Targeting your discriminatory website

Evan Brown reports about National Federation of the Blind v. Target Corporation, a suit brought against Target in a California federal court claiming that Target’s website violates the ADA:

Target asked the court to dismiss the lawsuit for failure to state a claim, and presented three arguments in support: First, it argued that the ADA only prohibits discrimination in physical spaces. Second, it argued that any off-site discrimination must still deny access to a physical space. Third, Target argued that the website provides auxiliary aid in conformity with the ADA, and therefore no violation exists.

The court looked first to Title III of the ADA, which prevents discrimination against disabled persons in places of public accommodation. … In rejecting the defendant’s first argument, the court emphasize[d] that the ADA applies to services of a place of public accommodation, and that the statute’s application is not limited to services offered in a place of public accommodation. This clear language indicates that the ADA applies to more than discrimination in physical spaces only.

The court next addressed defendant’s second argument, that off-site discrimination must deny access to a physical space to be considered an ADA violation. The court found this argument unpersuasive because the ADA prohibits non-physical barriers that keep a disabled person from enjoying the defendant’s goods and services. … Because the website is a gateway to a place of public accommodation, and because blind people cannot enjoy the services of the website, defendant may be violating the ADA.

The decision is here. As a conservative, I did not applaud when President George H. W. Bush signed the Americans with Disability Act. It struck me as the epitome of government-mandated kindness, though I remember beging grateful that we live in a country where — unlike so many — kindness, not cruelty, is demanded. I have never been too bothered, however, by the application of the ADA as a practical matter. The courts seem to have applied it with a degree of wisdom, and I haven’t noticed prices spiraliing out of control as a result of this unfunded mandate on the whole world.

The court did not give final relief to the plaintiff here. In fact, it denied the plaintiff’s motion for a preliminary injunction, and ruled only that the case could not be dismissed as a matter of law at this early stage of the proceedings. But it is mind-boggling to suggest that Congress had websites in mind, or would have, when passing the ADA. The concept of what the ADA could do to the Internet is impressive if you will give it some play. Here’s hoping Judge Marilyn Hall Patel, a Carter appointee (and the only federal judge I ever heard of who was elevated to an Article III judgeship from the municipal court bench, which may be a lower judicial rung than no robes at all — take that as you will; she seems to have had a distinguished career, including the Napster case), doesn’t.

Still, this is some of what makes good hearted people into conservatives, conservatives into (shudder) libertarians, and libertarians into people who live under boulders in the West Virginia brush. Which on the whole is not a terrible outcome, but I digress. Of course it is possible that the court will ruled that the ADA does apply to websites, but that reasonable accomodations to disabled users are not onerous. But it’s no accident that this case was brought in the activist Ninth Circuit. Keep an eye on this case, and if it is not eventually dismissed — or perhaps even if it is — join me in running, not walking, to Congress to demand that the ADA be amended to exclude Internet websites from its provisions.

UPDATE:  It’s ba-a-a-ack!  And… here’s the settlement.

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Author:Ron Coleman

I write this blog.

9 Responses to “Targeting your discriminatory website”

  1. October 10, 2006 at 11:46 am #

    Larger powers than the Ninth Circuit have tried to force their way on the Internet, and failed. The thing is too large and too diverse for anything but distributed control.

    The courts may have power over businesses on the net, because those businesses are big targets in the physical world; but on the net, it’s like trying to police a school of minnows: too small, too fast moving, too easily hidden, and too numerous for court action to catch.

  2. Mario Ruiz
    October 10, 2006 at 12:29 pm #

    invitation: do celebs and politicians have a right to privacy? Reuters panel

    Please let me know if you would like to attend …cocktail reception to follow debate.

    PUBLIC FIGURES, PRIVATE LIVES –

    A panel of experts debate how far the media should delve into the private lives of public figures

    *Do celebrities and politicians have a right to private lives?
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    *Why are we fascinated by the famous?

    Panel:

    Floyd Abrams, noted First Amendment lawyer
    Bonnie Fuller, Chief Editorial Director, American Media, Inc.
    Hilary B. Rosen, CNBC/MSNBC, Media Industry Consultant
    Gary Morgan, CEO, Splash News/Paparazzi
    Jacob Weisberg, Editor-in-Chief, Slate.com

    moderator: Paul Holmes, Reuters

    Date:
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    5:30pm
    (panel to begin at 6pm)

    Location:
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    RSVP to me

    Mario Ruiz
    Dan Klores Communications
    212-981-5156

  3. October 10, 2006 at 3:35 pm #

    Count me in. Take my website, just as an example. It’s a personal blog, not a ‘public service’. I make no bones about it; if someone doesn’t like what they see (or don’t) they’re free to go elsewhere. What I don’t want is to have to wonder whether or not I need to implement onerous changes to make it blind accessible.

    By the way, does anyone else find the very idea of a blind-accessible website slightly off? The internet (and the computer monitor itself) is, by it’s very nature, a visual medium after all…

  4. October 10, 2006 at 5:12 pm #

    While I (as one of those despised libertarians) disagree with the government mandating anything on Web publishers, I somewhat disagree with your implication that making a site accessible to the handicapped is somehow an unreasonable thing to expect. Actually, if standards are followed properly (including using ALT attributes on images, and avoiding unnecessary reliance on scripting languages for things such as basic navigation that can and should be done with ordinary HTML), a site should be perfectly accessible.

  5. October 10, 2006 at 10:34 pm #

    That’s a good point, Dan, but of course as a (shudder) libertarian you realize that while it’s a good idea for me — or the software I more or less ignorantly utilize — to do those things, it’s a nasty concept that my business or financial lives or both should be ruined if I don’t.

  6. October 11, 2006 at 12:34 pm #

    Yes, I do agree on libertarian grounds that there shouldn’t be any government-imposed penalties for failure to develop Web sites in a particular manner… even in the manner that I regard as a good idea.

    In resposne to Damien, no, the Internet (and the Web, which is a different, though related, thing) is *not* an inherently visual medium. The Internet is merely a mechanism by which data can be interchanged between computers, and is agnostic about whether the data is video, audio, plain text, or anything else, and about which human senses, if any, are expected to be used to experience it. (Much data sent through the Internet is being sent to be processed by other computers in an automated manner, where no human senses are involved at all!) The Web is a particular set of services on the Internet, and a Web document is, at its base, a logically structured set of data which, if standards are followed properly in its construction, is capable of being rendered in many different methods, visual or not; this includes audio browsers for the blind.

    To ensure maximum accessibility, it’s best to go into development with a mindset of favoring logical structure over gee-whiz visual trickery, and applying the KISS principle (Keep It Simple, Stupid).

  7. October 11, 2006 at 6:41 pm #

    Is it right that the Internet is “merely a mechanism” and not a medium at all? I don’t think you would go that far, Dan. It is a medium — a medium for the exchange of data. You’re right, of course, that the way that data is packaged and processed determines what senses will be implicated by users. As of now, the choice is between only two, but there’s no reason that, once the appropriate methodology is developed, data couldn’t also be delivered senses besides vision and sound.

  8. Benjamin Stein
    October 25, 2006 at 12:47 am #

    I understand that Wal-Mart, in an effort to avoid similar litigation, is offering to create and disperse a team of near-senile, in-store greeters who will dictate the website’s source code, including punctuation, to the nation’s wealth of blind internet shoppers.

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