By: Michael Goldfarb
During the last fifteen years, the United States and the world
as a whole have experienced dramatic advances in technology and
exponential increases in Internet usage. “There are now
approximately one billion web pages on the Internet” and over two
hundred three million Internet users in the United States alone.
However, as the Internet has become increasingly sophisticated and
relied upon, much of its content has become inaccessible to
individuals with disabilities, particularly those with auditory,
visual, or muscular impairments. This information
accessibility problem has become known as the “digital divide,” and
has generally been caused by the recent and rapid transition of the
Internet from a text-based format to an increasingly
multimedia-based format. This transition in format has lead to
increased inaccessibility because multimedia websites are generally
incompatible with the assistive technologies employed by visually
impaired Internet users. The most common incompatibility
problem arises with text-to-speech software which cannot readily
translate a pure graphical image into words; thus, while it is
often said that a picture is worth a thousand words, it is not even
worth one to the visually impaired Internet user.
In order to gain greater access to the content of the Internet,
visually disabled individuals have filed lawsuits pursuant to the
Americans with Disabilities Act (“ADA”) to compel website providers
to utilize formats that are more compatible with assistive
technologies. In order to succeed on a claim, a plaintiff must
establish that a website falls within the purview of the ADA by
virtue of being a “place of public accommodation” or a “service”
provided by a “place of public accommodation” as contemplated by
the Act.
This Comment looks at the recent case of Access Now, Inc. v.
Southwest Airlines, Co. There, the District Court for
the Southern District of Florida was asked to rule on this issue
and declined to apply the ADA to a private commercial website
operated by Southwest Airlines. This Comment agrees with the
district court’s result that, based on the arguments presented at
trial, Southwest Airlines’ website, by itself, is not a public
accommodation within the meaning of the ADA, but disagrees with the
court’s rigid “in-person” requirement for public accommodations and
its narrow interpretation of the “nexus” theory. The Comment
examines the methodology the district court employed in reaching
its decision. It then exposes the inherent flaws in the court’s
reasoning by analyzing the effects of the district court’s failure
to properly apply cardinal maxims of statutory interpretation and
prior case law. It also discusses the “nexus” approach and
examines why the plaintiffs lost their case, as well as
hypothesizes about whether a proper application of the “nexus”
theory would have changed the outcome. Finally, it raises
concerns if a blanket application of the ADA were imposed on all
websites, as advocated by some commentators.