapplicable in disability related litigation against web site operators, because otherwise this provision in HR 3101 would have been redundant and unnecessary.

ENHANCE 911 Act. The "Ensuring Needed Help Arrives Near Callers Employing 911 (ENHANCE 911) Act of 2004" was enacted as Title I of HR 5419 in the 108th Congress. Former President Bush signed it on December 23, 2004. It is now Public Law No. 108-494. It is codified at 47 U.S.C. § 942.

It was amended by the 110th Congress in 2008 by HR 3403 [LOC | WW], the "NET 911 Improvement Act of 2008", Public Law No: 110-283 to include language regarding disabilities access to 911/E911 services.

FCC's CALEA, VOIP 911, and Location Surveillance Rules. The Federal Communications Commission (FCC) has promulgated rules, and issued declaratory rulings, in the last six years, sometimes pursuant to statute, and sometimes not, that relate to designing communications facilities and services to facilitate intercepts, expanding the covered entities, and making location detection capabilities more precise.

These items do not address access to communications by persons with disabilities. However, they have affected persons with disabilities by inhibiting innovation in, and deployment of, new communications technologies generally, and for the benefit of persons with disabilities.

4/22. Most units of the DOJ focus on prosecuting crimes, enforcing statutes, rendering legal advice and assistance to other executive branch entities, and otherwise taking care that the laws be faithfully executed. In contrast, more so than almost all other units of the DOJ, the activities of the CRD reflect the election and re-election efforts of Presidents and political parties. Recent statements and actions of the CRD should be interpreted in this light.

Organized interests participate in the Presidential election process. Presidents make appointments to the DOJ to reward political supporters, and to maintain support, and win new supporters in the next election. Moreover, many ordinary voters are concerned with what the CRD does. Presidents and members of Congress seek their votes by making appointments, taking positions, passing laws, and undertaking other actions.

The CRD also directly affects the election process. It enforces voting rights laws. Republicans are more interested in enforcing voting rights laws that increase Republican turnout, while Democrats are more interested in enforcing voting rights laws that increase Democratic turnout.

As a consequence, the policies and activities of the CRD fluctuate wildly with changes of Presidents, and particularly when the party of the President also changes.

Historically, in both Democratic and Republican administrations, appointees to the CRD are among the most ideological and political in the DOJ. Ideological opposites Lani Guinier and Brad Reynolds were picked by former Presidents Clinton and Reagan for the CRD.

Moreover, there is evidence that hiring of career personnel in the CRD is political and ideological. See, for example, June 24, 2008, report [115 pages in PDF] of the DOJ's Office of the Inspector General (OIG), and story titled "IG Report Finds DOJ Engaged in Political and Ideological Hiring Practices" in TLJ Daily E-Mail Alert No. 1,785, June 24, 2008.

One consequence of the intertwining of CRD operations with election politics is that the public statements of political personnel in the CRD often have the same level of specificity, consistency, and reliability as political campaign speeches and ads.

For example, the Clinton CRD's 1996 letter asserting that Title III of the ADA applies to the internet was made just before the 1996 election. After the election, the CRD all but ignored it.

The Clinton CRD filed an amicus curiae brief a few months before the 2000 election, again asserting that Title III applies to web sites. Democrat Al Gore lost that election, and the Bush CRD did not implement or enforce the interpretations advanced by the Clinton CRD in 1996 and 2000.

President Obama and Congressional Democrats now face the prospect of losing many seats in the House and Senate. Nightmares of 1994 are driving them to work diligently at building support, and motivating their base, for the 2010 midterm elections.

The CRD has offered some bold statements in 2010: Title III applies to the internet and new technologies; this holds even if it is a web site with no associated physical public accommodation; and, the CRD is going to write implementing regulations.

Democratic Rep. Jerrold Nadler (D-NY) concurs, and held a hearing to put this all on the record.

This may in part be more campaign promises and hyperbole. One should not expect the CRD rewrite its regulations and file lawsuits in coming years seeking to shut down YouTube, to enjoin sales of iPads, and to close down millions of web sites. That would be electoral suicide for Obama and the Democratic party in 2012. Rather, the Obama administration, CRD and Congressional Democrats may be engaging in the minimum level of activity to placate and motivate some of the constituent groups of the Democratic party.

In addition to the history and analysis outlined above, there are other reasons for suspecting that there is hollowness to recent statements.

First, both the CRD and Rep. Nadler state that their expansive interpretation of Title III is correct, and are not pushing for amendments to the ADA. However, both the plain language of the ADA, and 15 years of court interpretations stand in their way. If the CRD were to actually write and seriously enforce regulations that implement its recent statements, it very likely would face a series of humiliating judicial defeats. If the CRD and Rep. Nadler really wanted the ADA to apply to the internet and new technologies, they would be working to amend the ADA.

Second, the CRD is far from consistent in its statements. This suggests that it has not thought out a plan, and that it is not serious about writing and enforcing new regulations. For example, Samuel Bagenstos, testifying on April 22, stated that "it is certainly our intention to update our regulations". Politicians can use this statement.

But Bagensos also said at the same hearing that "we intend to issue technical assistance about all of these issues at some point. We are also looking into the regulatory solution." Hence, if the CRD writes no new regulations, the CRD can state that it was only looking into the possibility.

Third, the CRD is far from precise in its statements. If the CRD were actually planning to write regulations, and Rep. Nadler expected the CRD to write regulations, there would have at least been some minimal level of discourse regarding the content of those regulations at the April 22 hearing. But, there was not.

Nothing was said about application of Title III to software. Electronic equipment design was mentioned, but only in the context of the CRD's recent Kindle DX actions, and not in terms of general principles to be included in regulations. No one seemed interested in questions such as how new regulation would address the relationship between Section 230 and Title III for interactive web sites.

Finally, no one at the April 22 addressed the questions of whether the CRD has the resources, expertise and ability to create and implement any new information technology regulatory regime.

Many of the federal agencies that regulate technology related businesses, such as the Federal Communications Commission (FCC), the DOJ's Antitrust Division (AD) and the FTC's Bureau of Competition (BOC) and Bureau of Consumer Protection (BCP) have large staffs, extensive resources, and attract some of the brightest young lawyers and economists in federal service.

In contrast, the CRD is a smaller unit. Moreover, its lawyers possess almost no expertise in the technologies that they might be called upon to regulate. But most significantly, its lawyers sit several levels below those of other tech related agencies in legal capability. They are likely incapable of making informed decisions about the information technology services and devices that they may be called upon to regulate.

4/22. There is a private right of action under the Americans with Disabilities Act (ADA). There have been a small number lawsuits against companies alleging that their web sites or information technologies violates the ADA.

In contrast, there has been a flood of lawsuits, many meritless, against operators of public accommodations alleging that architectural barriers -- such as curbs, doorway widths, counter heights, bathrooms, and stairs -- make their facilities inaccessible to people with mobility disabilities.

The U.S. District Court (CDCal) wrote in its 2006 Memorandum of Decision [20 pages in PDF] in Doran v. Del Taco, D.C. No. 04-046-CJC (ANx), about the nature of ADA litigation.

The Court wrote that "Despite the important mission of the ADA, there are those individuals who would abuse its private cause of action provision by filing lawsuits solely with intent to profit financially. The potential for abuse of the ADA has been well documented in the Central District of California and in other districts throughout the country. ... Courts have referred to this proliferation of ADA lawsuits as a ``cottage industry´´ and have labeled the plaintiffs who file these lawsuits as ``professional plaintiffs,´´ ``serial plaintiff,´´ and ``professional pawns.´´"

The Court continued that "The consequences of this abuse of the ADA are severe: businesses and insurers are harmed, the integrity of the bar is called into question, and the public's confidence in the courts is impaired."

It added, "Most significant, however, is the adverse effect this type of abusive litigation has on disabled individuals themselves. These lawsuits denigrate the important purpose behind the ADA and create a backlash against those disabled persons who rely on the ADA as a means of achieving equal access."

The significance of this is that if Title III liability were expanded to include web sites, software, electronic devices and other information technologies, either by legislation or by CRD regulations, there could be a flood of Title III lawsuits against businesses that provide, or use, information technologies.

Moreover, there is the potential for many of these actions to be even more harmful and abusive in IT than in physical spaces.

First, physical public accommodations tend to be just one asset of most businesses. Moreover, an architectural barrier can be remedied. Ramps can be added. Bathroom stalls can be redesigned. In contrast, an IT company's sole asset may be a web site or product line targeted by ADA litigation. An ADA injunction could destroy many IT companies.

Second, for physical public accommodations, the alleged barriers are visible to the public. In contrast, for many IT based businesses, the alleged barriers lie in software or device design, and include secret and proprietary source code, designs, specifications, and test results.

Pretrial discovery in Title III cases against physical public accommodations largely means visiting a publicly accessible place, taking pictures, and taking measurements. In contrast, Title III litigation against IT based businesses would mean requests for proprietary and secret material, disclosure of which could be destructive to the businesses involved.

Moreover, it should be noted that the 9th Circuit has carved out an exception to the Constitutional case or controversy requirement, and to the Supreme Court's opinions interpreting the case or controversy requirement, for ADA cases. It has further held that discovery is available in ADA cases, in the absence of any case or controversy, for the purpose of seeking evidence of an unknown violation of the ADA. See, story titled "9th Circuit Rules on Standing and Discovery in ADA Cases" in TLJ Daily E-Mail Alert No. 1,678, November 20, 2007.

This is license for plaintiffs' lawyers to file complaints against tech companies, without anyone possessing personal knowledge of alleged violations, and then submit discovery requests seeking proprietary information. The desire to avoid disclosure of such information would incent companies to pay large settlements in meritless and winable cases.

Third, for suits against physical public accommodations, jurisdiction and venue usually lie in a court near and somewhat convenient to the defendant. In contrast, e-commerce sites, software makers, and device makers sell their products nationwide. Personal jurisdiction would exist wherever they sell their products or services. They would be vulnerable to Title III suits brought in distant, inconvenient and unfavorable jurisdictions, such as the Eastern District of Texas and the Central District of California.

Fourth, operators of physical public accommodations are exposed primarily to suits alleging mobility disability access barriers, which can usually be remedied. In contrast, IT businesses face potential litigation from not only mobility disability plaintiffs, but also from blind and visually impaired plaintiffs, and deaf and hearing impaired plaintiffs.

These differences suggest that if the legal environment changes, to the extent that Title III is expanded to impose liability upon the operators of web sites, software, devices and other information technologies, then the economic havoc and destruction visited upon tech companies will be vastly greater than the current consequences of Title III litigation for the operators of physical public accommodations.

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