FC: Why Americans with Disabilities Act should not apply to web

[Declan McCullagh <declan@well.com>]

Previous Politech message:

"Judge rules Americans with Disabilities Act doesn't cover web"
http://www.politechbot.com/p-04085.html

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Subject: CEI's Weekly Commentary:  The ADA in Cyberspace
Date: Fri, 25 Oct 2002 14:48:10 -0400
From: "Richard Morrison" <rmorrison@cei.org>


CEI C:\SPIN

This issue:  Internet - 1,  Lawyers - 0:  The ADA in Cyberspace



This week's c:\spin is by James Gattuso, Research Fellow in Regulatory 
Policy, The Heritage Foundation, October 25, 2002.


Common sense decisions are rare in today s era of hyperkinetic 
jurisprudence, but that s what the tech community got this week when a 
federal judge tossed out a lawsuit claiming that Southwest Airlines website 
violated the Americans with Disabilities Act.  The decision though sure to 
be appealed is good news for the troubled tech sector and for consumers 
blocking what would likely become comprehensive regulation-by-litigation of 
website design.

The lawsuit, brought by Access Now an ADA advocacy group claimed that 
Southwest Airlines violated the ADA because it s website was not accessible 
to blind persons.  Specifically, Southwest was faulted by the plaintiffs 
for not providing text in a format that could be read by synthesized speech 
technology.

The problem was that the relevant section of the ADA applies only to places 
of public accommodation.   No problem, said the plaintiff s 
lawyers.  Certainly, they reasoned, place can t be limited to the narrow 
confines of terraspace (i.e., the real world).  Cyberspace, too, is a place.

Unfortunately for the plaintiffs, although the ADA is famous for its 
ambiguity, its text is pretty darn specific on this point.  It actually 
lists what public accommodation includes.  It can be an inn, hotel, motel, 
or other place of lodging.   A restaurant, bar, motion picture house, 
theater, concert hall, or auditorium.  Could be a bakery, grocery store, 
laundromat, dry cleaner, or bank.  And so on.  The authors practically gave 
specific addresses.  And not a cyberspace address among them.

Refusing to be deterred, the lawyer s maintained (presumably with a 
straight face) that the Southwest website was covered as a place of 
exhibition, display and a sales establishment (also listed in the 
statute).  That might have been enough to carry the day in New Jersey, , 
but the judge here Patricia Seitz of the U.S. Southern District of Florida 
didn t buy it.    Apparently an old-fashioned judge, she even used Latin, 
citing the doctrine of ejusdem generis : where general words follow a 
specific enumeration of persons or things, the general words should be 
limited to persons or things similar to those specifically 
enumerated.   Or, as they say in pre-school, one of these things is not 
like the other.

Is this a quirk in the law?  A loophole in the ADA that policymakers should 
address?  No.  There are good reasons not to drag cyberspace under the 
ADA.  Such regulation is likely to impose considerable burdens on web site 
owners exactly the wrong prescription for  tech  (not to mention the 
basketcase airlines).

ADA advocates say the costs are minimal.  But where that s so, firms will 
make their sites accessible voluntarily (as many do).   After all, they 
make money by providing access to potential customers, not by denying 
it.  But not all see it as minimal Southwest after all spent a considerable 
amount to avoid this regulation.

Worse are the non-monetary losses ADA regulation would impose. The 
Manhattan Institute s Walter Olsen warns, for instance, that Web design 
creativity and spontaneity would be stunted, as publishers feel constrained 
to use only tools approved by official bodies, and amateur websites would 
be winnowed as legal and technical rules limit the art to a professionals. 
(So much for blogs.)    Functionality could also suffer  the use of color 
to convey information, for instance, is problematic. And what about the 
First Amendment implications can communication on the web be limited in 
ways unimaginable for newspapers or magazines?

  Judge Seitz was correct to rule that the ADA does not cover 
cyberspace.  Any extensions into that realm should be properly considered 
by legislators.  And should be rejected by them, too.



  C:\SPIN is produced by the Competitive Enterprise Institute.




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