"You Gotta See It to Believe It."

John Powell, III, J.D., L.L.M. candidate 2001

The Internet is beginning to be as ubiquitous a presence as the telephone in our daily lives. We email our messages, important and trivial, recreational and professional, kind and vulgar, to those with whom we associate without regard to the distance that such messages need to traverse. In our private lives, the Internet has stealthily invaded to become as common and unnoticed a reference point as the television. We do our shopping, arrange our travel plans, research our assignments for work or school, and participate in communal recreation with persons with whom we have never had a telephone, much less face-to-face, conversation.

However, there is a problem with this glorious thing that we have created. Although common thought promotes the concept that all have easy and instant access to the Internet and its vast potential for our lives, this is not the case. Our world has people who have never even seen a telephone, much less used one to call a friend or family member. In fact, approximately 4,000,000,000 people are waiting to make that first call to anyone. Such a division is pervasive among the people of even those countries currently in the throes of the Information Age.

The modern, high bandwidth, graphically rich Internet is a bane to the slower connections that prevail in the bulk of the non-urban regions of the United States, with only those individuals that reside in the city environments being able to take advantage of the full power of the advancing technology. High expense for even a tenuous connection is the norm in rural America, and shows no sign of catching up to the urban level of use. Inside the cities, only those whose family income is above the $75,000 per year mark are relatively equal in their Internet access and use. Societal barriers, and the common racial ones, prevent access to certain groups of minorities, unless they break that income barrier.

Another wall is disability. Certain populations cannot interact with the multimedia content of the web, because their senses are impaired in one or more ways, causing a drop in function when attempting Internet use. The blind cannot see the screen at all or can see it only in a very limited fashion, and the Internet is an inherently visual medium. However, other disabled users suffer similar fences that they must cross in order to take benefit from the web. The deaf and hearing impaired cannot gain from the newer audio content of the web, as they are unaware of its presence, or unable to make sense of the faint or muffled sounds that they can discern. In addition, certain neurophysiological disorders, such as epilepsy, must fear the modern Internet because the high speed blinking graphics and rich colors may actually trigger a seizure or other negative event. The individuals who suffer from a mobility dysfunction, such as tremors, palsy, up to and including total paralysis have difficulty in maneuvering amongst the many tightly spaced links of web pages, in order to precisely direct where they wish to search.

The Americans with Disabilities Act of 1990 provides that:

No Individual shall be discriminated against on the basis of a disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182. At first glance, could this not apply to the Internet as a whole? A shocking thought, but one that must be entertained. Surely, all of the servers that maintain the Internet for the use of the world’s population are owned by someone, and no one can deny that the benefits of the Internet are offered to the public as a whole. All one needs to confirm this is watch television on any weekday between 6:00 p.m. to 10:00 p.m. for the commercials, and hear all the requests to "visit us on the web at www.[you fill it in].com"

However, common sense informs that much of the Internet is hosted from outside the legitimate jurisdiction of the ADA and cannot be regulated. Concurrently, attempts to regulate all of the U.S.-bound providers of Internet access, goods, servers, etc., would prove an overly daunting task. Perhaps there can be a medium reached that will not overburden the government’s resources, nor cause a revolt amongst the commercial providers that will become regulated.

As the ADA itself states, in 42 U.S.C. § 12101(b)(4), Congress has the power and authority to regulate matters involving and affecting commerce. In fact, it is commonly thought that the Commerce Clause of the U.S. Constitution is the most broad and potent of the granted powers of the federal government.

Individuals with disabilities are now prosecuting their rights granted in the ADA in the courts, and recently a case was brought against America Online, the world’s largest online company, alleging discrimination against those individuals suffering from visual impairments. The complaint alleged that America Online intentionally chose to make its software different from the common software platform norms, and the interactive software programs that the blind utilize were unable to determine the landmarks for it to function effectively (The software is termed Screen Reader Software, and several differing types are available on the market). This case has since settled, as of July 26, 2000, with agreement with the nine blind plaintiffs and the organization with whom they associated as co-plaintiff, the National Federation of the Blind.

The terms of the settlement were partially confidential, but America Online was required to issue a public statement, to promote a use policy for those with sensory impairments, and to provide a new version of their proprietary software that interacted successfully with the screen reader software.

Why would the world’s largest online company fold in the face of this strange lawsuit? It could be out of generous impulse, or it could be that the law on this issue has yet to be settled, even obliquely.

In two cases that apply the ADA in differing methods, the First and Sixth Circuits were diametrically opposed to one another in reasoning and result. The case in the First Circuit was Carparts Distribution Center, Inc. v. Automotive Wholesalers Ass’n. of New England, 37 F.3d 12 (1st Cir. 1994), holding that there is no physical structure requirement for a public accommodation. In direct opposition, the Sixth Circuit, in Parker v. Metropolitan Life Insurance Company, 121 F.3d 1006 (6th Cir. 1997), frowned on the result in Carparts, and stated that there is a physical, brick and mortar, requirement for a physical accommodation, in order for the ADA to activate. Both of these cases involve insurance benefits that were denied to people because of health problems that were perceived by the insurance company, and the plaintiffs were using the fact of the disability to engage the protections of the ADA in order to protect themselves, and gain the benefits that they felt were wrongfully denied them on the basis of their disability alone.

What does this have to do with the Internet? The only case to mention the Internet is Doe v. Mutual of Omaha, 179 F.3d 557 (7th Cir. 1999), in which Judge Posner made explicit declaration of websites as public accommodations, in a list of those that logically follow those mentioned explicitly in the ADA. The link between this case and the Carparts vs. Parker debate is in Doe, where Judge Posner looks with approval upon the Carparts reasoning, while ignoring the logic promoted in Parker.

Since the release of the Parker decision, several different courts have differed with that judgment, coming into agreement with the First Circuit, such as Baker v. Hartford Life Insurance Company, 1995 WL 573430 (N.D.Ill. 1995); and Kotev v. First Colony Life Insurance Company, 927 F.Supp. 1316 (C.D.Cal. 1996). On September 9, 1996, the Department of Justice (DOJ) issued a position letter in response to Senator Tom Harkin’s query on behalf of one of his constituents, in which Assistant Attorney General Deval Patrick of the DOJ states unequivocally that the ADA is applicable to websites, with regulations from the CFR (See 28 C.F.R. § 36.303; and 28 C.F.R. § 35.160) that require providers of information to do so in a manner that is accessible to those with disabilities, and it would follow that Title III would apply.

The result of such logic is simple. The ADA is applicable to websites, on the same basis that it is applicable to the physical world. Public places must conform to certain building codes in order to insure that the disabled are able to navigate their surroundings and gain access to structures in order to make use of those in the same manner, or as close to as possible, as the able-bodied. In the physical world, there is a requirement that the public areas of all buildings must conform with certain requirements for the blind, such as the very obvious examples: Braille labels on signs for the elevator, restroom, and stairs. In the virtual world of the Internet, the ADA applies in the same manner, even if it is not yet enforced in this fashion.

Websites should be manageable by persons having all types of disabilities, which is not as difficult, nor expensive, as one might think. With the increasing rate of growth in memory and calculation capacity of the simultaneously decreasing size and price of computer equipment, the solution begins merely with an awareness that there is a need.

Rather than the initial thought that all web pages must be recreated in order to facilitate the use by the disabled, the true and grander solution is to simply make parallel websites that lack all the complex graphical interactions common to the Internet presently, but containing the same information in a manner that may be accessed without difficulty by those using access software to interact with the web. Several website designers are already taking this tact, as links to text-only, or graphic free, websites are appearing around the Internet at an astounding rate.

Will this affect everyone equally? Probably not, as the personal web page is outside the control of the commerce clause, unless it is used for a home-based business or the like. The idea is much akin to going for a walk outside. If you walk to the library, there is a wheelchair ramp for those people bound to wheel travel. You continue your stroll, enter an office building, and find Braille labels on the elevator doorframes and inside on the buttons, in order that the blind may find their own way. But, when you return to your home, where you do not conduct any type of business, you are not required to have either of these aids, as the ADA is not controlling in your own personal property that does not involve commerce.

Moving into the virtual realm, personal web pages may comply with the usual norms which allow the disabled to interact successfully, or not, depending on choice of the web architect, but when we visit Amazon.com, CNN.com, or ebay.com, we find that these sites already have in mind their accessibility policy for the visually impaired, which is in compliance with the ADA.

09/28/01