From the web page:

http://www.nytimes.com/library/tech/99/11/cyber/cyberlaw/12law.html

November 12, 1999

  By CARL S. KAPLAN
Is Cyberspace a 'Public Accommodation?'

At the heart of the path-breaking discrimination lawsuit filed last week
against America Online Inc. by a major organization representing the blind
is a legal question that is simple to pose but difficult to answer: Is
AOL's service a "place of public accommodation" under the Americans with
Disabilities Act, a key law protecting the rights of the disabled?

The question is an important one for the Internet industry, because if the
answer is yes, then AOL -- and possibly other Internet service providers
and Web sites -- would be subject to the strict rules of the ADA, which
applies to places of public accommodation.

Online companies would then have to make their offerings reasonably
accessible to blind people and others who are disabled, in the same way
that concert halls or restaurants must do. The cost of achieving such
compliance is unclear, although some disability rights advocates say that
the fixes are not technically difficult or expensive.

The hitch, of course, is that AOL's services are not provided in a physical
structure like a store. Does that make a difference? Lawyers who are
experts in disability law tend to disagree on the answers. And so far no
court has decided this exact question as it relates to the Internet.

Lawyers on each side of the issue can, however, point to some guideposts.

One 1994 case concerned a lawsuit brought under the ADA against a private
association that operated a health plan. The United States Court of Appeals
for the First Circuit in Boston considered whether "establishments of
public accommodations" are limited to actual physical structures. The court
found that "they are not so limited," and went on to say that an insurer
who provides services over the telephone or by mail could be considered a
place of public accommodation under the ADA.

"It would be irrational to conclude that persons who enter an office to
purchase services are protected by the ADA, but persons who purchase the
same services over the telephone or by mail are not," wrote a three-judge
panel in the case, Carparts v. Automotive Wholesaler's Association of New
England. "Congress could not have intended such an absurd result."

Michael R. Masinter, a law professor who is an expert on the ADA and who
teaches at Nova Southeastern University in Fort Lauderdale, Fla., said the
Carparts ruling is the main reason that the National Federation of the
Blind sued AOL in federal district court in Boston, which is bound by the
First Circuit's decision in the case. "The wind is certainly not at [AOL's]
back" in Boston, Masinter said.

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Offerings are almost impossible for blind people to use because AOL's
software is largely incompatible with screen access programs.

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But two other federal appeals courts have recently criticized the Carparts
decision, interpreting the term "public accommodation" in the ADA to be
limited to actual physical structures, Masinter said.

Daniel F. Goldstein, a lawyer for the federation, agreed that certain court
decisions in the First Circuit made Boston "a good place" to file the
lawsuit, but also said his clients opted for a Massachusetts battleground
because the courts there were familiar with high-tech issues. Also, some of
his blind clients who lived in the area were upset about AOL's lack of
accessibility, he said.

The Americans with Disabilities Act of 1990 generally requires employers,
state and local governments and places of public accommodation to offer
reasonable services or tools to insure that people are not discriminated
against on the basis of disability.

Title III of the law, which pertains to public accommodations, defines the
phrase "public accommodation" by way of illustration. It provides a list of
"private entities" that the law applies to, including hotels, movie
theaters, stadiums, laundromats, banks, barber shops and travel services.
The act groups its many examples into 12 broad categories like "place of
lodging," "place of exhibition or entertainment" and "service establishment."

In the lawsuit against AOL, lawyers for the National Federation of the
Blind and the other plaintiffs argued that the AOL service is a public
accommodation as defined by title III of the ADA 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."

The AOL service, the federation said, provides millions of AOL customers
with simple access to the Web, along with e-mail, "buddy lists," public
bulletin boards and so on. But the offerings are almost impossible for
blind people to use because AOL's software is largely incompatible with
"screen access programs," which convert text on a screen into synthesized
speech or Braille and are used by the blind, according to the complaint.

Professor Masinter, who has represented disabled individuals in lawsuits,
said in an interview that he believes AOL is not a place of public
accommodation, notwithstanding the Carparts ruling.

"To operate a place of public accommodation, you have to operate a physical
location in which some percentage of your clientele comes in to do business
with you," he said. "The examples that appear in the law -- everything from
an inn to a barber shop -- all have a physical location," he said.

The stakes in the lawsuit are high because if the courts agree with the
viewpoint of the federation, then everyone who offers goods or services or
ideas in cyberspace "potentially becomes a defendant" in an ADA lawsuit,
Masinter said.

"I think it would be kind of a mess," he said. He added, however, that
although he believes the ADA does not require AOL to make its services
fully accessible to blind people, they should do so because "it's the right
thing to do."

Goldstein, the lawyer for the federation, defended his view that AOL is
legally obligated to conform to the ADA.

"Congress clearly intended to be as comprehensive as it could be in Title
III [of the ADA], and there is nothing physical that is implied by the
words 'public accommodation,' either the adjective or the noun," he said.
"Within the common understanding of a private entity that offers services
to the public, [the AOL service] is a public accommodation," he said.

Goldstein added that other legal concepts that involve "places" are not
necessarily restricted to a physical location. In First Amendment law, for
example, the concept of a "public forum" where debate cannot be
unreasonably restricted by government is not limited to a brick-and-mortar
forum or auditorium, but can include other intangible venues, including
cyberspace, he said.

A spokesman for AOL declined to comment on the merits of the lawsuit,
beyond saying that the company is committed to developing a new generation
of software that will help the blind access its services.

AOL has 20 days from the date of receipt of the complaint in which to file
a formal answer. It was served with the complaint on Wednesday, Goldstein
said.


CYBER LAW JOURNAL is published weekly, on Fridays.


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