The Internet: Place, Property, or Thing - All or None of the Above? Featuring: Robin Adams Anderson, Jennifer Stisa Granick, Richard E. Moberly, Paul F. Wellborn Iii, and Henry Timothy Willis With Adam Milani, as Moderator

• Publication year: 2004

The Internet: Place, Property, or Thing—All or None of the Above?

October 30, 2003

Morning Session

PROFESSOR MILANI: Welcome to the Mercer Law Review symposium on "The Internet: Place, Property, or Thing—All or None of the Above?" My name is Adam Milani. I am a professor here, and I have the pleasure of serving as the moderator of our first panel. Before I do that, though, I want to thank a few people who were instrumental in putting this together. First and foremost, we have to thank the person who brought the whole idea together, and that is the Lead Articles Editor for the Mercer Law Review, Ms. Elizabeth Wilson. Last spring Liz spoke to Professor Dick Creswell and me about some ideas for the symposium for this year. We talked for a few minutes about some possible topics.

Professor Creswell is the one who deserves the credit for coming up with the idea about the Internet. He had been reading recently about the problems created by spam and by people invading other people's websites, and he said that would seem to be an interesting topic for a Law Review symposium. And I agreed.

We were fortunate enough to talk to Professor David Hricik, who has some expertise in the area from his prior practice. I had some knowledge from my work in disability law that the question of access to Internet sites was becoming a big issue under the Americans with Disabilities Act (ADA)¹ as well as under Title II of the Civil Rights

Act.² What we quickly determined was that both issues—the problem of spamming and invading of websites and the problem of accessibility to the websites—involved the same basic issue. What is the Internet? Is it a place?

So Liz took it and ran with it, and she ran a long way with the help of several people who I would also like to thank. First of all, David Hricik, who did quite a bit of work on this; Professor Hal Lewis, who is the faculty advisor for the Law Review; and of course, Yonna Shaw, who is the rock of the Law Review and takes care of everything Law Review related.

Now for a brief introduction on what our symposium is about. As somebody who teaches writing in addition to some other things, what I tell my students is what I am sure all law professors tell their students: Law is about language. The language we use is vitally important. So let's talk about some of the language we use when we talk about the Internet.

We visit a website.

We meet people in a chat room.

We ask people for their E-mail address.

To keep unwanted visitors from damaging our systems or sending us unsolicited E-mail, we build fire walls.

All of those things sound like places: site, room, walls, and addresses.

My colleague, Michael Smith, has written a new book, Advanced Legal Writing: Theories and Strategies in Persuasive Writing,³ which I highly recommend to you. In it, he writes that "metaphor is regarded by many classical rhetoricians as 'the most beautiful rhetorical figure,' the 'supreme ornament' of prose."⁴ And if law were based solely on metaphor, there would be little doubt that the Internet is a place. It is real and tangible property.

But metaphors aren't the law, and courts are now beginning to address the key and very unsettled questions about the fundamental nature of the Internet. The most basic issues are: Is a website real or personal property? Is a website a place of public accommodation under the ADA or Title II of the Civil Rights Act of 1964? Courts are just now deciding these issues for the first time.

How we characterize the various aspects of the Internet in terms of property matters greatly. If a hacker or a spammer has trespassed onto real property, the network owner does not have to show actual damage to get an injunction. "You came on my land. That is all I need to prove." On the other hand, if the trespass is viewed as being on personal property, then the owner can obtain an injunction only if the spammer or hacker has somehow caused damage or is threatening to cause irreparable injuries.

Similarly, if a website is a "place of public accommodation" for purposes of the ADA, then the site owners must accommodate people with disabilities. For example, they must make sure that their text is compatible with screen readers so that people with visual impairments can have access to the website. If the website is not a "place," however, then the ADA does not apply, and no accommodation need be made.

What we have here is two different settings where the question is: "Is it a place, is it property?" The dilemma that the panels will address today is that, in the one setting, the owner of the website wants it to be real property. When the hacker or spammer invades their space, the owners want it to be real property so that they can have an easy route to prevent the hacker or spammer from coming back. "You have invaded my real property, and I don't have to prove damages. I get an injunction." It's good for the website owners if it is a "place" in that setting.

On the other hand, if the Internet is a "place," the website owner has obligations under the ADA. Such obligations might be costly, depending on who you talk to. So, in that setting, they would prefer that it not be a place.

So what's the answer? The answer, of course, to each of these questions, whether the Internet is place, property, thing, all or none of the above, will affect commerce, privacy, and other key issues for years to come. The Mercer Law Review Symposium has brought people together from across the country to try to answer the question: What is the Internet? Together with leading academicians, frontline litigators and in-house counsel, who are all struggling with these issues, we will examine the basic questions of the Internet as a property or place.

Our first panel is on the issue of whether the Internet is a place for purposes of the ADA. If you have your program, first let me tell you that there has been a switch in the order. Our first presenter is Henry Timothy Willis, or Tim Willis, for those who are familiar with him. Richard Moberly will be next; and Robin Adams Anderson will speak last on this first issue.

Before they begin, I will do a brief introduction for each speaker, starting with Robin. Robin is a member, a principal, in the firm of Nicholls & Crampton, in Raleigh, North Carolina. Her primary area of practice involves personnel counseling and representing people in employment disputes, including discrimination cases involving age, race, disability, equal pay, and sexual harassment. One thing that is interesting about Robin is that she represents both plaintiffs and defendants in employment cases, which is very unusual. Usually you get to do one or the other, but she represents both. She graduated from the University of Massachusetts with a Bachelor of Arts. She has a law degree from the University of North Carolina, where she was a member of the Order of the Barristers.

Richard Moberly, seated next to Robin, is an associate with the firm of McKenna, Long & Aldridge in Atlanta. He focuses primarily on employment litigation and also does complex commercial litigation. He primarily represents employers in ADA issues and also works with statutes such as ERISA⁵ and the Family and Medical Leave Act.⁶ Richard is a graduate of Emory University as well as the Harvard Law School, where he was an editor on the Harvard Law Review.

Finally, Tim Willis. Tim is a sole practitioner in his hometown of Tucker, Georgia, and does work for small businesses and has a substantial practice representing plaintiffs in disability discrimination cases, including disability access cases involving the Internet. Tim, as some of you may know, is also an accomplished athlete. He has represented the United States in the Paralympics in both the 1996 Games in Atlanta as well as the 2000 Games in Sydney. He is a graduate of Georgia Southern University and, most importantly, of the Mercer University, Walter F. George School of Law, where he graduated in 2000.

We welcome all of them, and we will start with Tim.

MR. WILLIS: Good morning.

AUDIENCE: Good morning.

MR. WILLIS: It is quite a pleasure to come out here to speak with all of you about what is in fact a very important topic within the community of people with disabilities and people who represent people with disabilities. I never had any idea this very issue of interpreting the ADA to be a place when talking about websites and Internet accessibility and so forth was such a big issue until about a little more than a year ago.

I was plaintiff's counsel in a case against the Metro Atlanta Rapid Transit Authority, which is MARTA up in Atlanta for those who are not familiar with the State of Georgia [Martin v. Metropolitan Atlanta Rapid

Transit Authority].⁷ One of our allegations in the complaint was that the website was inaccessible and denied people using certain kinds of technology the ability to access information from the MARTA website. In the judge's thirty page decision we got about twenty-four words that said that until MARTA fixes its website, it is violating the ADA under Title II, Title II being public entities.

Well the rest of the case dealt with much more and covered more immediate and important issues, but it was those brief words this judge put in that case that resulted in all four attorneys working on this case getting numerous phone calls for a period of several weeks because that was the first time a judge had stated that, and it was a published opinion.

So it is a big issue. And it is something that the courts have to deal with and struggle with. It is something that companies are going to have to deal with and it is something that attorneys will have to deal with when presenting arguments to courts.

Let me start off and touch on a little bit of what Professor Milani pointed out just a few minutes ago and that is the whole matter under the ADA, a threshold issue. For those who do not know, under every statute there is always a series of questions and tests that have to be met before you...