[thelist] Flash, usability, accessibility

[Chris Kaminski]

Thus spake Martin Burns:

> And to support that line of argument from the DOJ's own position:
> http://www.usdoj.gov/crt/briefs/hooks.htm


This is an amicus brief from an agency under the executive branch and so not
controlling precedent, but rather a legal argument no more or less
persuasive than that of any other legal brief submitted to a court for
consideration. The case in question was never decided by the Appellate
Court, but was dismissed on other grounds, so it is not controlling
precedent. See:
<http://lists.w3.org/Archives/Public/w3c-wai-ig/2002JanMar/1472.html>

and

<http://lists.w3.org/Archives/Public/w3c-wai-ig/2002JanMar/1473.html>

For another analysis of the /Hooks/ brief by Michael Mason, an attorney with
the law firm of Hogan & Hartson LLP in Washington, written prior to the
case's eventual dismissal, see:

<http://www.washingtontechnology.com/news/15_13/federal/1815-1.html>

Moreover, /hooks/ is limited to businesses providing services solely over
the Internet. From the Statement of the Issues in above referenced brief:

    Whether a company that offers services solely on the
    internet is subject to the public accommodations
    provision of Title III of the ADA.

The DOJ's brief is therefore limited in scope, expressly excluding:

1. A physical store that also has an e-commerce Web site (i.e., Barnes &
   Noble)
2. A catalogue retailer that has an e-commerce site (i.e., L.L. Bean)
3. A computer manufacturer that also offers technical support by phone
   (i.e., Apple Computer)

> Here's the post that Chris couldn't find:
> http://lists.evolt.org/archive/Week-of-Mon-20020527/113706.html

Thank you.

Let us first examine /Doe v. Mutual of Omaha/
<http://lw.bna.com/lw/19990615/984112.htm>. In this case, the court
apparently applies the ADA to Web sites (referring to Title III section
302(a) of the ADA; 42 U.S.C. sec. 12182(a).):

    The core meaning of this provision, plainly enough,
    is that the owner or operator of a store, hotel,
    restaurant, dentist's office, travel agency, theater,
    **Web site,** or other facility (whether in physical
    space or in electronic space, Carparts Distribution
    Center, Inc. v. Automotive Wholesalers' Ass'n of New
    England, Inc., 37 F.3d 12, 19 (1st Cir. 1994)) that
    is open to the public cannot exclude disabled persons
    from entering the facility and, once in, from using
    the facility in the same way that the nondisabled do.

However, this is not controlling precedent since the question before the
court was /not/ whether Web sites are covered by the ADA, but rather is a
case about an Insurance company that placed a cap on AIDS coverage.

In that same post, you also refer <to http://icdri.org/sjsu.htm>, a letter
from the United States Department of Education, Office for Civil Rights.
This letter is in regard to a complaint against San Jose State University,
an institution which receives federal funds. This letter is not on-point.

Three other links you provide, <http://www.icdri.org/csula.htm>,
<http://www.icdri.org/ocrsurltr.htm> and <http://www.icdri.org/lbeach.htm>,
are likewise in reference to universities which receive federal funds and so
not on point.

Finally, you cite a suit brought against AOL
<http://www.abanet.org/irr/hr/winter00humanrights/waddell2.html>. This case
was settled and therefore has no value whatever as precedent.

Moreover, AOL is again offering a service accessible /only/ via the Internet
(or, more accurately in this case, via the computer).

Finally, none of the aforementioned goes on to define 'service,' Sites which
offer promotional material only (such as branding exercises done by Nike or
MTV) may or may not constitute a 'service,' but rather 'content.' From the
/Washington Technology/ article referenced earlier:

    Another court has held that the ADA applies outside of
    physical structures, expressly including--without
    definitively deciding the point--Web sites, but does not
    regulate the content of goods or services. For example,
    bookstores aren¹t required to stock Braille books and
    movie rental stores aren¹t required to stock films with
    closed captioning. If this rule were applied to Web sites,
    enforcing the ADA might depend on whether the Web page at
    issue constitutes a good or service, or provides only a
    means to access a good or service.

With that in mind, a whole range of sites or portions of sites may be
exempt:

1. animation sites
2. art sites
3. gaming sites
4. sites offering movie trailers
5. sites offering online comics

In summary, the degree to which the ADA applies to Web sites is still
unsettled, and Section 508 does not apply to private entities receiving less
than US$10,000 in federal funds.

Moreover, even assuming the courts or congress answer the question of
whether the question of whether the ADA applies to Web sites in the
affirmative (which is very likely), it is far from certain that /all/ sites
will be so covered. Questions still exist such as what constitutes a good or
service and what is the /content/ of the good or service, and whether
alternative means of access--such as by voice phone service or fax--might
relieve the burden of accessibility.


chris.kaminski == ( design | code | analysis )

------------------------------------------------------------
    We are confronted by insurmountable
    opportunities.
    ---------------------------------------<< Pogo Possum >>