Chris Stewart, KLJ Senior Staff Editor
The internet has evolved from an interesting curiosity to an essential part of commerce, means of communication, and source of information. Sixty-four percent of Americans use smartphones in 2015, nearly doubling the number of users in 2011. However, for many Americans with disabilities, many websites and online services remain inaccessible, despite readily-available and cost-effective means of providing access.
The primary legal issue for disabled internet users is whether the Americans with Disabilities Act’s (ADA) public accommodations requirement in Title III should apply equally to the online presence of covered entities. This post examines the litigation surrounding this question and argues that (1) a clear pattern has emerged demonstrating courts’ willingness to apply the ADA to websites for covered entities, and (2) while the trend favors access, the DOJ should settle the law by finalizing its proposed rule applying the ADA’s regulation of public accommodations to the internet.
I. Litigation in this arena is trending toward judicially-ordered compliance.
Congress defined the term “public accommodation” for purposes of the ADA in 1990, years before the tech boom. At the time, Congress provided twelve categories of entities who, if they “affect commerce,” are covered under the Act. These include such specific enumerations, such as funeral parlors and barber shops, as well as more general descriptions, such as a “sales or rental establishment” or “place of public display or collection.”
Challenges to the scope of the ADA’s coverage are not new, and the law is far from settled. For instance, the Eleventh Circuit held in Rendon v. Valleycrest Productions, Ltd. that the ADA applies to more than tangible barriers in physical stores, and covered entities cannot simply comply with the Act’s requirements in their stores while discriminating offsite or over the telephone. However, Rendon seems to suggest that the intangible barrier must have some sort of connection to a physical business. Interestingly, though Rendon was decided in 2002, it was not an internet access issue which created the dispute. Rather, it was a complaint by viewers of the show “Who Wants To Be A Millionaire” with upper body disabilities who argued that the show’s “fastest finger” telephone system for contestant selection discriminated against them. Regardless, it is clear that, in the Eleventh Circuit, courts will recognize a public accommodations claim that does not arise out of an issue in a physical location.
Other circuits have expanded the ADA’s coverage even further. As early as 1994, the First Circuit specifically held that public accommodations need not apply exclusively to businesses with physical locations. The court reasoned that, by mentioning “travel service” in defining a public accommodation, Congress clearly contemplated services offered outside of a brick and mortar business. Moreover, the court described as “absurd” the notion that people who enter a building are protected by the ADA, but those conducting business by correspondence are not.
This view found support in the Seventh Circuit in 1999 with then Chief Judge Posner, who stated that businesses which only occupy electronic space are nonetheless covered. Judge Posner confirmed this in 2001, when he wrote, “[T]he site of the sale is irrelevant. All that matters is whether the good or service is offered to the public.” He added, “An insurance company can no more refuse to sell a policy to a disabled person over the internet than a furniture store can refuse to sell furniture to a disabled person who enters the store.”
The most recent case to consider this question arose when the National Federation of the Blind (NFB) sued Scribd, an online library which offers its customers access to over forty million titles for one monthly fee. Scribd is an online-only business, and their platform uses an exclusively visual interface which does not allow for non-visual access. Blind computer users use software which allows text to be converted to either audio output or Braille, depending on user preference, and Scribd’s platform is inaccessible to this software. Scribd argued that because it had no physical location, the NFB had not stated a claim upon which relief could be granted.
The District Court for the District of Vermont carefully considered the physical location question. The court explored the circuit split discussed above, but added one crucial distinction. The Ninth, Third, and Sixth Circuits have all ruled narrowly that the ADA only applies to physical locations. However, the court in NFB v. Scribd correctly noted that each of these opinions concerned third-party insurance benefits offered by employers, as opposed to insurance companies offering policies directly to the public. Thus, none of the three circuits employing the narrowest reading of Title III were considering facts which could have justified even the nexus requirement employed by the Eleventh Circuit. For this reason, the court in Scribd chose to minimize the weight afforded these decisions.
Furthermore, the Scribd court did not agree with Scribd’s contention that the rules of statutory construction settle any ambiguities in the plain language of the statute. The defendant argued, for example, that because all of the businesses mentioned in the statute operated physical locations, the doctrine of ejusdem generis suggests that any other business considered should also operate in a physical location. This doctrine suggests that, “where a general term is accompanied by a specific enumeration of persons or things, the general words should be limited to the persons or things specifically enumerated.” In other words, since the examples provided in the statute’s definition of public accommodation are physical locations, any future considerations for covered entities should be similarly limited.
The court, however, pointed out that one of the enumerated examples mentions travel services, which even at the time of the statute’s passage was a service that could be conducted with no physical establishment. Additionally, following the defendant’s logic would lead to absurd results. For instance, a person who refused to sell an insurance policy to a customer in a door-to-door transaction would not be covered under the ADA, but the same person would be covered for refusing to sell the same policy to the same person in the insurance company’s office.
This is only one of many potential absurdities that would arise if the court had adopted this view. However, the current reality is almost equally absurd. Very few people would argue that new businesses with brick and mortar locations should not be accessible to the disabled. Failing to provide wheelchair access closes the doors of inaccessible businesses to wheelchair users as effectively as refusing to serve those individuals outright. Creating a website that prevents disabled computer users from accessing the goods and services of online businesses, where providing access is technologically and economically practical, amounts to the same thing, an unlawful shutting of the virtual door leaving no alternative to untold numbers of potential customers.
II. The legislative history and informal DOJ opinions support the expansion of Title III to websites, but the DOJ could remove any doubt by finalizing a formal rule.
Even beyond the canons of statutory construction, legislative history and subsequent Department of Justice statements support the idea that Congress intended the ADA to evolve with changing technology. The Committee Reports state, “‘[T]he Committee intends that the types of accommodations and services provided to persons with disabilities . . . should keep pace with the rapidly changing technology of the times.'” The Report specifically mentioned “information exchanges,” which the Scribd court correctly noted was exactly the service offered by the Defendant.
Additionally, the Department of Justice is tasked with the enforcement of the ADA, and the DOJ’s current informal policy is that Title III applies to websites offering goods and services online. This assertion is supported by congressional testimony and a letter from the DOJ to a United States Senator. Such informal agency pronouncements are entitled to deference insofar as they have the “power to persuade, if lacking power to control.” The Scribd court properly used these opinions as persuasive authority against the defendant.
However, the DOJ has issued an Advanced Notice of Proposed Rule Making which would formally codify the application of Title III to applicable websites. Unfortunately, the DOJ proposed this rule in 2010, but has failed to act further. The reasoning of the court in Scribd is reflective of the full integration of the internet into daily life. It correctly considered the fact that Congress could no more have predicted the inception and dissemination of the internet any more than fifteenth-century Europeans could have predicted the impact of Gutenberg’s printing press. The ADA is the most impactful and sweeping civil rights legislation since the Civil Rights Act of 1964. It is unfathomable that Congress would not have intended such landmark legislation to extend to a vast new sector of commerce. Weighing all these factors, the DOJ should immediately act to codify its proposed rule, thereby resolving this contentious issue and setting the wheels in motion to insure access to online goods and services for millions of disabled Americans.
A proper legal analysis leads to the conclusion that the ADA applies to businesses offering goods and services on the internet. Even the circuits which held that the Act applies only to physical structures did so under completely different factual situations which allow ample room for those circuits to nonetheless apply the ADA to websites in future litigation. Any court refusing to apply the ADA to online businesses is, quite simply, guilty of failing to recognize the right of disabled Americans to participate fully and equally in society. However, the most efficient means to solve this problem is for the Department of Justice to formally codify its proposed rule applying Title III of the ADA to online businesses. Every day that the DOJ fails to act represents another lost opportunity for disabled Americans. This delay in access is unacceptable and must be remedied as soon as possible.
 J.D. expected May 2016. As always, he would like to thank his wife, Emily, and his guide dog, Baron, for their immeasurable contributions to all he does.
 Aaron Smith, U.S. Smartphone Use in 2015, Pew Research Center, (Apr. 1, 2015), http://www.pewinternet.org/2015/04/01/us-smartphone-use-in-2015/.
 See 42 U.S.C. § 12182 (1990).
 42 U.S.C. § 12180(7).
 Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279, 1283 (11th Cir. 2002)
 Id. at 1279.
 Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, 37 F.3d 12, 19 (1st Cir. 1994).
 Doe v. Mutual Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999).
 Morgan v. Joint Admin. Bd., Ret. Plan of the Pillsbury Co. and Am. Fed’n of Grain Millers, AFL–CIO–CLC, 268 F.3d 456, 459 (7th Cir. 2001).
 Nat’l Fed. Of the Blind v. Scribd Inc., 2015 WL 1263336, at *1, (D. Vt. Mar. 19, 2015).
 See, e.g. Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000); Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1011 (6th Cir. 1997); Ford v. Schering–Plough Corp., 145 F.3d 601, 613 (3d Cir. 1998).
 Scribd, at *5.
 Id. at *6.
 Id. at *7
 Id. at *9.
 Id. (quoting H.R. Rep. 101–485(II), at 108, 1990).
 Id. at *9
 Id. (citing Letter from Deval L. Patrick, Assistant Att’y Gen., to Senator Tom Harkin (Sept. 9, 1996)).
 See id. at *9.
 Skidmore v. Swift and Co., 323 U.S. 134, 140 (1944).
 Scribd, at *10.
 Accessibility of Web Information and Services of State and Local Government Entities Advance Notice of Proposed Rulemaking, 75 Fed. Reg. 43,460, at 43,463 (proposed July 26, 2010)
 Scribd, at *10.