Commentary: Extending ADA Public Accommodations Treatment to Online Activities

9/27. The Department of Justice's (DOJ) Civil Rights Division (CRD) entered into a settlement agreement [PDF] with Sylvan Learning Centers that imposes obligations upon Sylvan with respect to its online tutoring services, pursuant to the public accommodations title of the Americans with Disabilities Act (ADA).

The statute does not include online activities within the meaning of "public accommodations". This area of law is far from settled. There is little judicial precedent. Some of it is directly contrary to the position taken by the DOJ/CRD.

Judicial Precedent.  The settlement agreement does not discuss or cite any of what little case authority exists.

First, there are two opinions in Access Now v. Southwest Airlines that suggest that the DOJ/CRD lacks authority to regulate Sylvan's online tutoring services.

Access Now filed a complaint in the U.S. District Court (SDFl) against Southwest Airlines, which maintains a web site the enables users to check airline fares and schedule and book airline and hotel reservations, alleging violation of Title III of the ADA. Access Now alleged that the Southwest has not made its web site accessible to blind persons using a screen reader.

The District Court dismissed the complaint for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (FRCP). The Court wrote that this was a case of first impression, and reached its decision on the basis of statutory construction. It held that "the plain and unambiguous language of the statute and relevant regulations does not include Internet websites among the definitions of ``places of public accommodation´´".

The District Court also applied the "rule of ejusdem generis" which provides that "where general words follow a specific enumeration of persons or things, the general words should be limited to persons or things similar to those specifically enumerated." (Citations omitted.)

The District Court elaborated that "Where Congress has created specifically enumerated rights and expressed the intent of setting forth "clear, strong, consistent, enforceable standards," courts must follow the law as written and wait for Congress to adopt or revise legislatively defined standards that apply to those rights. Here, to fall within the scope of the ADA as presently drafted, a public accommodation must be a physical, concrete structure. To expand the ADA to cover ``virtual´´ spaces would be to create new rights without well-defined standards."

See, October 18, 2002, Order Granting Defendant's Motion to Dismiss, which is also published at 227 F.Supp.2d 1312, and story titled "District Court Holds ADA Does Not Apply to Web Site" in TLJ Daily E-Mail Alert No. 538, October 30, 2002.

Then, on September 24, 2004, the U.S. Court of Appeals (11thCir) issued its opinion [PDF] dismissing the appeal, without addressing the merits of the case, on the basis that the "none of the issues on appeal are properly before us".

The District Court case number is 02-21734 CV-PAS. The Court of Appeals case number is 02-16163.

Second, there is National Federation of the Blind v. Target, a civil action against Target alleging that its web site violates the ADA. It is pending in the U.S. District Court (NDCal). The District Court, Judge Marilyn Patel presiding, denied a motion to dismiss the complaint, holding that the web site is a service of the stores, which are public accommodations, and hence Target must comply with the ADA in its web operations.

See, September 5, 2006, Memorandum and Order [26 pages in PDF] denying motion to dismiss. This case is D.C. No. C 06-01802 MHP.

The National Federal of the Blind (NFB) is represented by Daniel Goldstein of Brown Goldstein & Levy.

TLJ spoke with Goldstein. He distinguishes the Southwest Airlines and Target case. He said that former case was framed as the "web site as public accommodation". He said that the District Court held that the web site is not covered by the ADA because it is not a public accommodation. In contrast, he said that the later case is framed as a brick and mortar public accommodation (stores) that also offer online services. He said that this is a "bricks and clicks theory".

TLJ also spoke with Chris Danielsen of the NFB. He said that "we believe the the ADA applies to internet based activity", especially "where the general public has access".

The settlement agreement is not specific enough to ascertain whether the DOJ/CRD's understanding is that Title III applies to all internet based services available to the public, or only to the internet based activities that support physical brick and mortar public accommodations.

The distinction is important because many internet based businesses, such as Google, Amazon, MySpace, and YouTube are pure internet plays. That is, there is no physical Google store in Silicon Valley where one can go to search dead tree indices or card catalogues. One cannot drive to a MySpace storefront, open and account, and deposit audio tapes.

Patrick Letter. There is also the matter of Deval Patrick's September 9, 1996, letter to Sen. Tom Harkin (D-IA). Patrick is now the Governor of the state of Massachusetts. He was previously head of the CRD in the administration of former President Clinton.

Patrick (at right) wrote in this letter that "The Americans with Disabilities Act (ADA) requires ... places of public accommodation to furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities ... Covered entities under the ADA are required to provide effective communication, regardless of whether they generally communicate through print media, audio media, or computerized media such as the Internet. Covered entities that use the Internet for communications regarding their programs, goods, or services must be prepared to offer those communications through accessible means as well."

Patrick wrote that web site operators could comply by providing audio tapes and Braille copies of their web sites.

Extension of DOJ/CRD Analysis. The agreement between Sylvan and the DOJ/CRD only applies to Subsection 12181(7)(J) and "education". However, if the CRD were to extend its interpretation of the ADA to other "education", then perhaps private universities that publish course materials online in visual format that cannot be converted to audio by screen reader software, must also publish them in screen readable, Braille, and/or audio format for blind persons. And if they publish audio of lectures online, then they must also publish text versions for deaf persons.

However, one might also extend the CRD's method of analysis to the other categories of "public accommodations" that have online variants. For example, (7)(C) includes not only a "motion picture house", but also any "or other place of exhibition or entertainment". If one adds in the word "online", then this might be construed by the CRD to cover any internet protocol based video download service, or any multichannel video over IP service.

As another example, (7)(E) includes not only a "grocery store", but also any "other sales ... establishment". If one adds the word "online", then online sales establishment might be construed by the CRD to cover any e-commerce activity. In the interpretation of a CRD attorney, this might mean that all e-commerce sites must have audio or screen readable versions all text in the web site for blind persons, must have audio descriptions of all graphics and video for blind persons, must have text versions of all audio clips for deaf persons, and so forth.

As another example, (7)(H) includes not only a "library", but also any "or other place of public display or collection". If one adds the word "online", then an online collection of books sounds like Google's, Amazon's and Microsoft's online book programs.

That is, under the CRD's method of analysis, when Google makes a book available online in a visual format that cannot be converted to audio by screen reader software, to satisfy the public accommodations requirements of the ADA, it must also produce and distribute screen readable, Braille and/or audio copies, at no extra charge, to vision impaired persons.

As another example, (7)(D) includes not only an "auditorium", but also any "other place of public gathering". If one adds the word "online", then an online place of public gathering sounds like MySpace, any social networking web site, or any other interactive fora where persons meet and exchange information.

Google Books, Snippets and Copyright. TLJ spoke with Goldstein (NFB's attorney) about Google's book programs. He did not offer any opinion as to Google's potential liability under the ADA. However, he predicted that there will not be litigation against Google because it is aware of, and is addressing, accessibility issues.

He added that one needs to consider the formats in which the content of books are made available to online users. When the content is in a text format that can be converted to audio by screen reader software, there is no accessibility problem. However, when the content is made available in a graphics format, such as with what Google has named "snippets", the content is not accessible. But, he added that Google is aware of this, and working on a solution.

It may also be the case that when Google, Amazon, or others make the content of books viewable online, or available for download, providing the content in text format not only makes the content accessible to disabled persons. It also makes the content accessible to copyright infringers, or others who would free ride on the efforts of the providers of book content.

That is, the service provider has incentives to convert books into a digital text format, so that is can provide search and retrieval functions to users, but then only make the retrieved content available to users in graphical format, to protect the copyright, proprietary, and advertising interests of the copyright holders and service providers.

The NFB has already negotiated an agreement with Amazon.com. The NFB announced this agreement in a release on March 27, 2007. However, this release does not provide details from the agreement pertaining to providing the content of books to users online.

The release does state that "Blind persons access Web sites by using keyboards in conjunction with screen access software, which vocalizes or translates into Braille the visual information displayed on a computer screen by Web browsers and other computer applications. If not designed properly, however, Web sites can present barriers that do not allow the information contained on them to be translated properly for blind users, and emerging Internet technologies are presenting new accessibility challenges."

It is also important to consider what theory of liability might eventually become established law. If the law were to evolved to a "bricks and clicks theory",  then a Google like program would not be affected by the ADA, while a nearly identical program offered by a private university, which has physical public accommodations, would be covered by the ADA.

User Posted Content. It is hypothetically possible that the sort of analysis applied in the Sylvan case would be applied to any online "place of public gathering".

The operators of these "place of public gathering" web sites generally to not create or post the vast majority of the content found in their web sites. Their users do.

Moreover, 47 U.S.C. § 230 provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." That is, the web site operator cannot be held liable for something posted by a user.

However, the DOJ/CRD has demonstrated that it will pursue the operator of an interactive web site under the civil rights laws for content posted by its users. See, for example, story titled "DOJ Settles Case Against Interactive Computer Service" in TLJ Daily E-Mail Alert No. 808, December 31, 2003.

Moreover, the U.S. Court of Appeals (9thCir) recently allowed two state anti-discrimination agencies to escape the exclusion of Section 230. The two agencies sought to enforce the federal Fair Housing Act and various state laws against an interactive web site for information posted by its users.

The defendant operated a web site named Roommates.com. Its users published information about themselves, including their age and sex. This, the state agencies argued, is discrimination in housing on the basis of age and sex, and the web site is responsible. This, the Court of Appeals held, creates an exception to Section 230.

See, May 15, 2007, opinion [23 pages in PDF] in FHCSFV v. Roommates.com. See also, story titled "9th Circuit Holds Roommates.com May be Liable for Speech of Users" in TLJ Daily E-Mail Alert No. 1,581, May 15, 2007.

That is, if the law evolves in the direction sought by the DOJ/CRD and 9th Circuit, then when users post material to MySpace or YouTube the web site operators themselves might be responsible complying with multiple format requirements, and for taking down any content that does not.

TLJ asked the NFB's Chris Danielson regarding web sites with user generated content. He said that "what we have focused on in the National Federation of the Blind is the situation where you have a business that is providing a service on the internet ... or university". He would not speculate on the liability under the ADA of operators of web sites for user generated content.

However, having said that, he added that to create a MySpace account you have to pass a visual test. He said that "those are not accessible to screen readers", and the NFB is concerned about that.

Lack of Process and Transparency. It may also be worth noting the process by which the DOJ/CRD is proceeding with respect to regulation of online activities.

It has initiated no rule making proceedings, which would provide the public with notice, an opportunity to submit comments, and an opportunity for judicial review of unlawful rules.

Nor has the CRD issued any notice of inquiry, to provide opportunity to comment.

Nor has the CRD held any public workshops or seminars, at which legal scholars, technologists, and representatives of interested parties could make presentations.

Nor has the CRD held any public hearings, roundtables or discussion groups.

In short, the CRD is making policy without an informational basis for making policy.

Also, whatever the understanding of the CRD is regarding the applicability of Title III to internet activities, it is secretive and non-transparent about it. It has published no rules, no guidances, no opinions, no circulars, no business review letters, and no statements of intent to take no action.

The DOJ/CRD is extending Title III to internet activity without statutory authority. However, while some government agencies adopt technology related policies without statutory authority, they usually pursue multiple processes to assist them in developing these policies. The DOJ/CRD, in contrast, is not following formal or informal procedures and processes relied upon by other federal agencies when considering new policies.

Conclusion. This is an unsettled and developing area of law. Yet the direction that the DOJ/CRD appears intent upon taking the law, as evidenced by Patrick's letter, previous settlement agreements, and the just announced Sylvan agreement, is to broadly apply ADA public accommodations treatment to online activities.

If the law were to develop in a way that the DOJ/CRD seeks, several consequences might follow. For example, web site operators and web speakers might face private litigation.

Also, persons, companies, or government agencies who seek to suppress online speech might employ the tactic of complaining that the web site, blog, or YouTube posting fails to comply with the ADA, and must therefore be taken down. Companies that seek to suppress criticism of their business practices, politicians who seek to suppress political criticism, and others who seek to limit the free flow of ideas, might resort to filing ADA complaints. The class of speakers most unable to bear the costs of ADA compliance, and hence most likely to refrain from online speech, would be individuals.

Also, the costs of ADA related compliance and litigation could deter use of the internet, and inhibit innovation. The House Judiciary Committee's (HJC) Subcommittee on the Constitution, Civil Rights and Civil Liberties (SCCRCL) held a hearing in 2000 on the applicability of the ADA to online activities. One of the witnesses (Walter Olson, a Senior Fellow at the Manhattan Institute) testified then that if the ADA were applied to web sites, then "Hundreds of millions of existing pages would be torn down. Some of these would eventually be put back up after being made compliant. Countless others never would." He also predicted that "Many widely used and highly useful features on websites would be compromised in functionality or simply dispensed with for reasons of cost, delay or cumbersomeness." See also, story titled "Do Web Sites Violate the Americans with Disabilities Act?", February 10, 2000.

The HJC/SCCRCL will hold a hearing on Thursday, October 4, 2007, on HR 3195 [LOC | WW], the "ADA Restoration Act of 2007". The bill is a reaction to several opinions of the Supreme Court of the US regarding the meaning of physical or mental disability. However, this bill does not address the meaning of "public accommodations".

Sylvan did not take or return telephone calls from TLJ. It asserted in an e-mail to TLJ that the "settlement agreement is proprietary information". The settlement agreement is a public record that the DOJ/CRD has published in its web site. See, settlement agreement. The DOJ/CRD did not respond to TLJ's questions regarding this case. The DOJ/CRD has never responded to any of TLJ's questions, or granted interviews, regarding application of the ADA to internet activities, except for the purpose of stating that it will not respond to any questions.