National Council on Disability 

An Independent agency working with the President and Congress to increase the inclusion, 

independence, and empowerment of all Americans with Disabilities. 

WHEN THE AMERICANS WITH DISABILITIES ACT GOES ONLINE: 

Application of the ADA to the Internet and the Worldwide Web 

Position Paper 

National Council on Disability 

1331 F Street, NW, Suite 850 

Washington, DC 20004 

202-272-2004 Voice 

202-272-2074 TTY 

202-272-2022 Fax 

Lex Frieden, Chairperson 

July 10, 2003 

EXECUTIVE SUMMARY 

This paper analyzes and answers the critical question: Does the Americans with Disabilities Act 

(ADA) apply to commercial and other private sector Web sites, and if so, what does it require. 

Much discussion of this question seems to be conducted without careful attention to the case law 

and other authorities that have already built-up around this question. Beginning with a brief 

discussion of the role electronic communication has come to play in our lives, the paper then goes 

on to the placement of the ADA in the context of current technology and of computer usage in our 

country. Though many people are familiar with the term “digital divide,” the paper suggests that we 

ought instead to be focusing on the opportunities offered by the digital future. 

We next analyze all the legal background to the ADA and Internet access issue, pointing out 

authorities and scholarship on both sides of the question, and identifying as carefully and precisely 

as possible what these authorities actually do and do not say. 

Through this process, the narrow legal issues, bearing mostly upon the definition of the word 

“place” in Title III of the ADA, are brought into clear focus. The paper then goes on to analyze the 

meaning and application of this term, in light of the ADA’s legislative history, its plain meaning, 

and court decisions applying this term in nontechnology-based settings. 

Many authorities, including those that are opposed to the view that the ADA should apply to ecommerce, are cited and discussed. But based on all the authorities, the paper reaches the 

conclusion that the law does clearly contemplate the coverage of the Internet by Title III of the 

ADA. Finally, the paper explains the practical and economic arguments that should guide those 

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who may be called upon to apply the law, suggesting strategies by which the accessibility principle 

can be broadly implemented without disruption and with benefit to consumers and business alike. 

I. INTRODUCTION 

The emergence over the past decade of electronic communication, Internet technology and the 

worldwide Web have dramatically altered the lives of many Americans, and have in one way or 

another changed life for us all. Great transformation and many adjustments have been required to 

accommodate the new technology, opportunities and problems that these technologies have brought 

about. 

Nowhere is this more the case than in our law. American law has struggled to keep pace and to 

come to terms with the new technology. In the ongoing process of adapting our law to the Internet, 

we have had to do two things. First, we have needed to pass laws that deal specifically with issues 

created by the Internet. Examples of these are the Digital Millennium Copyright Act of 1998 

(DMCA), [fn 1] and the Digital Signature Act of 2000. [fn 2] Such new laws deal with 

complicated issues in far-reaching and controversial ways, but all new Internet-specific laws pale in 

complexity before the other task faced by our law. That second task is how to apply our existing 

body of law to the electronic age. 

No one would ever call American law simple. What with the interplay between federal and state 

law, between statutes and court decisions, and between arguably conflicting provisions, it is rare to 

find anything approaching unanimity even in the expert legal community on any difficult or novel 

point. For example, expert tax accountants routinely reach different bottom line numbers in 

preparing tax returns based on the same information. With the additional need to apply existing 

laws, ranging from criminal law to patent law to civil rights, in cyberspace, that complexity has 

sharply increased. [fn 3] 

The process of applying current law to the Internet is still further complicated by the rapid change 

in communications technology. E-mail spam for example has become a major issue, as people 

grapple with the potential of existing privacy laws or with the potential of new criminal laws to 

control it. Yet, were it not for a technology that allows people to send endless millions of messages, 

at virtually no cost and in little more than a few seconds, to recipients around the world, the social 

and legal issues associated with spam would not exist. Likewise, if an effective technological 

defense emerges, spam, as a legal issue, may largely disappear. 

II. BARRIERS TO DIGITAL EQUALITY 

While information-age technology has changed life for everyone, it has created unimaginable 

opportunities, and in some cases cruel frustrations, for Americans with disabilities. Quite naturally, 

most people initially think of the upside, of the potential for distance learning, telework, ecommerce, telemedicine, media access, online voting and so much more that, through computers, 

are available to everyone, including of course people with disabilities. But for many Americans 

with disabilities, as well as for many facing a variety of other barriers, access to this technology is 

more than just a matter of calling Dell on the phone or driving down to Radio Shack. Many barriers 

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exist to equal access, sometimes to any access, to these electronic resources for people with various 

disabilities in various settings. 

Some of the barriers to electronic and information technology access and participation faced by 

people with disabilities can be traced to a multitude of challenges to their equal opportunity and 

independent living. To the extent that people with disabilities tend to be poorer than others, they are 

likely to have less access to a wide variety of society's benefits, including to technology and to what 

is available through technology. Such lack of access is self-reinforcing and contributes to further 

disparity in opportunity. To the degree that people with disabilities have lower levels of education, 

lesser choices in accessible housing, fewer options in transportation, or face other structural barriers 

such as minority status, residence in rural or inner-city areas that lack advanced 

telecommunications access such as broadband, or to the extent they are older, their disproportionate 

exclusion from digital access is all too readily foreseeable. [fn 4] 

But it is more than the circle of poverty and lack of opportunity that must be understood if we are to 

grasp the barriers faced by Americans with disabilities attempting to use the Internet. For even 

when economic resources, skill level, access to broadband in one's neighborhood, and all the other 

dividing variables are taken into account, the access of people with disabilities to the Internet is still 

limited by the way Web sites are designed and managed (in other words, by factors over which the 

individual with a disability can have no direct control). Some Web sites and pages are so badly 

designed, so unattractive, difficult to use or uninteresting that no one, with or without a disability, 

would be long detained by them. Some are so poorly designed that even an interested surfer cannot 

navigate them. But when we speak about the accessibility and usability of Web sites to people with 

disabilities, it is not these subjective variables to which we refer. Rather, it is the extent to which 

the sites incorporate certain objective features or design principles that allow their content to be 

accessed by persons who interface with the Web in different ways, typically with the use of 

assistive technology. 

It would surprise no one to be told that people who speak and read only another language cannot 

readily access textual Web sites written only in English. It should likewise no longer come as a 

surprise to learn that, while people who are blind can access the Internet with synthetic speech or 

braille output, they cannot do so if the Web site offers only graphics with no textual 

accompaniment to describe or explain what the pictures represent. Similarly, few who are familiar 

with TV closed-captioning would be shocked to be told that people who are deaf cannot access the 

audio content of Web casts unless captioning is available. [fn 5] 

Although discussion of Web access and disability often focuses on the barriers faced by people 

with sensory disabilities, particularly people who are blind, people with almost every type of 

disability encounter barriers to Web access and use. Many examples can be cited, involving people 

with speech, motor, cognitive, seizure and other disabilities. The key point in responding to their 

concerns (and to assuring Web site operators their largest possible audience) is that while 

considerable technology exists to facilitate interface with the worldwide Web for people with 

various disabilities, such user-based technology cannot by itself suffice to bring about full access. 

There are many key respects in which the ability of people with disabilities to access information 

and services, and participate in commerce, education or other activities online, is conditioned upon 

design decisions made by those who operate our Web sites. 

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The proper allocation of responsibility for access, and indeed the need to assure access, have long 

been controversial issues. In the physical realm, over many years, many of these issues have been 

settled. No one would any longer suggest that it is the responsibility of a person using a wheelchair 

to figure out a way to get up a flight of stairs into a restaurant, store, other public accommodation 

or a government office. We require that such facilities and resources be accessible to people using 

wheelchairs, meaning that it be readily possible for the person using the wheelchair to enter, leave 

and navigate appropriately within them. We do not expect people with physical disabilities to drag 

around their own portable ramps. We would not deem it seemly, safe or legal to require a person 

with a disability to submit to being carried bodily into the City Hall, let alone requiring that such an 

individual recruit his or her own carriers. 

The day may come when advances in mobility technology yield light, universally operable, lowcost chairs or similar devices that everyone can use, that hover on air, can maneuver in any space, 

and otherwise stretch the envelope of human factors and of physics. If that day comes, technology 

may well result in a reassessment of our laws. But until that day comes, and until our distribution 

system makes such halcyon technology available to all who want or need it, the obligation for those 

who deal with the public to make their facilities available to the public will continue to be a central 

feature of our laws and values. 

As time goes by, the same debates are unfolding, and the same awarenesses emerging in 

cyberspace. With time, we are certain to reach the same level of awareness and the same allocation 

of responsibility as we have largely achieved in the in-person, physical realm, but the path to this 

parallel level of awareness is a slow and tortuous one, and recognition of the analogy is 

complicated by many factors. Yet it is precisely at the intersection between our awareness of the 

physical and the virtual worlds that the meaning and destiny of the ADA are brought most sharply 

and inescapably into focus. 

Much of the argument, both for and against applicability of the ADA to the Internet, appears to 

involve people talking past one another, as we shall see. Those who support the law's application in 

cyberspace cite the enormous and increasingly central role played by the Internet in education, 

employment, commerce and even social and family life. They essentially argue that in light of these 

changes to our society, denial of access to the Internet, whether deliberate or through ignorance or 

indifference, condemns Americans with disabilities to inferiority of opportunity and second-class 

citizenship. A statute with the broad ameliorative purposes of the ADA, if it is not to be rendered a 

mockery, must possess the capacity and flexibility to cover those functions, services and activities 

on the Web that are identical in purpose and outcome to those that are expressly covered when 

provided in person. [fn 6] 

These arguments are very compelling, but from the standpoint of those who oppose a broad 

interpretation of the law's mandate, probably irrelevant. Opponents are surely aware of the 

implications of the Internet for opportunity and quality of life, and in some cases will be cognizant 

of access issues pertaining to people with disabilities or other digitally-disenfranchied groups. But 

often in their view, there are strong countervailing policy arguments against construing the law 

anymore broadly than its literal, pre-Internet language absolutely requires. [fn 7] 

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There is also a third group. Among those who believe that the Internet should come within the 

ADA Title III definition of “public accommodations,” there are those who believe that 

congressional action amending the current law will be required to bring this result about, or in the 

case of those who oppose such an application of the law, that congressional action will be required 

to prevent it. A congressional oversight hearing held three years ago still affords an interesting and 

informative glimpse into a broad range of views on the subject of the ADA’ applicability to the 

Internet. [fn 8] 

III. KEY ADA PRINCIPLES 

For any readers who may not be thoroughly familiar with the ADA or who may not have followed 

its interpretation by the courts, the National Council on Disability's series of ADA policy briefs, 

Righting the ADA, is highly recommended. [fn 9] 

In view of the existence of these policy papers and many other excellent resources, ([fn 10] this 

paper will concentrate on only those provisions and implications of the ADA bearing upon its 

application to the Internet and to other forms of electronic communication and commerce in 

cyberspace. In doing this three questions must be asked and answered: Is there anything in the 

ADA, in its implementing regulations, or in its authoritative interpretation by the Supreme Court 

that would in any way bar its application in online settings? Second, if the ADA applies in 

cyberspace, what are the criteria for determining when or whether it has been violated? And third, 

if the ADA applies in the virtual economy and world, are there proactive measures that covered 

entities can or should take to assure the adequacy of their compliance efforts, or must required 

actions be determined on a situation-by-situation basis? 

Our formulation of the first of the three questions in the previous paragraph may initially seem 

strange. More typically, this question would be posed as: Does the ADA apply to the Internet? To 

this question, the answer, as detailed below, is an unqualified yes. Only in certain key areas, most 

notably Title III “public accommodations,” does there appear to exist any material dispute on this 

key threshold question. As to Title I (employment) and Title II (state and local government), the 

applicability of the law to the Internet is not seriously disputed. 

The major civil rights provisions of the ADA are contained in three titles. Title I of the statute deals 

with employment, [fn 11] Title II with the services and programs of state and local government, 

([fn 12] and Title III with the goods and services of public accommodations and commercial 

facilities. [fn 13] 

(a) TITLE I 

Because the ADA was enacted in 1990, recent to be sure but before the public Internet existed or 

became a feature of everyday life, Title I, like the other parts of the law, does not refer to it. But the 

anti-discrimination scheme embodied in Title I and the role it envisions for technology leaves no 

serious doubt that such new technologies as the Internet are properly and necessarily to be taken 

into consideration in determining when or whether discrimination has occurred. 

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Title I requires covered employers [fn 14] to treat job applicants and employees with disabilities 

equally in terms not merely of the opportunity to work but also with respect to all terms, benefits 

and conditions of employment. [fn 15] No one has ever suggested that the requirements of the law 

are in any way tempered or eliminated when performance of the “essential functions” of the job 

requires that the employee access a Web site or communicate with others by e-mail, through access 

to bulletin boards, or through the use of Internet or intra-net capabilities. No case or serious 

scholarly or legal argument has ever been found to support the proposition that because a job's 

functions involve electronic communication, employers are relieved of the obligation to consider 

reasonable accommodations or other measures aimed at facilitating equal access to the tools of the 

trade. 

This is not to say that courts have required that Web sites be made accessible according to some 

legal standard of accessibility, or that particular disputes be resolved by the acquisition of hardware 

and software designed to facilitate access. Indeed, there are numerous cases holding that a 

particular computer access strategy sought by an employee is not required by law, either because its 

cost would impose an “undue hardship” on the employer, [fn 16] or because no technology that 

could facilitate competitive performance could be found, [fn 17] or because the employer had 

exercised its right to restructure the worker's job in such a manner as to remove the need for 

Internet access. [fn 18] 

By and large, the courts have not been friendly toward ADA plaintiffs alleging job discrimination, 

[fn 19] and many of the cases upholding the employer's right to refuse a job or to refuse an 

accommodation are harsh, but nowhere in the litany of reasons advanced in these court decisions 

for why workers with disabilities should be rebuffed is there a suggestion that Internet-oriented or 

Web-based performance issues or work settings are per se off-limits to the law's reasonable 

accommodation and nondiscrimination requirements. 

A number of key federal agencies with enforcement responsibility of Title I have also 

acknowledged the applicability to cyberspace of the law. For example, on December 26, 2002, the 

Federal Government, as part of the President George W. Bush’s New Freedom Initiative (NFI) 

issued proposals for enhancing telework programs for persons with disabilities. [fn 20] More 

recently, on February 15, 2003, the Equal Employment Opportunity Commission (EEOC), in 

carrying out its responsibility for implementing Title I of the ADA, issued a major new guidance on 

telework. [fn 21] To the degree that much, if not most, telework today is carried out with the use of 

computers, it is hardly likely that either of these initiatives would have been forthcoming if anyone 

had any doubt that the requirements of nondiscrimination in employment apply online as much as 

they do in-person. To the contrary, recent initiatives such as these, aimed at both federal and private 

sector work settings, reflect a pervasive awareness that employment opportunities for people with 

disabilities (and avoidance of discrimination against workers with disabilities) centrally involved 

the Internet. Put another way, if Title I did not protect workers with disabilities from discrimination 

in the use of and access to the electronic resources necessary to do their jobs, there could be no 

legal issue of discrimination against them and there would be no occasion for issuance of the EEOC 

guidance. Unequal treatment or access to telework via computer would be of no significance, and 

the EEOC guidance would be irrelevant. At the very least, the EEOC would have made clear that 

its definition of telework excluded Web- or other computer-based jobs. Of course, it neither stated 

nor intended any such qualification. 

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Additionally in this connection it should be noted that, apart from the ADA, several categories of 

employees are already guaranteed equal access to the Internet by law. These include: federal 

government employees whose work requires access to electronic and information technology 

(E&IT)(by virtue of Section 508 of the Rehabilitation Act Amendments of 1998); [fn 22] 

employees of governmental and private entities that are “recipients” of “federal financial 

assistance” (through the operation of Section 504 of the Rehabilitation Act); [fn 23] and employees 

or contractors of state or local government covered by state information technology (IT) 

accessibility and civil rights laws in several jurisdictions. [fn 24] 

(b) TITLE II and the Web 

Title II of the ADA bans discrimination on account of disability by state and local governments. It 

is not generally believed to apply to employment, which is governed by Title I, [fn 25] but does 

apply broadly to all the other activities of these entities. 

Title II is inclusive in its terms, referring and applying generally to all state and local governmental 

programs and activities. The statutory language is simple, brief and comprehensive: “Subject to the 

provisions of this subchapter, no qualified individual with a disability shall, by reason of such 

disability, be excluded from participation in or be denied the benefits of the services, programs, or 

activities of a public entity, or be subjected to discrimination by any such entity.” [fn 26] 

Among the means by which these requirements can be met, the statute lists: “reasonable 

modifications to rules, policies, or practices,” “the removal of architectural, communication, or 

transportation barriers,” or the provision of “auxiliary aids and services”. [fn 27] 

The test for who can expect to be protected by these requirements is also broad. Title II covers any 

“qualified individual with a disability” who “meets the essential eligibility requirements for the 

receipt of services or the participation in programs or activities provided by a public entity.” [fn 28] 

While eligibility for many programs, ranging from vocational rehabilitation to paratransit services, 

is based on individualized determinations as to whether a person meets the legal test for having a 

disability, and if so, whether the individual is eligible under the criteria for the program in question, 

many other governmental programs are offered to all members of the public. It is primarily in 

connection with the programs, services and facilities that state and local government offer to the 

public that such requirements as those for the removal of barriers or for the reasonable modification 

of policies and procedures come into play. 

An illustration drawn from the physical access realm may serve to put this point into context for 

electronic communication. Leaving aside the legalities, it would be absurd to renovate a public 

building without incorporating appropriate accessibility design features. Imagine a city defending 

such a decision on the ground that it would accommodate any individual's needs with ad hoc 

measures when presented. Economic and practical considerations would quickly demonstrate the 

folly of such a course. 

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Enter the Internet. For a variety of reasons, government at all levels has opted to make increasing 

use of electronic communications, ranging from information kiosks to online forms and agency 

Web sites, in its communication with the citizenry. On balance, policymakers appear almost 

unanimous in the belief that substitution of electronic and decentralized for in-person and facilitybased citizen-government contact results in reduced public sector costs and increased citizen 

participation and compliance. It is not the purpose of this paper to evaluate these assumptions. 

Rather, we are concerned with their implications for citizens with disabilities and with the law's 

ability to encompass them. 

If public Web sites of the sort that have increased with such rapidity over the past five years are not 

designed and implemented with accessibility and inclusivity in mind, they run the risk not of 

broadening but potentially of narrowing the participation of many people, especially if migration to 

on-line services is accompanied by cutbacks in facility-based, telephone-based, postal-based and 

other traditional service types. Ironically, since benefit to people with disabilities is a frequent, 

almost reflexive rhetorical justification for putting public services online, it can often be these very 

citizens with disabilities, arguably facing barriers in their access to traditional services, who 

encounter the greatest new accessibility barriers. Although administrative agency and court rulings 

on the subject are thus far few in number, such authorities as we have point strongly and 

consistently to the conclusion that Title II of the ADA applies to governmental Web sites, just as it 

applies to public buildings and physical facilities. 

1. EFFECTIVE COMMUNICATION 

In fulfillment of its oversight responsibilities for public education under both Title II of the ADA 

and Section 504 of the Rehabilitation Act, the U.S. Department of Education, through its Region IX 

Office of Civil Rights (OCR), undertook eight investigations during the period 1994 through 1999, 

both in response to complaints by students at California public colleges and universities, and 

proactively into the California Community College System. [fn 29] The complaints and settlements 

(all were resolved by settlement with the institution) in each of these cases centered around the 

question whether the schools had met the law's requirement of effective communication and equal 

access. For central to the law's notion of equal access is the substantive notion of effective 

communication by governmental entities and programs with citizens with disabilities. [fn 30] All 

involved access to campus, class and course-related materials and media, including campus 

computer labs, curricular materials, libraries, class schedules, and specifically in the San Jose State 

University case to the Internet. [fn 31] 

Although these OCR decisions were all made in one of the U.S. Department of Education's regions 

(Region IX covers several western states), their impact has been national in scope. In addition to 

applying the “effective communication” and equal access provisions of the law to electronic 

communications, they fashion clear and replicable standards for evaluating whether the measures 

adopted by institutions are adequate. In determining the effectiveness of communication strategies 

and the adequacy of the “auxiliary aids and services” used to do the communicating, the OCR 

decisions set forth a three-prong test: accuracy, timeliness and appropriateness. As stated in the 

OCR's California State University-Long Beach findings letter: 

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“OCR has repeatedly held that the terms “communication” in this context means the transfer of 

information, including (but not limited to) the verbal presentation of a lecturer, the printed text of a 

book, and the resources of the Internet. In construing the conditions under which communication is 

“as effective as” that provided to people without disabilities, on several occasions OCR has held 

that the three basic components of effectiveness are timeliness of delivery, accuracy of the 

translation, and provision in a manner and medium appropriate to the significance of the message 

and the abilities of the individual with the disability.” [fn 32] 

This standard has been broadly applied and often quoted, including in settings outside of education 

and far beyond Title II. The accuracy and timeliness prongs should be fairly self-evident in their 

meaning. It doesn't do any good to give a student who is blind access to a textbook after the 

semester has ended. It serves no purpose to provide a sign-language interpreter to a person who is 

deaf for a medical consultation about the risks of surgery if the interpreter does not have the 

vocabulary skills or experience to render the physician's explanation or answers with any fidelity. 

The third prong, what is generally called appropriateness, is a bit more complex and could provoke 

more disagreement as to when it has or has not been met. Take the case of a person who is deaf 

being informed of medical test results showing the existence of a serious or an embarrassing 

condition. Would it be appropriate or effective for this information to be rendered by a highly 

competent sign-language interpreter but for the interpreter to be dismissed by the physician before 

the patient has had the opportunity to pose any questions? Likewise, if a person who is blind is 

being informed of a long list of figures pertinent to a large bill, would it be sufficient for someone 

to recite these aloud, once, quickly, without slowing down, repeating or providing them in some 

accessible, more permanent form? Yes, in these cases the information has technically been 

provided, but not in an accessible or effective manner. 

Application of the effective communications standard to the Internet raises a unique set of issues. 

Once we have thoroughly reviewed the question of the applicability of the ADA to electronic 

settings, we will return in section V to this issue, which brings us face to face with the question of 

what exactly does the ADA require in these settings, assuming it applies to them. 

2. TRANSPORTATION 

The area in which the accessibility of public sector Web sites has received most attention is perhaps 

that of public transportation. Virtually every metropolitan regional or municipal transportation 

authority or district now maintains a Web presence as a means of providing schedule, route, fare 

and other information to customers. 

Public transit systems must comply with a variety of accessibility requirements. These include the 

more familiar ones relating to their accessibility to persons using wheelchairs, but they include 

information accessibility requirements as well, ranging from requirements for stop-calling by 

vehicle operators to provisions bearing upon the accessibility and usability of ticket and fare 

machines. [fn 33] 

Perhaps because public transit is important, and perhaps because these other requirements have 

sensitized people to the access issues surrounding them, many have wondered whether the law 

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requires its Web sites to be accessible to all members of the riding public. In 1999 Tamez v. San 

Francisco Metropolitan Transportation Commission, [fn 34] a complaint filed under the ADA over 

the inaccessibility of such a Web site, became the most tangible product of such discussion and 

concerns. That complaint never eventuated in a judicial decision. However, in 2002 a public transit 

Web site became the occasion for the first known reported Federal Court opinion on the 

applicability of Title II of the ADA to the Internet. 

In Martin et al. v. MARTA [fn 35] a number of individuals with disabilities filed suit against the 

Atlanta public transit agency under both the ADA and the Rehabilitation Act, alleging numerous 

violations in areas including accessibility of information. In finding MARTA in violation of the 

ADA due to the inaccessibility of its Web site (scheduling, route and other key information was 

inaccessible), the Federal District Court relied on Title II of the ADA. The court relied specifically 

on both parts of Title II: on the provisions of Part B of Title II dealing specifically with the 

obligations of transit systems, and on the provisions of Part A dealing generally with all activities 

of state and local government. Thus, the opinion should not be read as limited to Web sites 

maintained by transportation agencies but clearly applies to state and local agencies and entities of 

all kinds. 

In granting plaintiffs' motion for a preliminary injunction, the court stated: “The entity shall make 

available to individuals with disabilities adequate information concerning transportation services. 

This obligation includes making adequate communications capacity available, through accessible 

formats and technology, to enable users to obtain information and schedule service. 49 CFR 

37.167(6). MARTA makes schedule and route information freely available to the general public. 

This information is contained in maps and brochures available at MARTA stations. The 

information is also accessible to the general public on MARTA's Web site. The information is not 

equally accessible to disabled persons, particularly the visually impaired. Although particular route 

and schedule information is available by telephone, this is not the equivalent to what MARTA 

provides to the general public. MARTA can do a better job of making information available in 

accessible formats to the visually impaired. “This Court holds that the Plaintiffs have met their 

burden to show a likelihood of success on the merits for Defendants' failure to make available to 

individuals with disabilities adequate information concerning transportation services through 

accessible formats and technology to enable users to obtain information and schedule service. 49 

CFR 37.167(6); 28 CFR 35.160. A disabled transit user cannot adequately use the bus system if 

schedule and route information is not available in a form he or she can use.” 

The court did not conclude that alternative means of providing information, such as over the 

telephone, could never be adequate, but it didn't have to address that question since the evidence 

showed that they were not equal or timely here, and because MARTA, which admitted that its Web 

site was inaccessible, indicated it was endeavoring to upgrade it so as to make it accessible. 

Likewise, because MARTA was actively engaged in such an effort, the court had no need to 

specify exactly what steps MARTA needed to take in order for its site to comply with the law. Only 

when MARTA claims that it has achieved accessibility will the precise standards and methods used 

be before the court: 

“MARTA representatives also concede that the system's Web page is not formatted in such a way 

that it can be read by persons who are blind but who are capable of using text reader computer 

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software for the visually impaired.... However, it now appears that MARTA is attempting to correct 

this problem. Until these deficiencies are corrected, Marta is violating the ADA mandate of 

“making adequate communications capacity available, through accessible formats and technology, 

to enable users to obtain information and schedule service.” [fn 36] 

The question may be asked whether, if MARTA could provide the necessary information by 

alternative means, the law would exempt it from Web accessibility requirements. Put another way, 

this question may be posed as: Would the concept of “equivalent facilitation” come into play to 

allow the transit agency to avoid Web accessibility requirements? This is largely an academic 

question, however, since there is no practical way for this to be done. There is no feasible way, at 

any remotely acceptable cost, that the information provided in an instant, on-demand, 24-7, and the 

interactive capacity afforded by a transit agency's Web page, could be replicated or equaled via a 

telephone assistance system, let alone by the mailing out of hard-copy documents. 

The key point to remember in this regard is that the ADA requires “equal” access, not just some 

minimal level of access that is deemed “adequate”. Moreover, even if some minimal though not 

equal standard were all the law required, what conceivable adequacy could be attributed to a system 

that gave schedule or route information hours, days or weeks after it was needed and requested, that 

gave users with disabilities no opportunity to interact with the information as other riders can, that 

provided no opportunity for verification of information conveyed quickly over a phone line, etc. By 

deciding what information it will offer to the general public, a public transit agency or other 

governmental entity decides by definition what information it will give to those members of the 

general public who have disabilities. 

As of this writing, the outcome of MARTA'S efforts to make its Web site accessible are yet 

unknown, but as we shall see in Section Five, currently available technology and widely accepted 

standards should result in success without much difficulty or delay. 

What is important to note though is that whatever the resolution of this and the other issues in the 

MARTA case, application of the ADA to these or other Web sites in no way implies any new 

federal oversight over the contents of those Web sites. There are any number of informational 

elements that people with various disabilities might wish a transit operator to include on its Web 

site. Riders with visual disabilities might like to know whether the bus that runs down Main stops 

on the north or the south side of Fourth, and how many feet from the corner. People with mobility 

impairments might like to know whether particular bus stops are on hills. Any number of people, 

with and without disabilities, might like to know if particular light rail stops are in well-lighted and 

heavily-traveled or desolate lonely areas. All of these and many other concerns are entirely 

legitimate, and a transit agency with any commitment to customer service might do well to collect 

and make this information available. But neither the ADA nor any other federal law obliges these 

agencies to provide such data. All that the ADA requires, here as in the other contexts we will 

discuss throughout this paper, is that whatever information the agency does elect to provide is as 

available to people with disabilities as to everyone else. 

IV. PUBLIC ACCOMMODATIONS 

(a) THE PROBLEM 

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Title III of the ADA differs from Title II in several significant ways. Most relevant here are the 

differences in how it addresses the question of what activities, performed or carried out by what 

entities, are covered by the law. Whereas virtually all state and local government entities and 

activities are covered by Title II, there are important limits on the range of private entities and the 

types of their activities that are covered by the law under Title III. 

Title III bars discrimination on the basis of disability by “places of public accommodations” and 

“commercial facilities” “engaged in commerce.” [fn 37] As a result, in order to get Title III to 

apply in a particular situation, it is necessary not only to demonstrate that the entity in question is a 

public accommodation or commercial facility engaged in commerce, but also, because of this 

single word “place,” that it is a “place of public accommodation” where, or in connection with 

which, the alleged discrimination has occurred. 

As the statute 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 owns, leases (or leases 

to), or operates a place of public accommodation.” [fn 38] “The following private entities are 

considered public accommodations for purposes of this subchapter, if the operations of such entities 

affect commerce – 

(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 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; 

12
(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.” 

[fn 39] 

“The term ''commerce'' means travel, trade, traffic, commerce, transportation, or communication -

(A) among the several States; 

(B) between any foreign country or any territory or possession and any State; or 

(C) between points in the same State but through another State or foreign country.” [fn 40] 

“The term ''commercial facilities'' means facilities -

(A) that are intended for nonresidential use; and 

(B) whose operations will affect commerce...” [fn 41] 

The Web sites people will use for shopping, for research, or for entertainment readily come within 

the scope of the kinds of entities that are deemed public accommodations. They provide goods and 

services to the public like stores, online versions of games and entertainments that people might 

otherwise witness or participate in in-person; information of the sort one in a less hectic, more 

personal way one might have obtained across the desk from one's doctor; and access to the 

resources of the world's greatest libraries or the library down the street. In many cases companies' 

or institutions' Web sites are connected with their earthbound locations and activities; in other cases 

they are not. No one seriously disputes that the Internet plays a large and increasing role in 

commerce and recreation, education or employment. No one disputes that most commercial Web 

sites are engaged in commerce, by reason of the communication role they play, and by reason of 

the fact that it is difficult or impossible to design a public Web site that is available only to users in 

a single state and that reaches its users solely through within-state telecommunications. But many 

people continue to doubt that a Web site can be a “place” of public accommodation or a 

commercial “facility” as required for coverage of the law. 

(b) THE DEPARTMENT OF JUSTICE 

In probing the meaning of any federal law, the views of the agency charged with primary 

responsibility for interpreting and enforcing that law are entitled to considerable weight and 

represent the natural starting place. As long ago as 1996, the DOJ made clear its view that when 

public entities covered under Title II or public accommodations covered by Title III of the ADA 

choose to communicate with the public, their information must be made available to all members of 

the public, irrespective of disability. According to the DOJ, this is as true for information 

13
distributed through computers or over the Internet as it is for information disseminated through 

other methods. [fn 42] 

As explained by the DOJ in its letter to Senator Harkin: 

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. Mr. 

[name omitted by DOJ] suggests compatibility with the Lynx browser as a means of 

assuring accessibility of the Internet. Lynx is, however, only one of many available 

options. Other examples include providing the Web page information in text format, 

rather than exclusively in graphic format. Such text is accessible to screen reading 

devices used by people with visual impairments. Instead of providing full 

accessibility through the Internet directly, covered entities may also offer other 

alternate accessible formats, such as Braille, large print, and/or audio materials, to 

communicate the information contained in Web pages to people with visual 

impairments. The availability of such materials should be noted in a text (i.e., 

screen-readable) format on the Web page, along with instructions for obtaining the 

materials, so that people with disabilities using the Internet will know how to obtain 

the accessible formats. 

The Internet is an excellent source of information and, of course, people with 

disabilities should have access to it as effectively as people without disabilities. 

As this extended quote shows, the DOJ did not focus on accessibility of the Web page but on 

availability of the information, goods and services it conveys. As the reference to the Lynx browser 

also indicates, the methods available for making Web sites accessible in 1996, when this letter was 

written, were extremely limited and would often have required major alterations by Web site 

designers and operators. 

In the intervening years the DOJ has argued for coverage of the Internet under Title III of the ADA 

in several amicus briefs, [fn 43] and it has negotiated or approved several complaint settlements 

supporting access in cases involving non-physical location issues such as brokerage or credit card 

statement accessibility. [fn 44] 

Thus, even if grounds exist for believing that the department would countenance other strategies 

than Web site accessibility, DOJ has been consistent in upholding the right of people with 

disabilities to access to information provided on the Internet and in asserting the belief that 

electronic communication is subject to Title III. Put more broadly, the DOJ has not taken the 

position that to be actionable discrimination must occur “at” or “in” a “place” of public 

accommodation, or that the right to information-access is tightly tied to where the information is 

provided. 

14
As a practical matter, any covered entity faced with the choice among methods for making Webbased information accessible is likely to conclude that doing so via that Web site is the best, if not 

the sole, feasible way. Given the speed of electronic communication, the frequency with which 

many Web sites are updated and changed, the cost and delays of providing alternative formats, and 

the inexpensiveness and straightforwardness of making Web sites accessible, it is hard to imagine 

that any entity faced with a choice among methods would opt for any approach other than 

accessibility, or that if it did, that timeliness, accuracy and appropriateness could be achieved. 

Nor is it likely that the Department of Justice could conclude as a factual or legal matter that offline alternative methods provided anything remotely resembling “full and equal access” to the 

information and resources of a commercial Web site. With effective communication the ultimate 

requirement, there appears to exist almost no conceivable situation in which a strategy other than 

Web accessibility would make business or legal sense. The very reasons people use the Internet are 

the reasons why that other methods of information dissemination cannot be equivalent. 

(c) INTERNET ACCESS AND TELEPHONE ACCESS COURT CASES 

We can obtain only scant guidance from the reported ADA litigation on electronic access. 

Moreover, because computer technology has changed so rapidly, many of the key issues that courts 

must face are best described as moving targets. Nevertheless, a review of what has been alleged, 

settled and decided to date should be useful in ferreting out some recurrent analytical principles that 

the parties and the courts have used. With these, some predictions about, and some guidance for, 

the future may be forthcoming. 

In 1995, a complaint was lodged with the city of San Jose, California by a blind city commissioner 

who was unable to access the minutes of City Council meetings contained on the municipality's 

Web site. This resulted in the promulgation of the San Jose Web Page Disability Access Design 

Standards in 1996. [fn 45] These standards were important for two reasons: first, because they 

constituted an acknowledgment of the legitimacy of claims by people with disabilities for access to 

the Web; and second, because they demonstrated that objective and workable criteria for 

vindicating these rights could be devised. 

Apart from Tamez noted earlier, the next major development following San Jose was the filing of 

suit in 1999 by the National Federation of the Blind (NFB) against America on Line (AOL). [fn 46] 

In this first known Web-access civil rights lawsuit, NFB charged that AOL'S proprietary Web 

browser interfered with the ability of blind people using screen-reader software to access the AOL 

system. It also alleged a variety of specific ways in which features of the site and capabilities 

enjoyed by other users or subscribers were inaccessible to or unusable by blind persons. Issues 

included text concealed within graphics, commands that should have been executable from the 

keyboard but that on the AOL system required the use of the mouse, inability to identify the precise 

timing or location for entry of data required to carry-out various searches, and a host of related 

functional barriers. In addition to constituting a failure of effective communication, the suit alleged 

that the barriers violated users' access rights to shopping, recreation, entertainment and other 

categories of public accommodations. 

15
Although the complaint broke legal ground, its resolution was inconclusive. On July 26, 2000 the 

complaint was voluntarily dismissed, and the parties entered into an agreement. [fn 47] While of 

course acknowledging no wrongdoing, AOL undertook a number of voluntary measures, including 

establishment of an accessibility policy [fn 48] and consulting on accessibility with the disability 

community. For its part, NFB reserved the right to refile its suit if it deemed fit. [fn 49] 

Meanwhile, another Title III Internet case was making its way from San Antonio's federal district 

court to the U.S. Court of Appeals for the Fifth Circuit. Hooks v. OKBridge, Inc. [fn 50] raised the 

question of the applicability of Title III to the Web, but did so in a very different way. In Hooks, 

there was no issue of technical barriers to Web access. Rather, the claim was that the appellant had 

been barred from the defendant's online bridge tournaments and associated bulletin boards because 

of his disability. If Title III of the ADA did not apply to the bridge club's Web site, then this 

discrimination, if it occurred, would be legal, and the plaintiff must certainly lose. 

The trial court granted summary judgment to the defendant bridge club, dismissing the complaint 

on two grounds. One was that OKBridge was a private membership organization exempt from this 

and other civil rights laws; the other was that the Web site was not a “place of public 

accommodation.” 

The appeals court affirmed the lower court judgment but declined to follow its reasoning. Instead, 

the court held that since the defendant had not been aware of Hooks' disabilities, it could not 

possibly have intended to discriminate against him. Given this ground of decision, the case added 

little to the law, but for other reasons it is important. 

The Department of Justice filed an amicus brief in the Hooks appeal, powerfully setting out many 

of the reasons why the law should not be construed as narrowly as the lower court had done. [fn 51] 

DOJ pointed out for example that reading Title III to exclude the Internet, when the Internet never 

existed and Congress never thought of it one way or the other at the time it passed the ADA, would 

be analogous to holding that freedom of speech does not extend to movies since movies were not 

mentioned in the First Amendment, or that the Fourth Amendment could not apply to the privacy of 

telephone conversations because telephone wires do not come within the ordinary meaning of the 

words “persons, papers and effects” used in the Fourth Amendment. [fn 52] No one has ever, to our 

knowledge, made a convincing argument that Congress would have excluded the Internet from 

coverage if it had known or thought of it. The amicus brief reinforced this commonsense point by 

citing cases in which comparably strained readings of the Civil Rights Act of 1964 had been 

rejected by higher courts. For example, in one case the lower court had concluded that the omission 

of any reference to “trailer parks” from a long list of types of rental housing covered by the law 

meant that somehow Congress had intended to exclude them. [fn 53] In another case the trial court 

had reasoned that because the list of entertainment venues covered by the Civil Rights Act were all 

places where the public attended as spectators, the law had to be read to exclude places of 

participatory entertainment such as amusement parks from coverage. [fn 54] Both decisions were 

reversed on appeal. Again, it was the clear purpose of the law, coupled with the lack of any 

indication in the legislative history that Congress intended such eccentric results, that supported the 

appellate rulings in favor of coverage. We will return to this question of statutory interpretation in 

Section Five, below. 

16
The DOJ's Hooks amicus brief did something else as well. It made the case for a key distinction: 

“The statute covers the services “of” a place of public accommodation, not “at” the place of public 

accommodation.” In support of this point, the brief cites numerous examples of the absurd results 

that would flow from limiting the law's protection only to acts and forms of discrimination that 

occur “at” the place of public accommodation. As DOJ summarized it: “a company that offers 

services both on-site and through other means (such as a travel service that arranges reservations 

both over the phone and at a walk-in office) would be required to offer non-discriminatory services 

on-site, but be free to discriminate over the phone or the internet. Neither the language of the 

statute, nor the underlying purposes of the Act, require or permit such an absurd result.” 

Another extremely important case, both for its result and perhaps even more for its reasoning, was 

decided by the U.S. Court of Appeals for the Eleventh Circuit (headquartered in Atlanta) on June 

18, 2002. Rendon et al. v. Valleycrest Productions Ltd. [fn 55] did not deal with Web access as 

such. Rather it concerned an alleged violation of the ADA in connection with access by telephone, 

but the approach it adopted seems likely to find application and favor in many of the Internet cases 

that are likely to come to the courts over the next few years. 

In Rendon, people with hearing and mobility disabilities sued the producers of the TV quiz show 

“Who Wants to be a Millionaire,” charging that the “fast finger” contestant selection process used 

for the show tended to screen-out applicants with disabilities in violation of the law. People began 

to compete for the right to appear on “Millionaire” by calling a telephone number and answering a 

series of questions rapidly through entering responses with the keypad. But since the producers had 

no TDD available, people with hearing-impairments could not hear or respond to the questions and 

prompts quickly enough. Nor could the services of a relay operator have solved the problem. 

Moreover, because speed was required, people with several different mobility disabilities were 

physically unable to enter the responses with the requisite speed, or to enter them with the 

pushbuttons effectively at all. 

The case came to the appellate court on appeal from a ruling by the lower court dismissing the 

complaint. [fn 56] In dismissing the complaint the trial court had relied on a single contention 

made by the defendants. They had argued that because the alleged act of discrimination had not 

occurred “at” a place of public accommodation, it was not covered under Title III of the ADA. As 

the producers analyzed it, yes, the TV show took place in a “place,” a studio where contestants and 

audience were admitted, but the alleged discrimination, occurring over the telephone, could not be 

said, in the view of the defendants and of the district court, to have occurred at any place of public 

accommodation. After all, the public was not admitted where or when the phone calls were 

answered. 

It was with the case in this posture, and with this issue squarely before it, that the Court of Appeals 

considered Rendon. Using several different formulations to reflect its analysis and express its 

views, the appeals court concluded that where the practice at issue unquestionably operated to 

screen-out people with disabilities, the location where the practice took place was less important 

than what the results of the practice were. Because the “fast finger” system ultimately prevented 

people with disabilities from entering the studio as contestants, that practice had to be understood 

as a denial of access to a public accommodation. Some key language from the opinion of the court 

will help to put these findings in context: 

17
“The district court dismissed Plaintiffs' complaint upon finding that, because the automated 

telephone contestant selection process was not conducted at a physical location, it was not a place 

of “public accommodation” under the ADA.... For the reasons discussed below, we conclude that 

Plaintiffs state a valid Title III claim in alleging that the contestant hotline was a discriminatory 

procedure that screened out disabled persons aspiring to compete on Millionaire, a place of public 

accommodation.... The ADA also precisely defines the term “discrimination” in section 

12182(b)(2)(A)(i), which, inter alia, prohibits 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.... At this 

juncture, on the record before us, this case does not involve issues regarding the reasonableness of 

any proposed accommodations, or require us to resolve whether any proposed accommodations or 

auxiliary services would constitute an “undue burden” to the Millionaire program. Rather, this 

appeal involves only the question of whether Title III encompasses a claim involving telephonic 

procedures that, in this case, tend to screen out disabled persons from participation in a competition 

held in a tangible public accommodation.... Defendants concede that Plaintiffs are disabled as 

defined by the ADA. Defendants also concede that the Millionaire show takes place at a public 

accommodation (a studio) within the meaning of 42 USC 12181(7)(C) (covering theaters and other 

places of entertainment), and that the automatic process used to select contestants tends to “screen 

out” many disabled individuals as described in section 12182(b)(2)(A)(i).... Defendants concede 

that the opportunity to appear on “Millionaire” and compete for one million dollars is a privilege or 

advantage as those terms are defined by the ADA.... Defendants nonetheless contend that they are 

entitled to dismissal because Plaintiffs have failed to assert that Defendants erected “barriers to the 

entry of disabled persons into the auditoriums or studios in which the Show is recorded.... As we 

understand their contention, Defendants argue that the Millionaire contestant hotline may not serve 

as the basis for a Title III claim because it is not itself a public accommodation or a physical barrier 

to entry erected at a public accommodation. We find this argument entirely unpersuasive.... There 

is nothing in the text of the statute to suggest that discrimination via an imposition of screening or 

eligibility requirements must occur on site to offend the ADA.... Defendants urge us to hold, in 

effect, that so long as discrimination occurs off site, it does not offend Title III. We do not believe 

this is a tenable reading of Title III; indeed, off-site screening appears to be the paradigmatic 

example contemplated in the statute's prohibition of “the imposition or application of eligibility 

criteria that screen out or tend to screen out an individual with a disability.... Furthermore, the fact 

that the plaintiffs in this suit were screened out by an automated telephone system, rather than by an 

admission policy administered at the studio door, is of no consequence under the statute; eligibility 

criteria are frequently implemented off site-for example, through the mail or over the telephone.” 

If asked to state the central point of the Eleventh Circuit's Rendon decision, it would have to be that 

“nexus” is the test of Title III's application to off-site, nonphysical actions and procedures. [fn 57] 

If the screening mechanism or practice has a connection to the public accommodation, that is, if it 

actually constitutes a barrier to access by people with disabilities, it will be covered by Title III, at 

least in the Eleventh Circuit, and as we shall see in other Circuits (each Circuit comprises four or 

five states) that have in other ways come to the same conclusion. 

18
Like any important case, the Rendon decision points the way to new questions even as it answers 

old ones. For our purposes, the key questions are these: Would it have made a difference if, instead 

of being the only means of becoming a contestant, the fast finger selection process had been one of 

several alternative starting points, not the best, not the simplest, but also not the only? And what if 

there had ultimately been no physical public accommodation, like a TV studio, involved? If the 

end-result of the selection process had been competition in an online Quiz Show only, would there 

have been enough of a nexus with a public accommodation to justify the jurisdiction of Title III? 

Another case now pending in the very same Eleventh Circuit should answer at least one of these 

questions. 

In October, 2002, four months after Rendon was decided by the appeals court, the U.S. District 

Court for the Southern District of Florida decided the case of Access Now Inc. v. Southwest 

Airlines Co. [fn 58] In Southwest Airlines, the plaintiffs alleged that owing to the lack of 

alternative text (alt text) for graphic information presented on the computer screen, and due to other 

features of its design, Southwest Airlines' Web site was inaccessible to blind persons. This, the 

complaint further alleged, was a violation of Title III of the ADA, because it denied blind persons 

access to the public accommodation of the Web site and for several other reasons. [fn 59] 

The trial court granted summary judgment to the defendant (meaning among other things that there 

was no trial), dismissing the case and writing the first published and reported Federal court opinion 

directly addressing the status of Web sites under Title III of the ADA. In the view of this court it 

had none. The following excerpts from the opinion are indicative of the court's thinking and mode 

of analysis in reaching its decision: 

“Southwest's Internet Web site, Southwest.com, provides consumers with the means to, among 

other things, check airline fares and schedules, book airline, hotel, and car reservations, and stay 

informed of Southwest's sales and promotions.... Approximately 46 percent, or over $500 million, 

of its passenger revenue for first quarter 2002 was generated by online bookings via 

Southwest.com.... Southwest prides itself on operating an Internet Web site that provides “the 

highest level of business value, design effectiveness, and innovative technology use achievable on 

the Web today” (citation omitted). “Despite the apparent success of Southwest's Web site, 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.... Plaintiffs' four-count 

complaint seeks a declaratory judgment that Southwest's Web site violates the communication 

barriers removal provision of the ADA (count i), violates the auxiliary aids and services provision 

of the ADA (count ii), violates the reasonable modifications provisions of the ADA (count iii) and 

violates the full and equal enjoyment and participation provisions of the ADA (count iv).... 

Plaintiffs have failed to state a claim upon which relief can be granted.” “As in all such disputes, 

the court must begin its analysis with the plain language of the statute in question. Title III of the 

ADA sets forth the following general rule against discrimination in places of public 

accommodation”: “Here, to 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.... Plaintiffs have not 

established a nexus between Southwest.com and a physical, concrete place of public 

accommodation.... Although Internet Web sites do not fall within the scope of the ADA’S plain 

and unambiguous language, plaintiffs contend that the court is not bound by the statute's plain 

19
language, and should expand the ADA’S application into cyberspace.... Whereas the defendants in 

Rendon conceded, and the Eleventh Circuit agreed, that the game show at issue took place at a 

physical, public accommodation (a concrete television studio), and that the fast finger telephone 

selection process used to select contestants tended to screen out disabled individuals, the Internet 

Web site at issue here is neither a physical, public accommodation itself as defined by the ADA, 

nor a means to accessing a concrete space such as the specific television studio in Rendon.... 

Although plaintiffs contend that this is a case seeking equal access to Southwest's virtual ‘ticket 

counters’ as they exist “on-line,” the Supreme Court and the Eleventh Circuit have both recognized 

that the Internet is “a unique medium - known to its users as `cyberspace’ - located in no particular 

geographical location but available to anyone, anywhere in the world, with access to the Internet 

(citations omitted).... Thus, because the Internet Web site, Southwest.com, does not exist in any 

particular geographical location, plaintiffs are unable to demonstrate that Southwest's Web site 

impedes their access to a specific, physical, concrete space such as a particular airline ticket counter 

or travel agency.” 

The Southwest decision is currently on appeal to the Eleventh Circuit. For purposes of that appeal, 

the analysis suggested by one of the amicus briefs filed in the case is particularly instructive, for it 

suggests how the trial court might have analyzed the case if it had actually followed the approach 

set out in Rendon. [fn 60] 

If the trial court had followed Rendon, it will have begun by asking whether there is a nexus 

between the Web site and some physical, public accommodation, such as a travel agency, an airport 

ticket counter or an aircraft. The Southwest court would have first noted that unlike the fast finger 

process in Rendon, Southwest's Web site is not the only means to buy a ticket. Customers can go to 

physical locations, such as Southwest's many ticket counters in airports and other locations around 

the country. But why then did Southwest establish the Web site? Presumably, they sought to make 

ticket buying and the other activities noted by the court easier for their customers. If that is so, then 

customers who are systematically denied the use of the Web site would, by definition, be denied the 

opportunity to benefit and to enjoy equally the services of the airline. Arguably too, the 

inaccessible Web site would have amounted to a denial of the right to effective communication. 

The first question for the court should have been: where the customer with a disability is not totally 

prevented from buying a ticket--but may only be able to buy it in person, during business hours, 

after traveling some distance, probably at a higher price, etc.--whether those disadvantages are 

enough to warrant the finding that the Web site violates the law. Put another way, do the higher 

cost, greater difficulty, lesser choice and other limitations imposed upon ticket buyers with 

disabilities who are excluded from the Web site constitute a barrier to access to air travel or a 

policy or procedure that tend to screen out customers with disabilities? 

But the court did not engage in such an analysis or ask any of these questions. In part this may be a 

result of the way the plaintiffs went about arguing their case. Judging from the opinion and the 

complaint, it appears that they focused not on the right to accessible information, nor upon the harm 

and inequality that resulted from denial of such access, but rather on access to the Web site as an 

end and a right in itself. 

20
Assuming the court had followed the Rendon mode of analysis, it would also have had to ask an 

additional question: if the inaccessible Web site would deprive plaintiffs of equal access to the 

services of a covered entity, what “place” provides the necessary connection? In the case of the TV 

quiz show it was clearly the television studio. But here is it the airport, is it a ticket itself, is it the 

airplane, or is it something else? 

Does the inaccessibility of the Web site restrict or deny access to the airport? Arguably yes, 

because without access to the Web site one cannot purchase a ticket online and therefore cannot 

printout one's boarding pass before going to the airport. This typically means that time spent in the 

airport lining up to get a boarding pass will be much longer. 

Needless to say, since almost all commercial air lines offer lower fares on their Web sites than in 

person or over the phone (and of course, under the Southwest court's analysis of the statute, 

ordering tickets by phone wouldn't be covered by the ADA either), people with disabilities would 

be forced to pay higher fares than their fellow passengers without disabilities. Apparently, in the 

view of the Southwest court, charging higher fares to people with disabilities is permissible, so long 

as it is not done face-to-face. We draw this inference from the fact that nowhere does the opinion 

suggest the possibility of “equivalent facilitation” or adoption by the air carrier of “alternative 

methods” for affording the benefits and advantages of Web access, including lower ticket prices 

and probably superior frequent flyer benefits, to these travelers with disabilities. Nor is there any 

indication that this or any other airline has ever offered to grant concessionary Web fares to people 

with disabilities prevented by the inaccessibility of company Web sites from obtaining those fares. 

When we turn to the question of access to the airplane (which inaccessibility of the Web site for 

ticketing and for obtaining scheduling and delay information unquestionably does inhibit, if it does 

not ultimately prevent), there is an additional problem, one which we believe renders the Southwest 

decision largely irrelevant to the ADA debate. Commercial aircraft are not public accommodations 

under Title III. [fn 61] This is not because Congress thought them unworthy of such protection. 

Rather, it was because access to air travel was protected separately under a different statute, the Air 

Carrier Access Act (ACAA) of 1986. [fn 62] 

Had the district court applied the Rendon approach, it might have considered this issue. But the 

court considered none of these issues, because it assumed, rather than determined, that there was no 

nexus between the Web site and any other aspect of the airline's services, and that the status of the 

Web site as a place of public accommodation had to be considered in isolation. But even in its 

analysis of the Web site in isolation, the court appears to have made a serious error. 

Here, our discussion of the critical difference between the statutory words “of” and the all too 

easily substituted “at” a place of public accommodations must be recalled. We have in this case 

another substitution, for this court uses the preposition “in” where it should have used “at”. In 

introducing its conclusion that the statute's plain meaning is sufficient to resolve the case, the court 

stated: “Title III of the ADA sets forth the following general rule against discrimination in places of 

public accommodation.”(emphasis added) 

Until or unless the Eleventh Circuit reverses the Southwest decision and remands the case to the 

district court for further proceedings, we cannot know for certain whether and to what place of 

21
public accommodation a sufficient nexus exists. What if the discrimination were just as palpable 

and just as indisputable, but no nexus could be found? Say for example that the airline sold no 

tickets over the counter anywhere, but dealt with its customers only through Web sites? Given the 

apparent limits of the Rendon analysis, do we face a situation where those Web sites which are in 

some way connected to physical places of public accommodation are covered by Title III while 

those that are not, that engage in the same commerce with the same customers but operate only via 

the Web, are not covered? To answer this question we must take what at the outset might appear to 

be a detour. We must visit a group of cases that deal with the ADA and insurance. 

(d) THE INSURANCE PRECEDENTS 

It is said that life abhors a vacuum. So do our courts. When faced with a question about which 

authorities and precedents are not numerous or self-evident, courts will look for whatever is closest 

and most analogous. Because the issue of Title III's applicability to nonphysical places and things 

has come to the courts first and still most often in the context of alleged insurance discrimination, 

these are the cases on which many Internet commentators and some advocates have relied. 

In a number of cases people who believed their employers' health insurance discriminated against 

them have attempted to bring suit against the insurers under Title III of the ADA. Some of the cases 

have involved benefit caps on certain diagnoses, such as HIV-AIDS, but not on other physical 

diagnoses, or caps on treatment for mental illness that do not likewise apply to physical conditions. 

Although there is considerable reason to believe that claims of this nature come under the 

jurisdiction of Title I and should have been brought by the workers directly against their employers, 

[fn 63] there is also at least one case involving a claim of discrimination by a couple who sought to 

buy life insurance directly from an insurance company, and with no involvement of an employer or 

any other third-party. [fn 64] 

As they have worked their way through the courts, these cases have been decided on the basis of 

whether Title III extends to insurance policies. That in turn has depended on whether a place of 

public accommodations was deemed to be involved in the sale or administration of the policies. 

Cases have come to three conclusions on this question: first, a place of public accommodations was 

involved because the insurance company maintained an office where customers could go; [fn 65] or 

second, a place of public accommodations was not involved because the insurance was not sold 

from a physical office or because the public was not invited or admitted to the office; [fn 66] and 

third, a place of public accommodation does exist because the concept of place need not be limited 

to a physical location. [fn 67] 

Probably the most frequently cited insurance case for application of Title III to events that do not 

occur at or in close connection with any physical location is Carparts v. Automotive Wholesaler's 

Association. [fn 68] In reaching its conclusion that the ADA did apply to the insurance policy in 

this case, the U.S. Court of Appeals for the First Circuit stated: “The district court interpreted the 

term “public accommodation” as “being 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.” “Whether establishments of “public accommodation” are limited to actual 

physical structures is a question of first impression in this Circuit. For the following reasons we 

find that they are not so limited and remand to the district court to allow plaintiffs the opportunity 

22
to adduce further evidence supporting their view that the defendants are places of “public 

accommodation” within the meaning of Title III of the ADA. The plain meaning of the terms do 

not require “public accommodations” to have physical structures for persons to enter. Even if the 

meaning of “public accommodation” is not plain, it is, at worst, ambiguous. This ambiguity, 

considered together with agency regulations and public policy concerns, persuades us that the 

phrase is not limited to actual physical structures. “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. [fn 69] 

Another leading insurance case favoring the application of the ADA to the Internet derives its 

status from two sources. First, the opinion of the U.S. Court of Appeals for the Seventh Circuit in 

Doe v. Mutual of Omaha [fn 70] was written by the influential and respected Chief Judge Richard 

Posner. Second, the decision explicitly refers to cyberspace. Interpreting the meaning of “place of 

public accommodation” the court says: “The core meaning of this provision 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 people from entering the facility and, once in, from using the facility in the same 

way that the nondisabled do” (emphasis added). [fn 71] 

Of course, as indicated in note 66 above, there are also a significant number of decisions holding 

that Title III does not apply to insurance. Some of these cases stress the distinction between access 

to facilities or to services as opposed to the contents of goods or services, suggesting that if the 

issue had been the refusal of the insurers to make any coverage at all available to people with 

disabilities (as distinguished from offering different coverage to people based on various 

disabilities), the results might have been different. Other cases, which held that there was no 

connection or nexus between the insurance policy and a physical location, and hence rejected the 

applicability of Title III, might well have allowed the claims, even though they involved the content 

of insurance as opposed merely to access to insurance, if the nexus to a physical location had been 

established. [fn 72] 

Suffice it to say, no case has been found that would treat access to insurance (as distinguished from 

the content of the coverage) as beyond the scope of Title III, if the insurance were ordinarily 

accessible to the public through a physical facility. Even the leading case for the proposition that 

Title III does not apply to insurance, Parker v. Metropolitan Life Insurance Co. [fn 73] may not be 

as opposed to Title III coverage as it is often portrayed. This is because of language in the opinion 

suggesting that insurance sold to employers couldn't be a public accommodation, whether sold to 

them from a physical facility or not. [fn 74] If the insurance, because sold at wholesale and only to 

employers, couldn't have been a public accommodation, regardless of where it was sold, then how 

could the question of where it was sold be a meaningful issue in the case? 

23
Among the cases that treat the nexus between insurance and a physical facility as decisive, there 

appears to be little effort to explain or to justify why Congress would have intended or 

countenanced such a distinction between cases of discrimination that the law covers and cases it 

does not, especially where the line between what constitutes and what does not constitute a 

sufficient connection is so unclear and imprecise. Beyond insisting that either the plain meaning of 

the text or their reading of the legislative history [fn 75] dictate this outcome, however unworkable 

it might be, the “no” cases have little to say about why, when faced with a choice between two 

interpretations of the plain meaning of the law that can each be argued plausibly and even 

convincingly, they should work so hard to justify the reading of the law that would lead to a 

strained if not tortured result over the alternative interpretation that would be practical to implement 

and sensible to apply. 

V. THE MEANING OF “PLACE” 

Although the weight of the authorities as well as the imperatives of effective civil rights 

enforcement argue in favor of an interpretation of the law that would do away with the necessity for 

involvement of a physical location, current judicial attitudes toward the ADA suggest that this 

reading of the law is unlikely on the part of most courts, and certainly on the part of the Supreme 

Court when, as seems inevitable, the matter finally reaches there. But the problems surrounding the 

word “place,” coupled with widespread hostility to extension of civil rights protection or to further 

regulation of the Internet, point to the conclusion that this sensible and viable solution of 

eliminating the need for a physical place may not find general favor and acceptance. 

Faced with these realities, and desiring to find an approach that both promotes consensus among 

analysts and fosters a reading of the statute that gives meaning to all its words and intentions, much 

may be gained by looking at the issue of place in a new way. Accordingly, let us ask what is the 

meaning of “place.” If some connection to a location or facility is going to be required for Title III 

to come into play, it behooves us to probe what “location” or “facility” ultimately mean. 

In its regulations implementing Title III of the ADA, the DOJ defines the term “facility,” as 

follows: “Facility means all or any portion of buildings, structures, sites, complexes, equipment, 

rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or 

personal property, including the site where the building, property, structure, or equipment is 

located.” ([fn 76]] 

Here the word “equipment” is particularly intriguing. The servers on which Web sites run may well 

be regarded as constituting “equipment” within the meaning of the regulation. These servers are 

located at a place or places. These are not places where the public go, but if we remember the 

critical distinctions among prepositions, and bear in mind that the public need not be “at” or “in” 

the facility, then it may not be too far-fetched to propose that even under the narrow definition of 

the law, Web sites, providing as they do their goods and services from equipment in places that are 

owned or leased by the public accommodations or by commercial facilities, and to any member of 

the public who cares to log-in or click on them, qualify as places of public accommodation. 

24
Another approach that should strongly commend itself to consideration and discussion involves 

again not necessarily abandoning the notion of “place” but fundamentally redefining what place 

means. Just as the computer age has led to the realignment of so many of our basic concepts, it may 

be appropriate to consider how cyberspace has altered our notion of place. Here Judge Posner's 

words in the Doe v. Mutual of Omaha case – “whether in physical space or in electronic space”-

[fn 77] are especially worth remembering and exploring. 

With the passage of time, as more and more goods, services, informational resources, recreation, 

communication, social and interactive activities of all kind migrate, wholly or partly, to the Net, 

maintenance of legal distinctions among otherwise similar Web sites, based on their connection or 

lack of connection to a physical facility, will become increasingly untenable and incoherent. Were 

there no nexus doctrine, and were all Web sites to be per se excluded from coverage, the law, 

however unjust, would at least be clear. But now that we see the direction in which the law, even in 

the hands of its most cautious interlocutors, is moving, the effort to define what is a sufficient 

nexus and to determine whether it exists in each particular case will surely continue. Use of the 

nexus approach, preferable as it may be to civil rights advocates over an approach that categorically 

excludes the Web from coverage, may, however, result in far more havoc than even the most 

sweeping and inclusive requirement for across-the-board commercial Web site accessibility ever 

could. Consider the impossibility of the situation. One online grocery company operates in 

conjunction with local pickup points, where customers, after transmitting their orders 

electronically, go several hours later to pick up their orders. Another online grocery company 

delivers. Well, since access to the goods and services of the first purveyor involves going to a 

physical location and since the goods cannot be obtained without first going on the firm's Web site, 

a tight nexus, at least as strong as that shown in Rendon, exists. The Web site of company number 

one therefore has to be accessible. Meanwhile, company number two appears to be totally exempt 

from the law, since the customer never goes to any physical location. And what if company three 

gives its customers several alternatives including pick up or delivery? Does its Web site have a 

sufficient nexus with a physical location to be covered by the law, or is the existence of a no-visit 

option sufficient to render it exempt? Or could it be that company three's Web site is subject to 

accessibility requirements for those users who elect to pickup their groceries but need not be 

accessible to customers who opt for home delivery? Could it be that even a firm that delivers all 

orders becomes subject to accessibility requirements because, as the place where its employees and 

the customer interact, the purchaser's home becomes a place of public accommodation for the time 

required to make the delivery? In sum, is such a system, making some commercial Web sites 

subject to the ADA while leaving other, similar companies outside the coverage of the law, and 

creating never-ending uncertainty for everyone, tolerable? Is it workable for the customers, fair to 

the merchants, enforceable by the administrative agencies or the courts? 

It should also be remembered that more hinges on our answer to the Internet access question than 

might at first appear. For if the Internet is excluded from coverage under Title III because it is not a 

physical location, or if Internet-only commerce is excluded from coverage for lack of a nexus, then 

under what logic can telephone, postal or any other form of nonface-to-face interaction or 

commerce be covered? The individual with a disability no more goes to the public 

accommodation's post office box or call center than to its Web server. The person with a disability 

who takes online courses does not go to the campus of the private university. And the individual 

with a disability who sends a medical home-test kit to a laboratory for analysis never goes 

25
anywhere near the laboratory's premises. Yet, if Internet-based transactions were excluded from 

coverage under Title III because of no nexus, the same outcome would logically follow for all these 

and many other interactions. 

Our law and commitments have already moved too far for categorical exclusion of the Web to be 

possible. But the alternative of nexus which our courts have used so far is not a satisfactory solution 

either. Only a clear recognition of the seamlessness of commerce, entertainment, education and 

health care makes any legal, economic or administrative sense. And even assuming that online 

information or opportunities could be made available and accessible to people through the use of 

some alternative methods, through the provision of auxiliary aids and services, or through other 

forms of equivalent facilitation, it should be remembered that if the Web site is not deemed a place 

of public accommodation, if the Web site is not required to be accessible, then there is no legal 

basis for requiring that its contents or opportunities be provided by any means. If accessibility is 

not required of a Web site, then nothing is required of it. Its owners and operators could refuse to 

serve people with disabilities, could (say in an effort to avoid having demands for accessibility 

made upon them) take active measures to identify and exclude users with disabilities, and could do 

these and other outrageous things with total impunity, so far as civil rights laws are concerned. 

Faced with fear and unease over perceived attacks on their civil rights and recently-won quality of 

life gains from many quarters, already in many cases more apprehensive for the future than other 

Americans, this added burden of disillusionment and doubt is not something that Americans with 

disabilities need, and at a time of persisting national peril when our need for unity and for 

galvanizing the positive energies of all our citizens, it is the last thing America needs. Not only is 

cyberspace a place, it is the place where some of the most dynamic and far-reaching initiatives in 

our society are taking place. It is a place from which the law should countenance the exclusion of 

no one. 

VI. IMPLEMENTING ACCESSIBILITY STANDARDS 

(a) THE CONTEXT 

The debate over whether private, commercial Web sites should be subject to accessibility 

requirements is ultimately a debate about far more than the ADA. It is variously a debate over the 

role of government, over the proper regulation of the Internet and over other large issues. Bearing 

in mind, as we shall discuss later in this Section, that the requirements involved would be 

unobtrusive, inexpensive and easily accomplished, it is important to note that the small amount of 

additional regulation implicated in Web access does not dramatically alter the environment or the 

expectations of cyberspace. However it may once have been that the Internet existed in an 

environment of total legal freedom, regulated only by the shared values and customs of its users, 

[fn 78] that day has long passed. Today, as the integral part of the economy and society that it has 

rapidly become, the Internet is subject, for better or for worse, to all the laws, strains and 

contradictions of other major institutions. Its struggles to accommodate user freedom, on the one 

hand, with intellectual property rights and decency on the other; its efforts to balance ease of access 

and use with security and privacy; its liability to taxation, its role and responsibility in the 

dissemination of news--in all of these areas its recent history and current disputes have far more in 

26
common with other institutions than with the largely mythic world of anarchic self-regulation by a 

small group of elite and like-minded techno and academic users. 

In this light, calls for, and expectations of, accessibility and inclusion by people with disabilities 

should come as no surprise. What may still come as something of a surprise to some, however, is 

that accessibility can be defined and implemented in ways that are not financially burdensome to 

the providers or users of Web-based services, that do not impose rigid or restrictive design 

requirements on operators, and that do not subject companies to perpetual fear or uncertainty at the 

prospect of some regulatory bureaucrat swooping down on them for serious or trivial violations. 

Just such limited understanding of the relevant underlying technology and of the role of 

accessibility guidelines appears, judging from one of the opinion's foot notes, to have played a role 

in the Southwest decision. [fn 79] 

Despite the unfounded nature of these and other concerns, their continued existence, repetition and 

exaggeration are not unlikely. Some of this fear undoubtedly results from genuine ignorance, 

misunderstanding or reflexive distrust of all government. But all too much of it may reflect other 

political and economic agendas. Lest policymakers, commercial entities engaged in commerce via 

the Internet, Webmasters or others be unduly influenced by the fears that abound, several key facts 

should be noted. First, other major industrial nations, operating under disability rights laws 

modeled on the ADA, have adopted Web accessibility guidelines. [fn 80] In England and Australia 

for example these have been extended to the private sector. [fn 81] We have found no indications 

that such requirements as applied in any of the European or in several Asian nations have resulted 

in difficulty or disruption. 

While it may be argued that the experience and conditions of other nations cannot predict results in 

this country, our own experience should provide powerful reassurance. A host of private sector 

entities have voluntarily adopted the Web content accessibility guidelines developed by the Web 

Accessibility Initiative (WAI) of the World Wide Web Consortium (the W3C). [fn 82] 

Additionally, many Federal government Web sites (and some private sector sites as well) have been 

designed or redesigned to comply with the Web accessibility standards of Section 508 of the 

Rehabilitation Act Amendments of 1998. [fn 83] At the same time, the availability of technical 

assistance resources for understanding and implementing accessible design principles, the existence 

of software tools for identifying accessibility shortcomings in Web pages, and the ability of major 

operating systems to support access software and peripherals have all continued to increase and 

improve. [fn 84] 

Some have expressed concern that owing to differences between the W3C guidelines and the 

Section 508 Web accessibility standards, imposition of any requirements on the private sector 

would be confusing or unfair. But as discussed below, there is no reason why, if the Department of 

Justice exercises the necessary leadership in the matter, any confusion need surround the question 

of what accessibility standards ought to apply. Indeed, available evidence and trends strongly 

suggest that it will be in the adoption of clear, broadly applicable standards rather than in their 

discrediting or delay that chaos and confusion are to be best avoided. In the vacuum that will be 

created by a failure of federal leadership, a host of voluntary standards, inconsistent state efforts at 

standards-setting, and legal standards that apply to some portions of Web sites and not others or to 

some users of Web sites and not others all constitute far greater barriers to order and coherence 

27
than a strong national standard would. To prevent an impractical, wasteful and intolerably 

confusing situation for industry and the public, key sectors of commerce may be better-served by 

working together to establish clear and appropriate national standards than by short-sightedly 

resisting them or seeing them as the thin edge of some mysterious and giant wedge. Without 

appropriate standards, litigation and uncertainty can only grow, and only if the courts or Congress 

solve the nexus problem by placing Web access totally outside the purview of disability rights 

would that growing tide be stemmed. But how, given the progress we have made under 508 and 

voluntarily in the private sector, could such a halt to progress and to information access in the 

electronic age possibly be imposed? 

Ample resources for giving Web accessibility an objective, verifiable and readily understandable 

meaning abound, as noted above. The W3C is a consortium of enlightened entities and individuals, 

including a number of technology and other private sector firms, who understand both the 

importance of accessibility and the necessity for widely applicable, consensus standards. These 

guidelines, or the standards adopted for federal agency Web sites under Section 508, have amply 

demonstrated their value and effectiveness in this area. 

(b) WHAT IS REQUIRED 

The Americans with Disabilities Act Accessibility Guidelines (ADAAG) contain the specific 

scoping, measurement and design requirements applicable to achieving and to documenting 

physical accessibility and barrier removal, as required by the law. The Section 508 electronic and 

information technology E&IT) access standards, while not embodied in the ADAAG or 

promulgated under the authority of the ADA, demonstrate that a similar approach is possible with 

Web access, as the W3C content accessibility and their other guidelines have shown. It is not the 

purpose of this paper to suggest what standards or combination of guidelines and standards should 

be adopted from among the several excellent and proven models already in use. It is enough to say 

that prospective adoption of either the W3C guidelines or the 508 accessibility standards by the 

operators of commercial Web sites engaged in commerce could be accomplished in the context of 

regular upgrades and revisions at little add-on cost and with little or no disruption. Use of a 

reasonable grace period at the outset of the implementation of the guidelines, during which 

violations would be subject to remedy in lieu of punishment, would further serve to ensure a 

smooth and effective transition. 

(c) JURISDICTIONAL APPROACH 

Based on its experience overseeing and evaluating the existing 508 regulations, and its jurisdiction 

over the ADAAG, the Department of Justice is in an ideal position to take the lead role in 

implementing national Web site accessibility. Ideally, the Web access guidelines should be 

incorporated into the ADAAG, where these information access provisions will parallel those 

bearing on physical access, and where they have long belonged. Like the requirements bearing on 

the removal of physical barriers, they would be subject to periodic update, and to the degree that 

changes in computer technology may alter the equation or definition of access, they could be 

updated as frequently as such advances warrant. 

28
Because of its experience in developing technology access guidelines, [fn 85] we believe DOJ 

should work with the Access Board in selecting or refining the appropriate standards. Although no 

one can be certain that the courts would uphold such an exercise of rule-making authority, [fn 86] 

we believe that the Department has the authority to take these steps, or could be empowered to do 

so by presidential executive order. But if its own analysis of the matter leads the DOJ to conclude it 

lacks this authority, then the administration should immediately seek the necessary approval from 

Congress. [fn 87] Such legislation need not and should not be the occasion for any other 

amendments to the ADA, and the administration should make its position clear and firm on this 

point, since attempts to “open-up” the ADA to unrelated amendment would generate so much 

contention that public and administration attention would almost certainly be massively diverted 

away from implementation of the goals of the New Freedom Initiative. 

Utilization of the ADAAG to incorporate Web-accessibility requirements into Title III of the ADA 

would have one additional advantage that would benefit business, government and people with 

disabilities considerably. In addition to clarifying the standards, this approach would resolve the 

question whether Web access and associated effective communication is an issue that must be 

approached, as the accessibility of facilities is approached, in the planning of commercial Web 

sites, or whether accessibility obligations are triggered by individual request. Treated as situationby-situation responses to individual requests, Web access becomes yet more confused and 

confusing. If the determination of coverage has to await an individual's request for access, Web site 

operators will never be certain what is expected of them, people with disabilities will have to wait 

for Web sites to be fixed before they can use them, and enforcement agencies may have to address 

standards issues in relation to the needs of a particular complainant. It would be as if the physicalaccessibility requirements for a building were left to be determined and applied only on the basis of 

the access needs of the particular person seeking to gain entry or use. It would be foolish in the 

physical realm - it is no less so in the informational. 

CONCLUSION 

What could be more emblematic of freedom in this era, and more in keeping with the goals of the 

NFI, than an orderly, consensus-driven and inclusive process resulting in the incorporation in our 

law of demonstrated and effective standards for ensuring that the Internet, that singular engine of 

progress and change, will not leave millions of Americans, adults and children alike, behind? 

Today we have the technology, the experience and the technical assistance to bring this about in an 

orderly, effective and noncoercive way. In light of the path already taken by the law, it is clear that 

many commercial Web sites will be subject to accessibility requirements. The question therefore is 

not whether the ADA applies to the Internet, but whether its application is going to be managed in 

an orderly way, so as to minimize costs and maximize benefits for all, or whether, under the pretext 

of deregulation, we are going to leave the process to inconsistency, chaos and fear. 

Only by taking the lead in addressing the parallels between physical and information access can the 

federal government hope to achieve the goals of inclusion and access central to the New Freedom 

Initiative. Given its own determination seven years ago that information access rights are not 

waived or abrogated simply because information is provided online, it is past time for the 

Department of Justice to implement that conclusion in a way that American business and 

consumers can understand and use. 

29
In the past we have been used to talking about the digital divide. The time has come to rephrase our 

inquiry, and to embrace the digital future for Americans with disabilities as fully as we have sought 

to grasp it for the population as a whole. 

REFERENCES 

Fn 1 The Digital Millennium Copyright Act of 1998 (DMCA), PL 105-298. 

Fn 2 The Electronic Signatures in Global and National Commerce Act of 2000 (often called the 

Digital Signature Act), PL 106-229. 

Fn 3 See, e.g., Comment. Locating Discrimination: Interactive Web Sites As Public 

Accommodations Under Title II Of The Civil Rights Act, by Tara E. Thompson, 2002 U. Chicago 

Legal Forum 409 (2002) (analysis, including by analogy to cases decided under the ADA, of the 

application of religious and other discrimination issues to the Internet). 

Fn 4 For an explanation and documentation of the digital divide, see the report Falling Through 

The Net: Toward Digital Inclusion, A Report On Americans' Access To Technology Tools (U.S. 

Department of Commerce, October 2000) (currently available on the Internet at 

http://www.ntia.doc.gov/ntiahome/digitaldivide/). 

Fn 5 Compare, The Growing Digital Divide in Access for People with Disabilities: Overcoming 

Barriers to Participation, by Cynthia Waddell (1999) (currently available at 

http://www.icdri.org/the-digital-divide.htm). 

Fn 6 For legal analyses concluding that Title III does extend to the Internet, see, Americans with 

Disabilities Act and the Internet, by Jonathan Bick, 10 Albany L. J. of Science & Technology 205, 

at 206-08 (2000); Note. Interpreting “Place of Public Accommodation” under Title III of the ADA: 

A Technical Determination with Potentially Broad Civil Rights Implications, by Matthew A. 

Stowe, 50 Duke L J 297, at 298-99 and 327-28 (2000); Note. Was Blind but Now I See: The 

Argument for ADA Applicability to the Internet, by Jeffrey Scott Ranen, 22 BC Third World L. J. 

389 (2000); Providing Access to the Future: How the Americans with Disabilities Act Can Remove 

Barriers in Cyberspace, by Cassandra Burke Robertson, 79 Denver U. L. Rev. 199 (2001); Websight For Visually-abled People: Does Title III of the Americans with Disabilities Act Apply to 

Internet Websites? by Adam M. Schloss, Columbia J. of L. and Social Problems 35 (2001). 

Fn 7 For legal analyses finding that Title III does not extend to the Internet, see, Comment. An 

Analysis of the Applicability of Title III of the Americans with Disabilities Act to Private Internet 

Access Providers, by Kelly Konkright, 37 Idaho L. Rev. 713 at 723 and 727 (2001); The Wrong 

Tool for the Right Job: Are Commercial Websites Places of Public Accommodation Under the 

30
Americans with Disabilities Act of 1990?, by Patrick Maroney, 2 Vanderbilt J. Entertainment L. & 

Prac. 191 at 204 (2000). 

For analyses taking no position on the answer, see, The Americans with Disabilities Act and the 

Internet, by Paul Taylor, 7 BU J. Science & Technology L. 26 (2001). 

Fn 8 The Applicability of the Americans with Disabilities Act to Private Internet Sites: Hearings 

before the House Subcommittee on the Constitution of the House Committee on the Judiciary 

(106th Cong. Second Session Feb. 2000) (currently available at 

http://www.house.gove/judiciary.htm). 

Fn 9 NCD's policy brief series, Righting The ADA, includes 16 important background papers thus 

far. These are: Policy Brief No. 1, Righting the ADA: Introductory Paper: The Americans with 

Disabilities Act (NCD October 16, 

2002)(http://www.ncd.gov/newsroom/publications/rightingtheada.html#ma9); No. 2, A Carefully 

Constructed Law (NCD October 30, 2002) 

(http://www.ncd.gov/newsroom/publications/carefullyconstructedlaw.html)main); No. 3, 

Significance of the ADA Finding That Some 43 Million Americans Have Disabilities (NCD 

November 15, 2002) (http://www.ncd.gov/newsroom/publications/43million.html#main);No. 4, 

Broad Or Narrow Construction of the ADA (NCD December 16, 2002) 

(http://www.ncd.gov/newsroom/publications/broadnarrowconstruction.html#ma9); No. 5, Negative 

Media Portrayals of the ADA (NCD February 20, 2003) 

(http://www.ncd.gov/newsroom/publications/negativemedia.html#main); No. 6, Defining 

“Disability” in a Civil Rights Context: The Courts' Focus on Extent of Limitations as Opposed to 

Fair Treatment and Equal Opportunity (NCD February 13, 2003) 

(http://www.ncd.gov/newsroom/publications/extentoflimitations.html#main); No. 7, The Impact of 

the Supreme Court's ADA Decisions on the Rights of Persons With Disabilities (NCD February 25, 

2003) (http://www.ncd.gov/newsroom/publications/decisionsimpact.html#main); No. 8, The 

Americans with Disabilities Act: The Implications of the Supreme Court's Decision in Board of 

Trustees of the University of Alabama v. Garrett (NCD February 26, 2003) 

(http://www.ncd.gov/newsroom/publications/alvgarrett.html#main); No. 9, Chevron v. Echazabal: 

The ADA’s “Direct Threat to Self” Defense (NCD February 27, 2003) 

(http://www.ncd.gov/newsroom/publications/directthreat.html#main); No. 10, Reasonable 

Accommodation After Barnett (NCD March 5, 2003) 

(http://www.ncd.gov/newsroom/publications/accommodation.html#main); No. 11, The Role of 

Mitigating Measures in the Narrowing of the ADA’S Coverage (NCD March 17, 2003) 

(http://www.ncd.gov/newsroom/publications/mitigatingmeasures.html#main); No. 12, The Supreme 

Court's ADA Decisions and Per Se Disabilities (NCD March 19, 2003) 

(http://www.ncd.gov/newsroom/publications/persedisabilities.html#main); No. 13, The Supreme 

Court's ADA Decisions Regarding Substantial Limitation of Major Life Activities (NCD April 29, 

2003) (http://www.ncd.gov/newsroom/publications/limitation.html#ma9); No. 14, The Supreme 

Court's ADA Decisions Regarding the Not-Just-One-Job Standard (NCD May 20, 2003) 

(http://www.ncd.gov/newsroom/publications/notjustonejob.html#main); No. 15, The Supreme 

Court's Decisions Discussing The “Regarded As” Prong Of The ADA Definition Of Disability 

(NCD May 21, 2003) (http://www.ncd.gov/newsroom/publications/regardedas.html);No. 16, The 

31
Supreme Court's Decisions Regarding Validity And Influence of ADA Regulations (NCD June 4, 

2003) (http://www.ncd.gov/newsroom/publications/validityandinfluence.html#main). 

Fn 10 e.g., the ADA technical assistance manuals published by the Department of Justice and by 

the EEOC. See also, Note 84, infra. 

Fn 11 42 USC Sec. 12101 et seq. at Secs. 12111-12117; for implementing regulations 29 CFR Part 

1630 et seq. 

Fn 12 42 USC Sec. 12101 at Secs. 12131-12135; for implementing regulations 28 CFR Part 35 

Fn 13 42 USC Sec. 12101 at Secs. 12181-12189; for Department of Justice implementing 

regulations 28 CFR Part 36 

Fn 14 42 USC Sec. 12111 (2) and (5); for Equal Employment Opportunity Commission regulations 

defining employer, 29 CFR Sec. 1630.2 (e). 

Fn 15 For an overview of the scope of this concept, see 29 CFR Sec. 1630.4 (EOOC implementing 

regulations). 

Fn 16 42 USC Sec. 12111 (10); for a review of case law in this area, see, Note. Overcoming A New 

Digital Divide: Technology Accommodations and The Undue Hardship Defense Under The 

Americans with Disabilities Act, by Mary L. Dispenza, 52 Syracuse L. Rev. 159 (2002). 

Fn 17 Cathcart v. Flagstar Corp., No. 97-1977, 1998 App. Lexis 14496 (unpublished 4th Cir. 

1998). 

Fn 18 e.g., Kiel v. Select Artificials Inc., 169 F. 3d 1131 (8th Cir., cert. denied, 120 S. Ct. 59 

(1999). 

Fn 19 See generally, Why Are So Many ADA Plaintiffs Losing Summary Judgment Motions, and 

Would They Fare Better Before A Jury? A Response to Professor Colker, by Jeffrey A. Van Detta, 

19 Review of Litigation 505 (2000). 

Fn 20 67 Federal Register 78790 (December 26, 2002). 

Fn 21 Fact Sheet: Work at Home: Telework as a Reasonable Accommodation (Equal Employment 

Opportunity Commission, February, 3, 2003) (currently available at 

http://www.eeoc.gov/facts/telework.html). 

Fn 22 29 USC Sec. 794d; for interpretation and standards, 36 CFR Part 1194. 

Fn 23 29 USC Sec. 504 

Fn 24 e.g., California Government Code Sec. 11135. For a discussion of state disability 

discrimination laws that go beyond the ADA see, NCD Policy Brief No. 6, at Note 9, supra. 

32
Fn 25 28 CFR Sec. 35.140 (b)(1); Zimmerman v. State of Oregon Dept. of Justice, 170 F. 3d 1169 

at 1177-78 (9th Cir. 1998). 

Fn 26 42 USC Sec. 12131. 

Fn 27 42 USC Sec. 12132. 

Fn 28 Id. 

Fn 29 U.S. Department of Education, Office for Civil Rights, Region IX, Letter to Loyola 

Marymount University (Docket No. 09-91-2157, January 15, 1992); Letter to Los Rios Community 

College (Docket Nos. 09-93-2214-I, 09-93-2215-I, 09-93-2216-I, April 21, 1994); Letters to 

California State University, San Jose (Docket No. 09-95-2206, January 25, 1996) and (Docket No. 

09-96-2056, February 7, 1997); Letter to CSU, Los Angeles (Case Docket No. 09-97-2002, April 7, 

1997); Letter to CSU, Long Beach (Docket No. 09-99-2041, April 20, 1999). Compare, OCR 

Region II, Letter to Patricia Bromberger (Case No. 02-95-2145, March 29, 1996) (findings in 

regard to complaint against Brooklyn College). These OCR findings and settlement agreements can 

be accessed through http://www.rit.edu/~easi/law.htm#case. 

Fn 30 42 USC Sec. 12102 (a); see also 28 CFR Sec. 35.104 (for examples of auxiliary aids and 

services used to facilitate effective communication). 

Fn 31 San Jose Letter (January, 1996) Note 29, supra. Because this complaint was adjudicated prior 

to the emergence of the concept of Web accessibility, it involved the responsibility of the college to 

provide technology to the user that would facilitate independent access to the Internet. Lest it be 

argued today that readers or other human assistants are equal or superior methods for obtaining 

access to the Web, the following observations of the OCR in its findings letter are worth noting: 

“OCR notes that the “information superhighway” is fast becoming a fundamental tool in postsecondary research. Rather than implementing adaptive software, some institutions have attempted 

to utilize personal reader attendants as the exclusive or primary way of making this form of 

computer information accessible to persons with visual impairments. In most cases, this approach 

should be reconsidered. One of the most important aims in choosing the appropriate auxiliary aid 

has been to foster independence and autonomy in the person with a disability. When reasonably 

priced technology is available that will enable the visually impaired computer user to access the 

computer, including the World Wide Web, during approximately the same number of hours with 

the same spontaneous flexibility that is enjoyed by other nondisabled computer users, there are 

many reasons why the objectives of Title II will most effectively and less expensively be achieved 

by obtaining the appropriate software programs.” “Although there may be limited circumstances 

when a personal reader is needed to bridge the gap in accessibility provided by adaptive software 

programs, this gap is continually being narrowed and post-secondary institutions are expected to 

stay apprised of recent advances.” 

Fn 32 OCR Long Beach letter, Note 29, supra. 

33
Fn 33 Americans with Disabilities Act Accessibility Guidelines (ADAAG), Sec. 4.34 (currently 

available at http://www.access-board.gov/adaag/html/adaag.htm#4.34). 

Fn 34 Complaint filed with the Federal Transit Administration by Randy Tamez against the San 

Francisco Metropolitan Transportation Commission (November, 1998). For a summary, see 

Disabled Web Surfer's Case May Prove a Bellweather for Accessibility Standards, by Patrick Riley 

(November 20, 1998) (http://ncam.wgbh.org/news/Webnews7.html). Various articles in such mass 

circulation media as the Washington Post and San Francisco Examiner, and articles in such 

disability-oriented publications as the Disability Rag, also discussed the complaint at length. 

Fn 35 Martin v. Metropolitan Atlanta Rapid Transit Authority, 24 NDLR 245(N.D.Ga. Civil Action 

No. 1:01-CV-CBEE-TWT, 1:01-CV-3255-twt October 7, 2002). 

Fn 36 Id. 

Fn 37 42 USC Sec. 12182. 

Fn 38 42 USC Sec. 12182 (a). 

Fn 39 42 USC Sec. 12181 (7). 

Fn 40 42 USC Sec. 12181 (1). 

Fn 41 42 USC Sec. 12181 (2). 

Fn 42 Letter from the Assistant Attorney-General for Civil Rights to Senator Tom Harkin, 

(September 9, 1996), 10 NDLR 240 (currently available at 

http://www.usdoj.gov/crt/foia/cltr204.txt). 

Fn 43 e.g., Amicus Brief of the US Department of Justice, filed in the Fifth Circuit in the case of 

Hooks v. OKBridge (No. 99-50891) See Fn #50 (currently available at 

http://www.usdoj.gov/crt/briefs/hooks.htm), and the Department's 11th Circuit amicus brief in 

Rendon (currently available at http://www.usdoj.gov:80/crt/briefs/rendon.pdf). 

Fn 44 e.g., http://www.ada.gov/aprjun02.htm (credit card statement in large print). Recognizing the 

value of effective communication with their customers, numerous public utilities and financial 

services companies have proactively offered or responded to requests to make statements, bills and 

inserts available to clients prevented by disability from reading print). 

Fn 45 http://www.icdri.org/city-of-san-jose-world-wide-Web.htm. See generally, U.S. Accessibility 

Law, by Cynthia Waddell, in Constructing Accessible Web Sites, Chap. 13, at Note 84, infra. 

Fn 46 National Federation of the Blind, Inc v. AOL Time Warner, Inc., (Civil Action No 99-12303 

(D Mass) complaint filed November 16, 1999) (http://www.education-rights.org/nfbvaol.html). 

34
Fn 47 e.g., Group Behind Blind-Access Suit Resolves Suit with AOL, by Hiawatha Bray, Boston 

Globe at E4 (July 27, 2000). 

Fn 48 http://www.corp.aol.com/access_policy.html. 

Fn 49 Will the National Federation of the Blind Renew Their ADA Web Complaint Against AOL? 

by Cynthia D. Waddell, 18 NDLR (DCB) - (August 24, 2000). 

Fn 50 Hooks v. OKBridge, Inc. (Civ. No. 99-50891, unpublished 5th Cir. August 21, 2000). 

Fn 51 Note 43, supra. 

Fn 52 As the brief points out, the Supreme Court made this mistake, initially concluding that the 

Fourth Amendment did not apply to telephone conversations but later correcting itself as the 

telephone became more central to our lives. 

Fn 53 Dean v. Ashling, 409 F. 2d 754 at 755 (5th Cir. 1969). 

Fn 54 Miller v. Amusement Centers. Inc., 394 F. 2d 342 (5th Cir. 1968). 

Fn 55 Rendon et al. v. Valleycrest Productions Ltd., 294 F. 3d 1279 (11th Cir. 2002), reh'g denied 

en banc, 2002 U.S. App. LEXIS 27593 (October 25, 2002). 

Fn 56 Rendon v. Valleycrest Productions Ltd., 2000 U.S. District No. 15776 (S.D.Fla) (2000). 

Fn 57 Rendon, Note 55, supra at N8. 

Fn 58 Access Now Inc. v. Southwest Airlines Co., 227 F. Supp. 2d 1317 (S.D.Fla.) (2002). 

Fn 59 see Complaint in Access Now Inc. and Gumson et al. v. Southwest Airlines Inc. (Case No. 

02-21734-civ S.D.Fla. 2002). 

Fn 60 Access Now, Inc., and Robert Gumson, et al, Plaintiffs-Appellants v. Southwest Airlines, 

Inc., Defendant-Appellee, (No. 02-16163-Bb, Brief Of Amici Curiae In Support Of The PlaintiffsAppellants And In Support Of Reversal, filed March 17, 2003 by Goldstein, Demchak, Baller, 

Borgen & Dardarian, on behalf of amici American Association Of People With Disabilities, 

American Council Of The Blind, American Foundation For The Blind, Bazelon Center For Mental 

Health Law, Disability Rights Advocates, Disability Rights Education And Defense Fund, National 

Association Of The Deaf, National Association Of Protection And Advocacy Systems, And 

National Federation Of The Blind). 

Fn 61 H.Rather. Rep. 101-485, Part II at 87, 1990 WL 125563. Cf., Squire v. United Airlines, 973 

F. Supp. 1004 at 1009 (D. Colo. 1997), aff'd. 194 F. 3d 1321 (10th Cir. 1999); All Hawaii Tours, 

Corp. v. Polynesian Cultural Center, 116 FRD 645 at 651 (D. Haw. 1987), rev'd. on other grounds, 

855 F. 2d 860 (9th Cir. 1998). 

35
Fn 62 The Air Carrier Access Act of 1986 (ACAA), 49 USC Sec. 41705. 

Fn 63 The Limits of Coverage: Do Insurance Policies Obtained Through an Employer and 

Administered by Insurance Companies Fall Within the Scope of Title III of the Americans with 

Disabilities Act?, by Karen Volkman, 43 ST. LOUIS U. L. J. 249 (1999); The Impact of Title III of 

the Americans with Disabilities Act on Employer-Provided Insurance Plans: Is the Insurance 

Company Subject to Liability?, by Jill L. Schultz, 56 Wash. & Lee L. Rev. 343 at 372 (1999). 

Fn 64 Cf., Morgan v. Joint Administration Board, 268 F. 3d 456 at 457-59 (7th Cir 2001) (because 

employee received her insurance through employer, it was a private offering and not a public 

accommodation); Parker Note 66, infra at 1011-12 (insurance sold only to employer not a public 

accommodation). 

Fn 65 Carparts Distribution Center, Inc. v. Automotive Wholesaler's Ass'n. of New England, Inc., 

37 F. 3d 12 at 19-20 (1st Cir. 1994); Pallozzi v. Allstate Life Ins. Co., 198 F. 3d 28 at 32-33 (2d 

Cir. 1999); Lewis v. Aetna Life Ins. Co., 982 F. Supp. 1158 at 1165 (E.D.Va. 1997), vacated on 

other grounds, 180 F. 3d 166 (4th Cir. 1999); Mcationeil v. Time Ins. Co., 205 F. 3d 179 at 186 

(5th Cir. 2000); Baker v. Hartford Life Ins. Co., 1995 U.S. Dist. LEXIS 14103 (N.Do. Ill. 1995); 

Kotev v. First Colony Life Ins. Co., 927 F. Supp. 1316 at 1321 (CD Cal. 1996); Doukas v. 

Metropolitan Life Ins. Co., 950 F. Supp. 422 at 425 (DNH 1996); Cloutier v. Prudential Ins. Co. of 

America, 964 F. Supp. 299 at 302 (ND Cal. 1997); Winslow v. IDS Life Ins. Co., 29 F. Supp. 2d 

557 at 561-63 (D. Minn. 1998). Compare, Shultz v. Hemet Youth Pony League, Inc., 943 F. Supp. 

1222 at 1225-26 (CD Cal. 1996); Digital Equip. Corp. v. Altavista Technology, Inc., 960 F. Supp. 

456 at 459 n.2 (D. Mass 1997); and Walker v. Carnival Cruise Lines, 63 F. Supp. 2d 1083 (ND Cal. 

1999). Winslow v. IDS Life Ins. Co., 29 F. Supp. 2d 557 at 561-63 (D. Minn. 1998). 

Fn 66 Parker v. Metropolitan Life Ins. Co., 121 F. 3d 1006 (6th Cir. 1997); Ford v. ScheringPlough Corp., 145 F. 3d 601 at 612-14 (3d Cir. 1998); Schaff v. Association of Educ. Therapists, 

No. C94-0315 CW, 1995 U.S. Dist. LEXIS 21806 (ND Cal. 1995). 

Fn 67 Several of the cases in Note 65, supra, state, or can be read to conclude, that no physical 

structure or location is required for the law to apply. Others hold that some nexus to a physical 

location or to commerce will suffice. 

Fn 68 Carparts Distribution Center, Inc. v. Automotive Wholesaler's Association of New England, 

37 F. 3d 12 (First Cir. 1994). 

Fn 69 37 F. 3d 12 at 19. 

Fn 70 Doe v. Mutual of Omaha Ins. Co., 179 F. 3d 557 (7th Cir. 1999), cert. denied, 528 US 1106 

(2000). 

Fn 71 179 F. 3d 557 at 559. 

Fn 72 Compare, e.g., Mcationeil, Note 65 supra with Doukas, Note 65 supra. 

36
Fn 73 Parker, Note 66, supra. 

Fn 74 121 F. 3d 1006 at 1010-14. 

Fn 75 For the admittedly inconclusive legislative history on the physical location question, see, 

e.g., S. Rep. No. 101-116 (101st Cong. First Session 1989) at 6, 10 and 58; H. Rep. No. 101-485, 

Parts I-IV, at 35-36, 54 and 56 (101st Cong. Second Session 1990); House Conf. Rep. 101-558 at 

41 (101st Cong. Second Session 1990); and HR Conf. Rep. 101-596 at 20 (101st Cong. Second 

Session 1990). Rarely mentioned on either side of the legislative history debate is the probability 

that those few members of Congress who had heard of the Internet when the ADA was passed in 

1990 would also likely have known that it was a highly restricted resource, available only to certain 

government agencies, corporations and universities, but essentially off-limits to the general public. 

Fn 76 28 CFR Sec. 36.104. 

Fn 77 Note 71, supra. 

Fn 78 See, Cyberspace--Is There a There There, and the ADA, by Richard W. Millar, Orange 

County Lawyer, February 2003 (arguing that the Internet cannot be a place because you cannot go 

there); and see, Access to Cyberspace: The New Issue in Educational Justice, by Patricia F. First 

and Yolanda Y. Hart, 31 J. of L. and Education 385 at 390 (2002) (summarizing arguments against 

regulation of the Internet). Contrast these with, ADA Title III and the Internet: Technology and 

Civil Rights, by Peter D. Blanck and Lennard A. Sandler, 24 Mental and Phys. Disability L. Rptr. 

855 (2000) (refuting free speech arguments against Web accessibility); and see Negative Media 

Portrayals (NCD ADA Policy Brief No. 5), at Note 9, supra. 

Fn 79 Southwest Airlines, Note 58 supra, at n.1. 

Fn 80 For a summary of such developments from around the world, see, Chap. 2, Overview and 

Guidelines, by Cynthia Waddell, in Constructing Accessible Web Sites, Note 84, infra. 

Fn 81 Authorities cited in Id. 

Fn 82 http://www.w3c.org/wai/ 

Fn 83 Many Web sites now proudly proclaim their accessibility. Most recently too, as an indication 

of the perceived market value of accessibility, disability-oriented organizations including the 

American Council of the Blind (ACB) and the National Federation of the Blind (NFB) have begun 

certifying Web sites as in conformance with accessibility standards. 

Fn 84 Useful online sources of technical assistance and information on the extent and application of 

accessibility requirements and guidelines, on the means for achieving success, on methods for 

evaluating accessibility, and on other related matters include: The Worldwide Web Consortium's 

Web Accessibility Initiative (WAI) (http://www.w3c.org/wai/#resources); The International Center 

for Disability's Internet Access Primer (http://www.icdri.org/accprim.htm); the ADA Disability 

Business and Technical Assistance Centers (DBTAC) 

37
(http://www.adata.org/aboutaccessWeb.html); the resources available through the US General 

Services Administration's (GSA) site (http://www.section506.gov); the Web page accessibility selfevaluation tool called Bobby (http://bobby.watchfire.com/bobby/html/en/index.jsp); and emerging 

new self-evaluation resources such as the Cynthia Says tool (available through the ICDRI Web 

site). Also see generally, Constructing Accessible Web Sites, by Jim Thatcher, Paul Boman, 

Michael Burks, Shawn Lawton Henry, Bob Regan, Sarah Swierenga, Mark Do. Urban and Cynthia 

Do. Waddell (Glasshaus Publishing 2002); and see Lazzaro. 

Fn 85 e.g., 36 CFR Part 1194 (adoption of Section 508 guidelines); see also, Information 

Technology and People with Disabilities: The Current State of Federal Accessibility (Report 

Presented by the Attorney-General to the President, April 2000). 

Fn 86 See, The Supreme Court's Decisions Regarding Validity and Influence of ADA Regulations, 

NCD Righting the ADA Policy Brief No. 16, at Note 9 supra. 

Fn 87 Compare, Letter from the Equal Employment Opportunity Commission, (responding to an 

inquiry from a member of the public) (February 4, 2003), 25 NDLR 257 (the letter notes the 

proactive role played by EEOC in connection with Web accessibility under Title I of the ADA, and 

also raises the possible interplay between Titles I and III when job applications are made available 

to the public over the Web). 

38