Tuesday, September 28, 2004

Nada to ADA on ‘Net?

Need something to celebrate? The web just fended off another attempt at regulatory choking, this time by activists trying to impose on websites the "reasonable accommodation" requirements of the Americans with Disabilities Act (ADA). You can thank Access Now v. Southwest Airlines, 2004 U.S. App. LEXIS 20060 (11th Cir., Sept. 24, 2004) [PDF format], for that win. Take it easy on the champagne, though; another assault looms.

The case arose when Access Now, Inc., an advocacy organization for the disabled, and Robert Gumson, a blind individual, sued Southwest Airlines for failing to make the "vitual ticket counter" on its website accessible to blind persons. Southwest moved to dismiss on grounds that its website is not a "place of public accommodation" within the scope of the ADA. The trial court ruled against the plaintiffs’ claim, reasoning that "To expand the ADA to cover 'virtual' spaces would be to create new rights without well-defined standards."

Fortunately for our freedoms of speech and commerce, the court of appeals affirmed. While expanding the ADA to cover the web might give us warm and fuzzy feelings, a cold and hard assessment can hardly fail to find that the regulatory burden's marginal costs far outweigh its benefits. Moreover, whatever the merits of applying the ADA to real space venues, applying it to the web would necessarily impinge on freedom of speech. A website, after all, constitutes nothing more than someone's writing.

Notably, however, the Eleventh Circuit did not rule against the plaintiffs on those grounds. Rather, the court essentially ruled against them because they had abandoned their original theory of the case and come up with a new one on appeal. Because evaluating that new theory would have required a factual record that the trial court had never had occasion to develop, the court of appeals declined to consider the plaintiffs’ claims. They lost, in other words, on a technicality.

As the Eleventh Circuit noted, whether the ADA applies to the web remains an unresolved and hotly contested legal issue. The First and Seventh Circuits lean towards expanding the ADA’s scope, while the Third, Sixth, and Ninth Circuits have held to the contrary. The Access Now case, far from resolving the issue, has taught ADA activists how to plead their next case.

[Cross-posted to The Technology Liberation Front.]

1 comment:

Anonymous said...

I suppose we could make the "surfing experience" available to blind people by putting them in a swimming pool with a boogie board and create waves with an artificial wave machine. We can sprinkle sand around the perimeter of the pool to simulate the beach. To make the experience as real as possible we should add in a mechanical shark or a rubber ducky. Also, the blind should be given headphones with beach sounds of seagulls, happy beachcombers, gurgling sounds of drowning inexperienced swimmers, & whatever else makes for a realistic & pleasant day of sand & surf. For their own safety, I would resist giving in when my sightless patrons shout, "make the waves bigger!" You have to draw a line in the sand somewhere, you know. And, we mustn't forget to add the "smells of surfing" coming not only from the crisp salty air but also from beer kegs and cigarette smoke. Lately, I seem to get a lot of that when I go to the beach here in Santa Monica. Thanks, Tom, for the great idea! Now, if only I had a swimming pool at my house. I wouldn't even worry about being sued should one of the blind surfers accidentally drown or become a parapleigic (yes, ADA, I never intended to accomodate parapleigic surfers) from some freakish mishap. For, you can't get cash out of an octopurse (only murky ink) as all surfing lawyers know all to well!