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Re: New York Attorney General holds ADA applies to Web Businesses.

From: Charles McCathieNevile <charles@sidar.org>
Date: Tue, 24 Aug 2004 00:30:34 +0300
To: "Phill Jenkins" <pjenkins@us.ibm.com>, w3c-wai-ig@w3.org
Cc: webaim-forum-d@list.webaim.org
Message-ID: <opsc7h48n4w5l938@widsith.local>

On Mon, 23 Aug 2004 10:12:58 -0500, Phill Jenkins <pjenkins@us.ibm.com>  

> I'm not a lawyer either, but I found it interesting that Priceline.com is
> not headquartered in NY, but was incorporated in Delaware and is
> headquartered in Connecticut (See note 1 SEC filings).  Also, Ramada.com
> has a  "Term of Use" agreement (see note 2) that includes a section 11 on
> the governing laws and jurisdiction.  [Yes, this is only the second time  
> I actually read the terms of use of a web site/application.]  It  
> basically
> says that you agree to be governed by the laws of the State of New  
> Jersey.

Terms and conditions of use are not relevant if they are not in  
conformance with the local law. For example in Australia you can sign a  
pre-nuptial contract that has been verified by every lawyer in the land,  
but it cannot be held as anything more than a rough statement of  
intention. Likewise, if there is anything in this agreement that is in  
conflict with the law applicable in New York, that bit of the agreement  
isn't worth much. (in well-written contracts there is usually a bit that  
says if any one bit is held not to be valid, the rest is  still valid). I  
would be very surprised if the disclaimer about shipping technology where  
it isn't allowed would hold up in court (except by pointing out how stupid  
the laws restricting distribution of certain types of software are, and  
having them set aside) - the analagous argument is "I didn't give away the  
code book, I just put it on a bench whhere people could pick it up..."

> So if I incorporate in a state that uses the 508 web standards, am I held
> to those guidelines, or if I incorporate in a state that uses the WCAG  
> 1.0 standards, am I held to those standards?  Can I pick which state (or
> country) I choose to operate under?  Can I pick which standard (or level  
> a double A, or triple AAA) I choose to follow?

The application of the law depends on two things - what the local law is  
(Any state can make a law about what happens if you operate in that state  
(where by state I mean countries, states, provinces, or other regional  
grouping with its own legislation), and whether they can do anything about  
it. For example, in France and Germany there are pretty strict laws  
(compared to US laws) about how you can talk about the Holocaust. In  
theory they can prosecute anyone who makes material accessible in France  
taht is contrary to the law. In practice they don't.

As far as I am aware (I haven''t read the UK law for a little while) there  
are not specific levels specified by their DDA - in general it says "Don't  
discriminate", then gives examples  of what it would consider  
discrimination, and there are accompanying guidelines which are meant to  
be updated more regularly and give a clearer idea of what is expected as a  
basic standard at the time they are published.

It's worth recalling that the damages awarded in the Maguire v. SOCOG  
judgement were partially based on the fact that SOCOG refused to solve  
problems that the tribunal considered were standard practice at the time.  
The idea of "in the judgement of a reasonable person" is a fundamental  
part of most western legal systems, which recognise that some things can  
only be determined by such a test.

> Forgive me for wandering into the policy discussion, but it is the policy
> (laws, policies, purchasing regulations, etc) that typically points to
> technical standard, or includes the technical specs as does 508 and ADA
> [although ADA does NOT reference Web accessibility standards], or leaves
> it totally open with statements like "must be accessible to people with
> disabilities".  In this New York case, it seems that the policy under
> which the complaint was filed was the ADA, but I'm confused why the 508
> Web standard wasn't chosen or cited as the standard since it is also a
> Federal policy like the ADA.

508 is a bit of technical stuff that gets referred to if you take action  
under a law - the Workplace Rehabilitation Act. If you are making a  
general complaint about discrimination in the  US the usual law under  
which you would make it is the ADA. And since the ADA doesn't specify  
automatically what has to be done in every case, the particular outcome  
you will get will vary. 508 is requirements for purchasing - although you  
could argue that it is an obvious technical standard to refer to, there is  
also plenty of grounds for arguing that it isn't relevant outside federal  

In principle you could construct a case under the ADA claiming that the  
Federal government was discriminating by only requiring 508 rules and not  
<insert some other requirement here> (so long as the ADA applies to the  
Federal Government, which I believe it does). If you're really fascinated  
by this possibility I suggest talking to a lawyer or two. I am not about  
to bet you would win such a case - even if you have a reasonable argument  
that you can't do your job because you have a disability, and the  
appropriate accommodation is available but happens not to be covered by  
508, a court might decide that "a reasonable person" would conclude that  
meeting 508 is enough, and having to go beyond it is an undue hardship.  
Then again, they might not. Such a case would be an expensive way to get a  
legal opinion about the application of 508.

> Note 2 Terms of Use http://www.ramada.com/Ramada/control/terms_of_use

[standard legalese - and there is a link to it already :-) ]

One of the things I have always enjoyed at OzeWAI is getting actual  
lawyers to talk about how the law might work if a case was put together.  
It's not so much an impenetrable mystery as a field with some basic  
principles that are widely agreed, a bunch of history and experience that  
are written down in various places, and some fine points that people don't  
necessarily agree on. Sort of like accessibility, really, except there is  
a clear way of getting a resolution to a given question if it occurs in  



Charles McCathieNevile         charles@sidar.org
FundaciĆ³n Sidar             http://www.sidar.org
Received on Monday, 23 August 2004 22:31:27 UTC

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