Do Web Sites Violate the Americans with Disabilities Act?

(February 10, 2000) A House subcommittee held a hearing on Wednesday, February 9, on the applicability of the Americans With Disabilities Act to web sites. Witnesses argued that most of what is on the Internet today violates the ADA.

The House Judiciary Committee's Subcommittee on the Constitution heard from two witness panels which were stacked with ADA proponents. Seven of the witnesses argued for application of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., to private web sites. Two argued against. No Member of Congress argued that the ADA does not apply to the web.

Most of the witnesses who advocated applying the ADA to web sites addressed web site content which challenges blind and visually impaired people, including graphics, forms, tables, animations, and the use of color. However, some witnesses argued that the ADA also requires that web sites must be made accessible to hearing impaired people, and to "cognitively impaired" people.

Several factors led the subcommittee to hold this hearing.

First, the federal government is in the process of writing accessibility requirements that will apply to federal government web sites. These regulations are being drafted by the Electronic and Information Technology Access Advisory Committee. These rules currently affect only government web sites.

However, the Department of Justice has issued an opinion that the Internet is covered by the ADA.

Also, on November 2, 1999, the National Federation for the Blind (NFB) filed a class action lawsuit against America Online alleging that the ADA's accessibility requirements apply to AOL, and that AOL has violated these requirements.

Charles Cooper, of the law firm of Cooper, Carvin, and Rosenthal, testified on behalf of the NFB. He is a former clerk to Chief Justice William Rhenquist, and a former Assistant Attorney General for the Office of Legal Counsel. He was asked to testify on whether applying the ADA to web sites would violate First Amendment free speech protections. He stated that there would be no First Amendment violation.

Rep. Charles Canady (R-FL), the Chairman of the Subcommittee on the Constitution, pointed out that the ADA exempts newspapers, and then asked if online newspapers would be subject to the ADA. Cooper said that online newspapers are covered by the ADA, and application of the ADA to them would not violate their First Amendment rights.

Rep. Canady also asked which section of the ADA brought the Internet within the scope of the ADA. Another lawyer, Peter Blanck, responded that it was the clause which states: "a bakery, grocery store, clothing store, hardware store, shopping center or other sales or rental establishment." He stated that the Internet is "other sales".

None of the members of the subcommittee who participated expressed the viewpoint that the ADA does not apply to the Internet. This argument was left to two witnesses on the second panel. Elizabeth Dorminey, an attorney with the law Wimberly, Lawson, Steckel Nelson & Schneider testified that the

"... ADA applies to private entities that provide "public accommodations." As defined by statute and regulation, this term does not include the Internet, Internet service providers, or private websites. Nonetheless, the U.S. Department of Justice and some advocacy groups contend that the ADA should be applied to require universal access to the Internet by persons with disabilities, and propose that regulations be issued to achieve that goal. Such regulations would violate the First Amendment's guarantee of the right of free expression."

Another witness, Steven Lucas complained that online stock trading sites and travel sites are not accessible. Rep. Robert Scott (D-VA) asked him "how much would it cost to make an online trading site accessible." It would take a "negligible amount of time," said Lucas, "a few hours."

The witness panels did not include anyone from an online brokerage firm to rebut this statement. Nor did the witness panels include a representative of AOL, which is being sued under the ADA, any representative of an e-commerce company, or any representative of any of the leading software or Internet industry trade groups.

Rep. Bob Goodlatte (R-VA) joined the hearing during the questioning of the second panel of witnesses. He stated that the Internet is "one of the greatest developments to empower the individual." He added that "some of the things that have been complained about are actually very user friendly."

Rep. Goodlatte also asked whether web site operators would change as a result of the economic incentive to serve disabled people, or as a result of lawsuits under the ADA. Blanck responded, "I don't see that happening absent the ADA being on the books."

Several of the ADA proponents also testified about a set of rules written by the World Wide Web Consortium, titled W3C Web Content Accessibility Guidelines. The Center for Applied Special Technology (CAST) has a web site named Bobby (as in police officer), which includes a web-based tool that analyzes web pages for compliance with these rules. One simply enters the URL of the page to be analyzed.

Tech Law Journal used CAST's Bobby web site to analyze many web sites. The House Judiciary Committee's web page containing the "News Advisory" providing notice of this hearing failed to meet CAST test. Its web page titled "Hearing Testimony Presented to Subcommittee on the Constitution" also failed.

Other web pages which failed include the home pages of the ADA Information Center, the U.S. Department of Justice, which is responsible for enforcing the ADA, the White House, the Department of Commerce, the Federal Trade Commission, and most other government sites which were checked.

The home pages for leading civil rights groups, including the NAACP and ACLU, failed.

The home pages for leading newspapers, including the New York Times and the Washington Post, failed.

The home pages of leading campaign web sites failed, including those of George Bush, John McCain, Bill Bradley, and Hillary Clinton.

The home pages for leading e-commerce sites, including amazon.com and e-bay, failed.

The home pages for leading software and hardware companies failed.

And, this page of Tech Law Journal failed.

On the other hand, Tech Law Journal found several sites which passed the CAST test, including the home pages of Microsoft and Al Gore 2000.

Walter Olson, a witness who said the ADA does not apply to the web, testified that if web sites had to comply with the ADA it would have disastrous effects on the Internet.

• "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."
• "The posting of new pages, by the tens of millions, would screech to a near-halt."
• "Amateur publishing, as by the owner of a small business or a community group that relied on volunteers, would become more of a legal hazard."
• "Many widely used and highly useful features on websites would be compromised in functionality or simply dispensed with for reasons of cost, delay or cumbersomeness."
• "Parties subject to the ADA will feel pressure to use government-approved authoring tools"

The members of the subcommittee who participated in all or part of the hearing included Charles Canady (R-FL), Melvin Watt (D-NC), Barney Frank (D-MA), William Jenkins (R-TN), and Bob Goodlatte (R-VA). In addition, Robert Scott (D-VA), who is not a member of the subcommittee, was allowed to participate in this hearing.