Federal Judge: Websites Must Comply With Americans With Disabilities Act
A recent decision out of Massachusetts threatens to make business quite difficult for online service providers.
The Americans With Disabilities Act is one of those laws that, on an emotional level at least, it’s hard to be opposed to. After all, who can really be against the idea of making it easier for disabled people to function in the modern world? Indeed, it was a law that passed overwhelmingly in Congress and was signed into law by a Republican President, George H.W. Bush. However, in the 20-odd years since the ADA has become law Courts have struggled with the question of how the law should be applied and what, exactly, constitutes a “reasonable accommodation” under the law. No where else has this been more difficult than in cyberspace, where the question of how the ADA applies to the Internet is an area where the law has not yet come up with a good answer. However, a recent ruling by a U.S. District Court Judge in Massachusetts is raising eyebrows in the legal and Internet worlds because of the implications it may hold:
A federal judge in Springfield has ruled that Netflix and other online providers that serve the public are subject to federal disabilities laws, a decision that could require TV shows and movies streamed over the Internet to include captions for the deaf or other accommodations.
On Tuesday, US District Judge Michael Ponsor rejected Netflix’s argument that it is exempt from the Americans with Disabilities Act, or ADA. He declined to dismiss an ADA lawsuit against Netflix for failing to provide captions on much of the content it streams to subscribers.
Web-based businesses did not exist when the disabilities act was enacted in 1990, the judge wrote, but the US Congress intended the law to adapt to changes in technology, and it should apply to websites.
The complaint was filed by the National Association of the Deaf, the Western Massachusetts Association of the Deaf and Hearing Impaired, and Lee Nettles, a staffer at the Stavros Center for Independent Living in Springfield.
Nettles said Netflix discriminates against the hearing-impaired, forcing them to to avoid its streaming service and pay for more expensive DVD rentals to ensure the movies and TV shows they rent are equipped with captions. “It has to be equal accessibility to all people using it,” he said. “It has to be 100 percent equality.”
Ponsor’s decision cleared the way for the lawsuit to proceed. “In a society in which business is increasingly conducted online, excluding businesses that sell services through the Internet from the ADA would ‘run afoul of the purposes of the ADA,’ ” he wrote.
“Online is a place,” said Wendy Parmet, professor of law at Northeastern University and a specialist on disability law. “Virtual spaces are spaces.”
Netflix said it would not comment on an ongoing legal matter. The company can appeal the ruling.
Under Ponsor’s reading of the law, all Internet businesses must add features that make their sites usable by people with disabilities, said Peter Blanck, professor of law at Syracuse University and a disability rights advocate. “The law requires that there is full and equal enjoyment of services offered by a commercial entity,” Blanck said.
The implications of such a ruling, if it stands, are potentially quite far reaching. Under Judge Ponsor’s reasoning, any website created for a commercial purpose would be required to invest the resources necessary to make their site accessible to all people with disabilities. For many online endeavors, this could mean incurring prohibitive costs that would force them to choose between complying with the law and essentially shutting down their online presence. And even then, they would still be subject to potential lawsuits by Plaintiffs represented by eager attorneys asserting that they have not fully complied with the ADA. Even if you concede the fact that, in general, the ADA is a good law, it’s worth remember that the law was drafted and passed long before the Internet was something other than a thing that computer hobbyists and University researchers accessed. One has to wonder if it makes sense to apply a law that is, in a sense, from an entirely different era, to something entirely new. After all, if the Congress that drafted the ADA had been aware of the Internet, would they not have included provisions in the law that would cover it?
Over at Ars Technica, Santa Clara University Law School Professor Eric Goldman points out some of these problems, as well as the fact that Judge Ponsor essentially disregarded several previous rulings on the this issue:.
If websites must comply with the ADA, all hell will break loose. Could YouTube be obligated to close-caption videos on the site? (This case seems to leave that door open.) Could every website using Flash have to redesign their sites for browsers that read the screen? I’m not creative enough to think of all the implications, but I can assure you that ADA plaintiffs’ lawyers will have a long checklist of items worth suing over. Big companies may be able to afford the compliance and litigation costs, but the entry costs for new market participants could easily reach prohibitive levels.
And then there’s linkages with other civil rights statutes, such as Title II of the Civil Rights Act of 1964 (an anti-discrimination law) and state laws, that use similar language as the language interpreted in this ruling. If all of those statutes are back in play too, the range of obligations imposed on websites—and the opportunities for aggressive plaintiffs’ lawyers—expand exponentially. Expect lots of consumer claims that a website discriminated against them based on an impermissible criterion. It’s safe to say that the legal rules at issue in this case could have billions of dollars of impact between the web coding obligations and the potential litigation frenzies.
The most crucial ruling is where the court says that a website qualifies as a “place of public accommodation.” The court deviated from—and, incredibly, didn’t cite—a nearly unbroken line of precedent rejecting that conclusion. I don’t have a complete roster of cases in this area, but cases that came to mind include Noah v. AOL (a Title II case), Access Now v. Southwest Airlines (an 11th Circuit case), Stern v. Sony, Young v. Facebook, and Ouellette v. Viacom. The only plaintiff win in this area is the offbeat National Federation of the Blind v. Target case (which this court did cite), where the court held that Target’s obligations to comply with the ADA in its offline retail stores extended to its website. Because of its fact-specific nature, the Target ruling really hasn’t had much of an impact on Internet litigation over the past 6 years.
Bypassing all of this precedent, the judge instead relies almost exclusively on the heavily criticized First Circuit Carparts decision from 1994. The NAD made a crafty venue move suing in a court bound by Carparts. Even so, I wonder how this ruling would fare on appeal to the First Circuit (if Netflix goes that route), and I wonder if judges in other circuits will be persuaded by this judge’s ruling.
Walter Olson points out that the implications of Judge Ponsor’s ruling are quite far reaching:
[C}aptioning for the deaf is just the start if the law’s goal is to be what one advocate quoted in the Globe piece calls “100% equality.” Some in the blind community believe all films should be accompanied by “descriptive video” supplemental soundtracks that describe action on screen (“Jenny walks over to the desk and takes a revolver out of the drawer. She points it silently at the intruder.”) That could add substantial additional cost to the distribution of, say, small-circulation independent documentaries, vintage public-domain features and other low-revenue fare. While the current suit is against Netflix, the precedents it sets would also apply to much smaller providers of online streaming.
Of course, there are some who see it differently:
I am so sick and tired of hearing people like Olson talk about the high cost of adapting technology, buildings, pools, whatever to people with disabilities. Let’s forget, for a second, that this is the law. It’s the human thing to do; those like my son who have disabilities have the right to live life with access to everything people who aren’t handicapped do.
I tend to think that the Walter Olsons of the world who make such statements don’t have anyone with a disability in their lives. That’s what it often takes for people to understand the idea of equality for all in this country includes people with disabilities.
Notwithstanding the emotional pandering of this last post, I find that I must agree with Olson and Goldman on this issue. For one thing, the fact that the ADA was passed into law years before the World Wide Web came to be something that the public in general would use suggests rather strongly that the law was never intended to apply to the online world. Quite obviously, the concerns that the drafters of the law had at the time involved access to public buildings, accommodations in workplaces, and similar situations. It is simply inconceivable to believe that the 101st Congress, made up mostly of people who had little familiarity with the computer world to begin with, were thinking about how this law would apply to technologies and service providers whose existence they couldn’t even conceive. This suggests strongly that trying to apply a law that was meant to do things like require building owners to install ramps to a web site is a foolish and mistaken legal endeavor.
There is much about the ADA that is admirable, and the goal of making it easier for people with disabilities to live full lives is one that should be pursued with vigor. Indeed, as Professor Goldman says in his Ars Technica post, I agree that commercial web site developers should do their best to accommodate people with disabilities who wish to access their websites. However, trying to apply a law written before the Internet as we know it today to the world we live in now strikes me as a mistake. Judge Ponsor’s decision is mistaken and in conflict with existing precedent, which means it will likely eventually be reversed. However, the real solution here is for Congress to revisit a law that was drafted in a different era and update it, in a reasonable and non-egregious manner, to the world that we live in now.
Update: Here’s the decision:
Why not just redefine ”disability” under ADA to include everyone, then we’d be in compliance.
That seems to me to be less costly than enforcing all of these ADA compliance regulations.
The most bizarre thing is that Netflix is fighting this on court, instead of offering subtitles from the beginning.
However, the real solution here is for Congress to revisit a law that was drafted in a different era and update it, in a reasonable and non-egregious manner, to the world that we live in now.
This is true and you’re right, Ponsor’s decision will be reversed. The question is how will such a law be written, assuming we ever get a Congress interested in passing legislation? Will the responsibility be on website developers or website owners? How will accessibility for people with disabilities be defined? Will only commercial websites be classified as “places of public accommodation?”
It’s very tricky to write laws for the Web. My developer friends at the big firms are in the middle of a a massive nightmare right now because of Europe’s new anti-cookie law, requiring nearly all websites to get users’ expressed permission to use cookies. Of course, almost every website in existence uses cookies, and most users don’t even know what cookies are, and there’s no real suitable replacement for cookies (and even if they come up with one, those will be subject to this law or another one would be passed). There are no attractive solutions and it’s a total disaster for pretty much every website owner who has any users or wants to have any users in Europe. Corporations are freaking out and their website developers, internal or contracted, are living in a world of pain right now.
Requiring ADA compliance of all websites would be like the EU anti-cookie law times a thousand. Captioning every YouTube video when someone uploads one? I’m sure that’s easy! Oh wait. About 100,000 hours of video are uploaded to YouTube every day!
My solution? Establish a separate court system for cases dealing with the Internet and other modern communications technologies (the 1337th Court of Appeals?). Too many judges just don’t understand the technology they are considering, and the repercussions of their ignorance can cost billions of dollars.
@André Kenji de Sousa: Netflix often offers subtitles on films where the origional producers of the film created subtitles.
It would make far more sense from a technology standpoint to modfy a computer to generate subtitles than it would be to require it everywhere on the net. Does this mean that blind people could sue bloggers that don’t provide a way to have the text on the screen read to them?
It would be like forcing every book publisher to print a brail version of every book they publish.
@Vast Variety:
One thing to keep in mind on the Netflix/subtitles issue is that the movies and television shows that it streams online are owned by other companies. It could be a violation of the license agreements Netflix has with these companies to alter the product in the manner that this lawsuit seems to contemplate. I don’t know if this issue was raised in the original pleadings or not.
Bingo!
What makes those points even more apropos is that the current version of the ADA is a lot loopier than the old version of the ADA. Used to be people weren’t “disabled” unless they actually were disabled. With the recent ADA amendments, however, pretty much everyone is disabled. Are you nearsighted? You’re “disabled.” Have a “lazy eye?” Yep, you’re disabled.
This truly is a dumb ruling. It’ll need to be reversed, either judicially or legislatively. Hell, to be blunt about it the entire ADA should be cast to the dustbin of history. For over 200 years we had survived and thrived without it. No need for Uncle Fed to have become a de facto disability rights advocacy group. Individual states are more than capable of enacting and enforcing similar regulations. States in fact have done so. When you’ve got the likes of California’s DFEH, for example, you sure as hell don’t need Club Fed doing the same work.
I fully agree Doug. While we are at it, let us hold the Constitution as null and void for the vast majority of things as they now are, as it was created long before so much was even a glimmer in some engineer’s eye. If the Founders wanted that document to apply to (for example) cars, railroads, or planes, they would have put them into the dang thing.
Ridiculous comparison, Ozark. The Constitution created the framework of government and speaks in general enough principles that it can easily be applied as technology changes. The ADA is a major piece of legislation intended to regulate large segments of the economy and which authorizes the Labor Dept, among others, to create wide-ranging regulations based on its language. You’re either just being cheeky here, or you really don’t see the problem of applying a 20 year old law to 21st century cyberspace.
There goes Google maps and other mapping apps.
I can’t find it so perhaps cooler heads prevailed but only about 10 years or so ago, the US government mapping and charting agencies were going to have to fund a program where the blind could call to have maps and charts verbally described to them.
So is Google going to have to offer this service on the fly as someone navigates Google Maps or Earth?
@OzarkHillbilly: @Doug Mataconis:
I would also note that we can repeal and amend laws that are outdated, just as we can amend the Constitution when it is outdated.
In fact, we should do the latter regarding the 2nd Amendment. The founders very likely could not imagine such a right applying to such things as rocket-propelled grenade launchers or unmanned strike drones or any of the other “arms” humans have invented, to say nothing of the severely outdated notion of militias in the U.S. It’s long past time for an update.
Thankfully it is harder to amend the Constitution than amend a statute
I just added a ramp to my keyboard…
…so I’m good to go.
I’m not sure I buy the ‘new, unforeseen technology’ arguments. Does broadcast TV require closed captioning? How about headsets supplied in movie theaters? TV and movie projection are ‘video streaming technologies’ that predate the ADA act. Why wouldn’t one apply similar requirements for Internet-based streaming?
And yeah, I do think web sites should be designed for people with disabilities in mind. I know from looking at this question over 15 years ago that there are well thought-out specifications and recommendations for such designs. There are also web/HTML elements available to make the process easier. Heck, if a bricks and mortar store has to build wheelchair ramps or lifts, adding a few well-placed markup tags in a web page is a pretty small cost to bear in comparison.
@Blue Shark: Popcikle stick?
@mantis: Yeah, just the other day I walked down to the RPG/strike drone store and picked up a half a dozen of each.
It seems arguable to me that while such requirements may seem onerous to owners of online business, they actually will result in a more competitive market overall. Brick and mortar businesses do have to comply with the ADA; if online businesses don’t, that’s essentially a tax subsidy in their favor.
I’ll have to think about it some more, but on first glance I’m in favor. Online companies get enough subsidies as is.
The specific case doesn’t bother me at all — a large business streaming licensed content produced for mass viewing? Subtitles seems like a reasonable burden.
YouTube would be trickier, since so much content is generated by users.
A tiny website would also be trickier, since they likely do not have the resources to subtitle everything (yet — automated subtitling will appear at some point and be cheap to implement).
@André Kenji de Sousa:
Netflix can’t add the captioning itself without violating copyright law, as doing so would entail making illegal transcripts of movies and tv shows. They’re really caught between a legal rock and a hard place now.
And how does this work for things like video games? Is EA required to make a version of Call of Duty that can be played by the blind? How?
I think it’s pointless to worry too much about the implications. As mentioned above, it’s a very unusual ruling that doesn’t fit with a lot of prior precedent, which means there’s a very good chance it will get reversed in appeals court.
Assuming it did hold up, though, doesn’t the ADA law have some kind of “onerous” qualifier to accommodations for the disabled? I doubt it would force Youtube to caption everything. I also thought it didn’t apply to businesses below a certain number of personnel.
@Gustopher:
You Tube has automated captioning right now… and there’s a number of internet memes that began as a result of it’s frequently odd choices.
@Maxwell James:
In the future, please link all of your comments to an audio version of their content. If not, I will sue you.
Wow…if upheald this will force Netflix to double their storage space. Downloads don’t work like DVD’s. You can either download a verison with subtitles…or without. But you can’t download a version with subtitles and “turn them off”. Right now it just doesn’t work that way.
@Tsar Nicholas: “No need for Uncle Fed to have become a de facto disability rights advocacy group. Individual states are more than capable of enacting and enforcing similar regulations. States in fact have done so. When you’ve got the likes of California’s DFEH, for example, you sure as hell don’t need Club Fed doing the same work.”
Well no, you don’t. Not in California, anyway. But if you have the misfortune to be disabled in Mississippi, who’s going to stick up for you? Or do you believe that if someone is disabled in a Republican-controlled state, they should just suck it up or crawl to a Blue state?
I swear I don’t understand this fetishization of the states. If we’re all citizens of the same country, we should face the same laws.
@Dave E.:
Yeah, just the other day I walked down to the RPG/strike drone store and picked up a half a dozen of each.
I made no comment as to the availability of weapons unheard of by the founders in local retail establishments. I was talking about our rights to possess them. Do you understand the difference?
As everyone knows, there are things which are legal to possess but very hard to obtain, and there are things which are illegal to possess, but very easy to obtain.
@mantis:
And ne’er the twain to meet.
@mantis: I’m pretty sure a grenade qualifies as a “destructive device” under federal law and possession of one by anyone outside of the military or other government sanctioned groups is against the law. The same would apply to Hellfire equipped drones. It’s not a matter of availability, there is no Second Amendment right to own such weapons and the US Supreme Court has affirmed that reasonable regulation of weapons is constitutional a number of times over the years.
One solution would be a computer program that would provide this service. This ruling is basically unenforceable considering that the Federal government would have to find the responsible party or shut down the site. It they can just shut down any site for that reason, the inter net is over !
Based on this judge’s ruling, instead of spending $4000 to a trip to Disney World, I will be just as happy visiting their websites and Disney Resort websites. It I am not satisfied, I can sue also. I would like for the judge to explain how I can eat real food by going to a website.
What is it with these judges now a days and their crazy rulings? Too much sun? Maybe they should stay off the golf course and take up bowling.
I wonder if technology will resolve this as well. We’re probably not too far from programs that could take the audio from any streaming video and create captions for it (as mentioned, Youtube is trying this). Creating tracks for the blind is more difficult, but not impossible (a reading program plus the movie transcript).
Here’s a fairly recent government FAQ for small businesses regarding the ADA.
http://www.ada.gov/regs2010/smallbusiness/smallbusprimer2010.htm
Note this:
It appears that the size of the business does not matter under the law. Maybe there are other exceptions, I haven’t read the whole thing.
According to Hollywood, blind folks really want to drive. We should include echolocation on all vehicles. Yet that doesn’t give them the benefit of color discrimination. Perhaps a sight capable mandatory copilot would be advisable.
Oh. That’s not the business of the Feds, you say? Fancy that.
Sadly enough, life is not fair. That’s no reason to be aggrieved, bitch and sue.
How about the tree house at Magic Kingdom?
I am hearing impaired and so I am stuck with disks instead of streaming. I wonder just how difficult it would be. Nearly all movies come with embedded subtitles now. There would be an initial expense but that should be a one shot and should bring additional customers, not just the hearing impaired but non English speakers as well. I get closed captions on my Comcast streaming movies and I know you can select the language of those captions. It might require additional hardware on the user side but I don’t have a problem with that.
@Doug Mataconis
.Doug, it is not ridiculous. The law is the law. The constitution is the constitution. If you want to pretend that 95-99% of the laws introduced since the beginning of our country should not apply because technology present today was not even imagined when the laws were written…. Well, the constitution should not be interpreted, it should be ignored.
I am going to be a good boy now.
@Dave E.:
It’s not a matter of availability, there is no Second Amendment right to own such weapons and the US Supreme Court has affirmed that reasonable regulation of weapons is constitutional a number of times over the years.
And whether regulation of weapons is constitutional will depend on who is on the bench. And the definition of “reasonable” will depend on who is on the bench. The Supreme Court recently decided election advertising, in effect, can’t be regulated by Congress in any meaningful way, even though it had allowed it in the past. This is because the court has decided to follow a very broad definition of “speech.”
18th Century lawyers wrote the 2nd Amendment, and wrote it in a vague way even for the time, and woefully inadequate in the face of advances in weaponry over the years. “Arms” can encompass anything the court wants it to. I don’t want it left to them to decide. Do you?
And for the record, I have no idea how this should be decided. BUT….. “Costing us money” has never been an acceptable argument as it ALWAYS costs somebody money. The EPA recently came to my property (12 1/2 acres) and tested it for lead… If it had come back poisoned, who is to blame? Me? Or St. Joe Lead? (for the record, they were looking for lead, but meth would have been easier to find)
Fortunately, no evidence of meth labs were found on my place.
I think.
@Brett:
I believe that you’re right. It’s entirely possible that much of the disability-access problems that confront users today will be solved by technology in the next 3 to 5 years.
@mantis: What you mentioned are illegal for your average American to possess so what’s your point? I’m guessing you’re just upset because you cannot ban all guns so you can start working on banning pointy sticks.
You mad brah?
@al-Ameda: I’m not sure the technology isn’t already here. As I said above I already get closed captioning on streamed movies from Comcast.
@Dave E.: @Dave E.:
I am pretty sure a 9mm is a destructive device…. strangely tho, possession of one is not against the law.
(do you even listen to yourselves????)
@mantis: Seriously? Raging paranoia is the best you got? I tell you what, when the US Supreme Court decides that ownership of RPGs and machine guns is protected under the Second Amendment, give me a call.
@OzarkHillbilly: “Destructive device” is a specific term with a specific definition under federal code. Go ahead and try to change that definition to include a 9mm bullet if you want. Until you do though, your opinion doesn’t matter diddly as far as the law is concerned.
@Doug Mataconis:
Well, yeah, I am being cheeky here. BUUUUUTTTTT…. I don’t seem to see the problems of applying a 20 year old law to 21st century cyberspace.
Please, explain it to me.
Ps: while you are at it explain to me why 19th century law does not apply to me…. Please???
I beg you…
@matt:
What you mentioned are illegal for your average American to possess so what’s your point?
You have to read and use your brain a bit. Sorry for the inconvenience.
This points up the sorely needed tort reform. These frivolous lawsuits need to be stopped cold. According to the judge and the law professor’s logic, these are real places: Oz, Narnia, Yellow Brick Road, Camelot, parallel universes, and the House on Haunted Hill are real places. Think of the effect on the websites of small businesses! It will drive their costs way up to have to comply with this ridiculous ruling!
What we have are the infamous lawsuits such as the McDonald’s hot coffee, the dentist who made the lady’s teeth too white, blind man sues airline for not hiring him as a pilot, and the man who claimed the roller coaster was too fast!
How to fix this? Have a law that would hold judges, lawyers, and their clients liable for frivolous lawsuits and would be subject to fines if it is determined by a jury or judge that their case is without merit or common sense! They would have to pay court costs and legal fees for the victims of their phony lawsuits.
Go to this link for the top ten crazy lawsuits of 2011
What are some other example of stupid lawsuits you can think of? Let’s hear from you.
@Dave E.:
Dave, If I put a .357 slug thru your skull, are you going to argue ” specific terms”? Or are you going to be dead?
Tell me….
@OzarkHillbilly: and for the record Dave, I have no intention of putting a slug of any size in your brain. My comments are meant for argument only.
Depends on if I see you first I guess.
Kidding aside, if you are going to try to twist things to mean whatever you want then you aren’t even worth debating. There’s a difference between a 9mm handgun/ammunition and a grenade(and other devices). The law recognizes and defines this difference and makes the former legal and the latter illegal. If you want to argue that all should be illegal, fine, but spare me the bullshit.
@OzarkHillbilly: I understand. I was not offended.
@OzarkHillbilly: How about I run over you with one of those giant SUVs with a solid push bar on it? That’s mighty destructive last I saw..
@matt: For the record OzarkHillbilly I have no intention of running over you in a SUV.