Judge: Disabilities Act doesn't cover Web

update A federal judge says Southwest Airlines doesn't have to make its site more accessible to the blind. The Americans with Disabilities Act, she says, doesn't apply to virtual space.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
6 min read
update A federal judge ruled Friday that Southwest Airlines does not have to revamp its Web site to make it more accessible to the blind.

In the first case of its kind, U.S. District Judge Patricia Seitz said the Americans with Disabilities Act (ADA) applies only to physical spaces, such as restaurants and movie theaters, and not to the Internet.

"To expand the ADA to cover 'virtual' spaces would be to create new rights without well-defined standards," Seitz wrote in a 12-page opinion dismissing the case. "The plain and unambiguous language of the statute and relevant regulations does not include Internet Web sites."

If Southwest had lost this case, and the decision had been upheld on appeal, the outcome would have had far-reaching effects by imposing broad new requirements on companies hoping to do business online.

Access Now, an advocacy group for the blind, and a blind man named Robert Gumson filed the lawsuit in an attempt to compel Southwest to redesign its Web site to make it easier for blind people to navigate. They admitted that it was possible for the blind to buy tickets on Southwest's site, but argued it was "extremely difficult."

Gumson, who said he had a screen reader with a voice synthesizer on his computer, asked the judge to order Southwest to provide text that could serve as an alternative to the graphics on its site and to redesign the site's navigation bar to make it easier for him to understand. He and his lawyers also asked for attorney fees and costs.

The ADA says that any "place of public accommodation" must be accessible to people with disabilities. The law, enacted in 1990, lists 12 categories, including hotels, restaurants, shopping centers, universities and bowling alleys.

Seitz said that because Congress was so careful to specify what kinds of physical spaces are covered by the ADA, it's clear the act does not apply to the Internet. She noted that the World Wide Web Consortium had drafted accessibility guidelines, but said the document was over three years old and there is no indication that the guidelines are "a generally accepted authority."

ADA critics applaud
Critics of the ADA applauded Friday's ruling, saying that any other decision could have had a devastating effect on millions of Internet sites--both commercial and non-commercial.

"Is there a difference between sites with an obvious financial nexus and those that don't?" asked Walter Olson, a senior fellow at the Manhattan Institute and editor of overlawyered.com. "What if I sell a T-shirt on my site? If I do, it seems to me that I may have plunged over the abyss into the e-commerce realm. If someone can't use the T-shirt since they can't get on to my Web site or their body shape is wrong for the T-shirt, I could be in big trouble."

Olson said that if the federal courts decide to veer in a more plaintiff-friendly direction, the Web would be a "classic target-rich environment" for lawyers to sue just about any company with a site.

"Hardly anyone--including organizations that claim to speak for disabled people and government agencies that enforce these rules--even they weren't in compliance with the ADA," Olson said.

Bob Levy, a lawyer at the Cato Institute, said the dismissal reaffirms the definition of public accommodation. "In this day and age, when government has wormed itself into virtually every area of our private lives, it's important to draw the distinction between what's private and what's public," Levy said.

"If the statute could ever be interpreted to mean what the plaintiffs said it means, it's more evidence that the statute is ill-conceived, unconstitutional and should be repealed," he added.

"The judge ruled correctly," said Andrew Langer, manager for regulatory policy at the National Federation of Independent Business. "The ADA is supposed to help people who are disabled in truly egregious circumstances, to help them live a normal life. One should not have a cause of action to change everything about someone's business practices to make it simple to do things."

Langer said "the fact that this guy admitted he could still buy tickets on Southwest's websites underscores that Southwest was doing business properly."

Another case
The Eleventh Circuit Court of Appeals, which includes Florida, offered a broad view of the ADA in a June decision involving the TV show "Who Wants To Be A Millionaire?" To weed out less-able participants, the show had used a screening process that required people to press keys on a telephone keypad.

Several disabled people sued, saying that the ABC Television Network was in violation of the ADA because deaf people or people with upper-body mobility problems were unfairly excluded. The Eleventh Circuit sided with the plaintiffs, saying the phone process "deprives them of the opportunity to compete for the privilege of being a contestant on the 'Millionaire' program."

In her decision on Friday, Judge Seitz said the Web was different, because there was no link "between Southwest.com and a physical, concrete place of public accommodation."

The U.S. House of Representatives has held a hearing on whether the ADA should apply to private Internet sites, but Congress has not chosen to amend the original act to clarify the issue. In a 1996 letter to Congress, the Clinton administration suggested that the ADA could apply to private businesses with an Internet presence.

At a February 2000 hearing, a board member of the National Federation of the Blind asked Congress to expand the ADA. "I urge this subcommittee to affirm the importance of access to this new world we're entering and to differentiate between the real-world needs of blind people and the hypothetical and yet-unproved burden placed on small businesses being required to ensure access," the board member said.

Other witnesses, however, said an expansion would be an unconscionable burden on people operating Internet sites and that it would run afoul of the First Amendment's guarantee of free speech.

Previous attempts
The Southwest lawsuit is not the first seeking to force a Web site to adopt accessibility technology. In 1999, the National Federation of the Blind sued America Online, claiming it discriminated against the blind because its system is not accessible to them. The federation later dropped the lawsuit when AOL agreed to make its software compatible with devices designed for visually impaired users.

Friday's decision comes amid continued advancements in making the Web more accessible.

The Web's leading standards group, the World Wide Web Consortium (W3C) has been promoting Web accessibility since 1997, when it launched its Web Accessibility Initiative (WAI). Since then, the group has periodically put forward voluntary accessibility guidelines and recommendations for software makers and Web publishers.

On Thursday, the W3C updated its proposed guidelines for designing browsers, media players and other "user agents" in order to promote Web access for the disabled.

The guidelines aim to lower the barriers for people with visual, hearing, physical, cognitive and neurological disabilities, according to the W3C's Web site. Among other things, the guidelines provide Web software makers with specifications for ensuring that their products interoperate with assistive technology.

For example, the W3C accessibility standards provide support for screen readers, which translate text to speech synthesis or refreshable Braille displays. It also provides support for audio browsers, which provide speech synthesis, and text-only browsers, which can't display images.

A number of developers have been working to create assistive technologies that tap into the Web.

The National Institute of Standards and Technology (NIST) has developed an e-book reader for the blind that transforms electronic text into Braille. The Braille reader connects to a computer or a portable device and translates any document.

Microsoft and Pulse Data International also have said they plan to create an e-book reader for the visually impaired by integrating Microsoft Reader software into Pulse Data's BrailleNote, a family of screenless devices that translate text into speech and Braille.

Web-accessibility programs modeled on the W3C's guidelines have been implemented in Australia and Canada as well as in the European Union, according to WAI director Judy Brewer. In addition, the Web Accessibiity requirements of the U.S. Government Section 508 regulations are based on the W3C/WAI's Web Content Accessibility Guidelines.

"In this day and age, Web sites are one of the most significant public faces of any organization," said Brewer in a statement. "Any business that pretends otherwise has cut off its nose to spite its face--not only for their loss of millions of potential customers with disabilities, but loss of users of mobile phones, PDAs and other devices best supported by accessible Web design."

News.com's Evan Hansen contributed to this report.