There are some interesting and challenging legal issues relating to the DOJ's anticipated regulations relating to the applicability of the ADA to website access. (You can catch up and read my intro Web Accessibility and the ADA if you missed it earlier.) These are the kinds of issues that might not seem obvious - and might not seem all that important - but they are precisely the kinds of issues that make legislation and regulation in this area so difficult.
Because these issues are complicated, I'll break them down into separate posts. Today, I'll talk about the hard distinction between public and private places on the internet. Later on, I'll talk about copyright issues, as well as implications of international law. (Fun, huh?)
Public v. Private.
In the offline world, Title III of the ADA only applies to "places of public accommodation" - private entities that affect commerce, such as restaurants, movie theaters, hotels, bowling alleys, etc. (Title II of the ADA applies to state and local government entities - not the subject that we're talking about here). The reasoning behind this is that for people with disabilities to be able to participate in civic discourse, to socialize with peers, and to lead a full life, these public places where ordinary activities take place needed to be accessible.
Early caselaw arguing that the ADA ought to apply to websites focused on the "physical place" aspect of Title III. Some courts found that a website operated by an entity that offered goods and services through any means (website, telephone, or through physical building) was covered by Title III. (National Federation of the Blind v. Target is the most commonly cited case for this proposition.) Other courts found that a website was only covered if it affected access to a physical place of public accommodation. (See Access Now Inc. v. Southwest Airlines).
The DOJ pretty clearly believes that public websites should be covered by Title III. But in this age where private individuals maintain blogs (see yours truly), or sell tea cozies through sites like Etsy and eBay, or participate in public discourse through Facebook or Twitter, what's private, and what's public?
For example, with the recent news that Osama bin Laden was killed in a U.S. strike in Pakistan, there were 1.2 million postings, on Facebook and Twitter, about the event. On Twitter, the hours surrounding President Obama's announcement broke a Twitter record for the highest sustained rate of messages posted on the site (3,000 per second).
The "town square" where news is disseminated and discussed has moved online. To ensure citizen participation in civic debate, one of the fundamental premises of our government and Constitution, I argue that Facebook and Twitter do need to be deemed public entities and need to be accessible to all. YouTube is another "private" channel that is now used to disseminate political videos, educational materials, and entertainment. Basic blogging software like wordpress or blogspot should also be compatible with accessibility tools - again, I don't see a lot of negative market reactions.
But, the issue of retail establishment is even trickier. On the one hand, the reason that small vendors have flocked to online sales is that there's low overhead, low transaction costs, and it's easy. Adding a requirement that individual retail sites, eBay, and Etsy be accessible will add to such costs. In the case of eBay and Etsy, where individual vendors are aggregated, I think it's reasonable to expect that the overarching entity (eBay) will manage the web accessibility compliance for its members; they may exact a small fee in exchange, but I don't see it as having a stifling effect on folks trying to sell handmade tea cozies. On the other hand, if you are maintaining your own handmade tea cozy website sales channel, you may be daunted by the idea of making your site accessible and you may want to take it down instead. That's the situation that the regulations need to try to avoid.
One solution (two parts): First, draw a distinction between seller aggregators (like eBay and Etsy) and individual proprietors (Tea Cozies R Us). Seller-aggregators are required to comply. Second, as to the individual proprietors, draw a distinction between casual sellers and sellers who rely on the internet for the majority of their income. Seems to be that if you're reaping the benefit of the internet's broad reach, you bear some responsibility for its accessibility to all. On the other hand, if you're only selling one tea cozy a month, it's probably not worth it to require you to be compliant.
Another solution: Provide small businesses with online support (e.g., "help desk" experts, through one of the many assistive technology centers across the US) in rendering websites accessibility compliant. Provide grants for making any IT improvements necessary for this compliance/compatibility.
Your thoughts? Should the DOJ implement some of the above? None? All?
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