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National Law Journal: Net Rights for the Disabled?

From: Kelly Ford <kford@teleport.com>
Date: Tue, 16 Nov 1999 08:32:40 -0800
Message-Id: <3.0.3.32.19991116083240.0081d100@mail.teleport.com>
To: (Recipient list suppressed)
Hi All,

Many of these points have been made in previous articles but here's more
coverage of the NFB action against AOL.

From the web page:

http://www.lawnewsnetwork.com/stories/A9537-1999Nov12.html

 Net Rights for the Disabled?

By Ritchenya A. Shepherd 
The National Law Journal 
November 15, 1999 

A suit against America Online, filed by the National Federation for the
Blind, could have widespread ramifications in the online industry and for a
variety of other service-based businesses, lawyers say.

The suit puts squarely before a federal court the question of whether an
Internet-based service is a public accommodation and therefore, under the
Americans With Disabilities Act (ADA) of 1990, is required to provide
access to people with disabilities.

"It’s a 500-pound gorilla that party-goers can’t ignore," said Robert A.
Naeve, a labor and employment partner at San Francisco’s Morrison &
Foerster L.L.P. "If the court rules that AOL is a public accommodation, it
could require anyone engaging in e-commerce to make their Web
site...accessible to people with disabilities."

The Baltimore-based federation brought suit on Nov. 4 in U.S. district
court in Boston, claiming that AOL is in violation of the ADA because its
proprietary software is not compatible with the screen-access software used
by blind people.

"We get hundreds of complaints about AOL every year," said Dr. Marc Maurer,
the group’s president. Members call, he said, "asking how they can make
their machines work with AOL, and the answer is: You can’t." 

Blind people use software to monitor their computer screens and convert
text into synthesized speech or Braille. But such programs cannot read many
of AOL’s unlabeled graphics of custom controls and can’t process functions
requiring use of a mouse rather than keystrokes, the complaint says.

There are about 700,000 blind people in the United States, Dr. Maurer said.
A recent poll says that 60% to 70% of the federation’s 50,000 members use
computers. "We have called AOL many times and written a few times. They
have said they’re all for access, but they never do anything about it," he
said.

The law on whether online providers are public accommodations isn’t clear.
"There’s nothing that addresses it squarely in the statute," said Gary D.
Friedman, a New York labor and employment partner at Chicago’s Mayer Brown
& Platt.


JUSTICE DEPARTMENT VIEW
A 1996 opinion by the Department of Justice concluded that the ADA does
apply to companies and government agencies offering products and services
over the Internet, but that opinion never has been judicially interpreted,
said Jonathan S. Quinn, a partner at Chicago’s Sachnoff & Weaver Ltd.

And a DOJ regulation requiring public accommodations to ensure access to
their goods indicates that they are not required to alter the nature or mix
of those goods, Mr. Naeve said. He cited the example of a bookstore, which
must make its facility physically accessible but does not have to stock
Braille or large-print books.

The federal circuit courts are split over whether the ADA—which enumerates
places of accommodation such as concert halls, parks and restaurants—can be
stretched to cover other types of service businesses. The U.S. courts of
appeal for the 3d and 6th circuits "flat out say that a public
accommodation is a physical place," Mr. Naeve said. "If you follow that,
then the Internet is not a public accommodation."

However, the 1st Circuit—where the NFB sued—has held otherwise. In a 1994
case, Car Parts Distribution Center v. Automotive Wholesalers Association,
37 F.3d 12, the court held that being a public accommodation doesn’t demand
a physical structure for people to enter. "What the plaintiffs in the AOL
case are arguing represents a rather expansive interpretation of the ADA,"
said Edward S. Mazurek, a labor and employment partner at Morgan, Lewis &
Bockius L.L.P. in Philadelphia. In addition to affecting on-line
businesses, such a reading of the statute could affect other service
providers, such as telecommunications companies and insurance companies,
which could be forced to alter access to their services to accommodate
people with disabilities.

Given the stakes, it appears to be in AOL’s interest to settle, Mr.
Friedman said: "They have a lot to lose....They don’t want to create any
adverse law."

AOL would not comment on the possibility of a settlement. But the company
already is well on its way to making its service more accessible to the
blind, said company spokesman Nicholas J. Graham.

Next year, AOL plans to release an updated version of its software that can
interface with screen readers, as well as a feature to allow AOL members to
have their e-mail read to them over the telephone.
 
Copyright  1999 ALM IP, LLC -- American Lawyer Media. All rights reserved. 
Received on Tuesday, 16 November 1999 11:32:37 GMT

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