Here is the view of Internet access from the Heritage Foundation.  The
wife of Supreme Court justice Clarence Thomas works for the Heritage
Foundation and a number of high-level appointees in the administration of
George W. Bush are affiliated with or were recommended by Heritage.

Kelly



    The Washington Post

December 20, 2002

Disabilities Act in  cyberspace?

    James L. Gattuso

    Common sense may seem in short supply in today's litigation-happy
world, but it got a boost last month from - of all places - Florida,
where a federal judge tossed out a lawsuit claiming that Southwest
Airlines' Web site violated the Americans With Disabilities Act. The
decision is good news for the Internet and for consumers, blocking what
likely would have become regulation-by-litigation of Web site design.
The lawsuit, brought by Access Now, an ADA advocacy group, claimed that
Southwest violated the Act because its Web site was insufficiently
accessible to blind persons. Specifically, the plaintiffs faulted
Southwest for not providing text in a format that could be read by
synthesized speech technology. What about the fact that the relevant
section of the act applies only to "places of public accommodation"? No
problem, said the plaintiff's lawyers: Certainly "place" can't be
limited to the narrow confines of the physical world. Cyberspace, too,
is a place. Unfortunately for the plaintiffs, although the ADA is famous
for its ambiguity, its text is pretty darn specific on this point. It
actually lists what it considers a "public accommodation." It includes
inns, hotels, motels "or other place of lodging." Also restaurants,
bars, movie theaters, concert halls, auditoriums, bakeries, grocery
stores, laundromats, dry cleaners, banks and so on. The drafters
practically gave specific addresses. And not a Web site among them. But
the lawyers maintained -presumably with a straight face - that
Southwest's Web site was covered under the act as a place of
"exhibition, display and a sales establishment." But the judge, Patricia
Seitz of the U.S. Southern District of Florida, didn't buy it.
Apparently an old-fashioned judge, Judge Seitz even used Latin, citing
the doctrine of ejusdem generis: "Where general words follow a specific
enumeration of persons or things, the general words should be limited to
persons or things similar to those specifically enumerated." Or, as they
say in pre-school, "one of these things is not like the other." Is this
a quirk in the law? A loophole in the ADA that policymakers should
patch? No. There are good reasons not to drag cyberspace under the ADA.
Such regulation is likely to impose considerable burdens on Web site
owners - exactly the wrong prescription for the ailing Internet economy,
as well as for consumers. ADA advocates say the costs of making sites
accessible are minimal. But where that's so, companies tend to act
voluntarily. After all, they make money by helping, not hindering,
potential customers. But with requirements ranging from providing
transcripts for audio files to checking color contrasts, the burden can
be substantial, and the costs can add up quickly. That could be why the
list of sites not meeting accessibility standards includes not just many
airline sites, but even some government sites, such as that of the
Commission on Civil Rights. Still, ADA advocates argue that if physical
establishments can learn to live with the additional costs, cyberspace
operations can too. That's too complacent a view. Apart from
lawsuit-happy trial lawyers, few see the current ADA as a model of
perfection. If applied to the economically fragile digital world, the
potential damage would be considerable. The Manhattan Institute's Walter
Olson warns, for instance, that Web design creativity and spontaneity
could be stunted, as publishers feel constrained to use only officially
accepted tools. Amateur Web sites would be winnowed as legal and
technical rules limit the art to professionals. (So much for "blogs.")
What about the First Amendment implications? The Internet is foremost a
tool of communication - but ADA mandates could lead to regulation of
content unimaginable for newspapers or magazines. Current guidelines,
for instance, say that sites should "use the simplest and most
straightforward language that is possible," raising the prospect of
judges sitting in the editor's chair. None of this is to say that making
the Internet accessible to the disabled isn't a worthy goal. It is, and
efforts to do so where practical are to be applauded. But such efforts
must be voluntary; we shouldn't be subjecting the Internet to regulators
and trial attorneys. Judge Seitz was correct: The ADA does not - and
should not - apply to cyberspace.

    James L. Gattuso is a research fellow in regulatory policy at the
Heritage Foundation.


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