Copyright (c) 2000 Albany Law Journal of Science &

Albany Law Journal of Science & Technology 2000

10 Alb. L.J. Sci. & Tech. 205

Jonathan Bick

Partner, Greenberg Taurig, New York City, and adjunct Professor of Internet Law and e-Commerce Law at Pace Law School and Rutgers Law School. Community Health Law Project Senior Managing Attorney David J. Popiel's assistance is appreciatively acknowledged.

I. Introduction

The Americans with Disabilities Act (ADA) n1 applicability to the Internet is now being explored. While the Department of Justice issued a statement in 1996 n2 stating that the ADA will cover government entities on the Internet, as well as those providers whose services are deemed to be public accommodations, n3 it is only recently that this issue has been brought to the courts' attention. Since its passage, the ADA requirements for accommodation of the disabled have brought such obvious physical changes as [*207] wheelchair ramps, accessible public facilities, and handicapped designated parking areas as well as some more fundamental changes in public attitude toward disabled individuals. Disabled individuals are no longer pushed to the periphery of the workplace, but due in part to the ADA, helped into its mainstream. Just as the ADA has become part of the fabric of America so has the Internet. The Internet has become the hub of business, commercial, civic, and even social interaction. n4 In today's world, the ADA's application to the Internet is arguably as important and may be more important than access to parking spaces for the disabled. While some Internet access providers will require the persuasion of a lawsuit to comply with access for the disabled, others are inclined to respond prophylactically to such requirements, rather than to fight them. n5 Those in favor of Internet access for the disabled suggest the use of icon captions, audio texts, and options to eliminate scrolling text and flashing graphics in order to make Internet content more accessible to visually disabled people. This Article suggests that the policy underlying the ADA requires that the statute be interpreted broadly so as to bring the Internet within the purview of the ADA.

How the ADA will be enforced and which Internet entities will be labeled "public accommodations" for ADA purposes remains to be determined. n6 Several fundamental questions related to the application of the ADA to Internet entities and Internet transactions remain open. First, is the Internet as a whole an ADA "public accommodation"? Second, is the term "place" as used by the ADA a term of convenience, or a term of limitation? Stated another way, does the scope of the ADA regulate discrimination only in terms of physical access to actual places of public accommodation as implied from a term of limitation, or does it have a broader application to cyberspace as merely a term of convenience?

[*208] In the foreseeable future, the enforcement of the ADA and other related acts tangential to the accessibility of the Internet for disabled people n7 will likely be tested. The opinion issued by the Department of Justice in 1996 clearly stated that the ADA applies to the Internet. n8 The Department of Justice said that entities subject to Title II or III of the ADA n9 must "provide effective communication to people with disabilities." n10 That essentially means that the ADA public accommodation rules most likely apply to the Internet.

Title III of the ADA prohibits discrimination by public accommodations against disabled people. n11 One major target of Title III is to extend the ADA's general proscription against discrimination to privately operated public accommodations. This provision was intended to give disabled people equal access to the array of establishments, goods and services available to those who are not disabled.

"At the center of Title III is the ADA's definition of public accommodations." n12 According to Title III, twelve categories of entities are deemed public accommodations if their operations affect commerce. "While this provision can 'be traced to the public accommodations provisions of Title II of the Civil Rights Act of 1964, n13 the ADA's concept of public accommodations is much broader.'" n14 As a result, the public accommodations requirements cover almost all facets of American life in which members of the public come into contact with a business or other entity.

[*209] "Contact" does not necessarily mean physical contact. In 1993, a district court dismissed all of a plaintiff's claims against a cap of health insurance coverage for AIDS-related medical expenses, reasoning that neither defendant insurer qualified as a "public accommodation" under Title III. n15 The district court interpreted the term "public accommodation" under the ADA as limited to actual physical structures with definite physical boundaries, which a person physically enters for the purpose of using the services offered there. On appeal, the United States Court of Appeals for the First Circuit vacated the district court's dismissal and remanded the case to the district court. The Circuit Court found that the district court's limited interpretation of Title III was erroneous as a matter of law. The Court of Appeals rejected the district court's rationale that establishments of public accommodation are limited to actual physical structures. n16

This case, in applying the public accommodation definition to insurers, supports the contention that the ADA requires that no individual shall be treated unfairly or unequally on the basis of disability when accessing services available to others. Therefore, Internet providers must assure that all persons shall be able to fully and equally enjoy the goods, services, facilities, privileges, advantages, or accommodations available "in" the Internet.

A court test of the applicability of the ADA in the area of Internet site access is likely to be accelerated by the Architectural and Transportation Barriers Compliance Board's (Access Board) n17 proposed accessibility standards for electronic and information technology, n18 covered by section 508 of the Rehabilitation Act [*210] Amendments of 1998. n19 The pronouncements of the Access Board will likely accelerate court tests of the ADA for two reasons. First, the Access Board's pronouncements will set a standard for ADA compliance in "electronic and information technology," thereby allowing people to compare a particular set of facts to a standard. Second, the Access Board's pronouncements will result in the perception that if a standard is good for the government it should also be applicable to the private sector.

Section 508 requires the Access Board to publish standards setting forth a definition of electronic and information technology and the technical and functional performance criteria necessary for accessibility for such technology. n20 Section 508 requires that when federal agencies develop, procure, maintain, or use electronic and information technology, they shall ensure that the electronic and information technology allows federal employees with disabilities to have access to, and use of, information and data that is comparable to that enjoyed by federal employees who are not individuals with disabilities. An exception exists if such access would impose an undue burden on the agency. n21 Section 508 also requires that individuals with disabilities who are members of the public seeking information or services from a federal agency, must have access to, and use of, information and data that is comparable to that provided to the public who are not individuals with disabilities. [*211] Again, an exception exists where there is an undue burden on the agency.

II. Civil Rights to Internet Access

Access rights for disabled people and the resulting legislation grew out of the disability rights movement of the late 1960s and 1970s. n22 The disability rights movement was largely based on the civil rights movement, which brought into being the concept that equal access to society for African Americans and other minorities was a civil right.

The post Civil War Reconstruction Act expanded civil rights among certain groups of disenfranchised Americans. After the passage of the Reconstruction Acts, black men were constitutionally empowered to vote and to hold political office. n23 Despite the Reconstruction Acts, civil rights were still far from universal; for example, women were still disenfranchised. Needless to say, civil rights for disabled people - how society should treat people with disabilities - were not addressed.

Since 1955 Americans have acted to ensure their civil rights. n24 The cumulative effect of several movements in American history have assured civil rights centered around race, ethnicity, religion and sex. Title VII of the Civil Rights Act has served in part to ensure equality of employment opportunities and to eliminate discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens. Related legislation has been enacted to ensure similar treatment for other Americans. However, civil rights centered on people with disabilities were generally not considered.

In 1964 the United States enacted a civil rights law to eradicate broad areas of discrimination. n25 The enactment of the Civil Rights Act of 1964, which barred discrimination based on race, sex, and national origin in access to employment, education, and public accommodations, was the initial step toward equal access by all [*212] persons. This was followed by the Voting Rights Act of 1965, which guaranteed access to political participation, n26 and the Civil Rights Act of 1968, which guaranteed access to housing. n27 However, these acts and similar legislation were not effective in limiting discrimination against the disabled. In order to effectively extend civil rights or access to disabled people, the barriers to full participation of people with disabilities arising from prejudice, stigma, and physical limitations remained to be addressed.

The United States Commission on Civil Rights found that the problems of discrimination toward persons with disabilities, and therefore the remedies required, were not sufficiently similar to existing anti-discrimination legislation. n28 This observation included the described limitations of the Rehabilitation Act of 1973. n29

The Rehabilitation Act of 1973 was an important federal disability nondiscrimination statute fashioned on the ideals set forth in Title VI of the Civil Rights Act of 1964. Section 504 of the Rehabilitation Act includes a broad prohibition against discrimination on the basis of disabilities, barring discrimination against an"otherwise qualified individual" with a disability," but is expressly limited to programs and activities that are federally funded. n30 Previous civil rights statutes were inadequate for redressing disability discrimination because they failed to address the unique aspects of discrimination associated with disabled people. For instance, Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, or national origin in any program receiving federal assistance, but fails to prohibit discrimination on the basis of such an obvious disability as lack of limbs. [*213] In short, general civil rights legislation did not address some of the key contributors to disability discrimination, such as the removal of architectural barriers.

However, more was required due to the relative lack of effectiveness of the Rehabilitation Act of 1973. The enactment of the ADA in 1990 fulfilled this need for greater effectiveness. n31 Congress intended the ADA to provide a "comprehensive national mandate" with "clear, strong, consistent, enforceable standards" to protect individuals with disabilities from discrimination. n32 The underlying objective of the ADA was to ensure the equality of opportunity, full participation, and self-sufficiency necessary to allow people with disabilities to compete for society's goods and services on an equal basis. n33 The ADA, unlike its predecessor, the Rehabilitation Act of 1973, n34 broadens anti-discrimination safeguards to persons with disabilities in private sector employment (Title I), to those who use public services (Title III), to access to public accommodations (Title III), n35 and telecommunications (Title IV).

It should also be noted that state and local disability legislation supplements the ADA and related federal law. All states have disability statutes, which prohibit discrimination in many areas of private and public sectors and closely follow the federal civil rights approach. Therefore, it is not surprising that courts have held that state disability statutes should be construed according to this history of legislative intent. n36 Consequently, if the ADA is found to be applicable to the Internet, state and local disability statutes and future legislation related to disabled people will be an important source for the definition of the rights of the disabled.

[*214] As e-commerce and the use of the Internet become comonplace, Internet service providers, Internet portals and Internet sites are more likely to be recognized as public accommodations subject to the ADA, which bars disability discrimination by private employers, state and local governments, and transportation and telecommunication providers. n37 Private Internet entities may soon be legally required to comply with the ADA as suggested by the Department of Justice's statement that the ADA will cover government entities on the Internet, as well as those services deemed to be public accommodations. n38 In the event that the ADA becomes applicable to the Internet, impaired individuals must be provided Internet and e-commerce access in a similar manner as that which accommodates them in commercial public places.

The Internet is no longer the esoteric realm of researchers. It is regularly used for business, commercial, civic, and social interaction. The Internet enables users to interrelate in such sophisticated ways as to form "virtual communities" and which may now be considered public places that enable people to "meet" and "talk." If the Internet is a new kind of public space, one can argue that rights of the disabled should include meaningful Internet accommodation. However, the courts have yet to decide to what degree Internet and e-commerce sites should be considered public accommodations covered by the accessibility provisions of the ADA. The potential application of the ADA to the Internet may be among the first significant applications of government regulation of the Internet.

There are twelve "public accommodation" categories identified in the ADA statute. n39 Additionally the prohibitions of Title III are restricted to "places" of public accommodation. The statutory noun "place" (in reference to "public accommodation") has been found to be a term of convenience, not a term of limitation for the purpose of interpreting statutes associated with discrimination. n40 It is this sort of interpretation that will allow the ADA to be applied to the Internet. This interpretation would be instrumental in answering the question as to whether Title III regulates discrimination only in terms of physical access to actual places of public accommodation or whether it has a broader application to [*215] cyberspace. An argument that the prohibitions of Title III are not solely limited to "places" of public accommodation contravenes the plain language of the statute. n41

The divergent views about the attributes of a public accommodation are central to the application of the ADA to the Internet. For example, those who see public accommodation as requiring a physical forum, argue for the inapplicability of the ADA to the Internet. However, those who view public accommodation as independent of a physical forum, argue that the Internet satisfies all requirements.

The "failure to remove... barriers... where such removal is readily achievable" is an example of discriminatory behavior under the ADA. n42 The "readily achievable" standard is defined as "easily accomplishable and able to be carried out without much difficulty or expense." n43 The ADA specifies that the following four factors should be considered in the determination as to whether an action is readily achievable: (A) the nature and cost of the action needed; (B) the overall financial impact of the action; (C) the overall financial resources of the covered entity; and (D) the type of operation of the covered entity. n44

The ADA mandates several remedies when an entity fails to comply. The remedies were set forth in 2000a-3(a) of the Civil Rights Act of 1964, which permits application for a permanent or temporary injunction, restraining order, or other orders at the court's discretion, as well as reasonable attorney's fees to the prevailing party. n45 Compensatory or other damages are not available remedies under this act. n46

[*216] The court has three significant penalty options. First, the court may grant "appropriate" equitable relief. Second, the court may award such other relief as it considers appropriate, including monetary damages. Third, the court may also assess a civil penalty against the entity in an amount not to exceed $ 50,000 for a first violation, and not to exceed $ 100,000 for any subsequent violation. n47 The statute also instructs the court to consider the entity's "good faith effort or attempt to comply" with the ADA in determining what penalty to impose. n48

Under the ADA the intent to discriminate is not a necessary element of a prima facie case. While a defendant's attempts to provide access are relevant to a court's decision, they are not conclusive. Thus, an unintended result of a practice may be discriminatory and thereby a violation of the ADA. This conclusion is based upon a review of Rehabilitation Act cases. The courts in such cases have regularly found that plaintiffs need not prove that defendants intended to discriminate, only that they did discriminate. n49 The courts' findings appear to be consistent with the legislative history which suggested that the purpose of the ADA was to eliminate discrimination against the disabled whether intentional or not.

One significant group of disabled people is those with visual impairments. Visually impaired people can independently use the Internet and e-commerce-related services only by concurrently running screen-reader software programs that convert visual information into synthesized speech or Braille.

One such program uses the electronic signals that produces text on computer displays and converts those signals to either an embosser or a pin display. An embosser, which attaches to a computer in the same manner as a printer, impresses the six-dot patterns of the Braille system onto a sheet of paper. Similarly, a device known as a refreshable Braille display, also attaches to a computer like a printer, and produces Braille patterns using tiny metal pins. Another screen-reader program turns computer signals into synthesized speech.

[*217] Screen-reader technology is designed to pick up words, not visuals. It is not effective for pictures or graphics unless they are accompanied by text labels. All site functions must be keyboard activated. Site software must use standard controls, such as dialog boxes or list boxes.

Some Internet sites have not been accessible by screen-readers at all. For example, visually impaired people cannot use America Online's (AOL) distinctive features, like its chat rooms, because the existing chat room software is not compatible with the screen-reader technologies. In addition, AOL uses text icons, which renders screen-readers useless.

III. National Federation for the Blind v. America Online,Inc.

In November 1999, the National Federation of the Blind (NFB) filed a lawsuit against America Online Inc., the nation's largest Internet provider, in U.S. District Court for the District of Massachusetts. This suit was initiated in part because the software needed to use AOL does not work with the software required to translate computer signals into Braille or synthesized speech. The complaint n50 states that AOL has failed to remove communications barriers presented by its designs, thus denying the blind or visually impaired independent access to this service in violation of Title III of the ADA. n51

The ADA applies to all businesses open to the public. n52 AOL's products - its Internet access, chat rooms, e-mail services and informational channels - are open to the public. The ADA requires businesses to make reasonable accommodations that are not an "undue burden." Requiring AOL's software to be compatible with screen-readers is similar to requiring a bookstore to offer ramps and bathrooms for the disabled. The ADA would not require AOL to prepare Braille editions of its content; it only requires access to that content. Advocates for the disabled argue that if the Internet is not accessible, the handicapped will be deprived of access to a major communications, commerce and business portal.

The National Federation of the Blind of Massachusetts and nine individuals, all of whom are blind, charged that AOL's service violates [*218] the ADA. The lawsuit stated that AOL, unlike other Internet service providers, "has designed its service so that it is incompatible with screen access software programs for the blind." n53

The suit sought a court directive requiring AOL to stop violating the ADA. It also asked the court to order that AOL services be changed to allow blind people to have better access. In short, this suit was an attempt to force AOL to make its software compatible with screen-reader technologies.

The complaint filed by the NFB indicated that AOL's service uses proprietary software that is incompatible with screen access programs. In particular, AOL software uses unlabeled graphics commands that can be activated only by using a mouse and custom controls. Thus the suit charged that AOL's service "has failed to remove communications barriers... thus denying the blind independent access to this service in violation of Title III of the ADA." n54

The NFB suit also charged that the AOL service violates the ADA's "reasonable modification" and "full and equal enjoyment" mandates due to the company's failure to make its services fully accessible and independently usable by individuals who are blind. n55

Some corporations have long engaged in activities aimed at accommodating visually impaired persons' access to the Internet. For example, since 1993 IBM and Sun Microsystems have offered software that makes Java-based technology accessible to Internet users who are visually disabled. Similarly, since 1993 Microsoft has sold software that allows Windows applications to communicate with adaptive equipment, including screen-readers.

In contrast, AOL's Internet service software is not compatible with screen-reader programs. The NFB complaint cited several examples. To sign up for the AOL service, an Internet user must fill out and send in a sign-up form. This form, when accessed via the Internet, contains blank fields to be filled in with name, billing address, credit card number, and similar information. While the on-screen instructions describing each field is sufficient for sighted users, it is insufficient for a visually impaired Internet user. Another example cited by the NFB complaint highlighted the fact that AOL screens use unlabeled graphics instead of text, [*219] which means that important information cannot be read by a screen-reader program. n56

As a result, the NFB claimed that AOL's failure to redesign its Internet service to permit access to the blind through screen access programs violates the communication barriers removal provision of the ADA. n57 NFB also indicates that redesigning the AOL service to permit the blind to use it through screen access programs is readily achievable.

In addition, NFB claimed that AOL's failure to redesign its Internet service to permit the blind to use it through screen access programs violates the auxiliary aids and services provision of the ADA because it constitutes a failure to take steps to ensure that individuals who are blind are not denied access to the service. n58 NFB suggested that providing auxiliary aids and services that would make the defendant's AOL service accessible to and independently usable by persons who are blind would neither fundamentally alter the nature of AOL's service, nor unduly burden the defendant.

Similarly, NFB maintained that AOL's failure to redesign its AOL Internet service to permit the blind to use it through screen access programs violates the reasonable modifications provisions of the ADA, 42 U.S.C. 12182(b)(2)(A)(ii), in that it constitutes a failure to make reasonable modifications to policies, practices and procedures necessary to afford access to the service to visually impaired people. It also alleged that AOL's failure to redesign its AOL Internet service to permit the blind to use it through screen access programs violates the full and equal enjoyment and participation provisions of the ADA because it constitutes a failure to make the service fully accessible and independently usable by individuals who are blind. n59

ADA Title III broadly states that "no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." n60 Thus, the NFB must first show that the Internet is a place of public accommodation under Title III.

[*220] In detailing the term public accommodation, section 12181(7) of the statute gives a detailed list of facilities that qualify as a public accommodation. Title III of the ADA indicates that a public accommodation 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." n61 Thus, in part, the ADA defines "public accommodation" in terms of entities rather than physical places. To be specific, section 12181 states that if the operations of an entity affect certain types of commerce it may be considered a public accommodation. n62 These operations include, "a theater, concert hall, stadium, places of exhibition or entertainment; an auditorium, convention center, lecture hall, or other place of public gathering; shopping center, or other sales or rental establishment; bank, travel service, a museum, library, gallery, or other place of public display or collection" and others. n63

Since the AOL Internet services include "online interactive community" that encompasses electronic mail services, public bulletin boards, public and private interactive conversations ("chat rooms"), and guest interviews at live "auditorium" events, it appears that the AOL service is a place of exhibition and entertainment, a place of public gathering, a service establishment, a place of public display, a place of education, and a place of recreation. Therefore, it can be argued that the AOL service is offering a public accommodation.

A contrary argument may be made by AOL that a membership organization which does not maintain close connections to structural facilities is not included in the meaning of "public accommodation" under the ADA. In addition, AOL could argue that it is not an organization that the ADA had in mind, as evidenced by the fact that it is not included in a list of private entities which offer public accommodations.

However, NFB could then counter argue that although AOL is not listed, its facilities are comparable to those entities that are listed.

In the event that the NFB were able to prove that the Internet is a public accommodation, the next step would be to show that AOL has discriminated against a disabled person in some manner [*221] under the text of Title III. There are several ways that a public accommodation can discriminate under Title III.

For example, the NFB complaint cited as a violation AOL's failure to make the service fully accessible and independently usable by individuals who are blind. n64 However, each specific offense carries its own defense. For example, "a failure to make a 'reasonable modification' in policies" affecting public accommodations is excused if it can be shown that the "modification would fundamentally alter" the services or facilities. n65 Thus AOL could argue that the changes necessary to make the service fully accessible and independently usable by individuals who are blind would fundamentally alter the AOL service.

In addition to the specific defenses available under the individual categories of discrimination, there are some general defenses available under Title III. Those defenses are fact and circumstance based. n66

Individuals protected by the ADA and subject to the discrimination by public accommodations that is prohibited under Title III can immediately sue for injunctive relief, but not damages. n67 No administrative remedies need be pursued. Such injunctive relief typically includes orders to modify amenities and environments, make available support utilities, amend policies, and/or provide services or goods by alternative methods.

The parties to this lawsuit have settled, without resolving the issue of the ADA's applicability to the Internet. n68 According to the settlement, the NFB agreed to withdraw the suit for one year. AOL, without admitting that the ADA applies to its services, has established and published a corporate policy regarding access to [*222] its services. n69 It has also indicated that the new version of its software, due out in the fall of 2000, will be compatible with available screen-reader technologies.

It would appear that the visually disabled population may have won this skirmish but it remains to be seen whether other Internet providers will be as willing to accommodate this group of disabled persons. In the absence of any monetary settlement the ability of NFB to tackle other such providers may be limited.

IV. Section 508 of the Rehabilitation Act Amendments of1998

The Workforce Investment Act of 1998 includes the Rehabilitation Act Amendments of 1998. Section 508 of the Rehabilitation Act Amendments requires that when a Federal agency acquires or uses electronic and information technology, it must ensure that this technology allows equal access for Federal employees with and without disabilities, unless an undue burden would be imposed on the agency. Section 508 also requires that disabled and non-disabled members of the public seeking information or services from a Federal agency have comparable access to and use of information and data. n70

The goal of section 508 is to introduce accessibility features into mainstream information technologies used by the Federal government to reduce the need for individual, customized accommodations and to make those accommodations which are still needed more efficient and easier to implement. Perhaps the most important mainstream information technology is the Internet. Therefore the application of section 508 to Internet-related products is straightforward.

When section 508 was first appended to the Rehabilitation Act in 1986, the Secretary of Education and the Administrator of the General Services Administration were required to establish and revise access guidelines to reflect technological advances. The 1998 Amendments to section 508 contained in the Rehabilitation Act strengthen this requirement.

In particular, section 508(a)(2)(A) of the Rehabilitation Act Amendments of 1998 requires the Access Board to publish standards setting forth a definition of electronic and information technology and the technical and functional performance criteria [*223] necessary for accessibility for such technology Section 508(a)(4) provides that if a Federal agency determines that compliance with the Access Board's standards imposes an undue burden, that assertion must be documented as part of its procurement process. Such documentation must detail which provision(s) of the Access Board's standards imposes an undue burden and the extent of such a burden. The agency should discuss each of three factors as a part of its assertion of "undue burden": an action requiring significant difficulty or expense; the extent to which a product meeting the standards is compatible with the agency's technology infrastructure; and the functionality needed from the product and the technical difficulty involved in making such a product accessible.

The first factor is based on the concept of "undue burden" which is in turn based upon judicial interpretation of section 504 of the Rehabilitation Act such as the Davis case. n71 The term "undue burden" is also used in Title III of the ADA. n72 The legislative history of the ADA affirms that the term "undue burden" comes from section 504 and is equivalent to the term "undue hardship" in Title I of the ADA, which Congress defined as "an action requiring significant difficulty or expense." n73

It is useful to look to Title I of the ADA for the interpretation of section 504's "undue burden" because Title I lists factors to be considered in determining whether a particular action would result in an undue hardship. n74

The second factor is based on an agency's consideration of the extent to which a product meeting the standards is compatible [*224] with the agency's technology infrastructure, including security, and the difficulty of integrating the accessible product. For example, an agency wishes to contract with an Internet service provider (ISP) in order to provide Internet access to its employees. The ISP's access software is not compatible with screen reading software used by visually impaired people. Since the access software and the screen reader software are incompatible with each other, it will result in an undue burden. The agency would not be prohibited from contracting with the ISP. However, accommodations for the visually disabled employees could be made by arranging Internet access, if needed, via another ISP. Should the original ISP's access software become compatibility over time, this no longer would be viewed as an undue burden.

It is permissible to use designs or technologies as alternatives to those prescribed if they result in substantially equivalent or greater access to and use of a product for people with disabilities. The use of alternative technologies is an acknowledgment that one technology may provide the same functional access as another. In evaluating whether a technology results in "substantially equivalent or greater access," a rule of substantial outcome over form should be adopted.

The third factor is based on an agency's functional requirements for the product and the technical difficulty involved in making the product accessible. An example from an Internet perspective might arise when an agency needs to purchase a web site program that produces construction drawings. The function of that site is to produce visual output. Technology is available to produce basic tactile images usable by a visually impaired employee, but to apply this technology to a construction drawing web site program would be astonishingly difficult and have limited functionality, making it an undue burden.

In addition, if it is found that compliance with the standards set forth by the Access Board does in fact impose an undue burden, the asserting agency must provide disabled individuals with the information and data involved by an acceptable alternative means. n75

The definition of electronic and information technology for the purposes of section 508 is any equipment or interconnected system or subsystem of equipment, that is used in the automatic acquisition, [*225] storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information by a Federal agency. While not specifically cited, the Internet appears to be such a technology. n76

The Access Board was required to publish standards by February 7, 2000. n77 For several reasons, the Board has not met that statutory deadline. Because of the delay in publishing the standards, the Board is considering making the standards effective six months after publication in the Federal Register. n78

V. Conclusion

The Title III ADA provisions have changed public accommodations, requiring restaurants, hotels, shopping centers, and professional offices to make their facilities accessible to the disabled. In particular, this section of the ADA requires facilities to adhere to regulations pertaining to new construction and alteration, and requires existing facilities to remove existing barriers. These provisions may be applicable to the Internet.

The ADA was deliberated and approved during a time when the Internet was less developed. At that time public accommodation was interpreted to mean only physical structures, and cyberspace belonged to the realm of science fiction. Since that time the convergence of technologies and the development of the Internet have transformed the way American do business, learn and live.

The AOL-NFB lawsuit demonstrates that visually disabled people have been "actively involved in promoting adaptive technology for the blind" to enable them to live and work independently. Any subsequent case on the same issue may be a landmark case if a court determines that "place" is a term of convenience rather than a term of limitation and that Internet access rights are civil rights. If a court rules that the Internet is an extension of physical space which requires access on the same basis as physical space, Internet service providers and businesses will be subject to the provisions of the ADA.

[*226] If the Internet should be legally required to be opened to all users, accommodation should be made to take into account the needs not only of the blind, but also of the deaf, mobility-impaired, and learning-disabled. The ADA requires the Department of Justice to issue federal regulations governing Title III. These regulations are very important, for the Supreme Court has stated that they "are of significant assistance" in describing the fundamental specification of federal disability discrimination statutes.

Internet service providers and e-commerce sites may be required by the ADA to implement software which produces text-only Internet sites. Some Internet sites will not need to be changed. For example, Amazon.com is accessible to visually impaired individuals because it has a text-only version of each Web page.

Moreover, the ADA applies to a spectrum of disabilities, including colorblindness, deafness, epilepsy, the learning disabled, people with paralysis and more. Adjusting access to the Internet to accommodate all these people will affect the way Internet content is prepared and presented. Multiple access means may be required to accommodate a colorblind person's concern that color is used to communicate information, a deaf person's desire for captioned audio content and the elimination of flashing imagery to accommodate epileptics.

As noted previously, the federal government has already established rules that would apply to its own Internet sites. These rules, which are expected to be implemented in August, require simultaneous text to accompany all audio, video to be captioned, and color-keyed information to be restricted, among other things. Deval Patrick, assistant attorney general for civil rights, has opined that places of public accommodation "that use the Internet for communications regarding their programs, goods or services must be prepared to offer those communications through accessible means as well." n79

The ADA might also be used to require Internet site providers to label all icons that pop up. With such labeling, visually impaired people will be able to perceive the proper icon to press in order to do something. In addition, the ADA might also be used to require Internet sites to: have text labels for graphics that would help the visually impaired; offer captions for audio material that would [*227] help the hearing impaired; and enable Internet users to disable blinking or moving elements that would help the cognitive impaired. Much remains to be decided.

FOOTNOTES:

n1. See 42 U.S.C. 12101 et seq. (1994). The Americans with Disabilities Act is a comprehensive civil rights law for disabled people. The Department of Justice enforces the ADA's requirements in three areas: Title I concerns employment practices by units of state and local government (42 U.S.C. 12111-12117 (1994)); Title II addresses programs, services, and activities of state and local government (42 U.S.C. 12131-12165 (1994)); and Title III deals with public accommodations and commercial facilities (42 U.S.C. 12181-12189 (1994)). The objective of the ADA is to eradicate unwarranted obstructions for disabled people. It provides comprehensive protection for disabled persons against discrimination based upon their disabilities. It is applicable to government agencies and their contractors, as well as employers without federal funding (42 U.S.C. 12111(5)(A) (1994)). See also 42 U.S.C. 12112 (1994) which was enacted in 1990 to protect individuals with disabilities from employment discrimination. 42 U.S.C. 12101 (1994) states that the objective of the ADA was to assure the equality of opportunity to disabled people with respect to access to goods and services on an equal basis with those who are not disabled.

n2. See <http://www.usdoj.gov/crt/foia/cltr204.txt> (visited Apr. 24, 2000). This communication, #204, is dated September 9, 1996 and was written to the Honorable Tom Harkin, United States Senate, from Deval L. Patrick, Assistant Attorney General, Civil Rights Division. It was written in response to a question regarding the accessibility of "web pages" on the Internet to people with visual disabilities and stated in part that "the Internet is an excellent source of information and... people with disabilities should have access to it as effectively as people without disabilities." It also said that

the Americans with Disabilities Act requires State and local governments and places of public accommodation to furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities, unless doing so would result in a fundamental alteration to the program or service or in an undue burden. [Therefore, entities covered by 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 means accessible to the disabled as well.

Id.

n3. See Final/All Personal Tech, THE PLAIN DEALER, May 24, 1999, at 6c (stating that a 1996 opinion written by the U.S. Department of Justice (see supra note 2) had said the 1990 Americans with Disabilities Act also applies to companies and government agencies offering products and services through the Internet).

n4. See Developments in the Law: The Law in Cyberspace 112 HARV. L. REV. 1574, 1586, (1999).

The Internet... is no longer a marginal medium, but rather is increasingly relevant to ordinary people in ordinary life - families e-mail to stay in touch, consumers shop on the Web, and citizens inform themselves through online news and information resources.... Internet technology enables people to 'meet, and talk, and live in cyberspace'....

Id.

n5. See A More Accessible Internet, Christian Science Monitor, Dec. 9, 1999, at 10 (stating that Microsoft and IBM, for example, have actively supported Internet accessibility for the disabled).

n6. See Developments, supra note 4, at 1586.

n7. See The Rehabilitation Act Amendments of 1998, Pub. L. No. 105-220, 508 (f)(1)(B), 112 Stat. 1204 (1998) (codified at 42 U.S.C. 794d (f)(1)(B) (Supp. IV 1998)). By statute, the enforcement provisions of 508 of the Rehabilitation Act, the goal of which is to introduce accessibility features into mainstream electronic and information technology products purchased for use by disabled federal government employees, applies to products procured on or after August 7, 2000. Section 508 does not authorize enforcement of these standards to retrofit electronic and information technology products procured prior to August 7, 2000.

n8. See supra note 2.

n9. The ADA gives the Department of Justice authority to issue regulations for Title II and III of the ADA and to provide technical assistance and enforcement. 42 U.S.C. 12116, 12134, 12149, 12164, 12186 (1994).

n10. See supra note 2.

n11. 42 U.S.C. 12181-12189 (1994).

n12. See Karen M. Volkman, Comment, The Limits of Coverage: Do Insurance Policies Obtained Through an Employer and Administered by Insurance Companies Fall Within the Scope of Title III of the Americans with Disabilities Act?, 43 St. Louis U.L.J. 249, 254 (1999) (citing 42 U.S.C. 12181(7) (1994)).

n13. Id. at 255 (citing 42 U.S.C. 2000a(b) (1994)).

n14. Id at 255.

n15. Carparts Distribution Center Inc. v. Automotive Wholesaler's Ass'n of New England, 826 F. Supp. 583 (D.N.H. 1993), vacated, 37 F.3d 12 (1st Cir. 1994).

n16. 37 F.3d 12, 20 (1st Cir. 1994)

n17. The Access Board is an independent Federal agency established by the Rehabilitation Act of 1968 (Pub. L. 90-480, 82 Stat. 718 (1968)). Its stated mission is to promote accessibility for disabled individuals. The Access Board consists of 25 members. Thirteen are presidential appointees from among the public, a majority of whom must be disabled individuals. The other twelve members of the Access Board are selected from the following Federal agencies: the Departments of Health and Human Services, Education, Transportation, Housing and Urban Development, Labor, Interior, Defense, Justice, Veterans Affairs, and Commerce; the General Services Administration; and the United States Postal Service (codified at 29 U.S.C. 792(a) (1994)).

n18. The term "electronic and information technology" in the statutory context of Pub L. No. 105-220 508(a)(2)(A), 112 Stat. 1204-1206 (Supp 1V 1998) is explicitly required to mimic the definition of "information technology" in the Clinger-Cohen Act of 1996 (codified at 40 U.S.C. 1401(3) (1994)). The term includes "information technology" as defined by that Act (and hereinafter), as well as "any equipment or interconnected system or subsystem of equipment that is used in the creation, conversion or duplication of data or information. [It also includes,] but is not limited to, telecommunications products... information kiosks and transaction machines, web sites, multimedia, and office equipment such as copiers and fax machines. Consistent with the Federal Acquisition Regulations [48 C.F.R. ch. 1, part 2, 2.101) (1999)] the definition of information technology does not include any equipment that contains imbedded information technology that is used as an integral part of the product, but the principal function of which is not the acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information." See 65 Fed. Reg. 17346, 17351 (2000).

n19. See Proposed Rules, Architectural and Transportation Barriers Compliance Board, 65 Fed. Reg. 17346 (2000) .

n20. On November 16, 1999, the Board published the ADA/ABA Accessibility Guidelines Notice of Proposed Rulemaking (64 Fed. Reg. 62248 (1999)) for public comment. On March 31, 2000, the Board published a Notice of Proposed Rulemaking on Standards for Electronic and Information Technology implementing section 508 of the Rehabilitation Act. The public comment period closed May 30, 2000.

n21. The term "agency" for purposes of Section 508 means any Federal department or agency, including the United States Postal Service; however, a government depository library is not considered a Federal agency.

n22. See Adam A. Milani, Living in the World: A New Look at the Disabled in the Law of Torts, 48 Cath. U.L. Rev. 323 (1999).

n23. "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." U.S. Const. Amend. XV.

n24. Randall Kennedy, Martin Luther King's Constitution: A Legal History of the Montgomery Bus Boycott, 98 Yale L.J. 999 (1989) (citing Rosa Parks's act of defiance in 1955 as a prominent starting point in the rise of the Civil Rights Movement).

n25. Civil Rights Act of 1964, 42 U.S.C. 2000e-2000e-17 (1994).

n26. 42 U.S.C. 1971, 1973-1974 (1994).

n27. 18 U.S.C. 231-233, 241-242, 245, 1153, 2101-2102; 25 U.S.C. 1301-1303, 1311-1312, 1321-1326, 1131, 1341; 28 U.S.C. 1360;42 U.S.C. 1973(j), 3533, 3535, 3601-3619 (1994).

n28. Tara L. Haluch, Comment: Treatment of Americans with Disabilities Act Claims when the Plaintiff is Deceased: A Call for Uniformity, 48 Emory L.J. 733, 736 (1999).

n29. The Rehabilitation Act, Pub. L. No. 93-112 504, 87 Stat. 355 (1973) (codified at 29 U.S.C. 701-797 (1994)), was designed to assist disabled Americans. The Act both created employment programs and it prohibited discrimination against disabled persons in any federally funded program or federal executive agency..

n30. See 29 U.S.C. 794 (1994) (stating that "no otherwise qualified individual with handicaps... shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

n31. 42 U.S.C. 12101 et seq. (1994). The ADA is composed of four titles: Title I covers employment; Title II focuses on public services; Title III covers public accommodations; and Title IV contains a collection of miscellaneous provisions.

n32. 42 U.S.C. 12101(b)(1) and (2) (1994).

n33. See Lawrence O. Gostin, The Americans with Disabilities Act and the Corpus of Anti-Discrimination Law: A Force for Change in the Future of Public Health Regulation, 3 Health Matrix, no. 1, 89, 104 (1993).

n34. It should be noted that The Rehabilitation Act of 1973, 29 U.S.C. 701-794 (1994)), survived the enactment of the ADA, and continues to be the most important legislation affecting persons with disabilities working for the federal government.

n35. 42 U.S.C. 12181(7) (1994) defines a place of "public accommodation" as a privately owned facility that falls within at least one of the twelve broad categories listed in that section, provided that the operations of the entity "affect commerce."

n36. See, e.g., Raytheon Co. v. Fair Employment & Housing Commission 212 Cal. App. 3d 1242, 261 Cal Rptr. 197 (1989).

n37. 42 U.S.C. 12101 (1994).

n38. See supra note 2.

n39. See 42 U.S.C. 12181(7) (1994).

n40. National Organization for Women v. Little League Baseball, 127 N.J. Super. 522, 531, 67 N.J. 320, 328 (1974).

n41. Federal courts have interpreted the ADA's purpose and the manner in which the Act should be construed. Courts have concluded that the ADA is a remedial statute that should be broadly construed to effectuate the goal of "eliminating discrimination against the disabled in all facets of society." Kinney v. Yerusalim, 812 F. Supp. 547, 551 (E.D. Pa. 1992), aff'd, 9 F.3d 1067 (3d Cir. 1993). The Federal courts have also found that the ADA is to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." See Cercpac v. Health and Hospitals Corp. 920 F. Supp. 488, 497 (S.D.N.Y. 1996).

n42. See 42 U.S.C. 12182(b)(2)(A)(iv) (1994).

n43. See 42 U.S.C. 12181(9) (1994).

n44. Id.

n45. See 42 U.S.C. 2000a-3(a), 2000a-3(b) (1996).

n46. See 42 U.S.C. 12188(a) (1994). See also 42 U.S.C. 12183 (1994) which applies to new construction and alterations in public accommodations and commercial facilities. It should be noted that the Civil Rights Act of 1964 does not provide for money damages to private plaintiffs, thus damages are not allowed in private suits. However, damages can be awarded in cases initiated by the Attorney General. See Mayberry v. Von Valtier, 843 F. Supp. 1160 (E.D. Mich. 1994).

n47. 42 U.S.C. 12188(b)(2)(A)-(C) (1994); however, punitive damages are specifically disallowed by the statute (42 U.S.C. 12188(b)(4) (1994)).

n48. 42 U.S.C. 12188 (5) (1994).

n49. Rothschild v. Grottenthaler, 907 F.2d 286, 289-90 (2d Cir. 1990).

n50. Available at <http://www.nfb.org/aolcompl.htm> prior to Jul. 26, 2000, replaced by <http://www.nfb.org/nfbaolrl.htm> (visited Aug. 4, 2000).

n51. 42 U.S.C. 12181, et seq. (1994).

n52. Some aspects of the ADA apply only to businesses with 15 or more employees.

n53. See supra note 50.

n54. Id.

n55. Id.

n56. Id.

n57. 42 U.S.C. 12182(b)(2)(A)(iv) (1994).

n58. 42 U.S.C. 12182(b)(2)(A)(iii) (1994).

n59. 42 U.S.C. 12182(a), 12182(b)(1)(A)(i), and 12182(b)(1)(A)(ii) (1994).

n60. See 42 U.S.C. 12182(a) (1994).

n61. 42 U.S.C. 12181(7) (1994).

n62. 42 U.S.C. 12181 (1994).

n63. Id.

n64. 42 U.S.C. 12182(b)(1)(A)(ii) (1994).

n65. 42 U.S.C. 12182(b)(2)(A)(ii) (1994). The ADA does not require a school districts to restructure a custodian position to be totally sedentary in order to "reasonably accommodate" an amputee. See Mitchell v. Washingtonville Cent. Sch. Dist., 992 F. Supp. 395 (S.D.N.Y. 1998).

n66. The Americans with Disabilities Act (42 U.S.C.S. 12101 et seq. (1994)) defines disability in terms of physical impairments that significantly limit one or more life activities (42 U.S.C.S. 12112(a) (1994)). Such a determination should be made with reference to measures that mitigate an individual's impairment. Thus, where an individual is taking measures to mitigate physical or mental impairment, effects of those measures must be taken into account when judging whether the individual is substantially limited in a major life activity. See Sutton v. United Air Lines, Inc., 119 S. Ct. 2139 (1999).

n67. 42 U.S.C. 12188(a) (1994).

n68. A joint press release describing the settlement, issued July 26, 2000 (the tenth anniversary of the passage of the ADA), is available at <http://www.nfb.org/agreement.htm> (visited Aug. 4, 2000).

n69. Available at <http://www.nfb.org/aolacc.htm> (visited Aug. 4, 2000).

n70. 65 Fed. Reg. 17346, 17346 (2000).

n71. See, e.g., Southeastern Community College v. Davis, 442 U.S. 397 (1979).

The line between a lawful refusal to extend affirmative action and illegal ddiscrimination against handicapped persons [is not always] clear. It is possible to envision situations where an insistence on continuing past requirements and practices might arbitrarily deprive genuinely qualified handicapped persons of the opportunity to participate in a covered program. Technological advances can be expected to enhance opportunities to rehabilitate the handicapped or otherwise to qualify them for some useful employment. Such advances may also enable attainment of these goals without imposing undue financial and administrative burdens upon a State. Thus, situations may arise where a refusal to modify an existing program might become unreasonable and discriminatory.

Id. at 412-13.

n72. 42 U.S.C. 12182(b)(2)(A)(iii) (1994).

n73. 42 U.S.C. 12111(10)(A) (1994).

n74. 42 U.S.C. 12111(10)(B)(i)-(iv) (1994). However, since Title I of the ADA addresses employment, not all of the factors are directly applicable to 508 of the Rehabilitation Act.

n75. Pub. L. No. 105-220 508(a)(1)(B), 112 Stat. 1204 (1998) (codified at 42 U.S.C. 794d (a)(1)(B) (Supp IV 1998)).

n76. Except in Estimated Cost of Proposed Rule, 65 Fed. Reg. 17346, 17360 (2000).

n77. Also Pub. L. No. 105-220 508(d), 112 Stat. 1204 (1998) (codified at 42 U.S.C. 794d(d) (Supp IV 1998)) provides that by February 7, 2000, the Attorney General shall prepare and submit to the President a report containing information on and recommendations regarding the extent to which the electronic and information technology of the Federal government is accessible to and usable by individuals with disabilities.

n78. 65 Fed. Reg. 17346, 17347 (2000).

n79. See Robyn Blumner, The Blind Seek: A Special Lane on the Information Highway, THE PLAIN DEALER, Nov. 19, 1999, at 13B.