Previous Politech message: "Judge rules Americans with Disabilities Act doesn't cover web" http://www.politechbot.com/p-04085.html --- Subject: CEI's Weekly Commentary: The ADA in Cyberspace Date: Fri, 25 Oct 2002 14:48:10 -0400 From: "Richard Morrison" <rmorrisonat_private> CEI C:\SPIN This issue: Internet - 1, Lawyers - 0: The ADA in Cyberspace This week's c:\spin is by James Gattuso, Research Fellow in Regulatory Policy, The Heritage Foundation, October 25, 2002. Common sense decisions are rare in today s era of hyperkinetic jurisprudence, but that s what the tech community got this week when a federal judge tossed out a lawsuit claiming that Southwest Airlines website violated the Americans with Disabilities Act. The decision though sure to be appealed is good news for the troubled tech sector and for consumers blocking what would likely become comprehensive regulation-by-litigation of website design. The lawsuit, brought by Access Now an ADA advocacy group claimed that Southwest Airlines violated the ADA because it s website was not accessible to blind persons. Specifically, Southwest was faulted by the plaintiffs for not providing text in a format that could be read by synthesized speech technology. The problem was that the relevant section of the ADA applies only to places of public accommodation. No problem, said the plaintiff s lawyers. Certainly, they reasoned, place can t be limited to the narrow confines of terraspace (i.e., the real world). Cyberspace, too, is a place. Unfortunately for the plaintiffs, although the ADA is famous for its ambiguity, its text is pretty darn specific on this point. It actually lists what public accommodation includes. It can be an inn, hotel, motel, or other place of lodging. A restaurant, bar, motion picture house, theater, concert hall, or auditorium. Could be a bakery, grocery store, laundromat, dry cleaner, or bank. And so on. The authors practically gave specific addresses. And not a cyberspace address among them. Refusing to be deterred, the lawyer s maintained (presumably with a straight face) that the Southwest website was covered as a place of exhibition, display and a sales establishment (also listed in the statute). That might have been enough to carry the day in New Jersey, , but the judge here Patricia Seitz of the U.S. Southern District of Florida didn t buy it. Apparently an old-fashioned judge, she even used Latin, citing the doctrine of ejusdem generis : where general words follow a specific enumeration of persons or things, the general words should be limited to persons or things similar to those specifically enumerated. Or, as they say in pre-school, one of these things is not like the other. Is this a quirk in the law? A loophole in the ADA that policymakers should address? No. There are good reasons not to drag cyberspace under the ADA. Such regulation is likely to impose considerable burdens on web site owners exactly the wrong prescription for tech (not to mention the basketcase airlines). ADA advocates say the costs are minimal. But where that s so, firms will make their sites accessible voluntarily (as many do). After all, they make money by providing access to potential customers, not by denying it. But not all see it as minimal Southwest after all spent a considerable amount to avoid this regulation. Worse are the non-monetary losses ADA regulation would impose. The Manhattan Institute s Walter Olsen warns, for instance, that Web design creativity and spontaneity would be stunted, as publishers feel constrained to use only tools approved by official bodies, and amateur websites would be winnowed as legal and technical rules limit the art to a professionals. (So much for blogs.) Functionality could also suffer the use of color to convey information, for instance, is problematic. And what about the First Amendment implications can communication on the web be limited in ways unimaginable for newspapers or magazines? Judge Seitz was correct to rule that the ADA does not cover cyberspace. Any extensions into that realm should be properly considered by legislators. And should be rejected by them, too. C:\SPIN is produced by the Competitive Enterprise Institute. ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ Declan McCullagh's photographs are at http://www.mccullagh.org/ ------------------------------------------------------------------------- Like Politech? Make a donation here: http://www.politechbot.com/donate/ Recent CNET News.com articles: http://news.search.com/search?q=declan -------------------------------------------------------------------------
This archive was generated by hypermail 2b30 : Sat Oct 26 2002 - 23:35:29 PDT