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Is Cyberspace a 'public Accommodation?'

Editor's Note: Editor's Note: The following article is re-printed from the New York Times, November 12, 1999.

At the heart of the path-breaking discrimination lawsuit filed last week against America Online Inc. by a major organisation representing the blind is a legal question that is simple to pose but difficult to answer: Is AOL's service a "place of public accommodation" under the Americans with Disabilities Act, a key law protecting the rights of the disabled?

The question is an important one for the Internet industry, because if the answer is yes, then AOL - and possibly other Internet service providers and Web sites - would be subject to the strict rules of the ADA, which applies to places of public accommodation. Online companies would then have to make their offerings reasonably accessible to blind people and others who are disabled, in the same way that concert halls or restaurants must do. The cost of achieving such compliance is unclear, although some disability rights advocates say that the fixes are not technically difficult or expensive. The hitch, of course, is that AOL's services are not provided in a physical structure like a store. Does that make a difference? Lawyers who are experts in disability law tend to disagree on the answers. And so far no court has decided this exact question as it relates to the Internet. Lawyers on each side of the issue can, however, point to some guideposts. One 1994 case concerned a lawsuit brought under the ADA against a private association that operated a health plan. The United States Court of Appeals for the First Circuit in Boston considered whether "establishments of public accommodations" are limited to actual physical structures. The court found that "they are not so limited," and went on to say that an insurer who provides services over the telephone or by mail could be considered a place of public accommodation under the ADA. "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," wrote a three-judge panel in the case, Carparts v. Automotive Wholesaler's Association of New England. "Congress could not have intended such an absurd result." Michael R. Masinter, a law professor who is an expert on the ADA and who teaches at Nova Southeastern University in Fort Lauderdale, Fla., said the Carparts ruling is the main reason that the National Federation of the Blind sued AOL in federal district court in Boston, which is bound by the First Circuit's decision in the case. "The wind is certainly not at [AOL's] back" in Boston, Masinter said. But two other federal appeals courts have recently criticised the Carparts decision, interpreting the term "public accommodation" in the ADA to be limited to actual physical structures, Masinter said. Daniel F. Goldstein, a lawyer for the Federation, agreed that certain court decisions in the First Circuit made Boston "a good place" to file the lawsuit, but also said his clients opted for a Massachusetts battleground because the courts there were familiar with high-tech issues. Also, some of his blind clients who lived in the area were upset about AOL's lack of accessibility, he said. The Americans with Disabilities Act of 1990 generally requires employers, state and local governments and places of public accommodation to offer reasonable services or tools to insure that people are not discriminated against on the basis of disability. Title III of the law, which pertains to public accommodations, defines the phrase "public accommodation" by way of illustration. It provides a list of "private entities" that the law applies to, including hotels, movie theatres, stadiums, laundromats, banks, barber shops and travel services. The act groups its many examples into 12 broad categories like "place of lodging," "place of exhibition or entertainment" and "service establishment." In the lawsuit against AOL, lawyers for the National Federation of the Blind and the other plaintiffs argued that the AOL service is a public accommodation as defined by Title III of the ADA 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."

The AOL service, the Federation said, provides millions of AOL customers with simple access to the Web, along with e-mail, "buddy lists," public bulletin boards and so on. But the offerings are almost impossible for blind people to use because AOL's software is largely incompatible with "screen access programs", which convert text on a screen into synthesised speech or Braille and are used by the blind, according to the complaint. Professor Masinter, who has represented disabled individuals in lawsuits, said in an interview that he believes AOL is not a place of public accommodation, notwithstanding the Carparts ruling. "To operate a place of public accommodation, you have to operate a physical location in which some percentage of your clientele comes in to do business with you," he said. "The examples that appear in the law - everything from an inn to a barber shop - all have a physical location," he said. The stakes in the lawsuit are high because if the courts agree with the viewpoint of the federation, then everyone who offers goods or services or ideas in cyberspace "potentially becomes a defendant" in an ADA lawsuit, Masinter said, "I think it would be kind of a mess," he said. He added, however, that although he believes the ADA does not require AOL to make its services fully accessible to blind people, they should do so because "it's the right thing to do." Goldstein, the lawyer for the Federation, defended his view that AOL is legally obligated to conform to the ADA. "Congress clearly intended to be as comprehensive as it could be in Title III [of the ADA], and there is nothing physical that is implied by the words 'public accommodation,' either the adjective or the noun," he said. "Within the common understanding of a private entity that offers services to the public, [the AOL service] is a public accommodation," he said. Goldstein added that other legal concepts that involve "places" are not necessarily restricted to a physical location. In First Amendment law, for example, the concept of a "public forum" where debate cannot be unreasonably restricted by government is not limited to a brick-and-mortar forum or auditorium, but can include other intangible venues, including cyberspace, he said.

A spokesman for AOL declined to comment on the merits of the lawsuit, beyond saying that the company is committed to developing a new generation of software that will help the blind access its services. AOL has 20 days from the date of receipt of the complaint in which to file a formal answer. It was served with the complaint on Wednesday, Goldstein said.