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Fwd: Congressional hearing on ADA and Internet

From: Kelly Ford <kford@teleport.com>
Date: Sun, 16 Jan 2000 03:29:12 -0800
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To: kford@teleport.com
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Hello Everyone,

I apologize for the length of this material.  However I believe those 
interested in web accessibility may want to read this information.  I do 
not have additional information at this time about any hearing scheduled to 
talk about this topic.  However, if any such hearing does take place, it 
will be critical for those interested in web accessibility to be present to 
present our views.

A full list of subcommittee members will be sent out in a separate message.

>From: "Barrett, Don" <Don_Barrett@ed.gov>
>To: uaccess-l@trace.wisc.edu
>Subject: Congressional hearing on ADA and Internet
>Date: Sat, 15 Jan 2000 23:17:11 -0500
>Hello all:
>I have heard that the House Judiciary Committee's Subcommittee on the
>Constitution is planning a hearing on February 9th regarding the
>application of title III of the ADA to the Internet.  Below is a memo
>about the hearing from Paul Taylor, the subcommittee counsel, to
>Congressman Charles Canady (R-FL), the chair of the subcommittee.  I do
>not have any more specifics about the hearing (when it will be or who
>the witnesses might be).  If anyone else does, please chime in.
>This could potentially be a very big deal, and for all I know, could delay
>the Access Board's release of the Section 508 standards, and have numerous
>other effects on technology access work in general.
>The following memo is quite long, but worth the reading, and of great
>         MEMORANDUM
>TO:             Congressman Charles Canady
>FROM:   Paul B. Taylor,
>Counsel, Subcommittee on the Constitution
>DATE:   December 16, 1999
>RE:             Hearing Proposal Regarding the Application of the Americans
>With Disabilities Act's Accessibility Requirements to Private Internet Web
>Sites and Services
>I.      Introduction and the Need for Oversight
>Early next year, the Federal government is scheduled to promulgate
>handicapped accessibility requirements that apply to Federal department and
>agency Internet sites.  These Federal standards will likely be used as a
>model for Internet accessibility requirements by litigants suing private
>providers of Internet web sites and services under the Americans With
>Disabilities Act ("ADA").  It is the opinion of the Department of Justice
>that the ADA's accessibility requirements do apply to private Internet web
>sits and services, and, on November 2, 1999, the National Federation for the
>Blind filed a class action lawsuit against America Online -- which currently
>serves approximately 18 million member customers -- claiming the ADA's
>accessibility requirements apply to AOL's Internet services and that the
>manner in which such services are currently provided violate the ADA.
>In light of the significance of the Internet economy to recent economic
>growth, the costs that application of the ADA would impose on that rapidly
>expanding segment of the economy, and the substantial First Amendment
>implications of applying the ADA to private Internet web sites and services,
>the development of a legislative record on these issues at a Constitution
>Subcommittee hearing following the winter Congressional recess would likely
>prove quite valuable to all interested parties.
>A.      The Significance of the Internet Economy
>A report issued recently by the Department of Commerce this summer
>summarizes the remarkable growth of the Internet economy, which has been
>spurred by the rapid increase in the number of consumers with access to
>computers and the Internet:
>While individual private estimates of Internet access and size vary
>significantly from each other, taken together they indicate remarkable
>growth.  For example, The Industry Standard reports that from 1998 to 1999
>the number of web users world?wide increased by 55 percent, the number of
>Internet hosts rose by 46 percent, the number of web servers increased by
>128 percent, and the number of new web address registrations rose by 137
>percent.  In addition, according to a recent study by International Data
>Corporation (IDC), between 1998 and 1999 revenues of U.S. Internet companies
>(ISPs) will rise by 41 percent.  IDC projects that these ISP revenues will
>continue growing at a compound annual rate of 28 percent through 2003.  By
>any measure, the ability of consumers and businesses to reach the Internet
>and to engage in e?commerce is increasing rapidly.
>U.S. Department of Commerce, "The Emerging Digital Economy II" (June 1999)
>("EDE II"), at 2.
>Current private estimates of 1998 online retail trade range between $7
>billion and $15 billion, and forecasters now project online retail sales in
>the range of $40 billion to $80 billion by 2002. EDE II, at 5.  A recent
>survey of Chief Financial Officers conducted by the Financial Executives
>Institute and Duke University indicates that the proportion of U.S.
>companies that sell their products over the Internet will jump from 24
>percent in 1998 to 56 percent by 2000.  EDE II, at 6.
>B.      The Benefits the Internet Currently Provides to the Disabled
>There are many reports of the vast benefits the Internet has provided to the
>disabled community, particularly the blind.  See "Blind Users Add Access On
>the Web," The New York Times (December 2, 1996) at D7 ("'The Internet has
>changed forever the lives of blind people, mainly because it provides
>independent access to information,' said  Larry Scadden, who works
>on technology issues for the disabled at the National Science Foundation in
>Arlington, Va., and is blind.  Kelly Ford  of Gresham, Ore., who runs
>Webwatch, an accessibility discussion group on the Internet, agrees.
>'Sighted people don't know how difficult it is
>for a blind person to use services that everyone else takes for granted,
>like looking up a phone directory,' he said.  'Now that a lot is on line, I
>feel so liberated.'").  See also M. Moeller, "Disabling Web Barriers," PC
>Week (September 22, 1998) (quoting Jamal Mazuri, who is blind, as stating
>"Even with accessibility being an issue, the Web has been a great equalizer.
>I have access much quicker to more information than ever before.").
>However, many in the disabled community have expressed the concern that
>accessing commercial web sites will become increasingly difficult as more of
>them use programming languages such as VBScript and JavaScript,
>graphics-based languages that cannot be translated into text by electronic
>screen readers for the blind.  See M. Moeller, "Disabling Web Barriers," PC
>Week (September 22, 1998).  Experts also report that currently more than 90
>percent of all web sites have some barriers to users with physical or
>cognitive disabilities. Id.
>The Internet industry has already responded to many of these concerns.
>While it has been reported that the change from DOS, a text-based operating
>system, to Windows, a graphics-based operating system, was a "setback" for
>the blind, version 3.02 of Microsoft's browser, Internet Explorer, includes
>a component called Microsoft Active Accessibility, a layer of codes that are
>compatible with accessibility aids such as screen readers for the blind.
>These codes also access software that helps users who are deaf or have other
>disabilities.  When a newer version of Internet Explorer was released
>without the Active Accessibility component on October 1, 1997, Microsoft
>received many complaints, and within 35 days Microsoft released Internet
>Explorer 4.01, which included Active Accessibility. See "Bringing the Visual
>World of the Web to the Blind," The New York Times (March 26, 1998) at G8.
>See also Debra Nussbaum, "Bringing the Visual World of the Web to the
>Blind," The New York Times (March 26, 1998), at G8 (quoting Gary Wunder,
>president of the Missouri chapter of the National Federation for the Blind,
>as stating that Microsoft "has shown concern and responsiveness" to the
>blind).  Also, Sun Microsystems has added accessibility features to the Java
>Foundation Classes.  These features became part of the Java Development Kit
>1.2, released in the summer of 1998.  See M. Moeller, "Disabling Web
>Barriers," PC Week (September 22, 1998).
>Despite the efforts of private industry to make the Internet more accessible
>to the disabled, their continued concerns have focused increasing attention
>on the question of whether or not Internet web sites are subject to the
>handicapped accessibility requirements of the Americans with Disabilities
>Act of 1990 ("ADA"). 42 U.S.C.  12101-12213.
>C.      The Americans With Disabilities Act
>Title III of the ADA requires a subset of private employers, including most
>businesses to which the public has access, to ensure that individuals with
>disabilities are not subject to discrimination and have full and equal
>enjoyment of the goods, services, and facilities they provide.   Covered
>entities may not discriminate in the provision of services or facilities
>against any individual with a disability, meaning that the entity must
>provide to disabled and nondisabled customers, patients and clients the same
>type and quality of care, services and access to facilities. See 42 U.S.C. 
>12182.  Covered entities must make reasonable modifications in policies,
>practices and procedures as needed so that individuals with a disability can
>enjoy the company's services and use its facilities. 42 U.S.C. 
>There are two avenues for enforcement of Title III: (a) private lawsuits by
>individuals and (b) lawsuits by the Department of Justice.  Individuals are
>not required to bring an administrative charge with a federal agency prior
>to bringing a lawsuit.  In private individual lawsuits, remedies are limited
>to permanent or temporary injunctions, restraining orders or other equitable
>remedies. Compensatory or punitive damages may not be awarded.  However, the
>court may award the cost of the plaintiff's attorneys' fees against an
>employer who is  found to be out of compliance. EEOC Technical Assistance
>Manual,  102,810.  If the Justice Department sues, however, the penalties
>are more severe.  An employer found to be in violation can be fined up to
>$50,000 for a first offense, and $100,000 for each later offense. See EEOC
>Technical Assistance Manual,  102,820.
>The answer to the question as to whether the Internet is a "place of public
>accommodation" subject to ADA requirements has several significant
>implications.  These implications are economic, as an affirmative answer to
>the question would increase the costs of doing business in the fastest
>growing segment of the U.S. economy and make most anyone who offers goods or
>services over the Internet a potential defendant in an ADA lawsuit.  These
>potential defendants would include the large numbers of very small business
>that are currently using the Internet to introduce their products and
>services to customers nationwide.  These implications are also
>constitutional, as the answer to this question raises serious First
>Amendment concerns.  Finally, the answer to this question would have
>significant implication regarding the scope of the ADA and the extent to
>which the statute can reach other, non-physical places and services
>delivered through other media, such as newspapers, radio, or television.
>II.     The Current Legal Climate
>The ADA's applicability to the Internet has already become the subject of
>discussion in policy circles and, more recently, the subject of a prominent
>class action lawsuit.  To date, no court has held whether or not Internet
>web sites are places of "public accommodation" under the ADA.
>A.      The Department of Justice
>It is the opinion of the Department of Justice that Internet web sites are
>"public accommodations" subject to the ADA's handicapped accessibility
>requirements.  In response to a letter from Senator Harkin asking to what
>extent the ADA requires Internet web pages to be accessible to people with
>visual disabilities, Deval Patrick, Assistant Attorney General, Civil Rights
>Division, stated "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."  Assistant Attorney
>General Patrick offered the following as possible "accessible means":
>[P]roviding the web page information in text format, rather than exclusively
>in graphics 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.
>Letter from Assistant Attorney General Patrick to Senator Harkin (September
>9, 1996).
>B.      Private Class Action Lawsuit by the National Federation of the Blind
>As Geoff Freed, director of WebAccess, a nonprofit organization in Boston
>working to enable closed captioning on the Web, has stated, "The way the
>[Americans with Disabilities Act] works is that its applicability is tested
>when someone files suit.  That is what's going to have to happen here."
>On November 2, 1999, the National Federation of the Blind ("NFB"),
>representing the 6000,000 to 800,000 legally blind people in the United
>States, filed a class action complaint against America Online, a provider of
>interactive services, Web brands, Internet technologies, and electronic
>commerce services with approximately 17.6 million customers around the
>world.  The complaint alleges that "[t]he AOL service is a public
>accommodation as defined by Title III of the ADA, 42 U.S.C.  12181(7), in
>that it is a place of exhibition and entertainment, a place of public
>gathering, a sales and rental establishment, a service establishment, a
>place of public display, a place of education, and a place of recreation."
>Complaint, at  19.  The Complaint alleges various violations of the ADA by
>AOL, including a failure to remove existing communications barriers from the
>services provided, a failure to make reasonable accommodations to policies,
>practices, and procedures necessary to afford access to the service to
>persons who are blind, and a failure to make the service fully accessible
>and independently usable by individuals who are blind. Complaint, at  28,
>31, 34, 37.  In particular, the Complaint alleges that "AOL's proprietary
>software for the AOL internet service does not function in the standard way
>required for screen access programs to effectively monitor the computer
>screen and to fully convert the information into synthesized speech or a
>refreshable Braille display.  Among other things, AOL's proprietary software
>employs (a) unlabeled graphics, (b) commands that cannot be activated by
>using the keyboard but which instead can only be activated by using the
>mouse, and (c) custom controls painted in the screen." Complaint, at  23.
>C.      Current Efforts to Establish Internet Accessibility Standards For
>Federal Departments and Agencies
>While, to date, no court has held that Internet sites are covered by the
>ADA, the web sites of Federal departments and agencies will be required to
>be handicapped accessible next year.  The technical standards drafted for
>Federal departments and agencies illustrate the sorts of requirements that
>may apply to private Internet companies should the requirements of the ADA
>be applied to them.
>On August 7, 1998, President Clinton signed into law the Workforce
>Investment Act of 1998 ("the Act"), which includes the Rehabilitation Act
>Amendments of 1998.  Section 508 was originally added to the Rehabilitation
>Act in 1986; the 1998 amendments significantly expand the technology access
>requirements of Section 508.  Whereas the old version of Section 508
>established non?binding guidelines for technology accessibility, the new
>version will create binding, enforceable standards and will incorporate
>these standards into Federal procurement regulations.  Federal agencies will
>use these standards in all their electronic and information technology
>Section 508 now provides that "[w]hen developing, procuring, maintaining, or
>using electronic and information technology, each Federal department or
>agency," must ensure that such electronic and information technology is
>accessible to people with disabilities in the absence of a showing of undue
>burden.  "Electronic and information technology" is, as described by an
>April 2, 1999, memorandum from Attorney General Reno to the heads of all
>Federal agencies, "expansively defined" to "include[] computers (such as
>hardware, software, and accessible data such as web pages), fascimile
>machines, copiers, telephones, and other equipment used for transmitting,
>receiving, using, or storing information." Letter from Attorney General Reno
>to heads of Federal agencies (April 2, 1999).
>The amended version of Section 508 directs an entity called the Access Board
>to publish standards by February 7, 2000, setting forth (1) a definition of
>electronic and information technology, and (2) technical and functional
>performance criteria necessary to achieve electronic and information access
>by setting forth the technical and functional performance criteria necessary
>to implement the accessibility requirements.  The Access Board will consult
>with the Departments of Education, Commerce, and Defense, the General
>Services Administration, the Federal Communications Commission, the
>electronic and information technology industry, and disability
>organizations; these organizations will sit on an Electronic and Information
>Technology Access Advisory Committee ("EITAAC") to advise the Access Board
>as it develops the standards.
>Section 508 does not apply to recipients of Federal funds, and does not
>directly regulate the private sector.  However, states which receive Federal
>funds under the Technology Related Assistance for Individuals with
>Disabilities Act of 1988 -- later replaced by the Assistive Technology Act
>of 1998 -- are required by that Act to comply with Section 508.  According
>to Carol G. Cohen, a spokesperson in the Department of Education's Office of
>Special Education and Rehabilitative Services, which helps administer the
>grants under the 1988 Act,  funding under the 1988 Act is currently received
>by "all 50 states, plus the District of Columbia, Puerto Rico, and the four
>outlying territories." Adam Powell III, "U.S. government Web site
>regulations being released today," The Freedom Forum Online (March 12,
>Another question left unresolved by the language of Section 508, which
>provides that all information technology "used" by Federal departments and
>agencies must meet its accessibility requirements, is whether a Federal
>department or agency employee's use of a private Internet service, such as
>"Yahoo," a popular search engine and research tool, would subject that
>Internet service to Section 508's accessibility requirements.  Two
>attachments to Attorney General Reno's letter to all heads of Federal
>agencies provide some guidance, but neither would supercede the language of
>Section 508 itself.
>On May 12, 1999, the EITAAC published its Final Report.  The EITAAC stated
>that "The purpose of this report is to provide a set of recommended
>standards for Federal procurement officers and commercial suppliers of
>electronic and information technology and services that will result in
>access to and use of the technology and information by individuals with
>disabilities. This report represents minimally acceptable standards. All
>entities involved in the design, production, and procurement process of
>relevant electronic and information technology are strongly encouraged to go
>beyond these standards to maximize the accessibility and usability of
>products by all individuals."  (Emphasis added.) EITAAC Final Report (May
>12, 1999), at 2.
>In its Final Report, the EITAAC stated that the published standards would
>provide that all electronic and information technology subject to the
>requirements of Section 508 would make such technology more accessible to:
>"as wide a range of people with disabilities as possible including people
>visual disabilities (e.g., blindness, low vision and lack of color
>hearing disabilities (e.g., hard of hearing, deafness)
>people with physical disabilities (e.g., limited strength, reach or
>manipulation, tremor, lack of sensation)
>people with speech disabilities
>people with language, learning or cognitive disabilities (e.g., reading
>disabilities, thinking, remembering, sequencing disabilities)
>other disabilities (e.g., epilepsy, short stature), and
>individuals with any combination of these disabling conditions (e.g.,
>EITAAC Final Report, at 3.
>The standards developed by the EITAAC are detailed technical and functional
>performance criteria that will determine whether a technology product or
>system is "accessible."  In general, an information technology system is
>accessible to people with disabilities if it can be used in a variety of
>ways that do not depend on a single sense or ability. For example, a system
>that provides output only in audio format would not be accessible to people
>with hearing impairments, and a system that requires mouse actions to
>navigate would not be accessible to people who cannot use a mouse because of
>a dexterity or visual impairment.
>The rules drafted for online publishing include provisions that require
>streaming audio or audio files to be accompanied by simultaneous text,
>including, "where appropriate, in tactile form"; that require that streaming
>video be captioned; that require the use of color to convey information be
>restricted; and that require webmasters to "provide at least one mode that
>does not require user vision" by formatting all information so that it is
>compatible with Braille and speech synthesis devices.  Other regulations ban
>touch screens, prohibit moving text or animation (unless the user can go to
>a static display with the same information), and require all Web sites to
>"provide at least one mode that minimizes the cognitive, and memory ability
>required of the user."
>Web site problems with current Federal department and agency Internet sites
>that will need to be fixed were further discussed in an attachment to a
>memorandum from Attorney General Janet Reno that explained the new law. "For
>example, a system that provides output only in audio format would not be
>accessible to people with hearing impairments," reads the explanation, "and
>a system that requires mouse actions to navigate would not be accessible to
>people who cannot use a mouse."
>An administrative complaint is scheduled to become effective on August 7,
>2000, which will enable any individual with a disability to file a complaint
>alleging that a Federal department or agency has not complied with the
>accessible technology standards in a procurement made after that date.   It
>will provide for injunctive relief and attorney's fees to the prevailing
>party, but does not include compensatory or punitive damages.
>It seems likely that a possible hearing on the issue of whether, and if so
>how, the ADA should be applied to the Internet in March or April would give
>the Internet industry and other interested parties time to analyze the final
>Internet accessibility standards that will apply to Federal department and
>agency web sites, and contracts with Federal departments and agencies for
>the provision of electronic and technological services, if these standards
>are published as scheduled on February 7, 2000.
>III.    Potential Economic Ramifications of Applying the ADA's Requirements
>to the Internet
>Should the ADA be applied to private Internet companies, the breadth of some
>definitions of those covered by its accessibility provisions, combined with
>the technologically innovative ways in which information is being
>communicated on the Internet, make precise assessments of the economic
>ramifications such an expansion of ADA applicability difficult.  However,
>some economic effects are readily foreseeable.
>For example, web sites can provide text explaining graphics.  However,
>depending on the type and intricacies of graphics, providing such
>explanatory information could prove costly by increasing the amount of
>information for the web site to convey.  Moreover, the graphics simply might
>not translate to text effectively.   Alternatively, Internet service
>providers could utilize sound features.  However, as noted by Jim Twu,
>general counsel for NarrowCast Media, a Los Angeles?based Internet
>advertising company, "Sound features are not often utilized because they
>make the Web site slower to load and more expensive to operate, as they
>require much more bandwidth.   Also, many Internet users do not have sound
>capacity." S. Connolly, "Compliance with the Americans With Disabilities Act
>in Cyberspace," 3 No. 10 Cyberspace Lawyer (January 1999), at 8.  Further,
>requiring more bandwidth for access to a web site will keep more people on
>the web site longer, making it more difficult for others to access the site.
>Internet advertising revenues more than doubled between 1997 and 1998.  EDE
>II, at 4.  This growth could be significantly slowed if Internet companies
>were forced to devote more web space to relaying the same information in a
>format accessible to the handicapped, thereby requiring them to reduce the
>amount of graphics used in advertisements that tend to attract the eye of
>potential customers using the Internet, or to reduce the number of
>revenue-generating advertisements on the site.
>Also, several of the standards proposed by the EITAAC in its Final Report
>would appear particularly difficult to comply with, given their vague
>parameters.  For example, proposed rules ("Provide at least one
>mode that minimizes the cognitive, and memory ability required of the
>user.") and ("Provide at least one mode that accommodates people
>with learning disabilities.") contain protected subjects (those with
>"cognitive" and "memory" disabilities, and those with "learning
>disabilities") that could potentially encompass all manner of forgetfulness
>and short attention spans.
>The growing importance of the Internet industry to the U.S. economy, the
>potentially vast implications applying the ADA to the Internet would have on
>the legal liability of Internet companies and the costs of communication
>over the medium, and recent efforts to press for litigation of these issues,
>all counsel creating a legislative record now on these issues.  This record
>should lay out the potential pitfalls, both economic and constitutional, of
>extending ADA coverage to the Internet, a burgeoning source of information
>that has, without the burden of accessibility regulations and threatened ADA
>litigation, already provided the disabled community with vast new
>opportunities to retrieve information.
>IV.     Current Legal Precedent
>A.      The First Circuit
>The National Federation for the Blind brought its suit against AOL in
>federal district court in Boston, Massachusetts, at least in part, because
>the United States Court of Appeals for the First Circuit has held that an
>establishment of "public accommodation" under Title III of the ADA is not
>limited to "actual physical structures." Carparts Distribution Center, Inc.
>v. Automotive Wholesaler's Association of New England, Inc., 37 F.3d 12, 19
>(1st Cir. 1994).  The First Circuit reasoned that "[t]he plain meaning of
>the terms do not require 'public accommodations' to have physical structures
>for persons to enter." Id.  Further,
>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.
>At least one federal district court has agreed with the First Circuit's
>holding that the ADA's requirements extend beyond physical structures.  In
>Chabner v. United of Omaha Life Insurance Co., 994 F.Supp. 1185 (N.D. Ca.
>1998), the court looked to the examples of discriminatory action set out in
>Title III, which makes it a violation of the ADA to fail "to make reasonable
>modifications in policies, practices, or procedures, when such modifications
>are necessary to afford such goods, services, facilities, privileges,
>advantages, or accommodations to individuals with disabilities, unless the
>entity can demonstrate that making such modifications would fundamentally
>alter the nature of such goods, services, facilities, privileges,
>advantages, or accommodations ..." 42 U.S.C.  12182(b)(1)(A)(ii).  The
>court concluded from this that, "based on the plain language of the statute,
>[] Title III applies to insurance underwriting practices.  It is axiomatic
>that courts must interpret statutes so as to avoid rendering superfluous any
>parts thereof ... Finding that Title III applies only to physical barriers
>to entry would render meaningless the provisions providing for equal access
>to goods and services ... In addition, the sections dealing with
>modifications in policies to ensure 'goods, services, facilities,
>privileges, advantages, or accommodations to individuals with disabilities'
>would similarly  be superfluous." Id. at 1190 (citations and quotations
>B.      The Sixth and Third Circuits
>The First Circuit's decision in Carparts Distribution Center, Inc. v.
>Automotive Wholesaler's Association of New England, Inc., 37 F.3d 12, 19
>(1st Cir. 1994), and the Department of Justice's position that the ADA
>applies to the Internet, is at odds with the decisions of other federal
>The Sixth Circuit, in Parker v. Metropolitan Life Insurance Co., 121 F.3d
>1006 (6th Cir. 1997), held that "Title III does not govern the content of a
>long?term disability policy offered by an employer.  The applicable
>regulations clearly set forth that Title III regulates the availability of
>the goods and services the place of public accommodation offers as opposed
>to the contents of goods and services offered by the public accommodation."
>Id. at 1011.
>The Third Circuit, in Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir.
>1998), has followed the Sixth Circuit and held that the ADA's accessibility
>requirements do not extend to the products offered by companies whose
>physical offices are covered.  As the Third Circuit stated, "The fact that
>an insurance office is a public accommodation ... does not mean that the
>insurance policies offered at that location are covered by Title III." Id.
>at 612.  The Third Circuit reasoned that:
>"The plain meaning of Title III is that a public accommodation is a place,
>leading to the conclusion that '"[i]t is all of the services which the
>public accommodation offers, not all services which the lessor of the public
>accommodation offers[,] which fall within the scope of Title III."' [Quoting
>Parker v. Metropolitan Life Ins. Co., 121 F.3d 1011 (6th Cir.1997) (en banc)
>(quoting Stoutenborough v. National Football League, Inc., 59 F.3d 580, 583
>(6th Cir.1995) (a television broadcast is not covered by Title III)).]  This
>is in keeping with the host of examples of public accommodations provided by
>the ADA, all of which refer to places.  See 42 U.S.C.  12181(7).  Since
>[plaintiff] received her disability benefits via her employment ... she had
>no nexus to MetLife's 'insurance office' and thus was not discriminated
>against in connection with a public accommodation.  Furthermore, the 'goods,
>services, facilities, privileges, advantages, or accommodations' concerning
>which a disabled person cannot suffer discrimination are not free?standing
>concepts but rather all refer to the statutory term 'public accommodation'
>and thus to what these places of public accommodation provide. [Plaintiff]
>cannot point to these terms as providing protection from discrimination
>unrelated to places."
>Id. at 612-13.
>The Third Circuit also pointed to Department of Justice regulations that
>appear to be at odds with Assistant Attorney General Deval Patrick's
>conclusion that the ADA applies to the Internet.  As the Third Circuit
>"Confining "public accommodation" to places is also in keeping with the
>Dept. of Justice's regulations to this effect: 'The purpose of the ADA's
>public accommodations requirements is to ensure accessibility to the goods
>offered by a public accommodation, not to alter the nature or mix of goods
>that the public accommodation has typically provided.  In other words, a
>bookstore, for example, must make its facilities and sales operations
>accessible to individuals with disabilities, but is not required to stock
>Brailled or large print books.  Similarly, a video store must make its
>facilities and rental operations accessible, but is not required to stock
>closed?captioned video tapes.' 28 C.F.R. pt. 36, app. B, at 640 (1997).
>Just as a bookstore must be accessible to the disabled but need not treat
>the disabled equally in terms of  books the store stocks, likewise an
>insurance office must be physically accessible to the disabled but need not
>provide insurance that treats the disabled equally with the non?disabled.
>While the Dept. of Justice has issued other documents stating that Title III
>does cover the substance of insurance contracts, see Dept. of Justice, Title
>III Technical Assistance Manual: Covering Public Accommodations and
>Commercial Facilities  III3.11000, at 19 (Nov.1993) ("Insurance offices are
>places of public accommodation and, as such, may not discriminate on the
>basis of disability in the sale of insurance contracts or in the terms or
>conditions of the insurance contracts they offer."), such an interpretation
>is "manifestly contrary" to the plain meaning of Title III and, accordingly,
>is not binding on this court."
>Id. at 613.
>C.      The First Amendment and Supreme Court Precedent
>The issues raised by the application of the ADA's requirements to the
>Internet also present novel concerns under the First Amendment.
>Requiring Internet web sites to "mirror" whatever information their creators
>included on the web site in a form accessible to the handicapped would not
>be a situation in which the government was forcing individuals to alter the
>content of what they said in a way that altered the substance of what they
>could say.  Web site creators, for example, would remain free to include
>what they wanted on the sites, but would be required to make whatever they
>did choose to include on their site accessible to the handicapped.  Such a
>requirement would therefore not appear to be a case of "forced speech" as
>commonly understood in the sense that one would not be required to publish
>ideas with which one did not agree.  Rather, the "forced speech" under such
>a requirement would amount to "forcing" the form, not the substance, in
>which certain information is delivered, with the consequent "forced use" of
>limited web space and server capacity for the delivery of information in
>"handicapped accessible" form.
>1.      Miami Herald Publishing Co. v. Tornillo
>Perhaps the Supreme Court case that comes closest to dealing with these
>issues, but which addressed a content-based regulation that required
>newspapers to publish opinions with which their editors did not agree, is
>Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).  In that case,
>the Supreme Court analyzed a statute that created a right to reply to press
>criticism that could be exercised by candidates for nomination or election
>at no cost to themselves and in the same type and space as that used to
>print the original editorial criticism impugning the candidate's personal
>character or official record.  The Supreme Court held that the statute
>violated the First Amendment, stating:
>Appellee's argument that the Florida statute does not amount to a
>restriction of appellant's right to speak because 'the statute in question
>here has not prevented the Miami Herald from saying anything it wished' begs
>the core question.  Compelling editors or publishers to publish that which
>"reason' tells them should not be published' is what is at issue in this
>case.  The Florida statute operates as a command in the same sense as a
>statue or regulation forbidding appellant to publish specified matter.
>Governmental restraint on publishing need not fall into familiar or
>traditional patterns to be subject to constitutional limitations on
>governmental powers.  The Florida statute exacts a penalty on the basis of
>the content of a newspaper.  The first phase of the penalty resulting from
>the compelled printing of a reply is exacted in terms of the cost in
>printing and composing time and materials and in taking up space that could
>be devoted to other material the newspaper may have preferred to print.  It
>is correct, as appellee contends, that a newspaper is not subject to the
>finite technological limitations of time that confront a broadcaster but it
>is not correct to say that, as an economic reality, a newspaper can proceed
>to infinite expansion of  its column space to accommodate the replies that a
>government agency determines or a statute commands the readers should have
>Id. at 256-57.
>Similarly, extending the ADA's requirements to the Internet would exact a
>"penalty" on web publishers whenever they chose to relay information in a
>way not found to be sufficiently "accessible" to the handicapped.  The
>penalty would take the form of the increased costs of buying the space on a
>web server to accommodate the extra information required to "mirror" the
>chosen information in a way that is handicapped-accessible and other direct
>costs of such "mirroring."
>At this point in the Tornillo opinion, the Supreme Court quoted an analysis
>of the nature of newspaper publishing, noting that "since the amount of
>space a newspaper can devote to 'live news' is finite, if a newspaper is
>forced to publish a particular item, it must as a practical matter, omit
>something else.  The number of column inches available for news is
>predetermined by a number of financial and physical factors, including
>circulation, the amount of advertising, and, increasingly, the availability
>of newsprint ....'" Id. at 257 n. 22. (quoting Note, 48 Tulane L.Rev. 433,
>438 (1974)).  The Court added that "[a]nother factor operating against the
>'solution' of adding more pages to accommodate the access matter is that
>'increasingly subscribers complain of bulky, unwieldy papers.'" Id. at 257,
>n. 22 (quoting Bagdikian, Fat Newspapers and Slim Coverage, Columbia
>Journalism Review, 19 (Sept./Oct. 1973)).
>Similarly, subscribers or browsers of web sites often complain when they
>find sites that take particularly long to "download."  Requiring Internet
>sites to include audio files that duplicate written information, for
>example, would require more "download" time and consequently slow down the
>process of information retrieval.
>The Court in Tornillo continued, "Faced with the penalties that would accrue
>to any newspaper that published news or commentary arguably within the reach
>of the right?of?access statute, editors might well conclude that the safe
>course is to avoid controversy. Therefore, under the operation of the
>Florida statute, political and electoral  coverage would be blunted or
>reduced. Government?enforced right of access inescapably 'dampens the vigor
>and limits the variety of public debate.'" Id. at 257 (quoting New York
>Times Co. v. Sullivan [376 U.S. at 279].
>Further, the Court stated in the last paragraph of the opinion that "Even if
>a newspaper would face no additional costs to comply with a compulsory
>access law and would not be forced to forgo publication of news or opinion
>by the inclusion of a reply, the Florida statute fails to clear the barriers
>of the First Amendment because of its intrusion into the function of
>editors.  A newspaper is more than a passive receptacle or conduit for news,
>comment, and advertising.  The choice of material to go into a newspaper,
>and the decisions made as to limitations on the size and content of the
>paper, and treatment of public issues and public officials ?? whether fair
>or unfair ?? constitute the exercise of editorial control and judgment.  It
>has yet  to be demonstrated how governmental regulation of this crucial
>process can be exercised consistent with First Amendment guarantees of a
>free press as they have evolved to this time." Id. at 257-58.
>Extending the ADA's requirements to the Internet would similarly restrict
>the scope of editorial judgment that could be exercised by web site creators
>by requiring them to devote limited web space to duplicating information in
>handicapped-accessible form.  In these cases, companies would be required to
>devote web space to information they would not otherwise devote space to,
>thus restricting some speech that companies would otherwise be able to
>afford to engage in.  Thus, while applying the ADA to the Internet may not
>constitute "content-based" restrictions, it would constitute
>"content-reducing" restrictions.  It is also worth noting that, in Pacific
>Gas and Electric Co. v. Public Utilities Commission of California, 475 U.S.
>1 (1985), the Supreme Court characterized the last paragraph of its opinion
>in Tornillo as an "independent ground" for invalidating the statute, stating
>"In the last paragraph of the [Tornillo] opinion, the Court concluded that
>an independent ground for invalidating the statute was its effect on
>editors' allocation of scarce newspaper space." Id. at 12, n.7.
>2.      Turner Broadcasting System, Inc. v. Federal Communications
>In Turner Broadcasting System, Inc. v. Federal Communications Commission,
>512 U.S. 622 (1994), the Supreme Court held that the "must-carry" provisions
>of the Cable Television Consumer Protection and Competition Act of 1992 that
>required cable companies to carry local broadcast stations on cable systems
>did not violate the First Amendment.  The Supreme Court applied an
>intermediate level of scrutiny to the challenged provisions, finding the
>"must carry" provisions unrelated to the content of speech, and consequently
>imposing a less substantial risk of excising certain ideas or viewpoints
>from the public  dialogue. Id. at 642.  Under this intermediate analysis, a
>majority of the Supreme Court found the regulations furthered Congress'
>policy of ensuring that free local broadcast stations remain economically
>viable and available to those without cable television.
>Justices Kennedy, Blackmun, Stevens, Souter, and Chief Justice Rehnquist
>stated that:
>  "Our review of the Act and its various  findings persuades us that
>Congress' overriding objective in enacting must?carry was not to favor
>programming of a particular subject matter, viewpoint, or format, but rather
>to preserve access to free television programming for the 40 percent of
>Americans without cable.  In unusually detailed statutory findings, Congress
>explained that because cable systems and broadcast stations compete for
>local advertising revenue, and because cable operators have a vested
>financial interest in favoring their affiliated programmers over broadcast
>stations, cable operators have a built?in 'economic incentive ... to delete,
>reposition, or not carry local broadcast signals.'  Congress concluded that
>absent a requirement that cable systems carry the signals of local broadcast
>stations, the continued availability of free local broadcast television
>would be threatened.  Congress sought to avoid the elimination of broadcast
>television because, in its words, '[s]uch programming is ... free to those
>who own television sets and do not require cable transmission to receive
>broadcast television signals,' and because '[t]here is a substantial
>governmental interest in promoting the continued availability of such free
>television programming, especially for viewers who are unable to afford
>other means of receiving programming.'  By preventing cable operators from
>refusing carriage to broadcast television stations, the must?carry rules
>ensure that broadcast television stations will retain a large enough
>potential audience to earn necessary advertising revenue ?? or, in the case
>of noncommercial broadcasters, sufficient viewer contributions ?? to
>maintain their continued operation."
>Id. at 646-47.
>Further, the majority found that "The scope and operation of the challenged
>provisions make clear, in our view, that Congress designed the must?carry
>provisions not to promote speech of a particular content, but to prevent
>cable operators from exploiting their economic power to the detriment of
>broadcasters, and thereby to ensure that all Americans, especially those
>unable to subscribe to cable, have access to free television programming ??
>whatever its content." Id. at 649.
>Some might argue that, just as in Turner Broadcasting, Congress has an
>interest in seeing that web sites that are currently handicapped accessible
>-- such as those that have not becomes graphics-based -- are protected from
>extinction by market forces.  However, the economic dynamics that Congress
>addressed in the Cable Television Consumer Protection and Competition Act of
>1992 are much different than the dynamics that govern the Internet, where
>there is no similar concentration of power.  Unlike the cable industry,
>which is controlled by a variety of cable companies, each with control over
>access to its cable system, the Internet is a very open system.  As the
>Supreme Court described the undisputed facts in Reno v. American Civil
>Liberties Union, 521 U.S. 844, 853, 870 (1997) ("No single organization
>controls any membership in the Web, not is there any centralized point from
>which individual Web sites services can be blocked from the Web ... Unlike
>the conditions that prevailed when Congress first authorized regulation of
>the broadcast spectrum, the Internet can hardly be considered a 'scarce'
>expressive commodity.  It provides relatively unlimited, low-cost capacity
>for communications of all kinds ... Through the use of [the Internet, any]
>individual can become a pamphleteer.").   The Internet is thus in the same
>category, for First Amendment purposes, as newspapers.
>Further, the ADA does not contain any Congressional findings related to the
>market dynamics of the Internet and consequently it cannot be seen as
>expressing a Congressional intent to legislatively alter those dynamics.
>Justices Kennedy, Blackmun, Stevens, Souter, and Chief Justice Rehnquist
>also distinguished Turner Broadcasting from Tornillo by stating that
>"Although the provisions interfere with cable operators' editorial
>discretion by compelling them to offer carriage to a certain minimum number
>of broadcast stations, the extent of the interference does not depend upon
>the content of the cable operators' programming ... The number of channels a
>cable operator must set aside [under the statute] depends only on the
>operator's channel capacity; hence, an operator cannot avoid or mitigate its
>obligations under the Act by altering the programming it offers to
>subscribers." Id. at 644.  The majority further stated that the provisions
>"do not penalize cable operators or programmers because of the content of
>their programming.  They do not compel cable operators to affirm points of
>view with which they disagree.  They do not produce any net decrease in the
>amount of available speech."  Id. at 647.  And, "Because the right of access
>at issue in Tornillo was triggered only when a newspaper elected to print
>matter critical of political candidates, it 'exact[ed] a penalty on the
>basis of ... content.'" Id. at 653 (quoting Tornillo, 418 U.S. at 256).
>This scenario differs from the situation web designers would face if ADA
>requirements were applied to them.  Unlike the cable programmers in Turner
>Broadcasting, and like the newspaper publishers in Tornillo, web designers
>in such as case would be able to avoid the restrictions by "toning down"
>their web sites such that, for example, fewer graphics or video images were
>used to avoid issues of handicapped inaccessibility.
>While the majority distinguished Pacific Gas  by stating that, in that case,
>"Although the access requirement applicable to the utility [in Pacific Gas],
>unlike the statutory mechanism in Tornillo, was not triggered by speech of
>any particular content, the plurality held that the same strict First
>Amendment scrutiny applied," id. at 654, and "in contrast to the statute at
>issue in Tornillo, no aspect of the must?carry provisions would cause a
>cable operator or cable programmer to conclude that 'the safe course is to
>avoid controversy,' and by so doing diminish the free flow of information
>and ideas," id. at 656 (quoting Tornillo, 418 U.S. at 257), Justice
>O'Connor, writing for herself and Justices Scalia, Ginsburg, and Thomas,
>dissented from that view.  Justice O'Connor argued that "[t]here are only so
>many channels that any cable system can carry.  If there are fewer channels
>than programmers who want to use the system, some programmers will have to
>be dropped ... [M]y conclusion that the must?carry rules are content based
>leads me to conclude that they are an impermissible restraint on the cable
>operators' editorial discretion as well as on the cable programmers' speech.
>For reasons related to the content of speech, the rules restrict the ability
>of cable operators to put on the programming they prefer, and require them
>to include programming they would rather avoid.  This, it seems to me, puts
>this case squarely within the rule of Pacific Gas & Elec. Co." Id. at 674,
>681-82 (citing Pacific Gas, 475 U.S. at 14?15 (plurality opinion) and
>Tornillo, 418 U.S. at 257?258).
>Thus, Justices O'Connor, Scalia, Ginsburg, and Thomas would have applied
>strict scrutiny to the provisions challenged in Turner Broadcasting as well
>as those challenged in Pacific Gas and Tornillo.  Consequently, these
>Justices would likely apply the same strict scrutiny to an analysis of the
>ADA's applicability to the Internet because cable is a system less open to
>new entrants than the burgeoning Internet, and because of the problem of the
>"zero-sum game," as when a decision to add video would entail the adding of
>closed-captioning and the reduction of web space otherwise available to
>communicate ideas.
>V.      Non-Coverage of Internet Service Providers under Title IV of the ADA
>Further evidence that Congress did not intend Title III of the ADA to reach
>the Internet is that it appears Congress did not intend the provisions of
>Title IV of the ADA -- pertaining to "common carriers" -- to apply to
>Internet service providers.
>An Internet service provider ("ISP")  probably does not need to provide
>Telecommunications Relay Services  or closed captioning to sight, hearing,
>or speech?impaired users because the duties and obligations of ISPs are not
>addressed under Title IV of the ADA.  47 U.S.C.  225; 47 U.S.C.  711
>(amending Communications Act of 1934 by adding 47 U.S.C.  225).  Section
>402 of the ADA, which amends  711 of the Communications Act of 1934,
>applies only to television public service announcements produced or funded
>by the federal government. 47 U.S.C.  711.  ISP's transmit information,
>graphics, and sound over telephone or cellular connections, but not through
>television broadcast. Therefore,  402 of the ADA does not include ISP's.
>Additionally, although ADA  401, which amends  225 of the Communications
>Act of 1934, initially may appear to apply to ISP's under the term "common
>carrier," 47 U.S.C.  225(a)(1), the related provisions of the statute
>suggest that ISPs are exempt from the imposed duties.
>Even though the term "common carrier" appears to include all interstate
>communication services engaged in voice transmitting services, 47 U.S.C. 
>153(10) (defining common carrier to include "communications by wire or
>radio;" radio broadcasters, however, are excluded from the definition), when
>read in context with other provisions, there is a strong indication that
>Congress intended to distinguish ISP's or "interactive computer services"
>from common carriers. Aside from the general obligation imposed upon the FCC
>to ensure that TRS are available, where possible, to hearing?impaired and
>speech?impaired individuals, 47 U.S.C.  225(b); 47 U.S.C.  225(d), the
>main duties required by Title IV place a burden on "common carriers
>providing telephone voice transmission services."  47 U.S.C.  225(c).  The
>term common carrier is further defined by cross?reference to  153 of the
>Communications Act of 1934. 47 U.S.C.  153(10).  The act states that a
>common carrier is "any person engaged as a common carrier for hire, in
>interstate or foreign communication by wire or radio ..., except where
>reference is made to common carriers not subject to this chapter." Id.
>Although the primary nature of an ISP is to transmit, store, and receive
>(that is, communicate messages, graphics and even sound or voice recordings
>over telephone wires), there is no specific mention of computer services or
>transmissions in the definition of common carrier. Congress, however, may
>have neglected to place an inclusive definition in Title IV because of the
>relative novelty of the interactive computer technology.
>However, even if it is unclear whether Congress intended the term "common
>carrier" to include ISPs under the amendments made by the ADA, the revisions
>made by the Telecommunications Act of 1996 ("TCA"), clarify their intent.
>Pub. L. No. 104?104, 1996 U.S.C.C.A.N. (110 Stat.) 56 (to be codified in
>various sections of 47 U.S.C. (amending Communications Act of 1934)).  When
>Congress amended the Communications Act of 1934 in 1996, it again failed to
>alter the definition of common carrier to include interactive computer
>services explicitly. 47 U.S.C.  153.  Moreover, other provisions added or
>changed by the TCA distinguished telecommunications devices and common
>carriers from interactive computer services. 47 U.S.C.  223(h)(1)(B); 47
>U.S.C.  230(e)(2) (defining "interactive computer service").  For example,
>18 U.S.C.  1462 was amended to read "common carrier or interactive computer
>service (as defined in  230(e)(2) of the Communications Act of 1934)." 47
>U.S.C.  228, amending 18 U.S.C.  1462.  This change indicates an intention
>to include interactive computer services under the statute, but to keep the
>two types of entities separate.  If Congress had intended to include
>interactive computer services under the general term of common carrier, a
>single change to  153 of the Communications Act of 1934 would have
>accomplished the same action more simply.
>In another example,  223 of the Communications Act of 1934, 47 U.S.C. 
>223, regulates the transmission and reception of obscene materials over
>interactive computer services. Although this provision sits under the
>subchapter heading "COMMON CARRIERS," a disclaimer found in  223(e)(6)
>states " nothing in this section shall be construed to treat interactive
>computer services as common carriers or telecommunications carriers." 47
>U.S.C.  223(e)(6).  This sentence clearly shows that Congress wanted to
>prevent interactive computer services from being burdened by the group of
>duties that have been imposed upon common carriers.
>Furthermore, an amendment to the Communications Act of 1934 added a
>provision for protection of blocking and screening of offensive materials
>that legally defines "the Internet" and "interactive service providers." 47
>U.S.C.  230(e).  This provision expresses a legislative desire to leave
>these areas "unfettered by Federal or State regulation." 47 U.S.C.  230(b).
>VI.     Conclusion
>Once the Federal government promulgates accessibility requirements that
>apply to Federal department and agency Internet sites, they will likely be
>used by private litigants suing private industry as a model for
>accessibility standards that should apply to private Internet sites through
>the ADA.  In light of the significance of the Internet economy to recent
>economic growth, the costs that application of the ADA would impose on that
>rapidly expanding segment of the economy, the opinion of the Clinton
>Administration's Justice Department that the ADA does apply to the Internet,
>and the substantial First Amendment implications of an application of the
>ADA to the Internet, the development of a legislative record on these issues
>now would likely prove valuable to all interested parties.
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