The Internet as a Place of Public Accommodation for Title III of the ADA

Is the Internet a Place of Public Accommodation for Purposes of Title III of the Americans with Disabilities Act and How Should the Desires of Those Involved be Integrated? I. Introduction If I asked you to close your eyes and imagine you were blind, you would have a hard time reading this paper. So, for now, just empathize with the visually impaired and realize that day after day, they cannot see the beauty of a sunset, the intricacies of ―Sunday Afternoon on the Island of La Grande Jatte,‖ 1 or enjoy uninhibited access to the internet. These are pleasures and conveniences that most people take for granted every day. While the blind may never be able to ―see‖ Sunday Afternoon, or a sunset, they should not also be precluded from accessing the internet in a meaningful way. It is no secret that the blind are disadvantaged in most aspects of daily life. Vision is the primary sense that enables people to operate in our chaotic world. If a person loses a different sense, they may not be able to hear a song on the radio or speak with a normal dialect, but they can still be self-reliant in driving to work or reading the typical newspaper. Similar to a deaf person‘s obstacles in vocal communication, the internet provides an ostensible hurdle to communication for the blind. For one with limited visual capabilities, the problem of the internet lies with its fundamental construction. It has two basic assumptions: (1) that you have a computer connected to the web, and (2) that you are able to ―view‖ the contents of the website. No matter the speed or sophistication of a computer, to which a blind person has access, the inability to access all websites is currently a tumultuous impediment for the visually impaired to access both information and services. Their eyes do not allow them to view a website in the 1 French painter George Seurat painted ―Sunday Afternoon on the Island of La Grande Jatte‖ in 1886 by transforming tiny individual dots of paint, into a masterpiece. Viewable at: Wikipedia, The Free Encyclopedia, http://en.wikipedia.org/wiki/Sunday_afternoon_on_the_island_of_la_grande_jatte (last visited Mar. 3, 2007). 1 traditional manner, and not all websites accommodate their unique needs, but there is a way to allow the visually impaired to access the content of websites even with the internet‘s flaws and a blind person‘s inability to see. The major inhibitor, though, is primarily the cost to the company to update their website‘s compatibility. This should not be justification for discriminating against the blind, and in almost all other contexts, is currently illegal. 2 The law does not allow a website operator to deny access to a person with a different color skin or a different religious belief. Why then should society allow for a website to discriminate access to the blind? If anything, the blind need extra protection in our legal system, not a hand pushing them down. Because commerce and technology are changing so quickly, there is an increased need to protect those with disabilities from discrimination on the internet. By holding individuals and companies accountable for accommodating those with special needs, rather than permitting discrimination against them, the essence of the Americans with Disabilities Act (―ADA‖) will be satisfied. The ADA provides a sweeping regulation for protection against discrimination in ―places of public accommodation.‖ 3 Here, discrimination comes in the form of unequal access to websites for the visually impaired as well unequal ease of navigation for those with cognitive impairments. Fundamentally, the ADA protects disabled persons,4 but currently it is silent on protection while using the internet. In this area of unsettled law, the ADA will complete its mission if either, the internet is ruled ―a place of public accommodation,‖ or it is ruled that discriminatory accessibility to a website creates discriminatory access to a brick and mortar 2 See Chapter 126—Equal Opportunities for Individuals with Disabilities, 42 U.S.C. §§ 12101-12300 (1990). Also known as the Americans with Disabilities Act. 3 42 U.S.C. § 12182(b)(2)(A). See generally 42 U.S.C §§ 12101-12213. 4 2 physical place of public accommodation when both the store and the website should be viewed as one for purposes of customer communication. This comment argues that the internet is a place of public accommodation and suggests a proposition to resolve the dispute between the visually impaired and businesses trying to operate profitable websites. Part II defines the issue and addresses the history of the case law surrounding § 12181(1)(7)‘s Public Accommodation. Part III discusses National Federation of the Blind v. Target, what may prove to be the most important case regarding this topic. Part IV asks, ―Is the internet a place of public accommodation? And, if not, can a website be so related to a place of public accommodation that the ADA may still apply to the internet?‖ This paper argues for an affirmative answer to both questions. Part V discusses the competing concerns, and finally proposes a solution to the problem integrating both the needs of the disabled and the concerns of the website hosts. II. Background Title III of the Americans with Disabilities Act states: ―No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who … operates a place of public accommodation.‖ 5 The three aspects of this broad rule needing elaboration are the terms (1) ―disability,‖ (2) ―discrimination,‖ and (3) ―places of public accommodation.‖ The ADA defines disability as: ―a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a 5 42 U.S.C. § 12182(a) (1990). 3 record of such an impairment; or being regarded as having such impairment.‖ 6 Discrimination is defined as ―a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity.‖ 7 ―[D]iscrimination includes— (i) the imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered; (ii) a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations; (iii) a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.‖8 But, specifically what this article addresses is Section 12181‘s ―list of private entities that are considered public accommodations for purposes of Title III:‖ 9 (A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor; (B) a restaurant, bar, or other establishment serving food or drink; (C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment; (D) an auditorium, convention center, lecture hall, or other place of public gathering; (E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment; (F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral 6 42 U.S.C. § 12102(2)(A)-(C) (1990). A person blind person or a person with visual impairments clearly fits within this definition since they are both regarded as having a disability, and are substantially limited in the major life activities of navigating in unfamiliar surroundings and their ability to read non-brail material. 7 42 U.S.C. § 12182(b)(1)(A)(i) (1990). 42 U.S.C. § 12182(b)(2)(A) (1990) (emphasis added). 8 9 Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1010 (6th Cir. 1997). Authorities are split as to whether the list is exhaustive or whether the list merely gives a framework for what Congress intended to be a place of public accommodation. See Ford v. Schering Plough Corp., 145 F.3d 601 (3d Cir. 1997), and Parker, (standing for the proposition that places of public accommodation are physical spaces). See Carparts Distribution Center, Inc. v. Automotive Wholesaler‘s Assoc. of New England, 37 F.3d 12 (1st Cir. 1994) and Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557 (7th Cir. 1999) (suggesting the internet is a place of public accommodation). 4 parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment; (G) a terminal, depot, or other station used for specified public transportation; (H) a museum, library, gallery, or other place of public display or collection; (I) a park, zoo, amusement park, or other place of recreation; (J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education; (K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and (L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.10 In summary, for Title III‘s public accommodation to apply, an individual must have a disability and be discriminated against in a place of public accommodation on the basis of that disability. A. Defining the Issue First, this comment addresses whether the internet is a place of public accommodation and if not, does the internet relate to physical places of public accommodation such that the internet may still fall within the regulation of Title III of the ADA? To answer this question we must first determine whether this list is an exhaustive culmination of all places of public accommodation and second look at how the case law has dealt with the subject. To begin this analysis it is beneficial to look at Congress‘s intent when drafting the legislation.11 The fact that Congress listed twelve specific areas that are public accommodations, and gave specific examples of those areas, leads to the inference that the list is truly exhaustive.12 Congress must surely have foreseen that times change and for a law to change to fit the new demands it must be flexible.13 The postal service and the telephone had been established well 10 11 42 U.S.C. § 12181(7)(A)-(L) (1990). ―The purpose of the ADA is to ‗invoke the sweep of Congressional authority ... in order to address the major areas of discrimination faced day-to-day by people with disabilities.‘‖ Carparts, 37 F.3d at 19 quoting 42 U.S.C. § 12101(b). 12 Both Ford and Parker are unwilling to extend the interpretation of physical places. 13 An example of Congress‘s intent that a regulation should be flexible is the term ―investment contract‖ under Section 5 of the 1933 Securities Act. Investment contract gives the Securities and Exchange Commission the 5 before the adoption of the ADA, yet Congress made no mention of the mails or the telephone. Congress failed to even hint toward these two methods of commerce as relating to public accommodation. If they had meant for the law to be flexible, one would think that they would have included at least one blanket or extendable category to allow public accommodation the needed elasticity to adapt to the situation. 14 In every category listed, there is a building that can be entered, save for ‗travel service.‘ 15 Even Congress must have recognized this. Cumulatively, these considerations lend to the conclusion that the list is not applicable beyond the black letter categories given, and ‗places of public accommodation‘ is limited to those areas where a person can physically enter. On the other hand, it was Congress who enacted this law and presuming that they know what they are doing at any given time might be the second mistake.16 Clearly, the intent of the law is to make discrimination illegal in this day and age and to prevent it in commerce.17 After reading the list of places of public accommodation, one can hardly think of a place where the law needed flexibility to regulate schemes that do not necessarily involve a typical ―security.‖ See SEC v. W. J. Howey Co., 328 U.S. 293 (1946). 14 An example of Congress giving multiple specific instances of the thing it wished to regulate, and also giving the statute the needed flexibility to adapt to changing condition is found in the 1933 Securities Act, 15 U.S.C. § 77(b)(1). It states, ―The term ‗security‘ means any note, stock, treasury stock, security future, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, any put, call, straddle, option, or privilege on any security, certificate of deposit, or group or index of securities (including any interest therein or based on the value thereof), or any put, call, straddle, option, or privilege entered into on a national securities exchange relating to foreign currency, or, in general, any interest or instrument commonly known as a ‗security,‘ or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.‖ Id. (emphasis added). Here Congress‘s intent by adding the term investment contract has been widely seen as Congress giving an adaptive quality to a regulation. See Howey. 15 See 42 U.S.C. § 12181(7) (1990). The first being the ambiguity surrounding places of public accommodation. 16 17 ―The definition of ‗public accommodation‘ states that ‗the following private entities are considered public accommodations for purposes of [§ 12181(7)], if the operations of such entities affect commerce-‘ and then provides an illustrative list.‖ Carparts, 37 F.3d at 19 quoting 42 U.S.C. § 12181(7)(f) (emphasis added). 6 does not reach. The statute does not specifically limit ‗places of public accommodation‘ to those places a person can ‗physically‘ enter, and it does not indicate that the list is exhaustive, only that those listed places are ‗places of public accommodation.‘ 18 The ADA was also enacted in 1990, seventeen years ago, not long after Al Gore ―invented‖ the internet. 19 At this point, the World Wide Web was still in its infancy. Surely, the vast majority of Americans did not expect the internet boom of the late 90‘s and the ensuing plethora of Dot Com companies that would take the financial markets by storm.20 Congress‘s myopia may have prevented it from viewing the internet with the degree of power it would eventually have. Could this be just another case of benign neglect? The case law interpreting whether the internet is a place of public accommodation and thus under the jurisdiction of Title III of the ADA is equally ambiguous. While there was almost a direct ruling on the issue by a Circuit Court in Access Now, Inc. v. Southwest Airlines, Co., 385 F.3d 1324 (11th Cir. 2004), the Court declined to decide the matter because the appeal raised new issues not argued at the trial level. As of 2006, no court has directly ruled on the issue as to whether the internet is ‗a place of public accommodation.‘ Second, this paper address the issues relating to the wants of the parties and proposes a solution should the court fail to rule on the matter. Basically, visually impaired persons want access to the content of the websites, and the companies behind the websites do not want to raise 18 See 42 U.S.C. § 12181(7) (1990). 19 See Seth Finkelstein, Al Gore “invented the Internet”- resources, http://sethf.com/gore/ (last visited Nov. 22, 2006) and Barbara and David P. Mikkelson, Internet of Lies, http://www.snopes.com/quotes/internet.asp (last visited Nov. 22, 2006). 20 See Wikipedia, The Free Encyclopedia, http://en.wikipedia.org/wiki/Dot-com_bubble (last visited Mar. 3, 2007). ―The ‗dot-com bubble‘ was a speculative bubble covering roughly 1995–2001 during which stock markets in Western nations saw their value increase rapidly from growth in the new Internet sector and related fields. The period was marked by the founding (and in many cases, spectacular failure) of a group of new Internet-based companies commonly referred to as dot-coms.‖ Id. 7 their costs. This issue is elaborated upon in Part V. B. Those in Favor say “I” In Carparts Distribution Center, Inc. v. Automotive Wholesaler’s Assoc. of New England, 37 F.3d 12 (1st Cir. 1994), the court implies that websites may be places of public accommodation. 21 Here, Ronald J. Senter (―Senter‖) had HIV22 which later became AIDS. 23 After he acquired medical insurance, the insurance company, Automotive Wholesalers Association of New England, Inc., modified its coverage payouts to individuals suffering from AIDS and HIV disproportionately to those who did not have this illness.24 This disparate treatment of persons with AIDS or HIV25 was prima facia discrimination. Along with a claim for protection under Title I of the ADA, the question of whether Title III‘s public accommodation determination was remanded to the district court for further determination. 26 21 Carparts, 37 F.3d 12. ―Neither Title III nor its implementing regulations make any mention of physical boundaries or physical entry. Many goods and services are sold over the telephone or by mail with customers never physically entering the premises of a commercial entity to purchase the goods or services. To exclude this broad category of businesses from the reach of Title III and limit the application of Title III to physical structures which persons must enter to obtain goods and services would run afoul of the purposes of the ADA and would severely frustrate Congress‘s intent that individuals with disabilities fully enjoy the goods, services, privileges and advantages, available indiscriminately to other members of the general public.‖ Id. at 20. 22 HIV is the common acronym for Human Immunodeficiency Virus. AIDS is the common acronym for Acquired Immune Deficiency Syndrome. 23 Carparts, 37 F.3d at 14. Furthermore, since Bragdon v. Abbott, 524 U.S. 624 (1998), it is no longer contestable that AIDS and AIDS related illnesses are qualified disabilities because a person with AIDS is limited in the major life activity of reproduction. Id. 24 ―In October 1990, AWANE Plan informed members of AWANE, including Carparts, of its intention to amend the Plan in order to limit benefits for AIDS-related illnesses to $ 25,000, effective January 1, 1991. Otherwise, lifetime benefits under the Plan were, and are, afforded in the amount of $ 1 million per eligible plan member.‖ Carparts, 37 F.3d at 14. 25 ―The term ‗disability‘ means, with respect to the individual -- a physical or mental impairment that substantially limits one or more of the major life activities of such individual.‖ 42 U.S.C. § 12102(2)(A) (1990). A person with HIV or AIDS, ―even in the so-called asymptomatic phase, [has] an impairment which substantially limits the major life activity of reproduction‖ and thus is considered a person with a disability for purposes of Title III. Bragdon, 524 U.S. at 647 (1998). 26 Carparts, 37 F.3d at 26. 8 While the Circuit Court did not conclusively rule on the issue of whether the internet is a place of public accommodation, they did express their opinion that the phrase public accommodation ―is not limited to physical structures.‖ 27 In a similar case, Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557 (7th Cir. 1999), Chief Judge Posner said, ―The core meaning of this provision, [42 U.S.C § 12182(a),] plainly enough, is that the owner or operator of a store, hotel, restaurant, dentist‘s office, travel agency, theater, Web site, or other facility (whether in physical space or in electronic space, …) that is open to the public cannot exclude disabled persons from entering the facility and, once in, from using the facility in the same way that the non-disabled do.‖ 28 One would think this is a definitive ruling in at least one circuit that the internet is a place of public accommodation, but alas, it was not argued here and so amounts only to dicta.29 What was argued in Mutual of Omaha was that the content of the goods and services was discriminatory. 30 The court concluded that a seller is not required ―to alter his product to make it equally valuable to the disabled and the non-disabled.‖31 27 Carparts, 37 F.3d at 21-22. ―This ambiguity, considered together with agency regulations and public policy concerns, persuades us that the phrase is not limited to actual physical structures.‖ Id. ―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. Congress could not have intended such an absurd result.‖ Id. at 22. 28 Mutual of Omaha, 179 F.3d at 559. Mutual of Omaha, 179 F.3d at 559. 29 30 Mutual of Omaha, 179 F.3d at 559-60. The policy limitations of Mutual of Omaha Insurance Company limited the payout to persons with AIDS to $25,000 or $100,000 depending on the policy, but gave other people, who were similarly disabled due to other reasons, payouts up to $ 1 million. Id. at 558. To address this concern, Posner cites Lenox v. Healthwise of Kentucky, Ltd., 149 F.3d 453 (6th Cir. 1998) saying, ―In fact, it is apparent that a [book]store is not required to alter its inventory in order to stock goods such as Braille books that are especially designed for disabled people.‖ Mutual of Omaha, 179 F.3d at 559. Posner is saying that the judiciary should not regulate the content that a store provides only how they provide it. Whether or not requiring a store to provide services for disabled persons may or may not constitute a fundamental alteration, but either way it is case by case determination. A fundamental alteration to the services provided is a defense to the claim of discrimination under 42 U.S.C. § 12182. See generally Breece v. Alliance Tractor-Trailer Training II, Inc., 824 F. Supp. 576 (E.D. Va. 1993) and Roberts v. Kindercare Learning Centers, Inc., 896 F. Supp. 921 (D. Minn. 1995). 31 Mutual of Omaha, 179 F.3d at 563. 9 While Carparts and Mutual of Omaha have touched on the internet issue, they have not directly addressed it. From these two cases there is a clear argument that the internet could be a place of public accommodation. However, two different cases, not overruled, stand for the proposition that the list in § 12181 is an exhaustive one, therefore excluding the internet as a place of public accommodation. C. “All Opposed?” In Parker v. Metro. Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997), the court stated, ―The clear connotation of the words of § 12181(7) is that a public accommodation is a physical place.‖32 The court also relies on ―the statutory canon of construction, noscitur a sociis.‖ 33 It then interprets public accommodation as being limited to physical space since all twelve categories in the list in § 12181 refer to an actual area that one can occupy, except for (7)(F)‘s reference to ―travel service‖ and ―shoe repair service.‖ 34 Then, the court dismisses these exceptions as though they are rather trivial. 35 What is clear from this case is that the 6 th Circuit has taken a very narrow reading of § 12181(7)‘s definition of public accommodation. 36 Following the Sixth Circuit‘s lead, the court in Ford v. Schering Plough Corp., 145 F.3d 32 33 Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1014 (6th Cir. 1997). Parker, 121 F.3d at 1014. ―The doctrine of noscitur a sociis instructs that ‗a ... term is interpreted within the context of the accompanying words to avoid the giving of unintended breadth to the Acts of Congress.‘‖ Id. quoting Kurinsky v. United States, 33 F.3d 594, 597 (6th Cir.1994). 34 42 U.S.C. § 12181(7) (1990). 35 Parker, 121 F.3d at 1014. ―Rather than suggesting that Title III includes within its purview entities other than physical places, it is likely that Congress simply had no better term than ‗service‘ to describe an office where travel agents provide travel services and a place where shoes are repaired. Office of an accountant or lawyer, insurance office, and professional office of a healthcare provider, in the context of the other terms listed, suggest a physical place where services may be obtained and nothing more. To interpret these terms as permitting a place of accommodation to constitute something other than a physical place is to ignore the text of the statute and the principle of noscitur a sociis.‖ Id. 36 Parker, 121 F.3d 1006. 10 601 (3d Cir. 1997) has also taken a restrictive view toward places of public accommodation. 37 In the Third Circuit‘s decision, they closely follow the line of reasoning laid down in Parker.38 They state that Title III does not apply to the content of the goods or services, but rather to the way in which it is offered.39 The court in Ford next applies the principles of noscitur a sociis, and concludes that ―the term ‗public accommodation‘ or terms in 42 U.S.C § 12181(7) [do not] refer to non-physical access or [even that they are] ambiguous as to their meaning.‖ 40 Also worth noting is that Judge Alito, now Justice Alito, concurred in the result.41 D. What‟s This “Nexus” Thing I Keep Hearing About? In Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d 1312 (2002), the court granted a motion to dismiss the plaintiff‘s claim because there was not a proper ―nexus‖ between the website and the physical place of public accommodation where the plaintiff‘s access was impeded. Here, Southwest Airlines‘ website software did not allow blind people to use their screen readers42 to navigate the site. 43 While ruling that the internet is not a place of public 37 Ford v. Schering Plough Corp., 145 F.3d 601 (3d Cir. 1997). ―[W]e do not find the term ‗public accommodation‘ or the terms in 42 U.S.C. § 12181(7) to refer to non-physical access or even to be ambiguous as to their meaning.‖ Id. at 614. 38 Ford, 145 F.3d at 613-14. ―We also note that, by aligning ourselves with the Sixth Circuit's Parker decision regarding the definition of ‗public accommodation[,]‘ we part company with the First Circuit in this regard.‖ Id. 39 Ford, 145 F.3d at 613. ―Just as a bookstore must be accessible to the disabled but need not treat the disabled equally in terms of books the store stocks, likewise an insurance office must be physically accessible to the disabled but need not provide insurance that treats the disabled equally with the non-disabled.‖ Id. 40 Ford, 145 F.3d at 614. 41 Ford, 145 F.3d at 614. ―ALITO, Circuit Judge, concurring in the judgment: I agree with the majority that Ford fails to state a claim under the Americans with Disabilities Act (ADA).‖ Id. However, he ―reach[ed] this conclusion based solely on the insurance ‗safe harbor‘ provision located in section 501(c) of the ADA. See 42 U.S.C. § 12201(c).‖ Id. 42 Access Now, 227 F. Supp. 2d at 1314. ―[A]ssistive technologies, such as voice-dictation software, voicenavigation software, and magnification software … assist visually impaired persons in navigating through varying degrees of text and graphics found on different websites. However, not only do each of the different assistive software programs vary in their abilities to successfully interpret text and graphics, but various websites also differ 11 accommodation, 44 the court also said that the ―[p]laintiffs have not established a nexus between Southwest.com and a physical, concrete place of public accommodation.‖ 45 The court further described how the nexus between the ―virtual ‗ticket counters‘ as they exist on-line‖ and the inability to access ―a physical, concrete place of public accommodation‖ was lacking. 46 But, the fact that the court had to distinguish this, infers that they might be open to such an argument. Because the internet was not a place of public accommodation according to the court and the plaintiff had not alleged denial to a place of public accommodation, the Eleventh Circuit dismissed the claim. 47 The plaintiffs only alleged that they were denied access to the ‗virtual ticket counter.‘ They did not allege that they were denied access to the physical ticket counter in the airport because they were denied access to the ‗virtual ticket counters.‘ 48 in their abilities to allow different assistive technologies to effectively convert text and graphics into meaningful audio signals for visually impaired users.‖ Id. 43 Access Now, 227 F. Supp. 2d at 1316. ―Despite the apparent success of Southwest‘s website, Plaintiffs contend that Southwest‘s technology violates the ADA, as the goods and services offered on southwest.com are inaccessible to blind persons using a screen reader.‖ Id. 44 Access Now, 227 F. Supp. 2d at 1318. ―[T]o fall within the scope of the ADA as presently drafted, a public accommodation must be a physical, concrete structure. To expand the ADA to cover ―virtual‖ spaces would be to create new rights without well-defined standards.‖ Id. 45 Access Now, 227 F. Supp. 2d at 1319. 46 Access Now, 227 F. Supp. 2d at 1322-23. The court dismisses the argument that because the website does not allow use by the blind and visually impaired, they are effectively denied access to the airline‘s ticket counter and to using the airline‘s service. Id. I guess the blind are not free to move about the country like the rest of us. The court relies on two mistaken beliefs to come to this conclusion. First is that the internet is not a place of public accommodation which is circular in itself since they are the ones who were deciding that issue just 2 pages before. And second, the court says that the internet is ―located in no particular geographic location.” Id. quoting Voyeur Dorm, L.C. v. City of Tampa, 265 F.3d 1232, 1237 n.3 (11th Cir. 2001). While ―the internet‖ does not exist in one location because it is a network of computer and servers located around the world connected by a vast array of phone lines and fiber optic cables, the Southwest Airline‘s server most definitely has a specific location. There is a discreet building housing the hardware and software that Southwest Airlines depends on for the life of its business, internet sales. To say that the internet does not have a location is correct, but Southwest‘s website is not located around the world. It is controlled, most likely daily, by the company‘s IT department in a specific building. The judges of the 11th Circuit have shown their age by their failure to familiarize themselves with ―modern‖ technology. 47 Access Now, 227 F. Supp. 2d at 1322. ―Defendant Southwest‘s Motion to Dismiss Plaintiff‘s Complaint … is GRANTED.‖ Id. 48 See generally Access Now, 227 F. Supp. 2d 1312. 12 In Rendon, the Eleventh Circuit ruled, that when soliciting for a game show through the telephone, a company was precluded from using discriminatory tactics that did not afford those with disabilities to participate in the selection process. 49 When the game show hotline used the telephone to solicit contestants to participate at the studio, there was a nexus between the concrete location of the studio and the manner in which the disabled people were prevented from accessing it, through the phones, i.e. the hotline screened them out of the selection process. 50 Because the telephone system had the effect of discriminating against the disabled and the only means to access the game show was through this hotline, the disabled were denied access to a place of public accommodation.51 This case is important because it shows a nexus between a discriminatory practice that limits access to a physical place of public accommodation, and the telephone, the medium used, is not listed in § 12181(7)(A)-(L).52 III. The Seminal Case ~ Maybe It was only a matter of time before someone brought just the right case. Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 946 (2006) may be the quintessential case to determine whether the internet is a place of public accommodation,53 or, how the internet relates to a place of public accommodation. Why is this case so important? First, the opinion is directly on point 49 See Rendon v. Valleycrest Prods., LTD., 294 F.3d 1279 (11th Cir. 2002). 50 Rendon, 294 F.3d at 1286. ―[T]he fast finger telephone selection process is a discriminatory screening mechanism, policy or procedure, which deprives them of the opportunity to compete for the privilege of being a contestant on the Millionaire program.‖ Id. 51 Rendon, 294 F.3d at 1285. ―To contend that Title III allows discriminatory screening as long as it is off site requires not only misreading the relevant statutory language, but also contradicting numerous judicial opinions that have considered comparable suits dealing with discrimination perpetrated ‗at a distance.‘‖ Id. 52 42 U.S.C. § 12181(7)(A)-(L) (1990). 53 While the plaintiffs do not allege that the internet is a place of public accommodation, since the Supreme Court has the ultimate appellate authority over Title III claims, it is possible for the case to find its way into Chief Justice Roberts‘ Court. 13 addressing the arguments that both Parker and Ford should have made.54 And second, while the Ninth Circuit has made it clear that they do not consider the internet a place of public accommodation itself, 55 the court has essentially extended the protection needed. 56 In this case, the ―[p]laintiffs claim that Target.com is inaccessible to the blind, and thereby [the website] violates federal and state laws prohibiting discrimination against the disabled.‖ 57 The plaintiffs do not claim the content of the website is discriminatory.58 Instead, the plaintiffs claim that, due to the technical inadequacies of Target.com, individuals with visual impairments59 are prohibited from accessing the website‘s content in the same manner as those without visual impairments, and thus are precluded from using the concrete, brick and mortar 54 Target, 452 F. Supp. 2d at 951. ―Since the blind cannot use Target.com, they are denied full and equal access to Target stores, according to plaintiffs.‖ Id. 55 Target, 452 F. Supp. 2d at 952. ―Under Ninth Circuit law, a ‗place of public accommodation,‘ within the meaning of Title III, is a physical place.‖ Id. 56 Target, 452 F. Supp. 2d at 955. ―[T]he court finds that to the extent that plaintiffs allege that the inaccessibility of Target.com impedes the full and equal enjoyment of goods and services offered in Target stores, the plaintiffs state a claim, and the motion to dismiss is denied.‖ Id. While this is only a denial of a motion to dismiss, the court‘s tone indicates that should the plaintiffs prove that ―Target.com [is] an extension of its stores, as part of its overall integrated merchandising efforts,‖ the court will order the website to meet the needs of the visually impaired, which, while not making the internet a place of public accommodation, is the outcome that the plaintiffs desire. Id. at 956 n.4. In the end, National Federation of the Blind merely seeks accessibility to the website for visually impaired persons. This would be the result if either the internet is a place of public accommodation or there is the required ‗nexus.‘ 57 Target, 452 F. Supp. 2d at 949. 58 Title III does not prohibit discriminatory content. It prohibits discrimination ―of the opportunity to participate in‖ use the place of public accommodation. 42 U.S.C. § 12182(b)(1)(A)(ii) (1990). Otherwise, every book store would have to carry a brail version of the books it stocked. This would be a fundamental change to the manner of business and a defense to a reasonable accommodation. See infra note 71 and accompanying text. 59 Visual impairment is a disability qualifying an individual for protection under Title III of the ADA. See Sutton v. United Air Lines, Inc, 527 U.S. 471 (1999). ―[A] disability includes ‗being regarded as having‘ (citation omitted) ‗a physical or mental impairment that substantially limits one or more of the major life activities of such individual.‘‖ Id. at 489 quoting 42 U.S.C. § 12102(2)(A), (2)(C) (1990). In Sutton, the plaintiffs‘ mitigating measures, their glasses, had to be taken into consideration, and in that case the visually impaired individuals were not protected under the Act. See Sutton, 527 U.S. 471. And while ―the determination of whether an individual is substantially limited in a major life activity must be made on a case by case basis,‖ it is hard to imagine that a blind person would ever not be considered limited in the major life activity of ‗seeing.‘ Id. at 480. Thus, here, the plaintiffs are protected individuals as defined by the Americans with Disabilities Act. 14 stores in the same manner as non-visually impaired persons. 60 In short, they claim that ―since the blind cannot use Target.com, they are denied ‗full and equal‘61 access to Target [brick and mortar] stores.‖ 62 This allegation was missing from both Access Now and Doe v. Mutual of Omaha. The Ninth Circuit has taken the view that the internet is a not place of public accommodation. 63 Therefore, at trial, the National Federation of the Blind will have to show that the website and the physical stores are so intertwined that the court should view them as one for purposes of Title III while relying on the precedent from Access Now and Rendon.64 Target.com generally provides a platform to facilitate e-commerce between consumers and Target Inc. 65 It also provides a store locator, store contact information, the ability to order pictures online and pick them up at a store, facts and history behind the store, and a section 60 Target, 452 F. Supp. 2d at 950-51. ―Plaintiffs allege that Target.com is not accessible to blind individuals. According to plaintiffs, designing a website to be accessible to the blind is technologically simple and not economically prohibitive. Protocols for designing an accessible internet site rely heavily on ‗alternative text‘: invisible code embedded beneath graphics. A blind individual can use screen reader software, which vocalizes the alternative text and describes the content of the webpage. Similarly, if the screen reader can read the navigation links, then a blind individual can navigate the site with a keyboard instead of a mouse. Plaintiffs allege that Target.com lacks these features that would enable the blind to use Target.com. Since the blind cannot use Target.com, they are denied full and equal access to Target stores, according to plaintiffs.‖ Id. 61 See supra note 5. 62 Target, 452 F. Supp. 2d at 950. In support of their argument the plaintiff points out that Target and Target.com are so intertwined that they should basically be treated as one. ―For example, through Target.com, a customer can refill a prescription or order photo prints for pick-up at a store, and print coupons to redeem at a store.‖ Id. at 949. 63 Target, 452 F. Supp. 2d at 952. ―Under Ninth Circuit law, a ‗place of public accommodation,‘ within the meaning of Title III, is a physical place.‖ Id. 64 Target, 452 F. Supp. 2d at 952. ―Although a plaintiff may allege an ADA violation based on unequal access to a ‗service‘ of a place of public accommodation, courts have held that a plaintiff must allege that there is a ‗nexus‘ between the challenged service and the place of public accommodation.‖ Id. 65 Target, 452 F. Supp. 2d at 950. ―By visiting Target.com, customers can purchase many of the items available in Target stores. Target.com also allows a customer to perform functions related to Target stores.‖ Id. 15 telling services Target has performed in the community. 66 Many, if not most, of the services, that Target.com provides, point directly to a brick and mortar store or their involvement in the community near one. 67 The court stresses that ―[t]o ensure that the disabled have full and equal enjoyment of the goods and services of places of public accommodation, [Title III] requires ‗reasonable modification‘ of ‗policies, practices, and procedures,‘ the provision of auxiliary aids to ensure effective communication with the disabled, and the removal of architectural and communications barriers.‖ 68 Because the objective of Title III is to protect the disabled, it is very likely that, at trial, the court will find there is the requisite nexus between the physical locations of the Target stores and Target.com, viewing them as one continuous marketing effort that, when separated, are indistinguishable.69 Assuming the trial court rules that there is a sufficient nexus between Target‘s website and Target‘s stores, what are Target‘s options? ―[T]he ADA requires ‗reasonable modification‘ of ‗policies, practices, and procedures.‘‖70 A defense to this requirement is when enabling the disabled individual full access or equal enjoyment ―would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in 66 See generally Target Home Page, http://www.target.com/gp/homepage.html (Last visited Nov. 18, 2006). See also Target, 452 F. Supp. 2d at 950. ―[T]hrough Target.com, a customer can access information on store locations and hours, refill a prescription or order photo prints for pick-up at a store, and print coupons to redeem at a store.‖ Id. 67 Target Inc. obviously created and maintains Target.com. Target Inc. uses its website as a tool for communication and an extension of its primary business, reiterating many of the same announcements and offers that are provided in the physical, brick and mortar stores and on Target‘s television commercials. Seeing that there is such a similarity between their functions and that a reasonable customer would view them as one in the same for communication purposes, the court should rule that there is a sufficient connection between them, a nexus, such that they should be treated interchangeably for the issue of discriminatory access to a physical place of public accommodation. 68 Target, 452 F. Supp. 2d at 951 (quoting 42 U.S.C. § 12182(b)(2)(A)(ii-iv) (1990)). See supra notes 65-67 and accompanying text. Target, 452 F. Supp. 2d at 951 (quoting 42 U.S.C. § 12182(b)(2)(A)(ii-iv) (1990)). 69 70 16 an undue burden.‖ 71 Would requiring Target to update its website constitute a fundamental alteration or undue burden? The plaintiffs claim that ―designing a website to be accessible to the blind is technologically simple and not economically prohibitive.‖ 72 It is safe to say that Target Inc. is not hurting for money.73 Claiming that modifying the website would be an undue burden seems unlikely to be a winning defense for the retail juggernaut due to their market share and revenue stream. In the absence of the undue burden defense, Target is then left with arguing that modifying the website would require a fundamental alteration of the website‘s nature. This most likely will be a losing argument as well since the changes necessary are not even seen by websurfers.74 For a website to comply with the needs of blind individuals so that their screen reader software can function properly with the websites, the host of the website should have ―‗alternative text‘ which would provide a ‗screen reader‘ program the ability to communicate via synthesized speech what is visually displayed on the website.‖ 75 Creating text that is only seen by another computer software program is hardly a fundamental alteration of Target.com. Thus Target will probably not be able to defend itself effectively and should have to comply with Title 71 42 U.S.C. § 12182(b)(2)(A)(ii) (1990). Target, 452 F. Supp. 2d at 949. 72 73 According to Securities Exchange Commission: EDGAR filings, http://www.sec.gov/Archives/edgar/data/27419/000110465906024036/a06-2369_1ex13.htm (last visited Nov. 18, 2006), Target Inc. had revenues over 1.2 trillion dollars in 2004 and over 1.4 trillion dollars in 2005. Target Inc. has 858.69 million shares outstanding at closing price of roughly forty eight dollars on September 6, 2006 (the decision date of this case). This gives Target Inc. a market capitalization (price multiplied by the number of shares outstanding) of roughly 41.2 trillion dollars. Yahoo! Finance, http://finance.yahoo.com/q/bc?s=TGT&t=3m (last visited Nov. 18, 2006). 74 Target, 452 F. Supp. 2d at 949. ―Protocols for designing an accessible internet site rely heavily on ‗alternative text‘: invisible code embedded beneath graphics.‖ Id. 75 Access Now, 227 F. Supp. 2d at 1316. 17 III of the ADA by making its website accessible to those individuals with visual impairments or severe the ‗nexus‘ between the website and the physical stores. IV. Argument A. Hey Judge, You Got It All Wrong! The Internet Should be a Place of Public Accommodation Is the internet a place of public accommodation? Ideally, yes, it should be viewed as a place of public accommodation. Aside from the fact that there actually is a physical place where an internet site does reside, the internet should be a place of public accommodation for several reasons. It is such a widespread platform of communication that people access several times a day. While you cannot go ‗into it‘ like ―an office of an accountant or lawyer,‖ 76 a person can get their laptop serviced, 77 much the same way as one would their shoes somewhere else. There is nothing else like it. Accessing the internet allows a person to virtually and literally see the inside of a store anywhere on the planet. If a company allowed access to some people and denied it to others, it would be blatantly discriminatory.78 Effectively this is what is happening on the internet. On the other hand, a person‘s body does not physically enter the internet. However, a place of physical accommodation was not defined by the ability of one‘s person to enter a physical structure. Alternatively, in today‘s electronic age where so much commerce is done on the internet, it only makes sense to extend the protections of the ADA to the internet. If the 76 42 U.S.C. § 12181(7)(F) (1990). 77 See Symantec, Support, http://www.symantec.com/home_homeoffice/support/index.jsp (last visited Mar. 7, 2007). Through this website and with a valid subscription, a person can get their computer cleaned of viruses, same as if ones shoes were sent through the wires of the internet to Symantec, and then returned on those same wires, but unlike using the mail, the person‘s computer never leaves their possession. 78 This would be in reference to the highly unlikely case where someone were at the door opening it for some and closing or blocking it to others. It would be offering the contents of the inside of the store to those certain individuals that the store deemed worthy, and the unlucky or unworthy ones would be left to wonder what‘s inside. I cry foul! This is not the South in the 1950‘s! 18 courts do not realize the importance of this now, it will regurgitate the same benign neglect that characterized the attitude toward the disabled for so long. In the last year, e-commerce has totaled over 100 billion dollars. 79 How much of an impact will the internet need to make on people‘s lives before Title III‘s protection will be extended to include it? From one year ago, e-commerce is up nearly 20%,80 and according to the Census Bureau trends, it does not appear that this movement shows any sign of slowing. With so much commerce occurring on the internet, protections are needed for those with disabilities lest they be discriminated against or worse left out as a neglected part of society. Making the internet a place of public accommodation will ensure that everyone at least is treated equally with respect to the internet. It will help those with visual impairments to have more of the same opportunities as those without visual impairments. There are at least one and a half million people with visual impairments who actually use the internet and the potential for at least eight and a half million more. 81 Making the internet a place of public accommodation would directly improve their lives, making a whole host of information and services more readily available. The Sixth, Ninth, and Eleventh Circuit‘s argument that the internet is not a place of public accommodation relies on the fact that it is not a physical place. This conception of the internet is ill-conceived. The internet does in fact have a physical place. Computers are connected through fiber-optic cables and servers that house web addresses and websites. The website is contained in the company‘s server in electronic form. The server is a very real thing 79 U.S. Census Bureau News, http://www.census.gov/mrts/www/data/pdf/06Q3.pdf (last visited Nov. 20, 2006). 80 U.S. Census Bureau News, http://www.census.gov/mrts/www/data/pdf/06Q3.pdf (last visited Nov. 20, 2006) and U.S. Census Bureau News, http://www.census.gov/mrts/www/data/pdf/05Q3.pdf (last visited Nov. 20, 2006). 81 Access Now, 227 F. Supp. 2d at 1314. 19 housed in a very real place, usually the companies head offices. Much the way you can destroy a physical place with a bulldozer; a person can destroy a company‘s website by smashing its server with a baseball bat. From a visually impaired person‘s computer, an electronic signal is sent into a company‘s server. By not providing software that enables the signal, that went into that physical space in the server, to be transmitted into an auditory form via the screen reader, the company has allowed those without visual impairment effective access to the web content, but has denied that same access to the blind. 82 This is discrimination ―to the opportunity to participate in the benefit‖ 83 and use to a physical place. Those with visual impairments, through their computer, have entered into the physical server of the company, and are not able to access the information there, whatever it is. Thus, they have been denied access to a physical place of public accommodation, the web server and Title III prohibits this.84 Not only the visually impaired would benefit from an internet that is a place of public accommodation, but many others as well. First, companies would have ten million more potential customers. On a more specific level, in Access Now, the plaintiffs would have been able to access the ‗virtual ticket counter‘ whether or not it actually existed. They would actually 82 This is very similar to the ―off site screening‖ in Rendon v. Valleycrest Prod., Ltd., 294 F.3d 1279 (2002). In that case the use of the phones as a means to effectively screen out those with hearing impairments or upper-body mobility-impairments, was held to be a valid claim under Title III. Id. Just as ―the fast finger contestant hotline was a discriminatory procedure that deprived them of the opportunity to compete to be a contestant on the Millionaire game show,‖ the lack of access to the server, here through a computer rather than a telephone, deprives them of the opportunity to use the Target stores or at the minimum, the sale and promotions offered on the website. Id. at 1281 n.2. 83 42 U.S.C. § 12182(b)(1)(A)(ii) (1990). 84 42 U.S.C. § 12182(a) (1990). ―No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.‖ Id. 20 ―be free to move about the country‖85 without having to make one more modification to their travel itinerary. Also, the purpose behind the ADA would be served because those with visual impairments could book a flight in the same manner as those without visual impairments are able.86 This would lead to a greater sense of self determination for the disabled, and in cases such as Doe v. Mutual of Omaha, the defendant would no longer be able to sell policies that discriminate on the basis of coverage for people with AIDS and HIV over the internet. The internet should be a place of public accommodation. To hold that the internet is not would be to have no knowledge as to the internet‘s underlying fundamentals and would be against the very purpose of the ADA. The internet is such a large part of today‘s commerce and lifestyle that to preclude those with disabilities from its use is discrimination. B. They Didn‟t All Just Get Their Licenses. Give Them the Keys to the „Nexus‟! 87 If the internet is not a place of public accommodation, can a website be so related to a physical place that the ADA may still apply? Assuming arguendo, the internet is not adjudicated to be a place of public accommodation: Where there is a sufficient nexus between a company‘s website and the brick and mortar store such that they are deemed in unison for purposes of customer communication, the website should be ruled to discriminate to the physical store when the website is inaccessible due to a person‘s disability. Title III of the ADA prohibits barriers to accessing places of public accommodation. 88 By giving non-visually impaired persons effective access to their physical stores through their website‘s directions, promotions, advertisements, and 85 ―You are now free to move about the country!‖ is Southwest Airlines‘ company slogan. Wikipedia, The Free Encyclopedia, http://en.wikipedia.org/wiki/Southwest_Airlines (last visited Mar. 3, 2007). 86 See Access Now, Inc. v. Southwest Airlines, Co., 385 F.3d 1324 (11th Cir. 2004). If you replace the word ―Nexus‖ with ―Lexus,‖ you‘ll get the joke. 42 U.S.C. § 12182(b)(2)(A)(iv) (1990). 87 88 21 other content not accessible to the blind, a company is discriminating against the visually impaired by not making that same information available to them. Because the content of many websites is so integrated into the physical store‘s overall marketing scheme, the vast majority of websites with a physical store will satisfy the nexus requirement leading accessibility to a great percentage of the internet. The fact that one person can go onto a website and find special deals merely because they have the ability to see and another, through no fault of their own, cannot, is discrimination. This nexus is the crux of the National Federation of the Blind‘s argument in Target.89 They are effectively being denied equal access to Target stores because they are not able to use the company‘s website in an equal manner. A person without visual impairments can access Target.com and find out about the ―2-Day Sale‖ on November 24 th.90 A person with visual impairments is precluded from this information and may never know that they can find Target‘s ―Lowest Prices Ever.‖ 91 How Target can say that their website does not prevent equal access to their physical stores is beyond the scope of this paper. Those who can access the website are educated about this information and those who cannot are not. This plainly discriminates ―on the basis of [a] disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, [and] accommodations of [a] place of public accommodation.‖ 92 Should the courts grant the ‗nexus‘ protection, it will not only extend to Target Inc., but the vast majority of stores. With so many retail stores having websites, a slew of new 89 Target, 452 F. Supp. 2d at 950. ―Plaintiffs allege that Target.com lacks [alternative text] that would enable the blind to use Target.com. Since the blind cannot use Target.com, they are denied full and equal access to Target stores.‖ Id. 90 See supra note 66. See supra note 66. 42 U.S.C. § 12182(a) (1990). 91 92 22 possibilities will be opened to the visually impaired and remain open. The websites will have to comply with the judgment granting permanent access to a large portion of the commercial side of the internet. While it may not be a perfect solution, it is a start. With a large portion of the internet seeing increased revenue from the new customers, the rest of the internet may take notice and follow suit. In a competitive market, every customer counts and those websites who continue to prevent access to the visually impaired will see their market share diminished. Even if the internet is not a place of public accommodation, it is, in many circumstances, such an integral part of a company that denial of access to the website denies access to the physical store as well. In cases where there is a close nexus between the two, the court should rule that unequal access violates Title III of the ADA. V. The Problems Faced & A Possible Resolution A. Money, Money, Money In the general context the biggest obstacle is cost. The cost to a single company to update its website and monitor it so that it remains compatible to the blind while at the same time maintaining the function and security of the site could be extraordinarily high if the company has to do the development of the software itself. Companies will want to expend the least amount of money to recoup the greatest amount of return. For a corporation that sells items that a blind person would have little conceivable need, there appears no business backed justification for spending thousands of dollars to upgrade its website for a person who at most may gain only a small amount of information, but will, in all honesty, not be a consumer of the goods offered. A visually impaired person may gain from the access to such sites, but there is no incentive for the company to expend the resources needed for this to happen aside from failure to comply with the ADA and a possible lawsuit. 23 B. Like Everyone Else From the visually impaired person‘s point of view their problem is access to the internet in general. A visually impaired person who wants access to the internet should not be required to purchase a screen reader for all the various websites. If every website had its own software compatible with its own version of a screen reader, a visually impair person would have access to the website but may have to purchase hundreds of different screen reader programs to allow them to access in the same manner as non-visually impaired persons. This could be an astronomical expense for a blind person, and will not be a feasible solution, even if every website was accessible. If every site contained ‗alternative text‘ but required a unique screen reader to vocalize it, it would still amount to discrimination, but this time it would be through economics. C. And the Beat Goes On If the internet is deemed a place of public accommodation or the court recognizes the nexus argument, the problem will end there. Either all websites will have to enable screen readers to access the content of their web pages or only those that have an integrated website and a physical location. If either of these comes to fruition, the visually impaired have virtually won and as the reader of this article, you can stop empathizing with the blind and go enjoy your sunset. In all likelihood however, National Federation of the Blind will settle out of court with Target, and the case will go on a library book shelf collecting dust until the next lawsuit is brought against a discriminatory website and settled out of court. There still remains, however, an unprecedented dispute, the likes of which have not yet been encountered. Thousands of visually impaired persons have computers that are not compatible with the millions of websites that compose the internet. This means that there are thousands of possible plaintiffs who can sue 24 every website tied to a physical store at any moment. The liability to a company will be huge. D. What to Do in the Mean Time The end result for companies is to make the lawsuits and the threat of litigation go away and for the visually impaired is to access the internet. Complete integration of the two will be a daunting task, but to alleviate the threat of litigation and improve accessibility at the lowest cost to both parties requires a meaningful solution. There has to be a better way to accommodate the different groups of people ending in a mutually beneficial solution by the increased traffic to the websites and allowing the needed access to the blind. Litigating this dispute will only create tension between the visually impaired and the companies hosting the websites, thus a peaceful, alternative solution must be found. Paramount to resolving the dilemma of making visually impaired persons‘ computers compatible is assigning whose responsibility it is to fit the bill for the needed software. 93 On the one hand, the websites must have the invisible text behind the webpage, and on the other, the blind person‘s computer accessing the website must be equipped with the needed software to allow verbal communication of the site‘s content. No doubt as technology changes so will the need for the software to be updated. Requiring any single internet site to develop and create a new auditory functioning program would probably be a fundamental alteration, not to mention the extreme amounts of litigation it would take to force all websites to comply. To solve this dilemma, I believe the best solution is to: (1) encourage donations from internet websites to create a universal software program that can install the needed ―alternative text‖ onto a website to allow a screen reader to voice the contents, (2) from the proceeds of the donations, create a 93 While there is not set price for upgrading the invisible text that the screen reader needs to function, the price of screen readers is substantial. Prices range from $249 to $1495. National Federation of the Blind, http://www.nfb.org/nfb/Technology_Resource_List1.asp?SnID=1478381519#SS (last visited Mar. 3, 2007). 25 screen reader that is compatible with the new website software, and (3) charge a small service charge for the downloading of the screen reader software by the visually impaired to make up for any short falls from inadequate donations. Once the initial program is created, a very small annual donation by the websites will allow the software to remain up-to-date and compatible with the latest releases of the various operating systems. By creating a universal program and universal screen reader, it will disperse the cost over the greatest amount of people making it as cost effective as possible. The solution is similar to the resolution for DES claims, Enterprise Liability.94 As in Enterprise Liability, the solution proposes that each website should donate proportionately to its amount of fault in the total market and share the cost to provide free software for blind persons. This donation should be calculated based upon the projected cost to develop the software and screen reader technology and divided amongst the websites proportionally by the amount of revenue they generate through the internet. The government agencies‘ rate of proportionate total internet traffic can then make up for those websites who refuse to or are incapable of donating to the fund. E. What‟s In It For Me? The Benefits In addition to receiving a tax deductible donation, 95 donating websites would also experience increased brand advertising through a list commending the donors on the website where the blind would download the needed software. Donors will also experience increased 94 Naomi Sheiner, DES and a Proposed Theory of Enterprise Liability, 46 FORDHAM L. REV. 963 (1978). Since ―a majority of plaintiffs cannot identify the manufacturer of the drug, [DES], ingested by their mothers[,]‖ the author proposes enterprise liability. Through ―the process of fusion, both theories, [alternative liability and concert of action] have been modified to enable the plaintiffs to plead and prove their case more easily, and also to protect defendants.‖ Id. at 974. Enterprise liability basically holds the maker of the drug liable to the extent of its market share at the time of the plaintiff‘s injuries. See generally Id. 95 See 26 U.S.C. § 170. While § 170 does not allow a company or person to donate to an individual person, a donation can be made to a cause whereby the mission of the cause is furthered. Setting up a new non-profit organization with the specific goal of creating computer software for the blind and allowing them access to websites that have not yet updated the invisible text would be the most effective manner to bring about these goals. 26 goodwill. Customers will see which companies truly do have the community‘s best interests at heart and will be able to shop accordingly. This goodwill will come not only from the blind, but from their friends and family as well. Every person affects others around them. When the care takers of the visually impaired realize that less effort will be needed to care for the blind, given a choice most likely they will patronize the stores that made their lives easier by giving those under their care a greater sense of self-determination and freedom. These are just a few of the benefits that donors will receive, and many more may come. F. Am I Qualified to Donate? There are three basic types of websites: (1) a for-profit website, (2) a government website, and (3) a purely informational website. Ideally, all websites should heed the call and better the lives of their fellow humans. But specifically, for-profit websites should donate the majority of the funds because they will receive the biggest reciprocal benefit by doing so: they will get a tax write-off by giving the donation, and they will have an increased potential customer base. The sheer number of for-profit websites will make the total amount donated relatively small in comparison to any one company‘s bottom line. They are the ones who are discriminating in the opportunity to access the services and products of their websites, and they should be the ones who are correcting the problem. Of the for-profit websites, those websites who have a close tie with a brick and mortar store should be required to give to those they are preventing from accessing their site and effectively their brick and mortar store. Also, they are the ones most at risk of possible litigation. This alone should motivate the websites to find a solution. Encouraging companies to donate does not need to be accomplished by angry mobs picketing in front of stores, but rather through public awareness. This would be the most effective means to communicate the message of website discrimination of the blind and also of 27 spreading the word to those that are indeed helping those less fortunate. If, for example, it will cost $100,000 to create the software and Target.com represents 1% of total internet revenue, they would donate 1% of $100,000 (or $1000). Of the billions of dollars that are generated through internet commerce, this seems an equitable solution. I do not propose that any one website donate all the necessary funds, but only suggest that each website donate its share. Government agencies should also contribute to the fund to create a universal program and compatible screen reader because there is a high volume of traffic on government sites for which for-profit sites should not have to fit the bill. While it would be easy to just say that the government should pay for all needed software, it is not their fault that companies are incompatible with the needs of the blind. However, government does affect everyone in America, and so they should also aid in the solution. Because the government does not sell anything (except for maybe one candidate‘s lies over another‘s), the government does not have any sort of revenue to be taxed, and thus the market share of internet profit or sales attributable to the government will not work. For government websites, they should donate as a function of their use or traffic. If for example 15% of internet traffic is done by browsing government websites, then the government should donate 15% of the $100,000 needed to create the software. Having the government donate in this manner, will help correct the deficiency created by those websites who refuse to donate any sort of funds to the cause and those who are just barely staying afloat and are incapable of giving any money. On the other hand, purely informational websites should not need to donate to the fund because they are not using the internet for monetary gain. Even to attach a social stigma to those 28 sites that are not making any money but do not donate, would hinder the free flow of information that as come to be the backbone of the internet. These would include university websites that make their libraries available to the public, or a personal blog displaying the author‘s opinions on various matters. While there may be some round-about benefit that is derived from posting information for free on the internet, this would not seem to outweigh the need for them to pay into the fund. Also, these are the websites with the least possibility of being sued. It would be counter productive for a plaintiff to sue a webpage that had no income. Even if there is no profit from a website, its content may be of huge value to the blind. Because it would be only a very minor incremental cost, I further propose that those internet sites that do purely provide information to the public should receive for free the software that will enable the visually impaired person‘s screen reader to access the website. By allowing purely informational site to have this software at no charge, it will encourage more free dissemination of information and it will allow the visually impaired to access the entire internet in a meaningful manner. VI. Conclusion The ADA protects the disabled. By bringing the internet within the jurisdiction of Title III, the purpose of the ADA is served. The internet should be a place of public accommodation or a nexus argument should be recognized to curb the inadvertent discriminatory nature of many existing websites. Until the court rules directly on the issue, voluntary donations to a non-profit organization to create universal software and small fees from the visually impaired will be the most cost effect means to satisfy the needs of both parties while providing beneficial results to all. Kenneth Natelborg 29