Equal access in cyberspace: on bridging the digital divide in public accommodations coverage through amendment to the Americans with Disabilities Act.

• Author: Wolk, Laura

INTRODUCTION

At its signing, George H.W. Bush described the Americans with Disabilities Act ("ADA" or "the Act") as "the world's first comprehensive declaration of equality for people with disabilities." (1) Invoking "the sweep of congressional authority" under the Commerce Clause and Fourteenth Amendment, (2) the Act purported to provide a "clear and comprehensive national mandate" (3) for the elimination of discrimination against the disabled in principal areas of American life including employment, (4) state and local governmental services and programs, (5) and "place[s] of public accommodation." (6)

In the twenty-five years since its passage, public and private officials have engaged in vigorous discussion concerning what activities the ADA does and does not cover. This Note seeks to settle one such debate by ascertaining whether private, commercial websites with no brick-and-mortar presence in the physical world fall within Title Ill's prohibition against disability-based discrimination in places of public accommodation. (7)

Thus far, those seeking to answer this question have fallen into one of two camps. Proponents for inclusion invoke the broad remedial purpose of the statute, snippets from its legislative history, and public policy concerns to advance their position. (8) Those opposed to the expansive interpretation cite canons of statutory construction, (9) concerns over the use of legislative history, and wariness of judicial activism (10) to advance their position. This Note argues that, framed in this manner, the debate myopically focuses on one purpose of the ADA--its "remedial" purpose--which "invoke [s] the sweep of congressional authority ... to address the major areas of discrimination faced day-to-day by people with disabilities." (11) This goal is unquestionably instrumental to the ADA; the Act accomplishes it by expressly identifying the numerous discriminatory actions rendered unlawful by the statute. However, the ADA does more than create a bare-bones outline of discriminatory actions, leaving the responsibility of fleshing out the details to the designated administrative agency. Rather, via its equally important "standards" purpose, the Act provides a corresponding set of clear, consistent, and enforceable standards for each form of proscribed discrimination. (12) Therefore, the Note will argue that a proper interpretation of public accommodations coverage requires consideration of the term in light of both statutory purposes. This approach will help to determine not only whether the term "public accommodation" is capacious enough to encapsulate websites, but also whether the ADA explicitly provides a corresponding set of standards governing website-based discrimination.

To this end, the Note will proceed in three Parts. Part I will trace the development of the case law on this issue, which has culminated in a circuit split. It will also discuss the influence of the Department of Justice (DOJ), which has not exercised its regulatory authority on the subject but which has initiated enforcement actions consistent with an interpretation that includes freestanding websites. Part II will argue, based on the text, congressional silence, and the statute's dual principal purposes, that private commercial websites do not fall within the purview of Tide III. Part III will propose that disability rights advocates should direct their energy not toward enforcing the statute as currently interpreted by the DOJ, but instead toward Congress to ensconce this important public policy through clear statutory amendments. Such amendments should govern websites and establish a framework for assessing and evaluating any technologies which might arise in the future.

1. SETTING THE STAGE: THE PUSH TOWARD INCLUDING WEBSITES AS PUBLIC ACCOMMODATIONS

   In theory, the proliferation of commercial websites has the potential to markedly improve the disabled community's ability to participate in commercial activity. Such individuals might otherwise find themselves barred by insurmountable physical accessibility barriers which simply do not exist online. In practice, however, websites, like physical structures, often require modifications to become accessible to disabled users, particularly those with visual, hearing, intellectual, and mobility disabilities. (13) Many people with disabilities interact with the Internet using assistive technologies including modified mice, speech-recognition software, and screen readers that read aloud the visual content displayed on a webpage. (14) A website that does not conform to certain practices minimizes the functionality of these assistive technologies, rendering the site partially or completely unusable to individuals relying on such adaptive equipment. Common practices such as embedded flash content, videos with no audio or closed-caption descriptions, and visual CAPTCHA registration requirements constitute just a few of the many examples of accessibility barriers that continue to plague the Internet.

   As a result of these accessibility issues, the threshold question whether commercial websites fall within the purview of the ADA's public accommodations provision has wide-ranging implications for both the disability and business communities. Currently, no set of regulations mandates that owners of such websites make them accessible. The World Wide Web Consortium (W3C), through its Web Accessibility Initiative (WAI), has promulgated recommendations aimed at addressing many accessibility concerns. (15) Though they do not carry the force of law, the DOJ has called these suggestions the "recognized international industry standards" (16) and has used them as the litmus test against which the Department measures compliance in consent decrees with commercial websites. (17) Determining that private, commercial websites are places of public accommodation would permit the DOJ to use its statutory authority to globally impose these or similar requirements upon all such websites. (18)

   1. Developments in the Case Law

      The ADA defines a place of public accommodation as a private entity that has operations that affect interstate commerce and falls into at least one of twelve categories of businesses. (19) The list of covered entities is broad, encompassing hotels, parks, the offices of certain professionals, educational institutions, health clubs, and others. (20) As discussed below, courts first interpreted these provisions as covering only physical, brick-and-mortar establishments. Over time, some courts developed a "nexus" approach, holding that the statute covered certain entities such as a website or a telephone-based contest so long as a sufficient nexus existed between such entity and a physical structure. Beginning in 2012, the Massachusetts District Court and DOJ consent decrees have interpreted the statute to cover private, commercial websites existing only in cyberspace.

      The question whether the Act covers non-physical entities as well as physical structures primarily arose in the context of insurance policies. The ADA explicitly covers insurance offices in its defined list of places of public accommodation. (21) The question became whether a discriminatory insurance policy presented to a disabled employee through his employer constituted discrimination of the goods and services offered by a place of public accommodation under the statute, or if the scope only reached instances in which the disabled individual had purchased the policy directly from the insurance office.

      In Carparts Distribution Center, Inc. v. Automotive Wholesalers Ass'n of New England Inc., (22) the plaintiff, who was the sole shareholder and president of Carparts, (23) brought a discrimination claim against the defendant insurance company after the defendant capped lifetime expenses related to the Human Immunodeficiency Virus to $25,000 compared with the $1 million caps it extended to other diagnoses. (24)

      To answer whether the policy constituted discrimination by a place of public accommodation, the Court of Appeals for the First Circuit looked first to the plain language of the statute. After citing the statutory definition of public accommodations and the list of twelve categories--which it characterized as "illustrative" (25)--the court stated, without elaboration, that " [t] he plain meaning of the terms do not require 'public accommodations' to have physical structures for persons to enter." (26) Even if the term was not plain on its face, the court stated that it was "at worst[ ] ambiguous. This ambiguity, considered together with agency regulations and public policy concerns, persuade [d] [the court] that the phrase is not limited to actual physical structures." (27)

      The court also noted that neither the text of the statute nor its accompanying regulations makes any mention of physical boundaries or structures. (28) Further, the public accommodations provisions included "travel service" as one of its categories, which the court took to mean that the statute contemplated the inclusion of other types of accommodations that did not require physical entry by customers. (29)

      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 [only] by mail and phone .... 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. (30) The court then combined its broad textual reading with public policy concerns to find that construing public accommodations strictly so as to apply only to physical structures would "run afoul of the purposes of the ADA and would severely frustrate" Congress's intent. (31) It cited the ADA's...