Below is the text of the lawsuit filed by nine individual plaintiffs and
the National Federation of the Blind in Boston last week. This is the
first lawsuit filed by a disability organization that attempts to use the
Americans with Disabilities Act to gain access to cyberspace.
kelly
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
NATIONAL FEDERATION OF THE BLIND, INC.; NATIONAL FEDERATION OF THE
BLIND OF MASSACHUSETTS, INC.; C.A. No. ROBERT BARAN; STEVEN BOOTH;
DEBRA DELOREY; RICHARD DOWNS; PRISCILLA FERRIS; THERESA JERALDI;
COMPLAINT AND REQUEST MICHAEL KOSIOR; MARY ANN LAREAU; FOR INJUNCTIVE
RELIEF and BRANDY ROSE, Plaintiffs,
v.
AMERICA ONLINE, INC., Defendant.
COMPLAINT
Plaintiffs, the National Federation of the Blind, Inc. ("NFB"), the
National Federation of the Blind of Massachusetts, Inc. ("NFB-MA"),
Robert Baran, Steven Booth, Debra Delorey, Richard Downs, Priscilla
Ferris, Michael Kosior, Theresa Jeraldi, Mary Ann Lareau, and Brandy
Rose, by their undersigned counsel, complain against America Online,
Inc. ("AOL") as follows:
NATURE OF THE CASE
1. Plaintiffs, blind advocacy organizations and several blind persons
who wish to purchase and use Defendant's services, bring this action
for injunctive and declaratory relief to require Defendant, the
country's largest internet service provider, to bring its America
Online internet service (the "AOL service") into compliance with the
Americans with Disabilities Act ("ADA"), 42 U.S.C. 12101, et seq. The
individual Plaintiffs and members of the organizational Plaintiffs are
blind, and therefore can only independently use computers, including
internet services, by concurrently running screen access software
programs for the blind that convert visual information into
synthesized speech or braille. However, Defendant AOL has particularly
designed its AOL service so that it is incompatible with screen access
software programs for the blind. Despite its self-description as "the
world's leader in interactive services, Web brands, Internet
technologies, and electronic commerce services," AOL, in designing its
AOL service, has failed to remove communications barriers presented by
its designs thus denying the blind independent access to this service,
in violation of Title III of the ADA, 42 U.S.C. 12181, et seq.
JURISDICTION AND VENUE
2. This action is authorized by 28 U.S.C. 2201-02 and 42 U.S.C. 12188.
This Court has jurisdiction over this action pursuant to 28 U.S.C.
1331.
3. Venue is proper in this District pursuant to 28 U.S.C. 1391(b), in
that the Defendant, a corporation, is subject to personal jurisdiction
in this District and in that a substantial part of the events giving
rise to this action occurred and continue to occur in this District.
THE PARTIES
4. The National Federation of the Blind, the leading national
organization of blind persons, is a not-for-profit corporation duly
organized under the laws of the District of Columbia with its
principal place of business in Baltimore, Maryland. It has affiliates
in all 50 states, including Massachusetts. The vast majority of the
Federation's approximately 50,000 members are blind and are therefore
individuals with disabilities as defined by the ADA, 42 U.S.C.
12102(2). The Federation is widely recognized by the public, the
Congress, executive agencies of government, and the courts as a
collective and representative voice on behalf of blind Americans and
their families. The purpose of the NFB is to promote the general
welfare of the blind by (1) assisting the blind in their efforts to
integrate themselves into society on terms of equality and (2)
removing barriers and changing social attitudes, stereotypes and
mistaken beliefs held by sighted and blind persons concerning the
limitations created by blindness that result in the denial of
opportunity to blind persons in virtually every sphere of life,
including education, employment, family and community life,
transportation and recreation. The NFB and many of its members have
long been actively involved in promoting adaptive technology for the
blind, so that blind persons can live and work independently in
today's technology-dependent world. The NFB runs the International
Braille and Technology Center for the Blind in Baltimore, Maryland.
This Center is the world's most extensive demonstration and evaluation
center for computer-related technology serving the needs of blind
persons, housing more than two million dollars worth of hardware and
software designed specifically for the blind. Thousands of blind
persons come to the Center each year for training in the use of
adaptive equipment and software.
5. Plaintiff NFB-Massachusetts, the Massachusetts state affiliate of
the NFB, is a not-for-profit corporation duly organized under the laws
of Massachusetts with its principal place of business in
Massachusetts. The NFB-Massachusetts currently has seven local
chapters and approximately 250 members, all of whom are residents of
Massachusetts and many of whom are individuals with disabilities as
defined by the ADA, 42 U.S.C. 12102(2).
6. The plaintiff, Robert Baran, a blind resident of Chicopee,
Massachusetts, is an individual with a disability as defined by the
ADA, 42 U.S.C. 12102(2). Mr. Baran is an adaptive technology
specialist at Holyoke Community College, who works with blind and
disabled students and is also a graduate student at the University of
Massachusetts at Amherst. Mr. Baran has computers on which he has
installed screen access software and on which he utilizes e-mail and
the internet. He has been repeatedly advised that the AOL service is
inaccessible to blind people. He would like to be able to use the AOL
service for its "buddy" feature and chat rooms.
7. The plaintiff, Steven Booth, a blind resident of Salem,
Massachusetts, is an individual with a disability as defined by the
ADA, 42 U.S.C. section 12102(2). Mr. Booth is the Assistant Operations
Manager at the National Braille Press and utilizes e-mail and the
internet at home and at the office. If the AOL service were accessible
to blind people, he would use it at home for surfing the web and for
its various custom features, such as chat rooms and the "buddy"
feature.
8. The plaintiff, Debra Delorey, a blind resident of Holbrook,
Massachusetts, is an individual with a disability as defined by the
ADA, 42 U.S.C. section 12102(2). A recent college graduate who is
currently applying to graduate school, Ms. Delorey received free AOL
service with the computer she purchased with her scholarship money.
Although she had purchased a combined screen enlarger/screen access
program with a voice synthesizer, she was unable to use the AOL
service because of her blindness. Her attempts to resolve the
difficulties by calling the help line for the AOL service were
unavailing and she gave it up. Ms. Delorey would subscribe to the AOL
service if it were accessible for research over the internet and for
e-mail.
9. The plaintiff, Richard Downs, a blind resident of Stoughton,
Massachusetts, is an individual with a disability as defined by the
ADA, 42 U.S.C. section 12102(2). Mr. Downs has a home computer with a
screen reader and voice synthesizer that he uses to access his
computer. Four months ago, he was solicited by AOL to subscribe to its
AOL service and advised AOL that he would like to subscribe, but that
because of his blindness he cannot access its service. He was urged to
subscribe anyway, because, he was told, AOL will eventually have a
blind-accessible text screen alternative. Mr. Downs would like to
subscribe to the AOL service because he believes that it provides
access to a great number of web sites, would give him greater
independence from the person whom he employs as a reader and would
allow him to surf for electronics that assist the blind and to follow
the activities of the National Federation of the Blind. 10. The
plaintiff, Priscilla Ferris, a blind resident of Somerset,
Massachusetts, is an individual with a disability as defined by the
ADA, 42 U.S.C. section 12102(2). She is the President of the NFB of
Massachusetts, works as a consultant, and volunteers for the Girl
Scouts. Her two daughters are AOL subscribers and two of her four
grandchildren use the AOL service. She has a home computer with a
screen access program and would like to be able to use the "buddy"
feature of the AOL service with her family, visit chat rooms and,
among other uses, employ it to get information from the District
Councils and National Office of the Girl Scouts. She also is
interested in being able to activate child safety features to block
inappropriate content from her home computer, so that her
grandchildren could surf the web for educational purposes without
being exposed to inappropriate content. This is particularly important
to her as a blind grandparent, as she cannot simply look over the
shoulders of her grandchildren to monitor their internet use in her
home.
11. The plaintiff, Theresa Jeraldi, a blind resident of Watertown,
Massachusetts, is an individual with a disability as defined by the
ADA, 42 U.S.C. section 12102(2). She is a retired employee of the
Office of Civil Rights of the United States Department of Education
and has a computer with a voice activated screen reader, internet
service and the capability of surfing the web through Internet
Explorer. Nonetheless, she would subscribe to AOL's service if it were
accessible, because she has many sighted relatives, including her
grandchildren, who have the AOL service, and she could then utilize
AOL's "buddy" feature to chat with them when they are on-line.
12. The plaintiff, Michael Kosior, a blind resident of Allston,
Massachusetts, is an individual with a disability as defined by the
ADA, 42 U.S.C. section 12102(2). Mr. Kosior is a computer systems
engineer for a $700 million direct marketing agency in Boston. He has
a Bachelor of Science degree in computer information systems from
Bryant College and worked as a computer programmer for the United
States Navy while he was in high school. Mr. Kosior is an experienced
user of the internet and communicates frequently by email. He utilizes
several screen access programs for the blind, including DECtalk
Express External Synthesizer and Henter-Joyce's Jaws for Windows Build
3.31. Mr. Kosior has made several attempts to utilize the AOL service
without success. With the assistance of a sighted person he was able
to label some of the graphics with the Jaws graphic labeler, but not
enough to make the AOL service accessible. Mr. Kosior understands that
AOL is easy for sighted people to use and is interested in evaluating
whether the AOL service, once it is accessible to the blind, is
superior to other internet access platforms that he currently uses.
13. The plaintiff, Mary Ann Lareau, a blind resident of Waltham,
Massachusetts, is an individual with a disability as defined by the
ADA, 42 U.S.C. section 12102(2). As the Secretary of NFB-MA, it is her
responsibility to handle all of the e-mail to the state affiliate; in
connection with the lobbying and other work that she does for the
affiliate, she has a constant need to surf the web for relevant
information. While she currently uses another, accessible, internet
service provider, she would like to subscribe to the AOL service,
because of the additional features that it provides.
14. The plaintiff, Brandy Rose, a blind resident of Taunton,
Massachusetts, is an individual with a disability as defined by the
ADA, 42 U.S.C. section 12102(2). Ms. Rose has a home computer with
screen reader software installed. Through another, accessible,
internet service provider, she currently has e-mail. Ms. Rose,
however, is aware that AOL advertises that its service has many
features not available from other companies offering similar services
and would, if it were accessible, subscribe to the AOL service for use
in connection with her college classes and to chat with her sighted
friends who subscribe to AOL's services, through use of the services
"buddy" feature..
15. Defendant AOL is a for-profit corporation duly organized under the
laws of Delaware with its principal place of business in Dulles,
Virginia. It describes itself as "the world's leader in interactive
services, Web brands, Internet technologies, and electronic commerce
services," having revenues in excess of 4.7 billion dollars and total
assets in excess of 5.3 billion dollars in fiscal year 1999.
16. AOL's main internet service, the AOL service, has approximately
17.6 million customers ("members") worldwide. AOL purposely avails
itself of, and persistently directs its commercial activities to,
residents of the Commonwealth of Massachusetts, and has many members
in Massachusetts from whom it derives substantial revenue.
17. The AOL service includes, by way of illustration and not by way of
limitation, the following: simple access to the world wide web with
search functionality; an "online interactive community" through
electronic mail services, alerts when fellow members are on-line (the
"buddy list"), public bulletin boards, public and private interactive
conversations ("chat rooms"), guest interviews at live "auditorium"
events; nineteen "channels" providing informational content and
commerce and community opportunities pertaining to news, sports,
games, finance, shopping, health, travel, kids, and the like; as well
as personalization and control features that permit AOL members to,
for example, automatically update their stock portfolios and block
their children's access to inappropriate web sites.
18. On information and belief, the AOL service has achieved over 1.14
million simultaneous users and the exchange of over 534 million
electronic mail messages a day.
19. The AOL service is a public accommodation as defined by Title III
of the ADA, 42 U.S.C. section 12181(7), in that it is a place of
exhibition and entertainment, a place of public gathering, a sales and
rental establishment, a service establishment, a place of public
display, a place of education, and a place of recreation.
FACTS
20. People who are blind, including the individual Plaintiffs and
members of the organizational Plaintiffs, can and do use computer
programs, including commercial applications designed to run under both
the DOS operating system and the Windows operating system. The
information that is displayed on the screen by the computer programs
is made available non-visually to blind computer users by means of a
class of software referred to as screen access programs. Screen access
programs monitor the computer screen and convert the textual
information displayed into synthesized speech or Braille on a device
known as a refreshable Braille display.
21. For screen access programs to function effectively in the Windows
operating system environment, it is necessary for commercial
applications to function in a standard way. Among other things, the
commercial application must provide textual labels for all graphics,
permit keyboard access to all functions, move the focus whenever the
keyboard is used, and rely upon standard Windows controls (e.g.,
dialog boxes, combination boxes, list boxes, edit boxes, and push
buttons). Screen access programs cannot read an unlabeled graphic,
generally cannot provide an effective way to manipulate a mouse
pointer, and generally cannot read or activate non-standard, custom
controls that are painted on the screen.
22. Unlike some other internet service providers, AOL requires the
user to run proprietary AOL software in order to access and use the
AOL internet service. This software can operate only under the Windows
operating system or on the Macintosh platform.
23. AOL's proprietary software for the AOL internet service does not
function in the standard way required for screen access programs to
effectively monitor the computer screen and to fully convert the
information into synthesized speech or a refreshable Braille display.
Among other things, AOL's proprietary software employs (a) unlabeled
graphics, (b) commands that cannot be activated by using the keyboard
but which instead can only be activated by using the mouse, and (c)
custom controls painted on the screen. Indeed, what often appears to
be text-such as the listing of channels-are in fact unlabeled
graphics. As a result, by way of illustration and not by limitation,
the following features of the AOL service are inaccessible to the
blind: a. To sign up for the AOL service, the user must fill out a
sign-up form containing blank fields to be filled in with name,
billing address, credit card number, and similar information. Although
text describing each field is displayed on the computer screen, the
method AOL has used to display the text does not provide screen access
programs with sufficient information to tell the blind user which
piece of data is being requested in each blank field. Therefore, blind
users are denied the independent ability even to sign up for the AOL
internet service. b. Once logged on, the user is faced with the
"Welcome" screen, a very unwelcoming place for blind users. There is
some text on the screen that screen access programs can read; however,
most of what appears as text are actually graphics that cannot be read
by a screen access program and the icon labels on the "Welcome" screen
do not use standard Windows formatting for labels, but are themselves
graphics as well. This includes such features as "favorites,"
"parental controls," and chat rooms. c. Locating the space for
entering a keyword search or a web address cannot be directly
accomplished by a blind user, but with trial and error and a great
deal of difficulty, a blind user can bring up the browser and give it
an instruction. However, unlike other web browsing software, AOL's
browser operates in such a way that screen access software does not
register that a browser is running. Thus, when the result of the
search appears on the screen, the screen access program-and the blind
user-is unaware that anything new is on the screen to be read. The
screen access software feature for tabbing through hypertext links, a
common way for blind users to explore a web page, can also fail to
activate because the screen access software can fail to register that
the user is running a browser.
24. Because the AOL service is not independently accessible to the
individual Plaintiffs and to members of the organizational Plaintiffs,
they have been denied the opportunity to use the AOL service's many
features, including AOL's "online interactive community" (electronic
mail services, "buddy list" feature, public bulletin boards, public
and private "chat rooms,"and "auditorium" events), AOL's nineteen
"channels" providing informational content and commerce and community
opportunities pertaining to news, sports, games, finance, shopping,
health, travel, kids, and other subjects, as well as AOL's
personalization and control features that permit members to
automatically update their stock portfolios, for example, or block
their children's access to inappropriate web sites.
25. Without injunctive relief, individual Plaintiffs and members of
the organizational Plaintiffs will continue to be unable to
independently access and use Defendant's AOL service in violation of
Plaintiffs' rights under the ADA.
26. Plaintiffs have no adequate remedy at law.
CLAIMS FOR RELIEF COUNT I Violation of the ADA's Communication
Barriers Removal Mandate
27. The allegations of fact contained in the foregoing paragraphs are
incorporated herein by reference.
28. Defendant's failure to redesign its AOL internet service to permit
the blind to use it through screen access programs violates the
communication barriers removal provision of the ADA, 42 U.S.C. section
12182 (b)(2)(A)(iv), because it constitutes a failure to remove
existing communication barriers from the service.
29. Redesigning the AOL service to permit the blind to use it through
screen access programs is readily achievable. COUNT II Violation of
the ADA's Auxiliary Aids and Services Mandate
30. The allegations of fact contained in the foregoing paragraphs are
incorporated herein by reference.
31. Defendant's failure to redesign its AOL internet service to permit
the blind to use it through screen access programs violates the
auxiliary aids and services provision of the ADA, 42 U.S.C. section
12182(b)(2)(A)(iii), because it constitutes a failure to take steps to
ensure that individuals who are blind are not denied access to the
service.
32. Providing auxiliary aids and services that would make Defendant's
AOL service accessible to and independently usable by persons who are
blind would neither fundamentally alter the nature of Defendant's
service, nor unduly burden Defendant. COUNT III Violation of ADA's
Reasonable Modification Mandate
33. The allegations of fact contained in the foregoing paragraphs are
incorporated herein by reference.
34. Defendant's failure to redesign its AOL internet service to permit
the blind to use it through screen access programs violates the
reasonable modifications provisions of the ADA, 42 U.S.C. section
12182(b)(2)(A)(ii), in that it constitutes a failure to make
reasonable modifications to policies, practices and procedures
necessary to afford access to the service to persons who are blind.
35. Modifying its policies, practices and procedures to afford access
to its AOL service to persons who are blind by redesigning the service
to permit the blind to use it through screen access programs would not
fundamentally alter the nature of Defendant's AOL service. COUNT IV
Violation of the ADA's Full and Equal Enjoyment of Services Mandate
36. The allegations of fact contained in the foregoing paragraphs are
incorporated herein by reference.
37. Defendant's failure to redesign its AOL internet service to permit
the blind to use it through screen access programs violates the full
and equal enjoyment and participation provisions of the ADA, 42 U.S.C.
sections 12182(a), 12182(b)(1)(A)(i), and 12182(b)(1)(A)(ii), in that
it constitutes a failure to make the service fully accessible and
independently usable by individuals who are blind.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that this Honorable Court
grant the following relief:(a) Declare that Defendant's actions and
inactions with respect to its AOL internet service violate Title III
of the ADA, 42 U.S.C. section 12182;(b) Enjoin Defendant from
continuing to violate the ADA and order Defendant to redesign its AOL
service and take such other and further steps as are necessary to
allow independent access through screen access programs by persons who
are blind; and(c) Grant Plaintiffs such other relief as the Court
deems just, equitable, and appropriate, including an award of
Plaintiffs' reasonable attorneys' fees, litigation expenses and costs
under 42 U.S.C. section 12205.Respectfully submitted,
THE PLAINTIFFS,
By their attorneys,
Joseph P. Davis III, BBO No. 551111 McCABE BROWN & DAVIS A
Professional Corporation 151 Merrimac Street Post Office Box 9147
Boston, Massachusetts 02114 (610) 742-2700
Of Counsel: Daniel F. Goldstein (Admission Pending) Lauren E. Willis
Brown, Goldstein & Levy, LLP 520 W. Fayette Street, Suite 300
Baltimore, Maryland 21201 (410) 962-1030
Dated: November 4, 1999
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