Courts Weigh Access to the Internet under the Americans with Disabilities Act

Courts Weigh Access to the Internet under the Americans with Disabilities Act

Legal Sidebari

Courts Weigh Access to the Internet under the
Americans with Disabilities Act
May 4, 2018

When the Americans with Disabilities Act (ADA) was enacted in 1990, the internet was still in its infancy
and unavailable to most of the general public. Since that time, the internet has become inextricably linked
with many of life’s activities including shopping, banking, education, and health care. Although this tool
has attained near ubiquity in modern American life, disabled persons, including those with auditory,
cognitive, physical, speech and visual disabilities, may have more limited access to goods and services
available online. Inaccessibility issues potentially span a broad range of internet content—from videos
that do not include captions for the hearing impaired to text that does not permit use of a screen reader for
the visually impaired. Though a number of federal laws and policies (see here, here, and here) seek to
promote or ensure that electronic and information technology is accessible to disabled persons, whether
such measures legally require private entities operating online to ensure their websites are accessible to
disabled persons is unsettled.
Title III of the ADA requires “places of public accommodation,” such as hotels, restaurants, and stores, to
make reasonable efforts to ensure their goods and services are available to the disabled. It does not
explicitly reference the internet, and rules promulgated under Title III are silent on the ADA’s application
to the web. The Department of Justice (DOJ) considered promulgating regulations addressing the ADA’s
application to internet accessibility during the Obama Administration, but no final rules were issued.
More recently, the Trump Administration halted the rulemaking process, questioning the necessity of such
rules. In the absence of such statutory or regulatory guidance, federal courts are split on whether “places
of public accommodation” under the ADA must be connected to a physical place, an approach adopted by
federal appellate and/or district courts in the Third, Sixth, Ninth, and Eleventh Circuits, or could also
apply to entities that primarily operate independent of any physical place, as courts in the First, Second,
and Seventh Circuits have held.
This Sidebar provides a brief overview of Title III, surveys the case law interpreting Title III’s
applicability to the internet, and notes several legislative approaches that Congress could potentially take
in response to judicial and regulatory developments.
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Background on Title III of the ADA
Congress enacted the ADA to provide “clear, strong, consistent, enforceable standards addressing
discrimination against individuals with disabilities . . . .” Towards this end, the ADA contains provisions
aimed at deterring discrimination against individuals with disabilities in a number of contexts, including
employment, public services, and public accommodations and services operated by private entities. With
regard to public accommodations, Title III of the ADA generally provides that “no individual shall be
discriminated against on the basis of disability in the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or public accommodations of any place of public accommodation . . . .”
In short, to ensure access to individuals with disabilities, Title III places an affirmative duty on places of
public accommodation to make reasonable modifications to their policies, practices, or procedures;
provide auxiliary aids and services to the disabled; and remove architectural and communication barriers.
Title III is enforced primarily through private causes of action—meaning the law empowers members of
the public to file claims in order to ensure compliance with the ADA. Courts have recognized that to
make a valid legal claim under Title III, a plaintiff must demonstrate: (1) he is disabled within the
meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public
accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of his
disability. (There is disagreement among the courts (see, e.g., here and here) as to whether plaintiffs must
exhaust administrative remedies before filing suit in federal court).
With regard to ADA challenges to internet accessibility, the primary question centers on element three of
a Title III claim: whether a disabled individual has been denied access to a “place of public
accommodation.” Under Congress’s grant of authority to the Attorney General to issue rules under the
ADA, a “place of public accommodation” is defined in regulation as a “facility,” run by a private entity,
whose operations affect commerce, and that falls within one of 12 categories of enumerated
accommodations, including places of lodging, restaurants and bars, places of entertainment, sales or rental
establishments, and other service establishments. “Facility,” in turn, is defined as “all or any portion of
buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks,
passageways, parking lots or other real or personal property, including the site where the building,
property, structure, or equipment is located.”
Neither Title III nor its accompanying regulations directly reference the internet as a place of public
accommodation, leading to some disagreement about the ADA’s application to online activities. Federal
courts have reached different conclusions when addressing this issue.
Does an internet website qualify as “place of public accommodation”?
The central debate among the federal courts on Title III’s application to the web is whether a “place of
public accommodation” must be connected to a physical space. Courts in the First, Second, and Seventh
Circuits have concluded that a “place of public accommodation” need not be tied to a real world, physical
structure. For example, applying this rule to internet accessibility, the U.S. District Court for the District
of Massachusetts held in National Association of the Deaf v. Netflix, Inc. that Netflix’s Watch Instantly
website was a “place of public accommodation” as it fell within at least one of the enumerated examples
in Title III, including “service establishment,” “place of exhibition or entertainment,” and “rental
establishment.” Eschewing a physicality requirement, the court noted that the ADA covers the services
“of” a public accommodation, not services “at” or “in” a public accommodation. Employing a similar
analysis, the U.S. District Court for the District of Vermont held that Scribd, a subscription-based digital
library which does not operate at any physical location to the public, was a place of public
accommodation. In addition to finding that the online service was similar to several of the listed examples
under Title III of a “place of public accommodation” (including a “library”), the court declared that
“Congress intended that the statute be responsive to changes in technology ….” In a similar vein, the

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Seventh Circuit Court of Appeals declared, albeit in dicta, in an opinion often cited when discussing the
ADA’s potential scope, that the “core meaning” of Title III “is that the owner or operator of a store, hotel,
restaurant, dentist's office, travel agency, theater, Web site, or other facility (whether in physical space or
in electronic space, that is open to the public cannot exclude disabled persons from entering the facility
and, once in, from using the facility in the same way that the nondisabled do.” (emphasis added).
However, courts in the Third, Sixth, Ninth, and Eleventh Circuits have interpreted “place of public
accommodation” to reference an actual, physical place. Under this approach, the goods and services the
disabled person seeks to access must have a sufficient “nexus” with such a real world place. For instance,
in Access Now v. Southwest Airlines, a group of plaintiffs sued Southwest Airlines under Title III claiming
that Southwest.com discriminated against individuals with visual impairments as the goods and services
offered on the website were inaccessible to persons using a screen reader. The U.S. District Court for the
Southern District of Florida held in a 2002 decision that the company’s website neither constituted a place
of public accommodation nor had a sufficient nexus with a “physical, concrete place of public
accommodation” to be subject to Title III (In 2013, the Department of Transportation, pursuant to the Air
Carrier Access Act, issued regulations that require most airlines to ensure their public-facing websites are
accessible to persons with disabilities.) More recently, the U.S. District Court for the Southern District of
Florida granted a manufacturer of video and audio equipment’s motion to dismiss a Title III challenge
concerning website accessibility as the plaintiffs failed to establish a sufficient nexus between the
defendant’s retail stores and its website. Similarly, in a pair of unreported decisions, the U.S. Court of
Appeals for the Ninth Circuit held that eBay—a virtual commercial marketplace—and Netflix—an online
video streaming service—were not covered by the ADA as there was not a sufficient tie between the
services offered on the websites and an actual, physical place. Conversely, the U.S. District Court for the
Northern District of California concluded in National Federation of the Blind v. Target Corporation that,
while Ninth Circuit precedent recognized that a “place” of public accommodation must be physical,
plaintiffs had a cognizable Title III claim to the extent they alleged that their inability to access Target’s
website hindered them from enjoying the goods and services of Target’s brick-and-mortar stores.
Withdrawal of DOJ’s Web Accessibility Rulemaking
Acknowledging the potential application of the ADA and other laws to the internet, DOJ developed a
voluntary action plan in 2003 to assist government agencies and private entities in making websites
accessible to disabled persons. Taking more formal action pursuant to its rulemaking authority under Title
III, DOJ issued an advanced notice of public rulemaking (ANPRM) in 2010 to determine whether
implementing regulations should require goods and services offered via the internet to be accessible to
individuals with disabilities. However, in December 2017, the DOJ formally withdrew the ANPRM,
questioning whether “promulgating regulations about the accessibility of Web information and services is
necessary and appropriate.” Since the withdrawal, DOJ has not taken any official action on this matter.
Takeaways for Congress
In addition to the judicial and regulatory developments surrounding internet accessibility for disabled
individual, over the years Congress too has assessed the applicability of ADA to private websites (see
here and here). To provide more legal certainty in this burgeoning area of the law, Congress could amend
Title III to either expressly apply Title III’s accessibility mandates to services provided on the web or
exempt websites and other internet content from the definition of places of public accommodation.
Perhaps taking a middle approach, Congress could instead codify the nexus test applied by some
reviewing courts in ADA cases to require that a website have a sufficient tie to a real-world, physical
place for Title III to apply to that entity’s online services. Alternatively, Congress could require DOJ to
issue new interpretive rules or informally urge the Department to use its current grant of regulatory
authority to establish a framework for applying the ADA to the internet. In the absence of congressional

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or regulatory action, the litigation in the federal courts will likely continue to shape how the ADA’s
“public accommodation” requirements apply to the ever-changing digital landscape.

Author Information

Richard M. Thompson II

Legislative Attorney

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