As we all know, the Internet has replaced many of the public accommodations that Congress regulated in the ADA. The Internet replaces some of the more antiquated systems for shopping, entertainment, and media access, but as it currently stands, the ADA does not regulate the Internet. In 1990, Congress could not have anticipated the pervasiveness of the Internet in our culture today. As it becomes easier to make websites accessible through modern technology, web providers are failing to utilize the technology at the expense of the Deaf community. Currently, the ADA and its accompanying regulations do not explicitly require accessibility, thus Courts were left to determine whether web accessibility falls under the ADA mandate.
As it becomes easier to make websites accessible through modern technology, web providers are failing to utilize the technology at the expense of the Deaf community.
In the last decade, the Department of Justice (DOJ) has taken the position that the ADA as it currently stands includes Internet accessibility. The DOJ made this opinion apparent through Congressional Testimony before the House Judiciary’s Subcommittee on the Constitution and through amicus briefs filed in web accessibility litigation. Accordingly, the DOJ never issued a regulation discussing Internet accessibility and left individuals who could not access a website with litigation as their only recourse. Courts, however, have struggled to provide adequate recourse for a number of reasons.
Accordingly, the DOJ never issued a regulation discussing Internet accessibility and left individuals who could not access a website with litigation as their only recourse.
First, Federal Circuit Courts of Appeals cannot agree as to whether a virtual place is a “place of public accommodation” under the ADA. Some Circuits have determined that the Internet, as virtual place, is a place of public accommodation, other Circuits have determined that the ADA does not include virtual places at all, and further Circuits have concluded that any virtual places must have a connection to a physical place. This third opinion has been extended the most at the trial court level.
A second reason that the Courts cannot help is that people do not want to have to go to court! An individual who reach an inaccessible website is not going to run to a lawyer and spend time and money litigating an issue that is so unclear.
Third, many cases have been settled out of court which fails to set any judicial precedent for future litigants. In other words, when a case is settled out of court it definitely helps the individual who is suing, but in the future when other individuals sue, they cannot rely on the decision from before. For systemic change to occur, the law must explicitly mandate that public accommodations make their websites accessible.
Consequently, after frustration with the judiciary’s stance on the issue, the DOJ issued an Advance Notice of Proposed Rulemaking (ANPRM) to solicit comments regarding what issues and language a Notice of Proposed Rulemaking (NPRM) about web accessibility should address. This is the first step toward mandating accessibility for Internet materials provided by public accommodations under Title III. As many of you may know the captioning bill was recently passed. This bill, however, does not require captioning on video that is published only on the Internet. The DOJ’s proposed ANPRM would close that loophole. The comment period closed for the ANPRM so right now the DOJ is analyzing the public’s comments and making decisions as to what they think should be incorporated in the regulation.
After they make this decision, which will likely take months or even a year, the DOJ will issue an NPRM with more specific language that it will want to implement. This process overall will take years before we see any changes to the regulation but stay tuned for updates regarding any changes.
ABOUT HAYLEY KOTEEN
Hayley Koteen graduated from Towson University with a B.A. in Deaf Studies and Social Science. As an undergrad, she worked for the Maryland Governor's Office of the Deaf and Hard of Hearing as well interned one semester at the Maryland General Assembly with Delegate Kirill Reznik of District 39. Currently a second year law student at Yeshiva University's Benjamin N. Cardoza School of Law in New York, she hopes to pursue a career in deaf law after graduation. As a future attorney for the deaf community, she aspires to advocate to better implement laws such as the ADA, and to improve access to interpreters in courts and social service agencies.