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Bar Journal - March 1, 2001

Do Internet Merchants & On-line Stores Need to Provide 'Electronic Ramps' to Comply with the ADA?

By:

I. INTRODUCTION

The Internet has dramatically changed and grown since its humble beginnings. Once a means of sharing information used mostly by academics and scientists, it has been transformed into a quickly evolving and expansive digital economy accessible to millions of individuals around the world. The Internet has become an international marketplace of stores, retail shops, business and service providers. Sometimes these online entities are a digital adjunct of a "brick and mortar" store existing physically, but other entities exist and can only be accessed through the Internet.

Prior to the development and dominance of graphically-oriented computer operating systems such as Microsoft Windows that heavily rely on a "point and click" mouse interface and a visually demanding graphic display, the Internet could be accessed using a keyboard and a computer with a simple text display. Blind individuals are able to use computers through "screen reader" software that converts text displayed on a computer screen into speech or Braille. However, this type of software cannot read text that is embedded into graphics or drawings. Other elements of graphically oriented software also pose problems for screen reader software such as the use of columns, drop-down menus, text boxes and other items that can only be selected or accessed by positioning a mouse pointer on them and clicking the mouse.

Graphically oriented elements, which make the Internet easy to use for many computer users, are a "forbidding and frustrating challenge" for those with physical disabilities.1  As one author noted, "[f]or many of the one out of five people in the United States who are disabled in one way or another, the experience of surfing the Internet can be more akin to crawling."2  Even when individuals with visual impairments are able to get onto the Internet with one of the few accessible browsers they are often stopped short by web sites that place a high premium on graphics, drop-down menus. Other individuals with disabilities, such as those who are deaf or hearing impaired, also have been adversely affected as web designers, particularly those who design for on-line merchants, incorporate video, audio and sound files into their web site designs. As a result of the heavy use of graphics and other multimedia with little actual text on web sites, the Internet "superhighway" has left many individuals with disabilities behind without the "electronic ramps" they need to access the many goods and services sold by Internet companies.

Although the Internet has often viewed as a place that is or should be immune from laws and regulations, its rapidly growing commercial activity is no different than other forms of commerce that are regulated by state and federal laws. In recent years, federal and state agencies have stepped up their efforts to ensure that existing laws and new laws aimed at internet commercial activity are followed by internet companies. Internet merchants need to ensure that their Internet stores, like those made of "brick and mortar," provide the appropriate means of access for individuals with disabilities as required under the Americans with Disabilities Act of 1990.

II. THE PURPOSE OF THE AMERICANS WITH DISABILITIES ACT

The Americans with Disabilities Act (ADA) was passed in 1990 by Congress to help alleviate the wide-spread discrimination and segregation against individuals with disabilities in many major areas of life – including employment, housing, public accommodations, education, communication, recreation, health services, voting, and access to public services.3 

In the introduction to the ADA, Congress noted, "Historically, society has tended to isolate and segregate individuals with disabilities, and despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem." The discrimination encountered by those with disabilities includes not only "outright intentional exclusion" but also the "effects of architectural, transportation, and communication barriers" as well as "relegation to lesser services, programs, activities, benefits, jobs, or other opportunities."5  Thus, "people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally."6  Noting that individuals who have experienced discrimination because of disabilities often have "no legal recourse to address such discrimination, Congress passed the ADA to provide a "clear and comprehensive national mandate" and "enforceable standards" to eliminate discrimination.8 

III. TITLE III OF THE ADA: ARE ON-LINE RETAIL STORES "PUBLIC PLACES OF ACCOMMODATIONS"?

Under Title III of the ADA, "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 public of public accommodation."9  Section 12181(7) provides a definition with twelve categories of entities that are public places of accommodation if the operations of these entities affect commerce.10 

Section 12181(7)(E) explicitly recognizes certain retail entities, such as a clothing store, hardware store, and shopping center, are "public places of accommodations." But this list is not finite – it also includes "other sales or rental establishments."11  This statutory device, which is also used in the other eleven categories, allowed Congress to list some examples of what it meant by "public places of accommodations" while providing flexibility to cover the wide variety of sales and retail entities serving the public at that time and in the future. Without this flexibility, the ADA would not be the "clear and comprehensive national mandate"12  that Congress had intended for fighting discrimination.

In 1996, the Department of Justice, which is responsible for enforcement of Title III of the ADA, published a letter responding to an inquiry by Senator Harkin regarding the accessibility of web pages on the Internet to people with visual disabilities. The Department of Justice stated:

The Americans with Disabilities Act (ADA) requires State and local governments and places of public accommodation to furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities, unless doing so would result in a fundamental alteration to the program or service or in an undue burden. 28 C.F.R. § 36.303; 28 C.F.R. § 35.160. Auxiliary aids include taped texts, Brailled materials, large print materials, and other methods of making visually delivered material available to people with visual impairments.

Covered entities under the ADA are required to provide effective communication, regardless of whether they generally communicate through print media, audio media, or computerized media such as the Internet. Covered entities that use the Internet for communications regarding their programs, goods, or services must be prepared to offer those communications through accessible means as well.13 

The Department of Justice clearly recognized that just the ADA prohibits discrimination caused by communication barriers in a "brick and mortar" store, it requires covered entities that communicate, advertise and sell their goods and services via the Internet offer an reasonably accessible mode of communication for individuals with disabilities. Just as a shopkeeper must use an auxiliary aid14  to communicate with a shopper who is deaf in her store, so must an Internet merchant find appropriate methods to effectively communicate with individuals who because of a disability cannot read or hear the material on that merchant’s web site. For example, the shopkeeper communicating with the deaf individual mentioned above may use something as simple as a pad of paper and pen to communicate.15  Likewise, for Internet merchants, solutions include using text labels to augment but not replace graphics or sound files on web sites.

Although the 1996 Department of Justice letter clearly defines the agency’s position regarding internet accessibility to places of public accommodation that use the Internet, courts have not yet had an opportunity to directly address this issue. In recent years, publicity about several lawsuits filed by advocacy groups has helped promote awareness of the need for companies and merchants using the Internet for communication to provide accessible Internet sites.16 

On April 17, 2000, Connecticut Attorney General Richard Blumenthal announced agreements with four companies to make their Internet site accessible to the blind.17  The four companies, HDVest, Intuit, H & R Block, and Gilman & Ciocia, all provide on-line federal income tax filing services to consumers.18  The Connecticut Attorney General’s office and the National Federation of the Blind (NFB) tested the web sites of the four companies and found that they were inaccessible to the blind.19  After the Connecticut Attorney General’s office notified the companies that their web sites20  did not comply with Title III, the companies agreed to make them accessible. Attorney General Blumenthal stated: "The blind should have equal rights and effective access in traveling the Internet’s information highway. Disabled Americans should not have to reinvent or reassert such basic rights in the new Information Age, just because the means of access now is a computer rather than stairs or sidewalks."21 

In what was described as a "path-breaking discrimination lawsuit,"22  The National Federation of the Blind filed a lawsuit against America Online, Inc. on November 4, 1999, alleging that the Internet service provider violated Title III of the ADA by making its service inaccessible to computer users who are blind.23  The complaint filed in the US District Court for the District of Massachusetts,24  included four counts: (1) Violation of the ADA’s Communication Barriers Removal Mandate, (2) Violation of the ADA’s Auxiliary Aids and Services Mandate, (3) Violation of the ADA’s Reasonable Modification Mandate, and (4) Violation of the ADA’s Full and Equal Enjoyment of Services Mandate.25  Before the parties agreed to a settlement on July 27, 2000,26 this high profile case had the potential to have "widespread ramifications…[for] the online industry and for a variety of other service-based businesses."27 

The implications of the AOL lawsuit for on-line businesses and disabled individuals were significant because the lawsuit would have, for the first time, placed the question of whether an Internet-based service is a public accommodation and thus required to provide access to individuals with disabilities before a federal court.28  If a court finds that Internet service and communications are a public accommodation, this would lend judicial support to the position of the Department of Justice.29  Companies and Internet service providers who provide consumer goods and services via the Internet or otherwise engage in e-commerce with the public would need to comply with Title III. They "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."30 

However, before a court can address this question, it would need to decide whether a "place of public accommodation" is strictly limited to a physical place or structure. While no court has addressed this issue as it applies to the provision of goods and services over the Internet, the federal courts are divided on services provided by telephone, mail or other indirect means.31 

In 1994, the Court of Appeals for the First Circuit, reversing a decision by the U.S. District Court for the District of New Hampshire, found that establishments of "public accommodation" were not limited to actual physical structures.32 A "public accommodation," according to the district court, is "limited to actual physical structures with definite physical boundaries which a person physically enters for the purpose of utilizing the facilities or obtaining services therein."33  The First Circuit Court noted that because the list of twelve categories listed in 42 U.S.C.A. § 12181(7) included several specific types of services as well as "other service establishments," the plain meaning of the term "[does] not require ‘public accommodations’ to have physical structures for persons to enter."34  Furthermore, the court felt that both agency regulations and public policy concerns dictated that the phase should not be limited to physical structures.35  Using the example of "travel services" listed in § 12181(7), the court observed:

By including "travel service" among the list of services considered "public accommodations," Congress clearly contemplated that "service establishments" include providers of services which do not require a person to physically enter an actual physical structure. Many travel services conduct business by telephone or correspondence without requiring their customers to enter an office in order to obtain their services. Likewise, one can easily imagine the existence of other service establishments conducting business by mail and phone without providing facilities for their customers to enter in order to utilize their services. 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.36 

While the Second Circuit37  and the DC Circuit38  as well as some federal district courts39  have followed the First Circuit’s lead, the Third,40  Fifth,41  Sixth,42  and Ninth43  Circuits firmly believe that Title III of the ADA is meant to apply only to actual physical structures.44  Although the First Circuit, which would have heard the AOL lawsuit, would probably find that Internet retail stores are "public places of accommodations," the majority of the circuits are less likely to do so as long as they require a nexus to physical structures necessary for Title III. However, because of the debate and public policy reasons generated by a new law45  requiring federal web sites to be accessible, courts may decide that private web sites should be accessible as well under the ADA.

IV. WHY INTERNET COMPANIES AND MERCHANTS OPPOSE APPLYING THE ADA TO INTERNET SITES

Earlier this year on February 9, 2000, the Subcommittee of the Constitution, Committee on the Judiciary for U.S. House of Representatives held an oversight hearing on "The Applicability of the ADA to Private Internet Sites."46  The letters and statements by witnesses at this hearing presented many compelling reasons why the ADA should or should not apply to private47  Internet sites. During the ADA’s ten-year history, misunderstanding, fear and monetary concerns have frequently caused great controversy about the extent and applicability of the ADA to businesses and other entities. The Internet is not immune from this debate about the ADA.

The witnesses at the House hearing opposed to applying the ADA to internet sites brought forward a litany of concerns regarding potential regulation aimed at the Internet industry. Some of these witnesses are part of the Internet community as corporate officers, members or attorneys for Internet companies and trade associations, one is a writer who publishes his own web site. They envision a web of regulations that would slow or stop the development of technology and the evolution of the Internet. One witness feared that the Internet would be regulated by a rigid one-size-fits-all mandate based on "technologies and possibilities of today" that would not be suitable for changing technology. He felt that regulation would retard the innovation of accessibility technology.48 

Dr. Lucas, who serves on the Board of Directors of the US Internet Industry Association, felt that Internet merchants and other web site providers would focus their efforts on "avoiding litigation instead of addressing the real need of disabled net citizens to have access to the valuable content they provide."49  He predicted the cost of potential litigation would prevent future web sites from being developed.50 

Walter Olson, author of The Excuse Factory, painted a dire picture of the consequences of compliance with the ADA on the Internet:

…I view the ADA’s application as a serious thereat to the freedom, spontaneity, and continued growth of the Web. Indeed, it would be hard to find a better way to curb the current explosive upsurge of this new publishing and commercial medium that to menace private actors with liability if they publish pages that fail to live up to some expert body’s idea of accessibility in site design.51 

"[I]f everyone were to take their legal obligations [for accessible websites] seriously," Mr. Olson envisioned that the Internet would thrown into chaos, "hundreds of millions of existing [web] pages would be torn down" and "the posting of new pages, by the tens of millions would screech to a near halt" while web developers "trooped off to remedial tutorials."52  Equally troubling, he felt that compliance with the ADA would mean that "[m]any widely used and highly useful features on websites would be compromised in functionality or simply dispensed with for reasons of cost, delay or cumbersomeness."53  Further, he insisted that organizations "will feel pressure to use government-approved authoring tools rather than the free-form toolkit of HTML authoring methods available," causing compromises in cost, functionality, or flexibility.54 

Some web developers oppose creating accessible web pages because they believe that doing so will stifle their creativity by restricting the use of graphics and other technology. According to writer Lisa Vaas, many developers share the attitude expressed by a web designer who wrote in an Internet posting that "[The] burden is on the user. I’m not going to dumb down the graphics on my site for anyone!"55  Some web developers fear they must dispense with graphics completely and use only text in order to create accessible web pages.56 

Website owners and merchants, echoing an argument that was often voiced by businesses about the ADA when it was first implemented, are concerned about the cost of making accessible web pages. The HTML Writers Guild noted that a common myth about making web sites accessible to individuals with disabilities is that doing so costs 10% to 50% more in money and time during the development phase of a website.57 

Arguing against applying the ADA to the Internet, Elizabeth Dorminey inferred that because Title III of the ADA and its regulations did not explicitly include the Internet, Internet service providers or websites in the definition of "public accommodations," the ADA does not apply to these entities. She stated in her testimony:

Title III of the ADA applies to private entities that provide "public accommodations." As defined by statue and regulation, this term does not include the Internet, Internet service providers, or private websites. Nonetheless, the U.S. Department of Justice and some advocacy groups contend that the ADA should be applied to require universal access to the Internet by persons with disabilities, and propose that regulations be issued to achieve that goal. Such regulations would violate the First Amendment’s guarantee of the right of free expression.58 

Walter Olson argued that future regulations meant to be guidelines for ADA compliance would instead regulate speech and content, stating:

No one can guarantee that the club of ADA complaints will not be applied as selective leverage by pressure groups or even some day by the government to discipline media sites or other organizations for unfavorable or controversial coverage or opinion pieces. When we chill the spontaneous publishing of web pages, we chill not only commerce by also the way in which ordinary citizens increasing broadcast their views to the world.59 

Finally, witnesses argued that the Internet industry should be allowed to address the issue of accessibility on its own without regulation. One witness felt that regulations should not be imposed because the "industry has made substantial progress in this area," though he acknowledged that Internet accessibility is not adequate.60  He felt that the "application of the ADA to the Internet should not occur until industry has been given an opportunity to address the issues of accessibility in a commercial and competitive environment."61 

V. WHY THE ADA APPLIES TO MERCHANTS WHO SELL AND ADVERTISE USING INTERNET SITES

The ADA was intended by Congress, in an effort to combat widespread discrimination, to provide individuals with disabilities access to all major areas of society that other Americans are able to enjoy without barriers.62  As one author observed, "A major goal of the ADA is to remove the architectural and communication barriers encountered by people with disabilities," but "Congress was careful in drafting the ADA to balance the needs of people with disabilities and the legitimate concerns of businesses."63  Limiting the application of the ADA only to physical spaces or structures such as "brick and mortar" stores would defeat the intent of Congress to combat the long-standing discrimination against those with disabilities that has left them "a discrete and insular minority."64 

The Internet has become an integral part of American life, as the Federal Communications Commission Chairman William E. Kennard said in a speech on February 8, 2000:

In 1992, there were fewer than five million on-line users in the United States. In 1996 there were 27 million. Today, there are 80 million. No communications technology has grown faster in the history of the world. Internet traffic is doubling every 100 days. Over 40 percent of American households have Internet access. In 1998, the U.S. Internet economy was a $633 billion market, accounting for nearly 8% of the nation’s economy and 4.8 million jobs."65 

As Chairman Kennard noted correctly, these figures don’t fully demonstrate the impact of the Internet on American lives, he said that using the Internet, Americans file their taxes, apply for jobs, check movie times, reserve airline tickets, and even fall in love.66  When the ADA was written and then enacted, the Internet was a smaller community. In the words of the American Federation for the Blind:

We can certainly forgive those who could not see beyond stairs, curbs, and print-only material and who, like the rest of us, could not imagine the role the web would play in American life…ADA, written before the rapid rise of the Internet, may not provide a technical and legal framework that is completely satisfactory to representatives of the industry and disability alike, but its flexible principles of inclusion and access most certainly can and do apply.67 

The flexible nature of the ADA allows business to comply with Title III of the ADA using variety of methods and tools that do not place an undue burden on businesses. Compliance with the ADA does not require slavish adherence to the use of "government-approved authoring tools" nor will it stop web designers from using multimedia or otherwise restrict their creativity.

As noted earlier in this article, section 12182 of the ADA prohibits discrimination on the basis of disability to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.68  However, this general rule is not without restrictions or limitations. For example, discrimination includes "the 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."69  However, an entity need not make these modifications if it can "demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations."70  Likewise, it is also discrimination to fail "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 would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offer or would result in an undue burden."71 

This language acts to balance the needs of individuals with disabilities and businesses. While the regulations supporting some sections of the ADA are quite detailed, many solutions for Title III compliance are as simple as using a pad of paper to communicate with a deaf individual or adding text labels to augment pictures and other media on a web page. In its 1996 letter, the Department of Justice suggested a variety of other options similar to those found today in guidelines published by the Word Wide Web consortium (W3C) that includes representatives of the Internet industry.72  The HTML Writer Guild states that "Creating an accessible web site, for e-commerce or otherwise, is not an incomprehensible arcane art. Rather by simply following the established conventions on the creation of web pages, a web site can be rendered accessible."73 

As Charles Cooper explained in his careful analysis and testimony to the House Subcommittee, the ADA does not conflict with First Amendment rights because it is a content neutral regulation.74  While a full analysis is beyond the scope of this article and the reader should refer Mr. Cooper’s testimony, he provides a brief summary on this issue:

The overriding purpose of the First Amendment is to permit private parties to engage freely in expressive activities without governmental interference in the content of that speech. This core constitutional value simply would not be implicated by application of the ADA to ISPs. Requiring ISPs to provide their services in a format compatible with screen access software would not restrict the speech of these providers in any way: such a requirement would not alter the content of their speech; it would not restrict their editorial discretion over the material that they transmit or display; and it would not require them to display or otherwise engage in any speech that is not their own. Put simply, the values that are central to the First Amendment are not implicated by a statute that in no way restricts — and in fact expands — the dissemination of a speaker’s freely chosen message.

While the cost of creating accessible web pages is expected to be modest75  for most web sites, the benefits that companies can reap from these changes are substantial. Web designs accessible to screen reader technology for individuals who are blind will also be suitable for rapidly growing market of hand-held devices and cell phones that now provide access to the Internet and email.76  Accessible web sites also enable individuals who use older technology and Internet browsers to access online merchant sites. Finally, the population of disabled individuals is a large and growing population that businesses can’t afford to ignore when selling their goods and services.77  Efforts to make web sites accessible rather than merely loaded with flashy design elements will result in web pages that are easier to use, thus attracting and retaining customers.

Finally, although some Internet representatives have started to be come involved in developing accessibility standards, access to the Internet and the freedom that it provides for individuals with disabilities is too precious to be left solely in the hands of industry representatives. As one blind individual stated, "The Internet is not just a window on the world, but more and more it is the world."78  Although the ADA was passed ten years ago, we are still struggling to provide accessibility in the physical world to all Americans with disabilities. In the 7/24 world of the Internet, we cannot afford to wait ten years for the Internet to be accessible.

IV. CREATING DIGITAL RAMPS TO ON-LINE STORES AND OTHER WEB PAGES

A number of organizations and individuals have developed tools and guidelines to assist on-line merchants and other web site owners in designing web pages that are accessible to those with disabilities. This is a small sample of web sites devoted to accessibility issues.

"Bobby" Service – A free, online tool provided by the Center for Applied Special Technology (CAST) that will evaluate any web site page and provide a line-by-line report of items on the page that are not accessible. Web site operators whose web sites are accessible can receive permission to display a "Bobby Approved" logo on their web sites. A software version that evaluates entire web sites can be download at http://www.cast.org/bobby.

WC3 Web Accessibility Initiative (WAI) Guidelines – Contains guidelines and checklists for Internet accessibility for web site design and authoring tools. It also features technical guides, fact sheets and links regarding Internet accessibility. Its web site is at http://www.w3.org/WAI.

AWARE Center –This HTML Writers Guild site serves as a central resource for web authors for learning about web accessibility. Its web site is http://aware.hwg.org.

ICDRI – features an Accessibility Primer Page with links to many of these resources mentioned here - http://www.icdri.org/accprim.htm. Articles on the ADA and the Internet can be found here at Cynthia Waddell’s page, http://www.icdri.org/cynthia_waddell.htm#Papers.

TRACE Center’s Designing More Usable Web Sites – includes accessibility information and a list of browsers that have built-in accessibility features – http://www.trace.wisc.edu/world.

ENDNOTES

1. Jonathan Quinn, Making Sites Accessible to the Whole Wide World, The National Law Journal, November 8, 1999, (p. B14).
2. Id.
3. 42 USCA § 12101(a)(3) (West 2000).
4. Id. § 12101(a)(2).
5. Id. § 12101(a)(5).
6. Id. § 12101(a)(6).
7. Id. § 12101(a)(4).
8. Id. § 12101(b).
9. Id. § 12182(a).
10. Id. § 12181(7).
11. Id. § 12181(7)(E).
12. Id. § 12101(b).
13. 10 Nat. Disability Law Rep. 240 (emphasis added). Also available at http://www.usdoj.gov/crt/foia/tal712.txt.
14. 42. U.S.C.A. § 12182(b)(2)(A)(iii); see generally Jonathan Mook, Americans with Disabilities Act: Public Accommodations & Commercial Facilities § 3.02[3] (Lexis Pub. April 2000).
15. Mook, supra n. 14.
16. See generally S. Connolly, Compliance with the Americans with Disabilities Act in Cyberspace, 3 Cyber. Law 8 (Jan. 1999); Carl S. Kaplan, Is Cyberspace a ‘Public Accommodation’?, The New York Times – CyberLaw Journal, Nov. 12, 1999 at http://www.nytimes.com/library/tech/99/11/cyber/cyberlaw/12law.html.
17. CT Attorney General Press Release at http://www.cslib.org/attygenl/mainlinks/tabindex4.htm.
18 Id.
19 Id.
20. hdvest.com, turbotax.com, e1040.com, hrblock.com, and taxcut.com.
21. CT Attorney General, supra n. 17.
22. Kaplan, supra n. 16.
23. AOL Named in Disabilities Act Suit Filed by Blind Users, 17 No. 4 Andrews Computer & Online Indus. Litig. Rep. 7 (November 16, 1999), National Federation of the Blind Press Release at http://www.nfb.org.AOLpr.htm.
24. Complaint, No. 99-cv-12303 EFH (D MA, complaint filed November 4, 1999). When the lawsuit was filed, the NFB had posted a copy of the complaint on its web site, http:/www.nfb.org, but has since removed the complaint.
25. Complaint, supra n. 24.
26. Complaint, supra n. 24.
27. Ritchenya A. Shepherd, Net Rights for the Disabled, The National Law Journal, November 15, 1999 at http://www.lawnewsnetwork.com/stories/A9537-1999Nov12.html.
28. Shepherd, supra n. 27, Kaplan, supra n. 16.
29. 10 Nat. Disability Law Rep. 240. Also available at http://www.usdoj.gov/crt/foia/tal712.txt.
30. Kaplan, supra n. 16.
31. Shepherd, supra n. 27, Kaplan, supra n. 16.
32. Carparts Distrib. Ctr. Inc. v. Automotive Wholesaler’s Ass’n of N.E., Inc., 37 F.3d 12, 19 (1st Cir. 1994).
33. Id at 18.
34. Id at 19.
35. Id.
36. Id.
37. Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 32-33 (2d Cir. 1999), amended by Pallozzi v. Allstate Life Ins. Co., 204 F.3d 392 (2d Cir. 2000).
38. Wai v. Allstate Ins. Co., 75 F. Supp. 2d 1, 22 (D.C. 1999).
39. See id at 22 for survey of district court opinions.
40. Ford v. Schering-Plough Corp., 145 F.3d 601, 612-615 (3d. Cir. 1998), cert. denied 525 U.S. 1093 (1999); Menkowitz v. Pottstown Memorial Med. Ctr., 154 F.3d 113, 120-121 (3d. Cir. 1998).
41. McNeil v. Time Ins. Co., 205 F.3d 179, 186 (5th Cir. 2000).
42. Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1010-1113 (6th Cir. 1997), cert. denied 522 U.S. 1084 (1998).
43. Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000).
44. Although its decision in Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 558 (7th Cir. 1999), is not consistent with Carparts, the Seventh Circuit commented favorably upon the Carparts analysis.
45. 29 U.S.C. § 794d.
46. For copies of the testimony presented, see http:/www.house.gov/judiciary/con0209.htm.
47. Federal web sites are now required to provide accessible sites under Section 508 of the Rehabilitation Act, 29 U.S.C. § 794d. For more information see http://www.usdoj.gov/crt/508/508home.html.
48. Dennis C. Hayes, statement available at http://www.house.gov/judiciary/hay30209.htm.
49. Steven Lucas, statement available at http://www.house.gov/judiciary/luca0209.htm.
50. Id.
51. Walter Olson, statement available at http://www.house.gov/judiciary/olso0209.htm.
52. Id.
53. Id.
54. Id.
55. Lisa Vaas, Web Blind Spots, excite.news, April 16, 2000 at http://news.excite.com/news/zd/000416/21/web-blind.
56. Common Myths about Web Accessibility at http://aware.hwg.org/why/myths.html.
57. Id.
58. Elizabeth K. Dorminey, testimony and statement available at http://www.house.gov/judiciary/dorm0209.htm.
59. Olson, supra n. 51.
60. Lucas, supra n. 49.
61. Id.
62. 42 USCA § 12101(a) and (b).
63. Peter David Blanck, statement available at http://www.house.gov/judiciary/blan0209.htm.
64. 42 U.S.C.A. § 12101(a)(7).
65. Statement for the Record of the American Foundation for the Blind submitted to the U.S. House of Representatives Committee on the Judiciary Subcommittee on the Constitution regarding the Applicability of the ADA to the Internet available at http://www.afb.org.grg/2-9adawebst.html.
66. Id.
67. Id.
68. 42 U.S.C.A. § 12182(a).
69. Id. § 12182(b)(2)(A)(iii).
70. Id. § 12182(b)(2)(A)(iii).
71. Id. § 12182(b)(2)(A)(iv).
72. See generally statement and testimony by Judy Brewer, Director of the Web Accessibility Initiative (WAI) of the W3C at http://www.house.gov/judiciary/brew0209.htm.
73. Kynn Bartlett, Letter to the House Subcommittee on the Constitution at http://www.hwg.org/opcenter/press/OL-20000208-house.html.
74. Charles J. Cooper, statement available at http://www.house.gov/judiciary/coop0209.htm.
75. Accessibility solutions are considered inexpensive if implemented when a web site is first designed. However, one source states the cost of revising the hundreds of federal web sites and technology will be between $85 million to $691 million. See Carrie Johnson, Giving the Disabled Increased E-Access, The Washington Post, E02, August 24, 2000 at http://washingtonpost.com.
76. Kynn Bartlett at http://www.hwg.org/opcenter/press/OL-20000208-house.html.
77. Judy Brewer, statement available at http://www.house.gov/judiciary/brew0209.htm.
78. Gary Wunder, statement available at http://www.house.gov/judiciary/wund0209.htm.

The Author

Linda J. Spiller graduated from Franklin Pierce Law Center in Concord, New Hampshire in January 2001.

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New Hampshire Bar Association
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