07/30/2013

Should big profitable web sites have to modify their sites so they are usable by the disabled?

Predictably, big profitable web sites say no and disabled people say yes. In fact, the Internet Association -- a trade group for the fat cats of the web -- goes so far as to say it could be "ruinous" for them to have to meet the requirements of the Americans With Disabilities Act (ADA).

“Applying the ADA to all Web sites may place uncertain, conflicting, burdensome, and possibly ruinous obligations on members of The Internet Association,” according to a brief filed last week by the group, which represents Google, Amazon, Facebook, AOL and eBay, among others.

The controversy arises out of a lawsuit filed back in 2010 by Melissa Earll, a deaf Missourian who said eBay violated anti-discrimination laws when it required her to verify her identity by telephone before she could sell used books on eBay.

That suit was initially thrown out by U.S. District Court Judge Edward Davila in San Jose, Calif., who said the ADA applies only to "places" of public accommodation, not web sites.

However, in a 1996 letter, the U.S. Department of Justice said Title III of the ADA requires “covered entities” (places of public accommodation) that “use the Internet for communications regarding their programs, goods, or services” to “offer those communications through accessible means as well,” the National Association of the Deaf notes on its website.

The Justice Department guidance isn't binding on federal courts, so the issue remains undecided pending a ruling by higher courts or Congressional action.

Earll appeals

Hoping to gain a favorable ruling by an appeals court, Earll recently appealed to the 9th U.S. Circuit Court of Appeals, saying that limiting the ADA to physical structures leaves people like her adrift in an age when more and more commerce, culture and education is moving online.

The Internet Association rushed to eBay's defense, filing a friend-of-the-court brief saying the web is far too complicated to accommodate disabled people.

“The Internet is complicated, and its technical inner workings are regulated not by any government, but by a combination of individual technologists and an interconnected web of technically savvy multi-stakeholder bodies that have overseen the Internet’s evolution from the beginning,” the group argues in its brief. “Neither the Justice Department nor the Federal Communications Commission has a handle on what technical standards would comply with the ADA’s requirements, in part because existing technical standards make for amorphous legal standards.”

Earll's lawyer, Michael Aschenbrener, has argued that eBay could have simply authenticated Earll's identity by using text messaging insitead of a phone call, a procedure that he said should not be beyond the technical abilities of eBay and other large Internet sites.

The Internet Association, whose membership is made up entirely of giant Internet companies, also threw in the argument that complying with the ADA would place an onerous burden on mom-and-pop sites.

Varying opinions

In similar cases, judges have sometimes ruled that the ADA doesn't apply to web businesses that don't have brick-and-mortar presences. But in Massachusetts, a federal judge recently ruled that the ADA applies to Netflix.

U.S. District Court Judge Michael Ponsor allowed the National Association of the Deaf to proceed with claims that Netflix discriminates by failing to provide closed captioning online. Netflix eventually settled the lawsuit by agreeing to offer closed captioning on streaming video.

In 2007, the Department of Justice entered into a settlement agreement with Sylvan Learning Centers (an Accredited Partner), which provides tutoring services in person and online through the Internet. Sylvan Learning Centers (an Accredited Partner) had refused to provide auxiliary aids for a prospective deaf student. As part of the settlement agreement, Sylvan Learning Centers (an Accredited Partner) agreed to make its services accessible to people who are deaf or hard of hearing.

In 2006, the National Federation of the Blind sued Target for failing to make its website accessible to blind customers. The court ruled that Target may be required to make its website services accessible, if the website provides information and services necessary for the full and equal enjoyment of goods and services offered in Target stores.