Congressional hearing on ADA and Internet

["Barrett, Don" <Don_Barrett@ed.gov>]

Hello all:

I have heard that the House Judiciary Committee's Subcommittee on the
Constitution is planning a hearing on February 9th regarding the
application of title III of the ADA to the Internet.  Below is a memo
about the hearing from Paul Taylor, the subcommittee counsel, to
Congressman Charles Canady (R-FL), the chair of the subcommittee.  I do
not have any more specifics about the hearing (when it will be or who
the witnesses might be).  If anyone else does, please chime in.

This could potentially be a very big deal, and for all I know, could delay
the Access Board's release of the Section 508 standards, and have numerous
other effects on technology access work in general. 

The following memo is quite long, but worth the reading, and of great
concern.


        MEMORANDUM


TO:             Congressman Charles Canady

FROM:   Paul B. Taylor,
Counsel, Subcommittee on the Constitution

DATE:   December 16, 1999

RE:             Hearing Proposal Regarding the Application of the Americans
With Disabilities Act's Accessibility Requirements to Private Internet Web
Sites and Services
____________________________________________________________________________
__

I.      Introduction and the Need for Oversight

Early next year, the Federal government is scheduled to promulgate
handicapped accessibility requirements that apply to Federal department and
agency Internet sites.  These Federal standards will likely be used as a
model for Internet accessibility requirements by litigants suing private
providers of Internet web sites and services under the Americans With
Disabilities Act ("ADA").  It is the opinion of the Department of Justice
that the ADA's accessibility requirements do apply to private Internet web
sits and services, and, on November 2, 1999, the National Federation for the
Blind filed a class action lawsuit against America Online -- which currently
serves approximately 18 million member customers -- claiming the ADA's
accessibility requirements apply to AOL's Internet services and that the
manner in which such services are currently provided violate the ADA.

In light of the significance of the Internet economy to recent economic
growth, the costs that application of the ADA would impose on that rapidly
expanding segment of the economy, and the substantial First Amendment
implications of applying the ADA to private Internet web sites and services,
the development of a legislative record on these issues at a Constitution
Subcommittee hearing following the winter Congressional recess would likely
prove quite valuable to all interested parties.

A.      The Significance of the Internet Economy

A report issued recently by the Department of Commerce this summer
summarizes the remarkable growth of the Internet economy, which has been
spurred by the rapid increase in the number of consumers with access to
computers and the Internet:

 
While individual private estimates of Internet access and size vary
significantly from each other, taken together they indicate remarkable
growth.  For example, The Industry Standard reports that from 1998 to 1999
the number of web users world?wide increased by 55 percent, the number of
Internet hosts rose by 46 percent, the number of web servers increased by
128 percent, and the number of new web address registrations rose by 137
percent.  In addition, according to a recent study by International Data
Corporation (IDC), between 1998 and 1999 revenues of U.S. Internet companies
(ISPs) will rise by 41 percent.  IDC projects that these ISP revenues will
continue growing at a compound annual rate of 28 percent through 2003.  By
any measure, the ability of consumers and businesses to reach the Internet
and to engage in e?commerce is increasing rapidly.

U.S. Department of Commerce, "The Emerging Digital Economy II" (June 1999)
("EDE II"), at 2.

Current private estimates of 1998 online retail trade range between $7
billion and $15 billion, and forecasters now project online retail sales in
the range of $40 billion to $80 billion by 2002. EDE II, at 5.  A recent
survey of Chief Financial Officers conducted by the Financial Executives
Institute and Duke University indicates that the proportion of U.S.
companies that sell their products over the Internet will jump from 24
percent in 1998 to 56 percent by 2000.  EDE II, at 6.

B.      The Benefits the Internet Currently Provides to the Disabled

There are many reports of the vast benefits the Internet has provided to the
disabled community, particularly the blind.  See "Blind Users Add Access On
the Web," The New York Times (December 2, 1996) at D7 ("'The Internet has
changed forever the lives of blind people, mainly because it provides
independent access to information,' said  Larry Scadden, who works 
on technology issues for the disabled at the National Science Foundation in 
Arlington, Va., and is blind.  Kelly Ford  of Gresham, Ore., who runs
Webwatch, an accessibility discussion group on the Internet, agrees.
'Sighted people don't know how difficult it is 
for a blind person to use services that everyone else takes for granted,
like looking up a phone directory,' he said.  'Now that a lot is on line, I
feel so liberated.'").  See also M. Moeller, "Disabling Web Barriers," PC
Week (September 22, 1998) (quoting Jamal Mazuri, who is blind, as stating
"Even with accessibility being an issue, the Web has been a great equalizer.
I have access much quicker to more information than ever before.").

However, many in the disabled community have expressed the concern that
accessing commercial web sites will become increasingly difficult as more of
them use programming languages such as VBScript and JavaScript,
graphics-based languages that cannot be translated into text by electronic
screen readers for the blind.  See M. Moeller, "Disabling Web Barriers," PC
Week (September 22, 1998).  Experts also report that currently more than 90
percent of all web sites have some barriers to users with physical or
cognitive disabilities. Id.
 
The Internet industry has already responded to many of these concerns.
While it has been reported that the change from DOS, a text-based operating
system, to Windows, a graphics-based operating system, was a "setback" for
the blind, version 3.02 of Microsoft's browser, Internet Explorer, includes
a component called Microsoft Active Accessibility, a layer of codes that are
compatible with accessibility aids such as screen readers for the blind.
These codes also access software that helps users who are deaf or have other
disabilities.  When a newer version of Internet Explorer was released
without the Active Accessibility component on October 1, 1997, Microsoft
received many complaints, and within 35 days Microsoft released Internet
Explorer 4.01, which included Active Accessibility. See "Bringing the Visual
World of the Web to the Blind," The New York Times (March 26, 1998) at G8.
See also Debra Nussbaum, "Bringing the Visual World of the Web to the
Blind," The New York Times (March 26, 1998), at G8 (quoting Gary Wunder,
president of the Missouri chapter of the National Federation for the Blind,
as stating that Microsoft "has shown concern and responsiveness" to the
blind).  Also, Sun Microsystems has added accessibility features to the Java
Foundation Classes.  These features became part of the Java Development Kit
1.2, released in the summer of 1998.  See M. Moeller, "Disabling Web
Barriers," PC Week (September 22, 1998).

Despite the efforts of private industry to make the Internet more accessible
to the disabled, their continued concerns have focused increasing attention
on the question of whether or not Internet web sites are subject to the
handicapped accessibility requirements of the Americans with Disabilities
Act of 1990 ("ADA"). 42 U.S.C. §§ 12101-12213.

C.      The Americans With Disabilities Act

 
Title III of the ADA requires a subset of private employers, including most
businesses to which the public has access, to ensure that individuals with
disabilities are not subject to discrimination and have full and equal
enjoyment of the goods, services, and facilities they provide.   Covered
entities may not discriminate in the provision of services or facilities
against any individual with a disability, meaning that the entity must
provide to disabled and nondisabled customers, patients and clients the same
type and quality of care, services and access to facilities. See 42 U.S.C. §
12182.  Covered entities must make reasonable modifications in policies,
practices and procedures as needed so that individuals with a disability can
enjoy the company's services and use its facilities. 42 U.S.C. §
12183(a)(2).

There are two avenues for enforcement of Title III: (a) private lawsuits by
individuals and (b) lawsuits by the Department of Justice.  Individuals are
not required to bring an administrative charge with a federal agency prior
to bringing a lawsuit.  In private individual lawsuits, remedies are limited
to permanent or temporary injunctions, restraining orders or other equitable
remedies. Compensatory or punitive damages may not be awarded.  However, the
court may award the cost of the plaintiff's attorneys' fees against an
employer who is  found to be out of compliance. EEOC Technical Assistance
Manual,  102,810.  If the Justice Department sues, however, the penalties
are more severe.  An employer found to be in violation can be fined up to
$50,000 for a first offense, and $100,000 for each later offense. See EEOC
Technical Assistance Manual,  102,820.

The answer to the question as to whether the Internet is a "place of public
accommodation" subject to ADA requirements has several significant
implications.  These implications are economic, as an affirmative answer to
the question would increase the costs of doing business in the fastest
growing segment of the U.S. economy and make most anyone who offers goods or
services over the Internet a potential defendant in an ADA lawsuit.  These
potential defendants would include the large numbers of very small business
that are currently using the Internet to introduce their products and
services to customers nationwide.  These implications are also
constitutional, as the answer to this question raises serious First
Amendment concerns.  Finally, the answer to this question would have
significant implication regarding the scope of the ADA and the extent to
which the statute can reach other, non-physical places and services
delivered through other media, such as newspapers, radio, or television.

II.     The Current Legal Climate

The ADA's applicability to the Internet has already become the subject of
discussion in policy circles and, more recently, the subject of a prominent
class action lawsuit.  To date, no court has held whether or not Internet
web sites are places of "public accommodation" under the ADA.

A.      The Department of Justice

 
It is the opinion of the Department of Justice that Internet web sites are
"public accommodations" subject to the ADA's handicapped accessibility
requirements.  In response to a letter from Senator Harkin asking to what
extent the ADA requires Internet web pages to be accessible to people with
visual disabilities, Deval Patrick, Assistant Attorney General, Civil Rights
Division, stated "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."  Assistant Attorney
General Patrick offered the following as possible "accessible means":

[P]roviding the web page information in text format, rather than exclusively
in graphics format.  Such text is accessible to screen reading devices used
by people with visual impairments.  Instead of providing full accessibility
through the Internet directly, covered entities may also offer other
alternate accessible formats, such as Braille, large print, and/or audio
materials, to communicate the information contained in web pages to people
with visual impairments.

Letter from Assistant Attorney General Patrick to Senator Harkin (September
9, 1996).

B.      Private Class Action Lawsuit by the National Federation of the Blind

As Geoff Freed, director of WebAccess, a nonprofit organization in Boston
working to enable closed captioning on the Web, has stated, "The way the
[Americans with Disabilities Act] works is that its applicability is tested
when someone files suit.  That is what's going to have to happen here."

On November 2, 1999, the National Federation of the Blind ("NFB"),
representing the 6000,000 to 800,000 legally blind people in the United
States, filed a class action complaint against America Online, a provider of
interactive services, Web brands, Internet technologies, and electronic
commerce services with approximately 17.6 million customers around the
world.  The complaint alleges that "[t]he AOL service is a public
accommodation as defined by Title III of the ADA, 42 U.S.C. § 12181(7), in
that it is a place of exhibition and entertainment, a place of public
gathering, a sales and rental establishment, a service establishment, a
place of public display, a place of education, and a place of recreation."
Complaint, at  19.  The Complaint alleges various violations of the ADA by
AOL, including a failure to remove existing communications barriers from the
services provided, a failure to make reasonable accommodations to policies,
practices, and procedures necessary to afford access to the service to
persons who are blind, and a failure to make the service fully accessible
and independently usable by individuals who are blind. Complaint, at  28,
31, 34, 37.  In particular, the Complaint alleges that "AOL's proprietary
software for the AOL internet service does not function in the standard way
required for screen access programs to effectively monitor the computer
screen and to fully convert the information into synthesized speech or a
refreshable Braille display.  Among other things, AOL's proprietary software
employs (a) unlabeled graphics, (b) commands that cannot be activated by
using the keyboard but which instead can only be activated by using the
mouse, and (c) custom controls painted in the screen." Complaint, at  23.

 
C.      Current Efforts to Establish Internet Accessibility Standards For
Federal Departments and Agencies

While, to date, no court has held that Internet sites are covered by the
ADA, the web sites of Federal departments and agencies will be required to
be handicapped accessible next year.  The technical standards drafted for
Federal departments and agencies illustrate the sorts of requirements that
may apply to private Internet companies should the requirements of the ADA
be applied to them.

On August 7, 1998, President Clinton signed into law the Workforce
Investment Act of 1998 ("the Act"), which includes the Rehabilitation Act
Amendments of 1998.  Section 508 was originally added to the Rehabilitation
Act in 1986; the 1998 amendments significantly expand the technology access
requirements of Section 508.  Whereas the old version of Section 508
established non?binding guidelines for technology accessibility, the new
version will create binding, enforceable standards and will incorporate
these standards into Federal procurement regulations.  Federal agencies will
use these standards in all their electronic and information technology
acquisitions.

Section 508 now provides that "[w]hen developing, procuring, maintaining, or
using electronic and information technology, each Federal department or
agency," must ensure that such electronic and information technology is
accessible to people with disabilities in the absence of a showing of undue
burden.  "Electronic and information technology" is, as described by an
April 2, 1999, memorandum from Attorney General Reno to the heads of all
Federal agencies, "expansively defined" to "include[] computers (such as
hardware, software, and accessible data such as web pages), fascimile
machines, copiers, telephones, and other equipment used for transmitting,
receiving, using, or storing information." Letter from Attorney General Reno
to heads of Federal agencies (April 2, 1999). 

 
The amended version of Section 508 directs an entity called the Access Board
to publish standards by February 7, 2000, setting forth (1) a definition of
electronic and information technology, and (2) technical and functional
performance criteria necessary to achieve electronic and information access
by setting forth the technical and functional performance criteria necessary
to implement the accessibility requirements.  The Access Board will consult
with the Departments of Education, Commerce, and Defense, the General
Services Administration, the Federal Communications Commission, the
electronic and information technology industry, and disability
organizations; these organizations will sit on an Electronic and Information
Technology Access Advisory Committee ("EITAAC") to advise the Access Board
as it develops the standards.

Section 508 does not apply to recipients of Federal funds, and does not
directly regulate the private sector.  However, states which receive Federal
funds under the Technology Related Assistance for Individuals with
Disabilities Act of 1988 -- later replaced by the Assistive Technology Act
of 1998 -- are required by that Act to comply with Section 508.  According
to Carol G. Cohen, a spokesperson in the Department of Education's Office of
Special Education and Rehabilitative Services, which helps administer the
grants under the 1988 Act,  funding under the 1988 Act is currently received
by "all 50 states, plus the District of Columbia, Puerto Rico, and the four
outlying territories." Adam Powell III, "U.S. government Web site
regulations being released today," The Freedom Forum Online (March 12,
1999). 


Another question left unresolved by the language of Section 508, which
provides that all information technology "used" by Federal departments and
agencies must meet its accessibility requirements, is whether a Federal
department or agency employee's use of a private Internet service, such as
"Yahoo," a popular search engine and research tool, would subject that
private 
 
Internet service to Section 508's accessibility requirements.  Two
attachments to Attorney General Reno's letter to all heads of Federal
agencies provide some guidance, but neither would supercede the language of
Section 508 itself. 

On May 12, 1999, the EITAAC published its Final Report.  The EITAAC stated
that "The purpose of this report is to provide a set of recommended
standards for Federal procurement officers and commercial suppliers of
electronic and information technology and services that will result in
access to and use of the technology and information by individuals with
disabilities. This report represents minimally acceptable standards. All
entities involved in the design, production, and procurement process of
relevant electronic and information technology are strongly encouraged to go
beyond these standards to maximize the accessibility and usability of
products by all individuals."  (Emphasis added.) EITAAC Final Report (May
12, 1999), at 2.

In its Final Report, the EITAAC stated that the published standards would
provide that all electronic and information technology subject to the
requirements of Section 508 would make such technology more accessible to:

"as wide a range of people with disabilities as possible including people
with:
visual disabilities (e.g., blindness, low vision and lack of color
perception)
hearing disabilities (e.g., hard of hearing, deafness)
people with physical disabilities (e.g., limited strength, reach or
manipulation, tremor, lack of sensation)
people with speech disabilities
people with language, learning or cognitive disabilities (e.g., reading
disabilities, thinking, remembering, sequencing disabilities)
other disabilities (e.g., epilepsy, short stature), and
individuals with any combination of these disabling conditions (e.g.,
deaf?blindness)."

EITAAC Final Report, at 3.

 
The standards developed by the EITAAC are detailed technical and functional
performance criteria that will determine whether a technology product or
system is "accessible."  In general, an information technology system is
accessible to people with disabilities if it can be used in a variety of
ways that do not depend on a single sense or ability. For example, a system
that provides output only in audio format would not be accessible to people
with hearing impairments, and a system that requires mouse actions to
navigate would not be accessible to people who cannot use a mouse because of
a dexterity or visual impairment.

The rules drafted for online publishing include provisions that require
streaming audio or audio files to be accompanied by simultaneous text,
including, "where appropriate, in tactile form"; that require that streaming
video be captioned; that require the use of color to convey information be
restricted; and that require webmasters to "provide at least one mode that
does not require user vision" by formatting all information so that it is
compatible with Braille and speech synthesis devices.  Other regulations ban
touch screens, prohibit moving text or animation (unless the user can go to
a static display with the same information), and require all Web sites to
"provide at least one mode that minimizes the cognitive, and memory ability
required of the user." 
 
Web site problems with current Federal department and agency Internet sites
that will need to be fixed were further discussed in an attachment to a
memorandum from Attorney General Janet Reno that explained the new law. "For
example, a system that provides output only in audio format would not be
accessible to people with hearing impairments," reads the explanation, "and
a system that requires mouse actions to navigate would not be accessible to
people who cannot use a mouse."

An administrative complaint is scheduled to become effective on August 7,
2000, which will enable any individual with a disability to file a complaint
alleging that a Federal department or agency has not complied with the
accessible technology standards in a procurement made after that date.   It
will provide for injunctive relief and attorney's fees to the prevailing
party, but does not include compensatory or punitive damages. 

It seems likely that a possible hearing on the issue of whether, and if so
how, the ADA should be applied to the Internet in March or April would give
the Internet industry and other interested parties time to analyze the final
Internet accessibility standards that will apply to Federal department and
agency web sites, and contracts with Federal departments and agencies for
the provision of electronic and technological services, if these standards
are published as scheduled on February 7, 2000.

III.    Potential Economic Ramifications of Applying the ADA's Requirements
to the Internet

Should the ADA be applied to private Internet companies, the breadth of some
definitions of those covered by its accessibility provisions, combined with
the technologically innovative ways in which information is being
communicated on the Internet, make precise assessments of the economic
ramifications such an expansion of ADA applicability difficult.  However,
some economic effects are readily foreseeable.

 
For example, web sites can provide text explaining graphics.  However,
depending on the type and intricacies of graphics, providing such
explanatory information could prove costly by increasing the amount of
information for the web site to convey.  Moreover, the graphics simply might
not translate to text effectively.   Alternatively, Internet service
providers could utilize sound features.  However, as noted by Jim Twu,
general counsel for NarrowCast Media, a Los Angeles?based Internet
advertising company, "Sound features are not often utilized because they
make the Web site slower to load and more expensive to operate, as they
require much more bandwidth.   Also, many Internet users do not have sound
capacity." S. Connolly, "Compliance with the Americans With Disabilities Act
in Cyberspace," 3 No. 10 Cyberspace Lawyer (January 1999), at 8.  Further,
requiring more bandwidth for access to a web site will keep more people on
the web site longer, making it more difficult for others to access the site.


Internet advertising revenues more than doubled between 1997 and 1998.  EDE
II, at 4.  This growth could be significantly slowed if Internet companies
were forced to devote more web space to relaying the same information in a
format accessible to the handicapped, thereby requiring them to reduce the
amount of graphics used in advertisements that tend to attract the eye of
potential customers using the Internet, or to reduce the number of
revenue-generating advertisements on the site.

 
Also, several of the standards proposed by the EITAAC in its Final Report
would appear particularly difficult to comply with, given their vague
parameters.  For example, proposed rules 5.2.1.9.1 ("Provide at least one
mode that minimizes the cognitive, and memory ability required of the
user.") and 5.2.1.10.1 ("Provide at least one mode that accommodates people
with learning disabilities.") contain protected subjects (those with
"cognitive" and "memory" disabilities, and those with "learning
disabilities") that could potentially encompass all manner of forgetfulness
and short attention spans. 

The growing importance of the Internet industry to the U.S. economy, the
potentially vast implications applying the ADA to the Internet would have on
the legal liability of Internet companies and the costs of communication
over the medium, and recent efforts to press for litigation of these issues,
all counsel creating a legislative record now on these issues.  This record
should lay out the potential pitfalls, both economic and constitutional, of
extending ADA coverage to the Internet, a burgeoning source of information
that has, without the burden of accessibility regulations and threatened ADA
litigation, already provided the disabled community with vast new
opportunities to retrieve information.

IV.     Current Legal Precedent

A.      The First Circuit

The National Federation for the Blind brought its suit against AOL in
federal district court in Boston, Massachusetts, at least in part, because
the United States Court of Appeals for the First Circuit has held that an
establishment of "public accommodation" under Title III of the ADA is not
limited to "actual physical structures." Carparts Distribution Center, Inc.
v. Automotive Wholesaler's Association of New England, Inc., 37 F.3d 12, 19
(1st Cir. 1994).  The First Circuit reasoned that "[t]he plain meaning of
the terms do not require 'public accommodations' to have physical structures
for persons to enter." Id.  Further,

 
By including "travel service" among the list of services considered "public
accommodations," Congress clearly contemplated that "service establishments"
include providers of services which do not require a person to physically
enter an actual physical structure.  Many travel services conduct business
by telephone or correspondence without requiring their customers to enter an
office in order to obtain their services.  Likewise, one can easily imagine
the existence of other service establishments conducting business by mail
and phone without providing facilities for their customers to enter in order
to utilize their services.  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.  Congress could not have intended such an absurd result.

Id. 

 
At least one federal district court has agreed with the First Circuit's
holding that the ADA's requirements extend beyond physical structures.  In
Chabner v. United of Omaha Life Insurance Co., 994 F.Supp. 1185 (N.D. Ca.
1998), the court looked to the examples of discriminatory action set out in
Title III, which makes it a violation of the ADA to fail "to make reasonable
modifications in policies, practices, or procedures, when such modifications
are necessary to afford such goods, services, facilities, privileges,
advantages, or accommodations to individuals with disabilities, unless the
entity can demonstrate that making such modifications would fundamentally
alter the nature of such goods, services, facilities, privileges,
advantages, or accommodations ..." 42 U.S.C. § 12182(b)(1)(A)(ii).  The
court concluded from this that, "based on the plain language of the statute,
[] Title III applies to insurance underwriting practices.  It is axiomatic
that courts must interpret statutes so as to avoid rendering superfluous any
parts thereof ... Finding that Title III applies only to physical barriers
to entry would render meaningless the provisions providing for equal access
to goods and services ... In addition, the sections dealing with
modifications in policies to ensure 'goods, services, facilities,
privileges, advantages, or accommodations to individuals with disabilities'
would similarly  be superfluous." Id. at 1190 (citations and quotations
omitted).

B.      The Sixth and Third Circuits

The First Circuit's decision in Carparts Distribution Center, Inc. v.
Automotive Wholesaler's Association of New England, Inc., 37 F.3d 12, 19
(1st Cir. 1994), and the Department of Justice's position that the ADA
applies to the Internet, is at odds with the decisions of other federal
courts.

The Sixth Circuit, in Parker v. Metropolitan Life Insurance Co., 121 F.3d
1006 (6th Cir. 1997), held that "Title III does not govern the content of a
long?term disability policy offered by an employer.  The applicable
regulations clearly set forth that Title III regulates the availability of
the goods and services the place of public accommodation offers as opposed
to the contents of goods and services offered by the public accommodation."
Id. at 1011.

The Third Circuit, in Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir.
1998), has followed the Sixth Circuit and held that the ADA's accessibility
requirements do not extend to the products offered by companies whose
physical offices are covered.  As the Third Circuit stated, "The fact that
an insurance office is a public accommodation ... does not mean that the
insurance policies offered at that location are covered by Title III." Id.
at 612.  The Third Circuit reasoned that:

"The plain meaning of Title III is that a public accommodation is a place,
leading to the conclusion that '"[i]t is all of the services which the
public accommodation offers, not all services which the lessor of the public
accommodation offers[,] which fall within the scope of Title III."' [Quoting
Parker v. Metropolitan Life Ins. Co., 121 F.3d 1011 (6th Cir.1997) (en banc)
(quoting Stoutenborough v. National Football League, Inc., 59 F.3d 580, 583
(6th Cir.1995) (a television broadcast is not covered by Title III)).]  This
is in keeping with the host of examples of public accommodations provided by
the ADA, all of which refer to places.  See 42 U.S.C. § 12181(7).  Since
[plaintiff] received her disability benefits via her employment ... she had
no nexus to MetLife's 'insurance office' and thus was not discriminated
against in connection with a public accommodation.  Furthermore, the 'goods,
services, facilities, privileges, advantages, or accommodations' concerning
which a disabled person cannot suffer discrimination are not free?standing
concepts but rather all refer to the statutory term 'public accommodation'
and thus to what these places of public accommodation provide. [Plaintiff]
cannot point to these terms as providing protection from discrimination
unrelated to places."

Id. at 612-13.

 
The Third Circuit also pointed to Department of Justice regulations that
appear to be at odds with Assistant Attorney General Deval Patrick's
conclusion that the ADA applies to the Internet.  As the Third Circuit
stated:

"Confining "public accommodation" to places is also in keeping with the
Dept. of Justice's regulations to this effect: 'The purpose of the ADA's
public accommodations requirements is to ensure accessibility to the goods
offered by a public accommodation, not to alter the nature or mix of goods
that the public accommodation has typically provided.  In other words, a
bookstore, for example, must make its facilities and sales operations
accessible to individuals with disabilities, but is not required to stock
Brailled or large print books.  Similarly, a video store must make its
facilities and rental operations accessible, but is not required to stock
closed?captioned video tapes.' 28 C.F.R. pt. 36, app. B, at 640 (1997).
Just as a bookstore must be accessible to the disabled but need not treat
the disabled equally in terms of  books the store stocks, likewise an
insurance office must be physically accessible to the disabled but need not
provide insurance that treats the disabled equally with the non?disabled.
While the Dept. of Justice has issued other documents stating that Title III
does cover the substance of insurance contracts, see Dept. of Justice, Title
III Technical Assistance Manual: Covering Public Accommodations and
Commercial Facilities § III3.11000, at 19 (Nov.1993) ("Insurance offices are
places of public accommodation and, as such, may not discriminate on the
basis of disability in the sale of insurance contracts or in the terms or
conditions of the insurance contracts they offer."), such an interpretation
is "manifestly contrary" to the plain meaning of Title III and, accordingly,
is not binding on this court."

Id. at 613.

C.      The First Amendment and Supreme Court Precedent

The issues raised by the application of the ADA's requirements to the
Internet also present novel concerns under the First Amendment. 

 
Requiring Internet web sites to "mirror" whatever information their creators
included on the web site in a form accessible to the handicapped would not
be a situation in which the government was forcing individuals to alter the
content of what they said in a way that altered the substance of what they
could say.  Web site creators, for example, would remain free to include
what they wanted on the sites, but would be required to make whatever they
did choose to include on their site accessible to the handicapped.  Such a
requirement would therefore not appear to be a case of "forced speech" as
commonly understood in the sense that one would not be required to publish
ideas with which one did not agree.  Rather, the "forced speech" under such
a requirement would amount to "forcing" the form, not the substance, in
which certain information is delivered, with the consequent "forced use" of
limited web space and server capacity for the delivery of information in
"handicapped accessible" form.

1.      Miami Herald Publishing Co. v. Tornillo

Perhaps the Supreme Court case that comes closest to dealing with these
issues, but which addressed a content-based regulation that required
newspapers to publish opinions with which their editors did not agree, is
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).  In that case,
the Supreme Court analyzed a statute that created a right to reply to press
criticism that could be exercised by candidates for nomination or election
at no cost to themselves and in the same type and space as that used to
print the original editorial criticism impugning the candidate's personal
character or official record.  The Supreme Court held that the statute
violated the First Amendment, stating:

Appellee's argument that the Florida statute does not amount to a
restriction of appellant's right to speak because 'the statute in question
here has not prevented the Miami Herald from saying anything it wished' begs
the core question.  Compelling editors or publishers to publish that which
"reason' tells them should not be published' is what is at issue in this
case.  The Florida statute operates as a command in the same sense as a
statue or regulation forbidding appellant to publish specified matter.
Governmental restraint on publishing need not fall into familiar or
traditional patterns to be subject to constitutional limitations on
governmental powers.  The Florida statute exacts a penalty on the basis of
the content of a newspaper.  The first phase of the penalty resulting from
the compelled printing of a reply is exacted in terms of the cost in
printing and composing time and materials and in taking up space that could
be devoted to other material the newspaper may have preferred to print.  It
is correct, as appellee contends, that a newspaper is not subject to the
finite technological limitations of time that confront a broadcaster but it
is not correct to say that, as an economic reality, a newspaper can proceed
to infinite expansion of  its column space to accommodate the replies that a
government agency determines or a statute commands the readers should have
available.

Id. at 256-57.

 
Similarly, extending the ADA's requirements to the Internet would exact a
"penalty" on web publishers whenever they chose to relay information in a
way not found to be sufficiently "accessible" to the handicapped.  The
penalty would take the form of the increased costs of buying the space on a
web server to accommodate the extra information required to "mirror" the
chosen information in a way that is handicapped-accessible and other direct
costs of such "mirroring."

At this point in the Tornillo opinion, the Supreme Court quoted an analysis
of the nature of newspaper publishing, noting that "since the amount of
space a newspaper can devote to 'live news' is finite, if a newspaper is
forced to publish a particular item, it must as a practical matter, omit
something else.  The number of column inches available for news is
predetermined by a number of financial and physical factors, including
circulation, the amount of advertising, and, increasingly, the availability
of newsprint ....'" Id. at 257 n. 22. (quoting Note, 48 Tulane L.Rev. 433,
438 (1974)).  The Court added that "[a]nother factor operating against the
'solution' of adding more pages to accommodate the access matter is that
'increasingly subscribers complain of bulky, unwieldy papers.'" Id. at 257,
n. 22 (quoting Bagdikian, Fat Newspapers and Slim Coverage, Columbia
Journalism Review, 19 (Sept./Oct. 1973)).

Similarly, subscribers or browsers of web sites often complain when they
find sites that take particularly long to "download."  Requiring Internet
sites to include audio files that duplicate written information, for
example, would require more "download" time and consequently slow down the
process of information retrieval.

The Court in Tornillo continued, "Faced with the penalties that would accrue
to any newspaper that published news or commentary arguably within the reach
of the right?of?access statute, editors might well conclude that the safe
course is to avoid controversy. Therefore, under the operation of the
Florida statute, political and electoral  coverage would be blunted or
reduced. Government?enforced right of access inescapably 'dampens the vigor
and limits the variety of public debate.'" Id. at 257 (quoting New York
Times Co. v. Sullivan [376 U.S. at 279].

Further, the Court stated in the last paragraph of the opinion that "Even if
a newspaper would face no additional costs to comply with a compulsory
access law and would not be forced to forgo publication of news or opinion
by the inclusion of a reply, the Florida statute fails to clear the barriers
of the First Amendment because of its intrusion into the function of
editors.  A newspaper is more than a passive receptacle or conduit for news,
comment, and advertising.  The choice of material to go into a newspaper,
and the decisions made as to limitations on the size and content of the
paper, and treatment of public issues and public officials ?? whether fair
or unfair ?? constitute the exercise of editorial control and judgment.  It
has yet  to be demonstrated how governmental regulation of this crucial
process can be exercised consistent with First Amendment guarantees of a
free press as they have evolved to this time." Id. at 257-58.

 
Extending the ADA's requirements to the Internet would similarly restrict
the scope of editorial judgment that could be exercised by web site creators
by requiring them to devote limited web space to duplicating information in
handicapped-accessible form.  In these cases, companies would be required to
devote web space to information they would not otherwise devote space to,
thus restricting some speech that companies would otherwise be able to
afford to engage in.  Thus, while applying the ADA to the Internet may not
constitute "content-based" restrictions, it would constitute
"content-reducing" restrictions.  It is also worth noting that, in Pacific
Gas and Electric Co. v. Public Utilities Commission of California, 475 U.S.
1 (1985), the Supreme Court characterized the last paragraph of its opinion
in Tornillo as an "independent ground" for invalidating the statute, stating
"In the last paragraph of the [Tornillo] opinion, the Court concluded that
an independent ground for invalidating the statute was its effect on
editors' allocation of scarce newspaper space." Id. at 12, n.7.

2.      Turner Broadcasting System, Inc. v. Federal Communications
Commission

In Turner Broadcasting System, Inc. v. Federal Communications Commission,
512 U.S. 622 (1994), the Supreme Court held that the "must-carry" provisions
of the Cable Television Consumer Protection and Competition Act of 1992 that
required cable companies to carry local broadcast stations on cable systems
did not violate the First Amendment.  The Supreme Court applied an
intermediate level of scrutiny to the challenged provisions, finding the
"must carry" provisions unrelated to the content of speech, and consequently
imposing a less substantial risk of excising certain ideas or viewpoints
from the public  dialogue. Id. at 642.  Under this intermediate analysis, a
majority of the Supreme Court found the regulations furthered Congress'
policy of ensuring that free local broadcast stations remain economically
viable and available to those without cable television.

Justices Kennedy, Blackmun, Stevens, Souter, and Chief Justice Rehnquist
stated that:

 
 "Our review of the Act and its various  findings persuades us that
Congress' overriding objective in enacting must?carry was not to favor
programming of a particular subject matter, viewpoint, or format, but rather
to preserve access to free television programming for the 40 percent of
Americans without cable.  In unusually detailed statutory findings, Congress
explained that because cable systems and broadcast stations compete for
local advertising revenue, and because cable operators have a vested
financial interest in favoring their affiliated programmers over broadcast
stations, cable operators have a built?in 'economic incentive ... to delete,
reposition, or not carry local broadcast signals.'  Congress concluded that
absent a requirement that cable systems carry the signals of local broadcast
stations, the continued availability of free local broadcast television
would be threatened.  Congress sought to avoid the elimination of broadcast
television because, in its words, '[s]uch programming is ... free to those
who own television sets and do not require cable transmission to receive
broadcast television signals,' and because '[t]here is a substantial
governmental interest in promoting the continued availability of such free
television programming, especially for viewers who are unable to afford
other means of receiving programming.'  By preventing cable operators from
refusing carriage to broadcast television stations, the must?carry rules
ensure that broadcast television stations will retain a large enough
potential audience to earn necessary advertising revenue ?? or, in the case
of noncommercial broadcasters, sufficient viewer contributions ?? to
maintain their continued operation."

Id. at 646-47.

Further, the majority found that "The scope and operation of the challenged
provisions make clear, in our view, that Congress designed the must?carry
provisions not to promote speech of a particular content, but to prevent
cable operators from exploiting their economic power to the detriment of
broadcasters, and thereby to ensure that all Americans, especially those
unable to subscribe to cable, have access to free television programming ??
whatever its content." Id. at 649.

Some might argue that, just as in Turner Broadcasting, Congress has an
interest in seeing that web sites that are currently handicapped accessible
-- such as those that have not becomes graphics-based -- are protected from
extinction by market forces.  However, the economic dynamics that Congress
addressed in the Cable Television Consumer Protection and Competition Act of
1992 are much different than the dynamics that govern the Internet, where
there is no similar concentration of power.  Unlike the cable industry,
which is controlled by a variety of cable companies, each with control over
access to its cable system, the Internet is a very open system.  As the
Supreme Court described the undisputed facts in Reno v. American Civil
Liberties Union, 521 U.S. 844, 853, 870 (1997) ("No single organization
controls any membership in the Web, not is there any centralized point from
which individual Web sites services can be blocked from the Web ... Unlike
the conditions that prevailed when Congress first authorized regulation of
the broadcast spectrum, the Internet can hardly be considered a 'scarce'
expressive commodity.  It provides relatively unlimited, low-cost capacity
for communications of all kinds ... Through the use of [the Internet, any]
individual can become a pamphleteer.").   The Internet is thus in the same
category, for First Amendment purposes, as newspapers. 
 
Further, the ADA does not contain any Congressional findings related to the
market dynamics of the Internet and consequently it cannot be seen as
expressing a Congressional intent to legislatively alter those dynamics.

Justices Kennedy, Blackmun, Stevens, Souter, and Chief Justice Rehnquist
also distinguished Turner Broadcasting from Tornillo by stating that
"Although the provisions interfere with cable operators' editorial
discretion by compelling them to offer carriage to a certain minimum number
of broadcast stations, the extent of the interference does not depend upon
the content of the cable operators' programming ... The number of channels a
cable operator must set aside [under the statute] depends only on the
operator's channel capacity; hence, an operator cannot avoid or mitigate its
obligations under the Act by altering the programming it offers to
subscribers." Id. at 644.  The majority further stated that the provisions
"do not penalize cable operators or programmers because of the content of
their programming.  They do not compel cable operators to affirm points of
view with which they disagree.  They do not produce any net decrease in the
amount of available speech."  Id. at 647.  And, "Because the right of access
at issue in Tornillo was triggered only when a newspaper elected to print
matter critical of political candidates, it 'exact[ed] a penalty on the
basis of ... content.'" Id. at 653 (quoting Tornillo, 418 U.S. at 256).

This scenario differs from the situation web designers would face if ADA
requirements were applied to them.  Unlike the cable programmers in Turner
Broadcasting, and like the newspaper publishers in Tornillo, web designers
in such as case would be able to avoid the restrictions by "toning down"
their web sites such that, for example, fewer graphics or video images were
used to avoid issues of handicapped inaccessibility.

 
While the majority distinguished Pacific Gas  by stating that, in that case,
"Although the access requirement applicable to the utility [in Pacific Gas],
unlike the statutory mechanism in Tornillo, was not triggered by speech of
any particular content, the plurality held that the same strict First
Amendment scrutiny applied," id. at 654, and "in contrast to the statute at
issue in Tornillo, no aspect of the must?carry provisions would cause a
cable operator or cable programmer to conclude that 'the safe course is to
avoid controversy,' and by so doing diminish the free flow of information
and ideas," id. at 656 (quoting Tornillo, 418 U.S. at 257), Justice
O'Connor, writing for herself and Justices Scalia, Ginsburg, and Thomas,
dissented from that view.  Justice O'Connor argued that "[t]here are only so
many channels that any cable system can carry.  If there are fewer channels
than programmers who want to use the system, some programmers will have to
be dropped ... [M]y conclusion that the must?carry rules are content based
leads me to conclude that they are an impermissible restraint on the cable
operators' editorial discretion as well as on the cable programmers' speech.
For reasons related to the content of speech, the rules restrict the ability
of cable operators to put on the programming they prefer, and require them
to include programming they would rather avoid.  This, it seems to me, puts
this case squarely within the rule of Pacific Gas & Elec. Co." Id. at 674,
681-82 (citing Pacific Gas, 475 U.S. at 14?15 (plurality opinion) and
Tornillo, 418 U.S. at 257?258).

Thus, Justices O'Connor, Scalia, Ginsburg, and Thomas would have applied
strict scrutiny to the provisions challenged in Turner Broadcasting as well
as those challenged in Pacific Gas and Tornillo.  Consequently, these
Justices would likely apply the same strict scrutiny to an analysis of the
ADA's applicability to the Internet because cable is a system less open to
new entrants than the burgeoning Internet, and because of the problem of the
"zero-sum game," as when a decision to add video would entail the adding of
closed-captioning and the reduction of web space otherwise available to
communicate ideas.

V.      Non-Coverage of Internet Service Providers under Title IV of the ADA

Further evidence that Congress did not intend Title III of the ADA to reach
the Internet is that it appears Congress did not intend the provisions of
Title IV of the ADA -- pertaining to "common carriers" -- to apply to
Internet service providers.

 
An Internet service provider ("ISP")  probably does not need to provide
Telecommunications Relay Services  or closed captioning to sight, hearing,
or speech?impaired users because the duties and obligations of ISPs are not
addressed under Title IV of the ADA.  47 U.S.C. § 225; 47 U.S.C. § 711
(amending Communications Act of 1934 by adding 47 U.S.C. § 225).  Section
402 of the ADA, which amends § 711 of the Communications Act of 1934,
applies only to television public service announcements produced or funded
by the federal government. 47 U.S.C. § 711.  ISP's transmit information,
graphics, and sound over telephone or cellular connections, but not through
television broadcast. Therefore, § 402 of the ADA does not include ISP's.

Additionally, although ADA § 401, which amends § 225 of the Communications
Act of 1934, initially may appear to apply to ISP's under the term "common
carrier," 47 U.S.C. § 225(a)(1), the related provisions of the statute
suggest that ISPs are exempt from the imposed duties.

Even though the term "common carrier" appears to include all interstate
communication services engaged in voice transmitting services, 47 U.S.C. §
153(10) (defining common carrier to include "communications by wire or
radio;" radio broadcasters, however, are excluded from the definition), when
read in context with other provisions, there is a strong indication that
Congress intended to distinguish ISP's or "interactive computer services"
from common carriers. Aside from the general obligation imposed upon the FCC
to ensure that TRS are available, where possible, to hearing?impaired and
speech?impaired individuals, 47 U.S.C. § 225(b); 47 U.S.C. § 225(d), the
main duties required by Title IV place a burden on "common carriers
providing telephone voice transmission services."  47 U.S.C. § 225(c).  The
term common carrier is further defined by cross?reference to § 153 of the
Communications Act of 1934. 47 U.S.C. § 153(10).  The act states that a
common carrier is "any person engaged as a common carrier for hire, in
interstate or foreign communication by wire or radio ..., except where
reference is made to common carriers not subject to this chapter." Id.
Although the primary nature of an ISP is to transmit, store, and receive
(that is, communicate messages, graphics and even sound or voice recordings
over telephone wires), there is no specific mention of computer services or
transmissions in the definition of common carrier. Congress, however, may
have neglected to place an inclusive definition in Title IV because of the
relative novelty of the interactive computer technology.

However, even if it is unclear whether Congress intended the term "common
carrier" to include ISPs under the amendments made by the ADA, the revisions
made by the Telecommunications Act of 1996 ("TCA"), clarify their intent.
Pub. L. No. 104?104, 1996 U.S.C.C.A.N. (110 Stat.) 56 (to be codified in
various sections of 47 U.S.C. (amending Communications Act of 1934)).  When
Congress amended the Communications Act of 1934 in 1996, it again failed to
alter the definition of common carrier to include interactive computer
services explicitly. 47 U.S.C. § 153.  Moreover, other provisions added or
changed by the TCA distinguished telecommunications devices and common
carriers from interactive computer services. 47 U.S.C. § 223(h)(1)(B); 47
U.S.C. § 230(e)(2) (defining "interactive computer service").  For example,
18 U.S.C. § 1462 was amended to read "common carrier or interactive computer
service (as defined in § 230(e)(2) of the Communications Act of 1934)." 47
U.S.C. § 228, amending 18 U.S.C. § 1462.  This change indicates an intention
to include interactive computer services under the statute, but to keep the
two types of entities separate.  If Congress had intended to include
interactive computer services under the general term of common carrier, a
single change to § 153 of the Communications Act of 1934 would have
accomplished the same action more simply.

 
In another example, § 223 of the Communications Act of 1934, 47 U.S.C. §
223, regulates the transmission and reception of obscene materials over
interactive computer services. Although this provision sits under the
subchapter heading "COMMON CARRIERS," a disclaimer found in § 223(e)(6)
states " nothing in this section shall be construed to treat interactive
computer services as common carriers or telecommunications carriers." 47
U.S.C. § 223(e)(6).  This sentence clearly shows that Congress wanted to
prevent interactive computer services from being burdened by the group of
duties that have been imposed upon common carriers.

Furthermore, an amendment to the Communications Act of 1934 added a
provision for protection of blocking and screening of offensive materials
that legally defines "the Internet" and "interactive service providers." 47
U.S.C. § 230(e).  This provision expresses a legislative desire to leave
these areas "unfettered by Federal or State regulation." 47 U.S.C. § 230(b).

VI.     Conclusion

Once the Federal government promulgates accessibility requirements that
apply to Federal department and agency Internet sites, they will likely be
used by private litigants suing private industry as a model for
accessibility standards that should apply to private Internet sites through
the ADA.  In light of the significance of the Internet economy to recent
economic growth, the costs that application of the ADA would impose on that
rapidly expanding segment of the economy, the opinion of the Clinton
Administration's Justice Department that the ADA does apply to the Internet,
and the substantial First Amendment implications of an application of the
ADA to the Internet, the development of a legislative record on these issues
now would likely prove valuable to all interested parties.