In theory, absolutely. But it’s taking federal courts a while to get there. Meanwhile, Web3 is coming, and blockchain is already here.
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Places of public accommodation is a particular phrase defined by the Americans with Disabilities Act. The ADA identifies a wide range of public accommodations, including restaurants, hotels, theaters, doctors’ offices, pharmacies, retail stores, museums, libraries, amusement parks, private schools, and daycare centers. Private clubs and religious organizations are specifically exempt from the definition of public accommodations. However, most courts have held if the club or organization does something open to the general public and not restricted to members, such as a wedding, the facilities involved do come under the ADA as a public accommodation.
There are two common denominators in the list of public accommodations outlined in the ADA — they are places where financial transactions occur (restaurants, hotels, theaters, doctors’ offices, pharmacies, stores, amusement parks, private schools, daycare centers), or they are places where public money may have been used, and access should be for everyone (museums and libraries)
So why is it so difficult for courts to admit that internet-based versions of public accommodations are, in fact, public accommodations as defined by the ADA?
The ADA pre-dates both the commercial use of the internet and the pandemic. Given how tidally-locked the US congressional process currently is, Tom Harkin and others involved in passing the ADA must have had their crystal balls working at 100 % in the late 80s and early 90s when putting together the legislation. They developed the ADA to be expandable, including new technology as it became relevant. Rules that involve implementing technology that didn’t exist when the ADA was passed can be added. Some rules that were enacted through this process include:
Additionally, the ADA updates Technical Assistance Manuals that get into the nitty-gritty ADA implementation details.
TL;DR — it is possible to add new things to the ADA without going back and altering the law or getting congressional approval.
Where are the courts today?
- In the Third, Sixth, Ninth, and Eleventh Circuits, the ADA applies to digital services with a “nexus” (which means connection in legal speak) to a physical place of public accommodation.
- In the First, Second, and Seventh Circuits, a standalone website can be a place of public accommodation without any connection to a physical location. This was most recently affirmed in the Second Circuit in Pannara v. HTC (original filing discussed here, update here on Lainey Feingold’s blog), which concerns captioning of virtual reality services.
- California requires WCAG 2.1 compliance under the CCPA for businesses over $25 million or that get more than 50 % of their revenue from sales of California residents’ personal information. The CCPA does not distinguish between online-only businesses and businesses with a physical presence.
- The Supreme Court punted on the question of whether a physical nexus was required for applying the ADA when they sent the Domino’s case back down to the district court without any comment on this topic.
Why does this matter?
If anyone was in doubt pre-pandemic, the web is taking over the world in e-commerce.
- While shopping mall revenue has recovered, in-person shopping traffic is down.
- Movies with $100 million-plus budgets are being released via streaming before (or sometimes without) ever hitting a physical movie theater.
E-commerce is not only here to stay; it is essential for people with disabilities to survive in a post-pandemic world where public transportation, ride-sharing, and familial isolation make it very, very difficult to get into stores.
When physical access isn’t available, e-commerce is frequently all that is available to people with disabilities.
That is why, in my opinion, courts should find an equivalency between online-only sites and the public accommodations listed in the ADA. But many courts don’t. Why?
How can the ADA be interpreted in two completely different ways?
- “Strict constructionists” look at the plain language of the ADA and say, “if it ain’t listed, it ain’t a public accommodation, and the ADA doesn’t cover it.”
- Liberal constructionists, sometimes referred to as judicial activists, look at the purpose and intent behind the law.
It is 100 % crystal clear that the purpose behind the ADA was disability inclusion.
- The purpose wasn’t to make movie theaters accessible; it was to make access to movies possible for people with disabilities.
- The purpose wasn’t to make medical facilities accessible; it was to make medical care access equal for people with disabilities.
When there is an online substitute for a listed public accommodation, such as telemedicine for an in-person medical visit or streaming a video rather than going to the theater, there should be no doubt that these internet versions should come squarely under the ADA.
What are the possible outcomes?
There are three possible outcomes I see:
Potential outcome 1: Maintain the status quo
The split in the circuits remains. Residents in the circuits that do not require a nexus are entirely protected. Residents in the circuits that require a physical presence are not. Businesses in all circuits are at risk because customers can sue them from a circuit that doesn’t require a nexus.
Potential outcome 2: The Supreme Court and Congress take action.
If the Supreme Court takes up another case, chances are because the court is stacked with strict constructionists, the ADA will be held not to include internet-only businesses. When court decisions started to restrict the application of the ADA in the early 2000s, Congress amended the ADA. This occurred in 2008 after several adverse court rulings constrained who could successfully claim a disability.
This outcome would take several years to accomplish. A new, less disability-friendly administration would delay this happening for even longer. Of course, there is also the possibility that it never happens.
Potential outcome #3: New DOJ ruling and action
In 2010, the Department of Justice proposed WCAG 2.0 be the standard applied by the ADA. After six years, this proposal was abandoned by the Trump administration. In February, almost 200 disability organizations banded together to ask the DOJ to reactivate this proposal. Two weeks later, the DOJ published guidance explaining (but not mandating) that entities that come under Title II (state and local governments) and Title III (places of public accommodation) should ensure their websites are accessible to people with disabilities in line with the ADA’s requirements. This guidance came just three months after the DOJ undertook several actions against companies like Rite Aid and CVS, which included remediating websites to the WCAG standard.
Given how slowly the federal government moves, it is unlikely that the DOJ’s statement was in direct response to the petition by the disability organizations. Therefore, it is clear that accessibility and disability inclusion is something that the DOJ is actively contemplating.
Why does this matter?
Whether or not Internet-only businesses can be sued under the ADA might seem like a tiny issue. Still, it could be the tipping point in the future of digital accessibility.
- It matters to where we are today.
Today, we frankly are in the middle of litigation quicksand, with conflicting circuits and state laws. This environment directly supports law firms filing dozens of cookie-cutter lawsuits making millions off of serial plaintiffs. This very public litigation circus is creating a backlash against all people with disabilities who typically get lumped together as greedy people trying to make a buck off small businesses. This is the direct result of the ADA not taking a stance on digital accessibility.
2. It matters even more to where technology is heading
Ask any historically excluded minority about losing hard-fought gains, and the reply is always unanimous, “We are not going back.”
The problem is that backward is exactly where disability rights are headed concerning the direction of technology and commerce if we stay on the current path.
Web3 and Blockchain, which are quite possibly the future of the Internet, are *vastly* more decentralized than the current Internet. Currently, there are no active efforts that I am aware of to make accessible versions of either of those. My attempts to contact people involved with Web3 regarding accessibility have been met with silence. Nothing has changed since I first wrote about the lack of blockchain accessibility more than three years ago.
How do you figure out who you can drag into court when (not if) Web3 and Blockchain aren’t accessible?
The answer might be that you can’t figure it out. When everyone is responsible for technology, really, no one is responsible. Given that the current model of US progress is almost entirely built on litigation, this is a serious loophole.
To quote the Lorax, “Unless someone like you cares a whole awful lot, nothing is going to get better. It’s not.”