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. http://www.heritage.org

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