Outdated disabilities act stymies internet’s benefits

In 1990, President George H. W. Bush signed the Americans with Disabilities Act (ADA) into law. One of the achievements of the ADA was to make public spaces more accessible to those with physical disabilities.

This is why sidewalk curbs have ramps at intersections, restrooms often feature accessible stalls for those in wheelchairs and signage in public buildings feature braille. But the ADA never considered an internet website.

{mosads}Why not? In 1990, the first website and the first browser to scan the web were created. The internet did not exist as we know it today. It did not even exist as we knew it 15 years ago.

In 1990, it is almost a sure bet that even the most forward-looking lawmaker was not thinking about whether websites should accommodate disabled users under the ADA. Even if that prescient lawmaker could foresee the connected world of today, he or she did not capture this vision in the text of the law.

This has not stopped plaintiffs and their lawyers from arguing that the failure to maintain a website that is accessible to the visually and hearing impaired is a violation of the ADA. According to a recent New York Times article, there were 250 lawsuits in 2015 and 2016 combined and 432 lawsuits during the first eight months of 2017.

In addition, the U.S. Department of Justice during the Obama administration sent threatening letters to institutions for alleged website ADA noncompliance and routinely filed statements of interest in litigation claiming that the ADA applies to websites.

For example, the University of California, Berkeley posted 20,000 hours of lectures online for viewing by anyone, free of charge. Because the lectures lacked captions for the hearing impaired, the Department of Justice contended that Berkeley was violating the ADA.

Rather than bear the expense of adding captions, Berkeley stopped offering videos and removed all of the existing video content from its website. Harvard and MIT have also faced similar litigation.

Notwithstanding the lack of any language in the ADA, which was most recently amended in 2010, or any ADA regulations, a federal court in Florida ruled recently that grocer Winn-Dixie’s website failed to comply with the ADA because it was not accessible to a visually impaired customer.

Some courts have agreed with the logic of the Winn-Dixie decision, while others have said the lack of statutory language and regulatory guidance requires dismissal of such claims.

All of this leads to a very strange result. The internet has been hailed as a mechanism for making information, learning and consumer choice available to a wider audience than at any time in history. Internet access has opened the doors of the great universities to those that cannot attend in person, either because of disability, a lack of proximity or a lack of $75,000 per year in tuition.

Free video lectures are an unquestionable good, but because a small percentage of the population cannot easily hear the lecture, no one is able to hear the lecture because universities don’t want to be sued.

Likewise, a business that may be able to reach an audience beyond its physical location or the entrepreneur that is starting a business as a web-only platform must now make a choice of bearing the significant costs of what some think ADA compliance requires or forego customers and possibly the business itself.

Some may argue that this is a fair tradeoff for ensuring everyone in society can take advantage of the internet. But, shouldn’t that be a debate for our lawmakers or at least subject to a notice and comment period as part of a regulatory process?

It is critical that laws that impinge upon the greatest economic and social innovation of the last 50 years be revised and reformed to keep pace with the march of technology.

With the ADA, none of this has happened, and we are now left with judges making up their own rules, plaintiffs’ lawyers collecting fees and internet content being reduced for fear of violating a law that never contemplated the internet.

Matt Heiman and Megan Stifel are participants in the Regulatory Transparency Project at www.regproject.org. Heiman is a former national security lawyer at the U.S. Department of Justice. Megan Stifel is a former cybersecurity adviser to the National Security Council at the White House.