INFOTECH AND THE LAW

by Michael Mason

The Internet has revolutionized the manner in which goods, services and information are accessed and is now a key component of the U.S. economy. Federal and state regulators generally have been wary of imposing restrictions on the Internet for fear of impeding the new economy's progress and limiting innovation in this area of emerging technologies.

In a recent, major development, however, the Justice Department has taken action that could lead to numerous lawsuits and billions of dollars in design modifications to Web sites and related software.

Individuals with disabilities commonly access Web sites using assistive technology. For example, those with sight impairments often use screen reader software that converts text to speech. Those with physical or mobility impairments often use speech recognition software to operate Web sites.

Unfortunately, many Web sites are not compatible with assistive technology and not accessible to many disabled people.

On June 22, the Justice Department filed an amicus curiae, or "friend of the court," brief in the U.S. Court of Appeals for the Fifth Circuit, arguing that the Americans with Disabilities Act applies to Web sites. Although Justice in the past has stated informally that the ADA applies to Web pages, its brief marks the first time it has supported this position in court. In addition, the action suggests that Justice might oversee Web sites as part of its ADA enforcement responsibilities.

The brief relates to an ADA complaint against OKbridge Inc., which operates Web-based bridge tournaments. OKbridge had terminated the plaintiff's membership for what it called cheating and posting vulgar messages in its discussion forum. The plaintiff alleged OKbridge violated the ADA by failing to accommodate the plaintiff's several mental disabilities.

The district court ruled in favor of OKbridge, in part because it concluded OKbridge was not a "place of public accommodation" under the ADA because there is "no physical structure or facility."

On appeal, the Justice Department filed a brief supporting the plaintiff's position. The department framed the issue as "whether a company that offers services solely on the Internet is subject to the public accommodations provision of Title III of the ADA."

Interestingly, the Justice Department stated that the issue does not depend on whether the Web site itself is a place of public accommodation. Rather, it argued that OKbridge maintains a physical facility where it houses its Web servers and personnel, and its bridge tournaments are services of that place of public accommodation.

A number of courts, albeit in other contexts, have addressed whether the ADA applies outside of physical facilities. Consistent with the district court's OKbridge decision, several courts have relied on the ADA's definition of public accommodation, which lists only places with physical structures, to rule that the act applies only to access to physical structures.

Other courts, however, have held that the ADA applies outside of physical structures and facilities. In one case, the court reasoned "[it] would be irrational to conclude that persons who enter an office to purchase services are protected by the ADA, but persons who purchase the same services over the telephone or by mail are not."

Another court has held that the ADA applies outside of physical structures, expressly including ? without definitively deciding the point ? Web sites, but does not regulate the content of goods or services. For example, bookstores aren't required to stock Braille books and movie rental stores aren't required to stock films with closed captioning. If this rule were applied to Web sites, enforcing the ADA might depend on whether the Web page at issue constitutes a good or service, or provides only a means to access a good or service.

Assuming Congress does not act to clarify the situation, the applicability of the ADA to Web sites will remain unclear until at least several courts have analyzed the issue. The fact that no industry standard exists governing interoperability between assistive technology and Web sites and related software confounds the problem. (Guidelines have been published by World Wide Web Consortium's Web Accessibility Initiative.)

Disputes concerning Web site accessibility have been settled recently by America Online Inc., Bank of America Corp. and vendors providing online income tax filing services. In addition, the House of Representatives' subcommittee on the Constitution is known to be closely monitoring the situation. In February, it held oversight hearings on whether applying the ADA to Web sites would violate First Amendment free speech principles.

Michael Mason is an attorney with the law firm of Hogan & Hartson LLP in Washington. He can be reached at MFMason@HHLaw.com.