Eric Goldman Doesn't Like the Netflix Decision

See this post on Ars Technica by law professor Eric Goldman.  A couple of points.  First, one can search Professor Goldman's post in vain for any acknowledgment of the basic, brute fact here -- that inaccessible websites mean that people with various disabilities are shut off from the important aspects of civic and economic life that, more and more, take place on the internet.  Applying the ADA to demand accessibility of websites does nothing more than serve the statute's basic purpose.  Second, I'm not quite sure why Professor Goldman thinks that people will make "buckets of money" suing internet companies under a statute that doesn't provide for a damages remedy, or why he thinks it was so problematic for the District of Massachusetts (which is in the First Circuit) to follow the First Circuit's Carparts precedent, however "heavily-criticized" he thinks that precedent is.  In any event, as the Department of Justice's ANPRM on web accessibility explained a couple of years ago, the Department has long taken the position that Title III of the ADA applies to the websites of public accommodations:

The Department has also repeatedly affirmed the application of title III to websites of public accommodations. The Department first made this position public in a 1996 letter from Assistant Attorney General Deval Patrick responding to an inquiry by Senator Tom Harkin regarding the accessibility of websites to individuals with visual disabilities. See Letter from Deval L. Patrick, Assistant Attorney General, Civil Rights Division, Department of Justice, to Tom Harkin, U.S. Senator (Sept. 9, 1996), available at www.justice.gov/crt/foia/tal712.txt. The letter has been widely cited as a statement of the Department´s position. The letter does not, however, state whether entities doing business exclusively on the Internet are covered by the ADA. 

In 2000, the Department filed an amicus brief in the Fifth Circuit in Hooks v. OKbridge, Inc., which involved a Web-only business. The Department´s brief explained that a business providing services solely over the Internet is subject to the ADA´s prohibitions on discrimination on the basis of disability. See Brief of the United States as Amicus Curiae in Support of Appellant, 232 F.3d 208 (5th Cir. 2000) (No. 99-50891), 1999 WL 33806215, available at www.justice.gov/crt/briefs/hooks.htm. In a 2002 amicus brief in the Eleventh Circuit in Rendon v. Valleycrest Productions, Inc., the Department argued against a requirement, imposed outside of the Internet context by some Federal courts of appeals, that there be a nexus between a challenged activity and a private entity´s "brick-and-mortar" facility to obtain coverage under title III. See Brief for the United States as Amicus Curiae in Support of Appellant, 294 F.3d 1279 (11th Cir. 2002) (No. 01-11197), 2001 WL 34094038, available at www.justice.gov/crt/briefs/rendon.htm. Although Rendon did not involve website access, the Department´s brief argued that title III applies to any activity or service offered by a public accommodation, on or off the premises.

So the Netflix case is not some surprising new development.  To be sure, as the ANPRM acknowledged, the cases do not speak with one voice on this question:

While some actions have been brought regarding access to websites under the ADA that have resulted in courts finding liability or in the parties agreeing to a settlement to make the subject websites accessible, a clear requirement that provides the disability community consistent access to websites and covered entities clear guidance on what is required under the ADA does not exist. See generally, Target, 452 F. Supp. 2d 946; Amazon.com and National Federation of the Blind Join Forces to Develop and Promote Web Accessibility (Mar. 28, 2007), www.nfb.org/nfb/NewsBot.asp?MODE=VIEW&ID=174 (last visited June 29, 2010); Spitzer Agreement to Make Web Sites Accessible to the Blind and Visually Impaired (Aug. 2004), www.ag.ny.gov/media_center/2004/aug/aug19a_04.html (last visited June 29, 2010). Two independent Federal agencies have also formally called on the Department to revise its regulations to make clear that the websites of entities covered under title III are subject to the ADA. See Federal Communications Commission, Recommendation 9.10, National Broadband Plan (Mar. 16, 2010), available at www.broadband.gov/plan (last visited June 29, 2010) ("The DOJ should amend its regulations to clarify the obligations of commercial establishments under title III of the Americans with Disabilities Act with respect to commercial websites"); National Council on Disability, The Need for Federal Legislation and Regulation Prohibiting Telecommunications and Information Services Discrimination (Dec. 19, 2006), available at www.ncd.gov/newsroom/publications/2006/discrimination.htm (last visited June 29, 2010) (urging the Department to clarify the ADA´s coverage of websites of title III entities). Although the Department has been clear that the ADA applies to websites of private entities that meet the definition of "public accommodations," inconsistent court decisions, differing standards for determining Web accessibility, and repeated calls for Department action indicate remaining uncertainty regarding the applicability of the ADA to websites of entities covered by title III.

The regulatory process is the ideal place to address the various questions of how to implement the ADA with respect to the website of public accommodations.  (I should note as a matter of full disclosure that I was the political appointee in the DOJ Civil Rights Division who supervised disability rights matter when the web ANPRM was issued.)  But, according to DOJ's longstanding interpretation, which finds support in controlling precedent in the First Circuit, the statute applies of its own force right now.  All the NAD is doing in the Netflix case is enforcing that statute.