FC: Two more replies to Americans with Disabilities Act and the web

[Declan McCullagh <declan () well com>]

Previous Politech messages:

"Judge rules Americans with Disabilities Act doesn't cover web"
http://www.politechbot.com/p-04085.html

"Why Americans with Disabilities Act should not apply to web"
http://www.politechbot.com/p-04100.html

---

From: "Edward Hasbrouck" <edward () hasbrouck org>
Organization: The Practical Nomad
To: declan () well com
Date: Tue, 12 Nov 2002 08:20:08 -0800
MIME-Version: 1.0
Subject: ADA and the Web (for Politech)
Message-ID: <3DD0B9B8.7462.7304F4@localhost>

A close reading of the USA federal district court decision dismissing the
complaint under the American with Disabilities Act in "Access Now et al.
v. Southwest Airlines", suggests that its impact may be much narrower than
some have assumed.  According to the complaint, as linked from your story:

"Plaintiffs claim that although purchasing tickets at southwest.com is
'technically possible, plaintiffs found purchasing a ticket to be
extremely difficult...' (Compl. at 7). Plaintiffs do not argue that they
are unable to access such goods and services via alternative means such as
telephone or by visiting a particular airline ticket counter or travel
agency." (Slip opinion footnote 4, p. 5)  "Plaintiffs are unable to
demonstrate that Southwest's website impedes their access to a specific,
physical, concrete space such as a particular airline ticket counter or
travel agency. [footnote:] Plaintiffs do not argue that Southwest's
website impedes their access to aircrafts. Having failed to establish a
nexus between southwest. com and a physical, concrete place of public
accommodation, Plaintiffs have failed to state a claim upon which relief
can be granted under Title III of the ADA." (Slip opinion p. 12)

These facts appear to have been essential to the court's decision in this
case.  But they would not be true of many otherwise similar Web sites.

Southwest.com, while not Bobby-approved or compliant with the Web
Accessibility Initiative guidelines, is more accessible than most airline
or travel agency Web sites I have reviewed. (It's also, from a privacy
perspective, extremely unusual in permitting users to complete purchases
without registering and without accepting cookies.)   Most other major
airlines would *not* be able to argue, as Southwest did (and as the
plaintiffs conceded), that it was possible at all for a blind person to
complete a ticket purchase on their Web site with a screen reader.

Equally importantly, the complaint would appear to have concerned an
attempt to purchase a ticket at a fare also available offline.  The
plaintiffs apparently chose to concede that the same services were
available offline, through accessible channels, at the same prices -- even
though a large and growing percentage of the ticket prices on
Southwest.com are Web-exclusive prices available only from the Web site.

(In this respect Southwest would actually make a good test case.  Some
airlines' Web fares are also available through Orbitz.com and sometimes
other travel agencies, creating the possibility that they might be
available through some channel more accessible than the airline's own Web
site.  But Southwest doesn't participate in Orbitz.com, and its Web fares
are available *only* on its own Web site.)

It's odd that the plaintiffs chose for their test case Southwest, an
airline with a Web site difficult for blind people to access, rather than
an airline with a Web site completely inaccessible to blind people who
rely on screen readers.  It's equally odd that thye chose a ticket also
available from accessible offline sources such as the airline's call
centers and tickets counters, rather than a ticket at a "Web fare" *only*
from the airline's inaccessible Web site.

Whatever their reasons, the court clearly distinguished these other
situations, and left open the possibility that in either of these other
cases it might have found the the ADA to be applicable. That's especially
important since airlines were among the first businesses, and remain
leaders, in offering "Web only" prices that are specifically promoted as
*not* being available through any alternate channel.  It remains likely, I
think, that the accessibility of airline and/or Internet-only travel
agency Web sites, as applied to Web-only prices, will be the key test of
the applicability of the ADA to the design of e-commerce Web sites.--------
--------
Edward Hasbrouck
<edward () hasbrouck org>
<http://hasbrouck.org>

"The Practical Nomad Guide to the Online Travel Marketplace"
<http://www.amazon.com/exec/obidos/ASIN/1566912504/edwardhasbro>
"The Practical Nomad: How to Travel Around the World"
<http://www.amazon.com/exec/obidos/ASIN/1566912148/edwardhasbro>


---

From: Adam Kessel <kessel () epic org>
To: declan.mccullagh () cnet com
Subject: response to the ADA posting (we talked about today)
Date: Tue, 12 Nov 2002 14:05:44 -0500

Hi Declan; here's the response I sent to the web/ADA article (you asked
me to resend it).

----- Forwarded message from Adam Kessel <kessel () epic org> -----
Declan:

CEI Research Fellow Gattuso's claim that commercial website
accessibility requirements would stunt creativity, spontaneity, and
functionality is disingenuous.  Accessible websites need not eschew the
use of color to convey information; rather, if certain information is
conveyed through color or images, there ought to be an alternative
mechanism to convey the same content. This is often as simple as adding
ALT tags to images, as required by w3c standards. Accessibility rules
set a baseline for website design, but don't prevent any web designer
from going beyond that with non-accessible chrome if she so desires.

Gattuso also raises a bogus First Amendment issue. Is it the First
Amendment right of a bank to refuse to install an entrance ramp because
of a certain creative facade the business wishes to present? Just
because everything can be presented as a "speech" right ('I refuse to
pay taxes on the basis of my First Amendment right not to express
support for the Government--paying taxes is an expressive act!') doesn't
mean that it ought to fall under the penumbra of a Constitutional right.
The ADA is about shifting the burden for accommodation from a
disadvantaged minority to society-at-large and particularly the business
community; whether in cyberspace or real, it's overreaching to claim it
interferes with free speech.

Furthermore, web accessibility is not just an ADA issue. A
non-accessible website is often one that only renders properly with
Internet Explorer; the phenomenon of "Best viewed with IE" sites
significantly reinforces Microsoft's monopolostic position.

I had trouble finding a weblog that fails basic accessibility
guidelines.  Weblogs are mostly plain text with hyperlinks laid out in
simple tables; although they don't always pass w3c validation, they are
usually quite readable by browsers designed for the blind.  Perhaps
Gattuso can point us to some weblogs that would be harmed by a contrary
ADA court decision. (not to mention that utter improbability of the ADA
being applied to non-commercial personal weblogs even had the Court
ruled otherwise).

Although there are few enforcement mechanisms for Internet standards,
good netizens are expected to comply with them. These standards don't
stunt creativity; they create a democratic space where ideas can be
exchanged, flourish, and grow. If not for some adherence to HTTP and
HTML
standards, the Internet would not be the rich informational resource it
has become. For Gattuso to suggest that these sorts of rules limit
creativity on the web is to deny these first principles of the Internet.

---
Adam Kessel (kessel () epic org)

On Sun, Oct 27, 2002 at 01:32:26AM -0400, Declan McCullagh wrote:
> Worse are the non-monetary losses ADA regulation would impose. The
> Manhattan Institute s Walter Olsen warns, for instance, that Web
design
> creativity and spontaneity would be stunted, as publishers feel
constrained
> to use only tools approved by official bodies, and amateur websites
would
> be winnowed as legal and technical rules limit the art to a
professionals.
> (So much for blogs.)    Functionality could also suffer  the use of
color
> to convey information, for instance, is problematic. And what about
the
> First Amendment implications can communication on the web be limited
in
> ways unimaginable for newspapers or magazines?

----- End forwarded message ----- 




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