Navigating ADA Compliance for Internet-Only Businesses
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Chapter 1: Understanding ADA Applicability
Do businesses operating solely online fall under the purview of the Americans with Disabilities Act (ADA)? Theoretically, yes. However, federal courts are taking their time to reach a consensus. As we navigate through the emergence of Web3 and the existing blockchain technologies, the implications for digital accessibility become even more pressing.
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A critical term defined by the ADA is "places of public accommodation." The ADA encompasses a diverse array of public accommodations, such as restaurants, hotels, theaters, healthcare facilities, pharmacies, retail shops, museums, libraries, amusement parks, private schools, and daycare services. Notably, private clubs and religious institutions are exempt from this classification. However, courts have generally ruled that if these clubs or organizations host events open to the public, such as weddings, they qualify as public accommodations under the ADA.
Two common characteristics are evident in the ADA's list of public accommodations: they either facilitate financial transactions (like restaurants, theaters, and stores) or they are venues funded by public money that should be accessible to everyone (such as museums and libraries).
So, why is it so challenging for courts to acknowledge that online versions of public accommodations are, in fact, public accommodations as defined by the ADA?
Section 1.1: The Historical Context
The ADA predates both the commercialization of the internet and the onset of the pandemic. Given the current gridlock in the U.S. congressional landscape, it seems the architects of the ADA, including Tom Harkin, had remarkable foresight when drafting the law in the late 80s and early 90s. They designed the ADA to be adaptable, allowing for the inclusion of new technologies as they emerged. Amendments can be added to address technologies that were nonexistent at the time of the ADA's enactment. Notable updates include:
- Movie captioning requirements
- Accessibility standards for hotel swimming pools
Moreover, the ADA's Technical Assistance Manuals provide detailed guidance on implementing these rules.
TL;DR — It is feasible to incorporate new provisions into the ADA without needing to amend the law or secure congressional approval.
Section 1.2: Current Judicial Landscape
As it stands, different judicial circuits vary in their interpretations of the ADA concerning digital services. In the Third, Sixth, Ninth, and Eleventh Circuits, the ADA applies to digital platforms that have a "nexus" (i.e., a connection) to a physical place of public accommodation. Conversely, the First, Second, and Seventh Circuits have ruled that a standalone website can qualify as a public accommodation without needing a physical counterpart. This was recently upheld in the Second Circuit in the case of Pannara v. HTC, which addressed the captioning of virtual reality services.
California's regulations mandate compliance with WCAG 2.1 under the CCPA for businesses exceeding $25 million in revenue or that derive more than 50% of their income from the sale of personal information belonging to California residents. This legislation does not differentiate between online-only businesses and those with a physical presence.
The Supreme Court recently sidestepped the question of whether a physical nexus is necessary for the ADA's application by sending the Domino's case back to the district court without any additional commentary.
Chapter 2: The Importance of ADA Compliance
The significance of this issue cannot be overstated. The web has become a dominant force in e-commerce.
Does the ADA Apply to Small Businesses? Yes, Title III Applies to Public Accommodations [Kris] - YouTube
This video explores how the ADA affects small businesses and highlights the importance of compliance for all public accommodations.
The rise of e-commerce is evidenced by a steady increase in revenue, which surged from just under $200 million in 2011 to over $870 million in 2022, maintaining an annual growth rate of at least 14%. While shopping mall revenues have rebounded, foot traffic in physical stores has declined.
In an increasingly digital world, e-commerce has become vital for individuals with disabilities, especially as challenges such as public transportation limitations and familial isolation hinder access to brick-and-mortar stores. For those unable to access physical locations, online shopping often represents their only option.
Given this context, it seems courts should recognize a parallel between online-only sites and the public accommodations outlined in the ADA. Yet, many courts do not. Why is this the case?
Why the Discrepancy?
Some judges, referred to as "strict constructionists," adhere closely to the ADA's literal language, asserting that if something is not explicitly listed, it is not included. On the other hand, "liberal constructionists," or judicial activists, consider the law's intent and purpose.
It is unequivocally clear that the ADA's primary aim is to promote disability inclusion. The intention was never solely to make movie theaters accessible but to ensure that individuals with disabilities have equal access to movies. Similarly, the goal was not merely to make medical facilities accessible but to guarantee equal access to medical care.
Whenever an online equivalent exists for a listed public accommodation—such as telemedicine for in-person visits or streaming services instead of attending a theater—there should be no question that these digital alternatives fall under the ADA's jurisdiction.
Potential Outcomes for the Future
Several scenarios could unfold:
- Status Quo Maintained: The circuit split continues, leaving residents in circuits requiring a physical presence unprotected. Businesses across all circuits remain vulnerable to lawsuits from customers in circuits without such a requirement.
- Supreme Court and Congressional Action: If the Supreme Court hears another case, it may rule against including internet-only businesses in the ADA's scope. This would not be unprecedented; following several restrictive rulings in the early 2000s, Congress amended the ADA in 2008. However, this process could take years and may be further delayed by less disability-friendly administrations.
- New DOJ Ruling: In 2010, the DOJ proposed adopting WCAG 2.0 as the ADA standard. Although this proposal was shelved, nearly 200 disability organizations have recently urged the DOJ to revive it. Following this, the DOJ issued guidance advising that entities under Title II and Title III should make their websites accessible as per the ADA's requirements. This guidance came shortly after the DOJ initiated actions against companies like Rite Aid and CVS for website remediation to comply with WCAG standards.
As the federal government tends to move slowly, it's uncertain if the DOJ's recent guidance was a direct response to advocacy efforts from disability organizations. Nonetheless, it is clear that the DOJ is considering the importance of accessibility and disability inclusion.
Why This Matters
The question of whether internet-only businesses can be held accountable under the ADA may seem minor, but it could significantly influence the future of digital accessibility.
We currently find ourselves in a litigation quagmire, characterized by conflicting circuit rulings and state laws. This environment encourages law firms to file numerous cookie-cutter lawsuits, profiting from serial plaintiffs. Such a public spectacle has generated negative perceptions about individuals with disabilities, who are often unjustly portrayed as opportunists exploiting small businesses due to the ADA's ambiguous stance on digital accessibility.
As technology evolves, the stakes are even higher. The advent of Web3 and Blockchain—potentially the next phase of the Internet—poses significant challenges for accessibility.
The State of ADA Website Compliance in California - YouTube
This video discusses current compliance standards and the impact of California legislation on digital accessibility.
Historically marginalized groups are united in their resistance to losing hard-won rights. Unfortunately, if we continue on our current trajectory, disability rights may regress in terms of technological and commercial advancement.
As Web3 and Blockchain technologies emerge, they are becoming increasingly decentralized. Currently, there appears to be little to no initiative to ensure these platforms are accessible. My previous attempts to engage with Web3 developers about accessibility have gone unanswered. This issue has remained unchanged since I first raised concerns about blockchain accessibility over three years ago.
Determining liability in a future where Web3 and Blockchain are not accessible may prove impossible. With the decentralized nature of these technologies, accountability becomes murky. Given that the U.S. legal landscape is heavily reliant on litigation, this presents a critical loophole.
To echo the Lorax, "Unless someone like you cares a whole awful lot, nothing is going to get better. It's not."