Equal Access in Cyberspace: On Bridging the Digital Divide in Public Accommodations Coverage Through Amendment to the Americans with Disabilities Act

INTRODUCTION At its signing, George H.W. Bush described the Americans with Disabilities Act ("ADA" or "the Act") as "the world's first comprehensive declaration of equality for people with disabilities." (1) Invoking "the sweep of congressional authority" under the Commerce Clause and Fourteenth Amendment, (2) the Act purported to provide a "clear and comprehensive national mandate" (3) for the elimination of discrimination against the disabled in principal areas of American life including employment, (4) state and local governmental services and programs, (5) and "place[s] of public accommodation." (6) In the twenty-five years since its passage, public and private officials have engaged in vigorous discussion concerning what activities the ADA does and does not cover. This Note seeks to settle one such debate by ascertaining whether private, commercial websites with no brick-and-mortar presence in the physical world fall within Title Ill's prohibition against disability-based discrimination in places of public accommodation. (7) Thus far, those seeking to answer this question have fallen into one of two camps. Proponents for inclusion invoke the broad remedial purpose of the statute, snippets from its legislative history, and public policy concerns to advance their position. (8) Those opposed to the expansive interpretation cite canons of statutory construction, (9) concerns over the use of legislative history, and wariness of judicial activism (10) to advance their position. This Note argues that, framed in this manner, the debate myopically focuses on one purpose of the ADA--its "remedial" purpose--which "invoke [s] the sweep of congressional authority ... to address the major areas of discrimination faced day-to-day by people with disabilities." (11) This goal is unquestionably instrumental to the ADA; the Act accomplishes it by expressly identifying the numerous discriminatory actions rendered unlawful by the statute. However, the ADA does more than create a bare-bones outline of discriminatory actions, leaving the responsibility of fleshing out the details to the designated administrative agency. Rather, via its equally important "standards" purpose, the Act provides a corresponding set of clear, consistent, and enforceable standards for each form of proscribed discrimination. (12) Therefore, the Note will argue that a proper interpretation of public accommodations coverage requires consideration of the term in light of both statutory purposes. This approach will help to determine not only whether the term "public accommodation" is capacious enough to encapsulate websites, but also whether the ADA explicitly provides a corresponding set of standards governing website-based discrimination. To this end, the Note will proceed in three Parts. Part I will trace the development of the case law on this issue, which has culminated in a circuit split. It will also discuss the influence of the Department of Justice (DOJ), which has not exercised its regulatory authority on the subject but which has initiated enforcement actions consistent with an interpretation that includes freestanding websites. Part II will argue, based on the text, congressional silence, and the statute's dual principal purposes, that private commercial websites do not fall within the purview of Tide III. Part III will propose that disability rights advocates should direct their energy not toward enforcing the statute as currently interpreted by the DOJ, but instead toward Congress to ensconce this important public policy through clear statutory amendments. Such amendments should govern websites and establish a framework for assessing and evaluating any technologies which might arise in the future. I. SETTING THE STAGE: THE PUSH TOWARD INCLUDING WEBSITES AS PUBLIC ACCOMMODATIONS In theory, the proliferation of commercial websites has the potential to markedly improve the disabled community's ability to participate in commercial activity. …