[A2k] WSJ: ADA and Website Access

Sean Flynn sflynn at wcl.american.edu
Mon Mar 25 11:54:35 PDT 2013

Disabled Sue Over Web Shopping

Advocates for Blind, Deaf Say Netflix, Target Are Legally Obligated to
Make Sites Easier to Navigate



Commerce has moved online. Now, the disability lawsuits are following.


Advocates for disabled Americans say companies have a legal obligation
to make their websites as accessible as their stores, and the lawsuits
are following. Joe Palazzolo and Serotek Corp. founder and CEO Mike
Calvo, weigh in on Lunch Break. Photo: Target.com.


Advocates for disabled Americans have declared that companies have a
legal obligation to make their websites as accessible as their stores,
and they've filed suits across the country to force them to install the
digital version of wheelchair ramps and self-opening doors.


Their theory that the 1990 Americans with Disabilities Act applies to
the modern Internet has been dismissed by several courts. Still, the
National Federation of the Blind and the National Association of the
Deaf have won legal victories against companies such as Target Corp. TGT
+0.03% and Netflix Inc. NFLX -0.14% Both companies settled the cases
after federal judges rejected arguments that their websites were beyond
the scope of the ADA.


"It's what I call 'eat your spinach' litigation," said Daniel F.
Goldstein, a Baltimore lawyer who represents the NFB. "The market share
you gain is more than the costs of making your site accessible."


How the Blind Use Today's Technology


Learn about the tools available to help visually impaired people use
some everyday devices.


View Interactive


Several other companies have worked with the NFB to make their websites
more accessible to people with disabilities, including eBay Inc., EBAY
-3.23% Monster.com, Travelocity and Ticketmaster.


Eric Goldman, a professor at Santa Clara University School of Law, said
most courts have ruled that online spaces aren't covered by the ADA.
"Congress never contemplated the Internet at the time, and if they had,
they would have included it," he said.


But that could soon change. The U.S. Department of Justice is expected
to issue new regulations on website accessibility later this year that
could take a broad view of the ADA's jurisdiction over websites. A
Justice Department spokeswoman declined to comment.


That could mean websites will be required to include spoken descriptions
of photos and text boxes for the blind, as well as captions and
transcriptions of multimedia features for the deaf, said Jared Smith,
associate director of WebAIM, a nonprofit group that trains and
evaluates companies on Web accessibility.


Mr. Smith also advises companies to ensure that people with motor
disabilities can navigate websites without the use of a mouse, and to
use plain language and a strong design to aid people with cognitive or
intellectual disabilities.


Lawyers who represent companies in ADA cases say an expansive reading of
the law could expose their clients to a rash of frivolous lawsuits. They
also argue that companies face a considerable burden in ensuring their
websites are compatible with the latest technologies for aiding the
disabled, such as software that reads aloud text on the screen.


"It's in everybody's interest to make sure that disabled people have
access to websites, but whether the law is the avenue to achieve that
change is another question," said Matthew Kreeger, who represented
Target. "It's kind of a blunt instrument."


Not for Anne Taylor, who has to guess where to type in her name, credit
card information and address when she shops online on websites that
aren't accessible to the blind. She gets some help from the computer
voice that alerts her when she runs her mouse cursor across a "text


Ms. Taylor, the director of access technologies at the NFB, which
represents an estimated 25 million adults with vision loss, said she can
usually figure out which bit of her personal information goes into which
box, given her area of expertise.


"But this isn't the experience we want blind people to have," she said.
"This is not an experience a company would want a sighted person to


Research has exposed vast gaps in accessibility. Jonathan Lazar, a
professor at Towson University, studied 16 employment websites in 2012
and found that applicants who were blind required assistance more than
two-thirds of the time.


The costs of making a website accessible vary based on the complexity of
a website, and it is much cheaper to build accessibility features into a
new site than to retrofit an old one, experts said.


Tim Springer, chief executive of SSB BART Group, which advises companies
on accessibility, said companies can expect to pay about 10% of their
total website costs on retrofitting. But if they phase in accessibility
as they naturally upgrade their website, they usually spend much
less-between 1% and 3%, he said.


The ADA requires equal access to "public accommodations," which include
restaurants, retail stores, movie theaters, recreational facilities and
other physical spaces that are spelled out by the law. It makes no
mention of websites as a public accommodation.


Enlarge Image


Stephen Voss for The Wall Street Journal

The Focus 14 Blue device, right, connects with an iPad via Bluetooth and
has a refreshable Braille display.


Some courts have held that ADA covers only physical spaces. The Target
case, which settled in 2008, marked the first time a federal district
judge ruled that the law applies to websites when they act as a gateway
to a brick-and-mortar store. As part of the settlement, Target
established a $6 million fund for settlement claims and agreed to modify
its website to meet accessibility guidelines. Target declined to


Last June, a federal district judge in Massachusetts became the first to
rule that the ADA's accessibility requirements apply to website-only
businesses. The case involved a suit brought by the National Association
of the Deaf against Netflix. It demanded the company provide closed
captioning for its Internet video subscribers.


"The fact that the ADA does not include Web-based services as a specific
example of a public accommodation is irrelevant," wrote Judge Michael
Ponsor. The legislative history of the ADA, he wrote, made it clear that
Congress intended the law to adapt to technology.


After the ruling, Netflix agreed to make 100% of its content captioned
by 2014. The company declined to comment.


Howard A. Rosenblum, CEO of the National Association of the Deaf, said
his group was in discussions with other companies about captioning
streaming movies online. "Legal action will be taken where such
discussions are not successful," Mr. Rosenblum wrote in an email.


Most cases are resolved without litigation, said Lainey Feingold, a
California lawyer who specializes in Web accessibility.


She has reached 45 agreements in the past 18 years with companies
ranging from Bank of America Corp. BAC -1.19% to Charles Schwab SCHW
+0.06% . She credited the financial industry, in particular, for its
efforts to improve website accessibility.


Robert Fine, a Miami-based lawyer who represents companies in ADA
matters, said clients are increasingly seeking counsel on website
accessibility before they are approached by lawyers such as Ms.
Feingold, because they want to avoid bad publicity and increase their
market share.


"My clients tend not to be saying 'How do I get out of doing this,' " he


Sean M Fiil Flynn

Associate Director

Program on Information Justice and Intellectual Property (PIJIP) 

American University Washington College of Law
4801 Massachusetts Ave., NW 
Washington, D.C. 20016
(202) 274-4157            


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