FC: Two more replies to Americans with Disabilities Act and the web

From: Declan McCullagh (declanat_private)
Date: Tue Nov 12 2002 - 21:58:10 PST

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    Previous Politech messages:
    "Judge rules Americans with Disabilities Act doesn't cover web"
    "Why Americans with Disabilities Act should not apply to web"
    From: "Edward Hasbrouck" <edwardat_private>
    Organization: The Practical Nomad
    To: declanat_private
    Date: Tue, 12 Nov 2002 08:20:08 -0800
    MIME-Version: 1.0
    Subject: ADA and the Web (for Politech)
    Message-ID: <3DD0B9B8.7462.7304F4@localhost>
    A close reading of the USA federal district court decision dismissing the
    complaint under the American with Disabilities Act in "Access Now et al.
    v. Southwest Airlines", suggests that its impact may be much narrower than
    some have assumed.  According to the complaint, as linked from your story:
    "Plaintiffs claim that although purchasing tickets at southwest.com is
    'technically possible, plaintiffs found purchasing a ticket to be
    extremely difficult...' (Compl. at 7). Plaintiffs do not argue that they
    are unable to access such goods and services via alternative means such as
    telephone or by visiting a particular airline ticket counter or travel
    agency." (Slip opinion footnote 4, p. 5)  "Plaintiffs are unable to
    demonstrate that Southwest's website impedes their access to a specific,
    physical, concrete space such as a particular airline ticket counter or
    travel agency. [footnote:] Plaintiffs do not argue that Southwest's
    website impedes their access to aircrafts. Having failed to establish a
    nexus between southwest. com and a physical, concrete place of public
    accommodation, Plaintiffs have failed to state a claim upon which relief
    can be granted under Title III of the ADA." (Slip opinion p. 12)
    These facts appear to have been essential to the court's decision in this
    case.  But they would not be true of many otherwise similar Web sites.
    Southwest.com, while not Bobby-approved or compliant with the Web
    Accessibility Initiative guidelines, is more accessible than most airline
    or travel agency Web sites I have reviewed. (It's also, from a privacy
    perspective, extremely unusual in permitting users to complete purchases
    without registering and without accepting cookies.)   Most other major
    airlines would *not* be able to argue, as Southwest did (and as the
    plaintiffs conceded), that it was possible at all for a blind person to
    complete a ticket purchase on their Web site with a screen reader.
    Equally importantly, the complaint would appear to have concerned an
    attempt to purchase a ticket at a fare also available offline.  The
    plaintiffs apparently chose to concede that the same services were
    available offline, through accessible channels, at the same prices -- even
    though a large and growing percentage of the ticket prices on
    Southwest.com are Web-exclusive prices available only from the Web site.
    (In this respect Southwest would actually make a good test case.  Some
    airlines' Web fares are also available through Orbitz.com and sometimes
    other travel agencies, creating the possibility that they might be
    available through some channel more accessible than the airline's own Web
    site.  But Southwest doesn't participate in Orbitz.com, and its Web fares
    are available *only* on its own Web site.)
    It's odd that the plaintiffs chose for their test case Southwest, an
    airline with a Web site difficult for blind people to access, rather than
    an airline with a Web site completely inaccessible to blind people who
    rely on screen readers.  It's equally odd that thye chose a ticket also
    available from accessible offline sources such as the airline's call
    centers and tickets counters, rather than a ticket at a "Web fare" *only*
    from the airline's inaccessible Web site.
    Whatever their reasons, the court clearly distinguished these other
    situations, and left open the possibility that in either of these other
    cases it might have found the the ADA to be applicable. That's especially
    important since airlines were among the first businesses, and remain
    leaders, in offering "Web only" prices that are specifically promoted as
    *not* being available through any alternate channel.  It remains likely, I
    think, that the accessibility of airline and/or Internet-only travel
    agency Web sites, as applied to Web-only prices, will be the key test of
    the applicability of the ADA to the design of e-commerce Web sites.--------
    Edward Hasbrouck
    "The Practical Nomad Guide to the Online Travel Marketplace"
    "The Practical Nomad: How to Travel Around the World"
    From: Adam Kessel <kesselat_private>
    To: declan.mccullaghat_private
    Subject: response to the ADA posting (we talked about today)
    Date: Tue, 12 Nov 2002 14:05:44 -0500
    Hi Declan; here's the response I sent to the web/ADA article (you asked
    me to resend it).
    ----- Forwarded message from Adam Kessel <kesselat_private> -----
    CEI Research Fellow Gattuso's claim that commercial website
    accessibility requirements would stunt creativity, spontaneity, and
    functionality is disingenuous.  Accessible websites need not eschew the
    use of color to convey information; rather, if certain information is
    conveyed through color or images, there ought to be an alternative
    mechanism to convey the same content. This is often as simple as adding
    ALT tags to images, as required by w3c standards. Accessibility rules
    set a baseline for website design, but don't prevent any web designer
    from going beyond that with non-accessible chrome if she so desires.
    Gattuso also raises a bogus First Amendment issue. Is it the First
    Amendment right of a bank to refuse to install an entrance ramp because
    of a certain creative facade the business wishes to present? Just
    because everything can be presented as a "speech" right ('I refuse to
    pay taxes on the basis of my First Amendment right not to express
    support for the Government--paying taxes is an expressive act!') doesn't
    mean that it ought to fall under the penumbra of a Constitutional right.
    The ADA is about shifting the burden for accommodation from a
    disadvantaged minority to society-at-large and particularly the business
    community; whether in cyberspace or real, it's overreaching to claim it
    interferes with free speech.
    Furthermore, web accessibility is not just an ADA issue. A
    non-accessible website is often one that only renders properly with
    Internet Explorer; the phenomenon of "Best viewed with IE" sites
    significantly reinforces Microsoft's monopolostic position.
    I had trouble finding a weblog that fails basic accessibility
    guidelines.  Weblogs are mostly plain text with hyperlinks laid out in
    simple tables; although they don't always pass w3c validation, they are
    usually quite readable by browsers designed for the blind.  Perhaps
    Gattuso can point us to some weblogs that would be harmed by a contrary
    ADA court decision. (not to mention that utter improbability of the ADA
    being applied to non-commercial personal weblogs even had the Court
    ruled otherwise).
    Although there are few enforcement mechanisms for Internet standards,
    good netizens are expected to comply with them. These standards don't
    stunt creativity; they create a democratic space where ideas can be
    exchanged, flourish, and grow. If not for some adherence to HTTP and
    standards, the Internet would not be the rich informational resource it
    has become. For Gattuso to suggest that these sorts of rules limit
    creativity on the web is to deny these first principles of the Internet.
    Adam Kessel (kesselat_private)
    On Sun, Oct 27, 2002 at 01:32:26AM -0400, Declan McCullagh wrote:
     > Worse are the non-monetary losses ADA regulation would impose. The
     > Manhattan Institute s Walter Olsen warns, for instance, that Web
     > creativity and spontaneity would be stunted, as publishers feel
     > to use only tools approved by official bodies, and amateur websites
     > be winnowed as legal and technical rules limit the art to a
     > (So much for blogs.)    Functionality could also suffer  the use of
     > to convey information, for instance, is problematic. And what about
     > First Amendment implications can communication on the web be limited
     > ways unimaginable for newspapers or magazines?
    ----- End forwarded message ----- 
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