The Americans With Disabilities Act in Cyberspace: Applying the "nexus" Approach to Private Internet Websites - Richard E. Moberly

• Jurisdiction: United States,Federal
• Publication year: 2004
• Citation: Vol. 55 No. 3

The Americans With Disabilities Act in Cyberspace: Applying the "Nexus" Approach to Private Internet Websitesby Richard E. Moberly*

I. Introduction

In recent years, the increasing importance of the Internet has drawn attention to the exclusion of certain parts of society from participating fully in the advantages brought about by the Internet's technological advances. This "digital divide," as some have labeled it,¹ particularly excludes some individuals with disabilities, such as those with visual, auditory, or muscular impairments, who are unable to access many features of today's Internet.² Although private efforts encourage websites to adopt voluntary standards to make the Internet more accessible to these individuals,³ no clear governmental directive specifically aimed at privately-owned websites currently requires broad accessibility for the disabled.⁴

As a result, advocates for the disabled assert that Title III of the Americans With Disabilities Act of 1990 ("ADA")⁵ should be interpreted to apply to private websites, requiring a website to be fully accessible unless the website can demonstrate that providing accessible information would be an undue burden.⁶ Other commentators agree that Internet accessibility for the disabled is an important and worthy aim, but argue that the ADA is not the proper means to accomplish that goal.⁷ In 2000, the United States House of Representatives heard from advocates of the disabled, industry representatives, and legal experts regarding this very issue,⁸ but ultimately Congress has not responded to the questions raised by that hearing.

Until recently this debate regarding whether the ADA should apply to private Internet websites was relatively theoretical.⁹ In the last year, however, this discussion moved from academic theory to real-world practicality because two events highlighted the questions surrounding this unresolved debate.

First, in Access Now, Inc. v. Southwest Airlines Co.,¹⁰ a federal district court in Florida dismissed a lawsuit filed against Southwest Airlines and its website, southwest.com, because the court explicitly determined that the ADA did not apply to any private website.¹¹ The issue at the heart of the case concerned Title III's requirement that its nondiscrimination provisions apply only to "places of public accommodation."¹² Relying upon a narrow reading of the statutory and regulatory language, the court in Access Now determined that a "place of public accommodation" must be a physical facility, and because a website is not a physical place, the ADA did not apply.¹³

Second, the National Council on Disability ("NCD"), an independent federal agency charged with making recommendations to the President and Congress on issues affecting individuals with disabilities,¹⁴ released a position paper in which it advocated that the ADA should apply to all private websites engaged in commercial activity.¹⁵ The NCD and other advocates for the disabled base their argument on the ADA's broad remedial scope and the Internet's increasingly important role in accessing goods and services in today's economy.¹⁶

This Article takes a position between these two extremes by advocating that the ADA applies to some, but not all, Internet websites.

Specifically, this Article advocates broader use of the nexus approach, which some courts use in analogous contexts to apply the ADA's accessibility standards to intangible services connected to physical places of public accommodation.¹⁷ Under the nexus approach, the ADA should apply only to websites that have a connection, or nexus, to a physical place of public accommodation. For such websites, the ADA may require alterations to become accessible to individuals with disabilities.¹⁸ The ADA, however, should not apply generally to the rest of the Internet because remaining websites do not have a connection with a physical place of public accommodation.¹⁹ As set forth below, this approach more accurately reflects the statutory language of the ADA while it appropriately recognizes the nature of the Internet and its use in the commercial context.

Interestingly, each of the positions articulated by Access Now and the NCD recognizes the ADA's nexus requirement, but each misconstrues it. Although the court in Access Now accurately held that the ADA applies only to physical places of public accommodation,²⁰ the court improperly failed to recognize that under the nexus approach, the ADA's application to such places may include regulation of both "tangible and intangible" barriers to access those places.²¹ These barriers arguably include an inaccessible website in which only nondisabled individuals can access the goods and services of a place of public accommodation.²² Thus the Internet's lack of physicality should not necessarily prevent application of the ADA to a website connected to a physical place of public accommodation. Moreover, although the NCD position paper recognized the existence of the nexus approach, it ultimately advocated a broader application of the ADA to the entire Internet. The NCD objected to the distinction required by the nexus approach between those websites that are connected to a physical place of public accommodation and those that are not.²³ However, the NCD exaggerated the problems that might result from this distinction and failed to recognize the important policy reasons supporting this distinction.²⁴

Although the nexus approach presents the best alternative to applying the ADA to a situation not contemplated by Congress,²⁵ by relying on it, this Article makes value judgments and draws conscious conclusions regarding the nature of the Internet and how (and whether) our laws should be interpreted to accommodate the Internet's unique role in our society. For example, this Article asserts that the ADA cannot apply to all Internet websites because the statute applies only to physical places of public accommodation. A judgment regarding the essence of the Internet is, of course, imbedded in this conclusion. The Internet is something other than a physical "place."²⁶ Additionally, relying on the nexus approach recognizes that although the Internet is not a place, it provides critical communication services and accessibility to goods and services sold by places of public accommodation. Therefore, the ADA should regulate the manner in which these physical places of public accommodation use their website to communicate with the public and to permit access to their goods and services because those types of roles should qualify as having a nexus to the place of public accommodation.²⁷ Finally, reliance on the nexus approach to conclude that the ADA plays only a limited role with regard to private websites reflects a value judgment regarding the applicability of statutory regulation to unforeseen, yet transformative, technological advancements such as the Internet. Applying the nexus approach involves a conscious decision that Congress, not the judiciary, is in the best position to regulate the Internet because Congress can, and should, balance the needs of the Internet industry with the requirements of individuals with disabilities.²⁸ All of these broader issues are inherently contained in any discussion of whether the ADA applies generally to Internet websites; this Article addresses them within that context.

Part II of this Article provides a brief overview of the ADA's requirements as well as an examination of the analyses used by the court in Access Now and the NCD in arriving at contradictory conclusions regarding the ADA's application to the Internet. Part III sets forth the nexus approach and its application to the Internet. Specifically, Part III analyzes both the ADA's statutory language and the nature of the Internet for support regarding application of the nexus approach. The final section of Part III provides normative justifications for the application of the nexus approach rather than either of the more extreme alternatives. Finally, Part IV briefly discusses the practical requirements for a website that may be regulated by the ADA.

II. A Brief Overview

A. The ADA

When the ADA became law in 1990, it mandated sweeping protections for individuals with disabilities with regard to employment (under Title I of the Act),²⁹ contacts with state and local governments (under Title II of the Act),³⁰ and interactions with private entities (under Title III of the Act).³¹ Title III is the part of the ADA most relevant to private Internet websites; therefore, this Article focuses solely on Title III.

Title III of the ADA applies only to "places of public accommodation."³² Places of public accommodation must affect commerce and fall within twelve specified categories of types of places.³³ Some statutory examples of places of public accommodation are inns, motels, restaurants, theaters, lecture halls, dry cleaners, banks, zoos, schools, homeless shelters, and golf courses.³⁴ If a private entity is a place of public accommodation, then the "general prohibition" clause of the ADA mandates that any person who owns, leases (or leases to), or operates the entity cannot discriminate against individuals with disabilities "in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations" of the entity.³⁵ Moreover, in certain instances the ADA also prohibits specific types of discrimination and mandates explicit affirmative actions on the part of the place of public accommodation.³⁶ For example, places of public accommodation have an affirmative duty to make reasonable modifications to their policies, practices, or procedures and to provide auxiliary aids and services, if necessary, to accommodate the needs of individuals with disabilities.³⁷ Also, places of public accommodation must not impose requirements tending to exclude individuals with disabilities from the full enjoyment of the public accomodation's goods, services, facilities, privileges, advantages, or...