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Last week (April 22, 2010) Samuel R. Bagenstos, Principal Deputy Assistant Attorney General for Civil Rights, testified before the House Judiciary Subcommittee on technology accessibility, civil rights, and federal law. It is a long piece of testimony, so I decided to break it into parts to make it easier to digest.

In my first blog on this testimony, I described Mr. Bagenstos’ commentary on e-books and the rights of people with disabilities. In his testimony, he also briefly discussed the issue of website accessibility. But in this section, the message was less clear. He notes that the federal courts “have reached different conclusions” with regard to the issue of web accessibility for “private places of public accommodation.”

Mr. Bagenstos’ does make it clear that the websites of federal, state and local governments must be fully accessible to people with disabilities. However, he notes technical differences under Title I, Title II and Title III of the Americans with Disabilities Act (ADA) which lead to some of the confusion, particularly with “private places of public accommodations covered by Title III.” So, at this point, it is not clear as to where we are with regard to all websites needing to be accessible. It seems definitive case law is not quite there yet.

Here is Mr. Bagenstos’ testimony regarding website accessibility:

The Department of Justice Positions Regarding Website Accessibility

The Disability Rights Section of the Department of Justice’s Civil Rights Division began to provide technical assistance to a host of public and private entities that were in the process of assisting federal agencies with Section 508 compliance, and much of its guidance on making Internet sites accessible developed from there. There are several sets of standards describing how to make websites accessible to individuals with disabilities. Government standards for website accessibility were developed pursuant to Section 508. Many entities elect to use the standards that were developed and are maintained by the Web Accessibility Initiative, a subgroup of the World Wide Web Consortium (“W3C7″).

Ensuring that people with disabilities have a full and equal opportunity to access the benefits of emerging technologies is an essential part of our disability rights enforcement at the Department of Justice. Because the Internet was not in general public use when Congress enacted the ADA and the Attorney General promulgated regulations to implement it, neither the statute nor the regulations expressly mention it. But the statute and regulations create general rules designed to guarantee people with disabilities equal access to all of the important areas of American civic and economic life. And the Department made clear, in the preamble to the original 1992 ADA regulations, that the regulations should be interpreted to keep pace with developing technologies. 28 C.F.R. pt. 36, App. B.

The Department of Justice has long taken the position that both state and local government websites and the websites of private entities that are public accommodations are covered by the ADA. In other words, the websites of entities covered by both Title II and Title III of the statute are required by law to ensure that their sites are fully accessible to individuals with disabilities. The Department is considering issuing guidance on the range of issues that arise with regard to the Internet sites of private businesses that are public accommodations covered by Title III of the ADA. In so doing, the Department will solicit public comment from the broad range of parties interested in this issue.

There is no doubt that the Internet sites of state and local government entities are covered by Title II of the ADA. Similarly, there is no doubt that the websites of recipients of federal financial assistance are covered by Section 504 of the Rehabilitation Act. The Department of Justice has affirmed the application of these statutes to Internet sites in a technical assistance publication, Accessibility of State and Local Government Websites to People with Disabilities ( http://www.usdoj.gov/crt/ada/websites2.htm ), and in numerous agreements with state and local governments and recipients of federal financial assistance. Our technical assistance publication also provides guidance with simple steps to ensure that government websites have accessible features for individuals with disabilities.

As to private places of public accommodation, only two cases – both in federal district courts – have specifically addressed the application of ADA Title III to their websites, and those cases have reached different conclusions. But the position of the Department of Justice has been clear: Title III applies to the Internet sites and services of private entities that meet the definition of “public accommodations” set forth in the statute and implementing regulations. The Department first made this position public in a 1996 letter from Assistant Attorney General Deval Patrick responding to an inquiry by Senator Harkin regarding the accessibility of websites to individuals with visual impairments. The letter has been widely cited as illustration of the Department’s position. The letter does not state whether entities doing business exclusively on the Internet are covered by the ADA. In 2000, however, the Department filed an amicus brief in the Fifth Circuit in Hooks v. OKbridge, 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. And in a 2002 amicus brief in the Eleventh Circuit in Rendon v. Valleycrest Productions, the Department argued against a requirement, imposed outside of the Internet context by some federal courts of appeals, that there be a nexus between the challenged activity and a private entity’s brick-and-mortar facility to obtain coverage under Title III. Although Rendon did not involve the Internet, our brief argued that Title III applies to any activity or service offered by a public accommodation either on or off the premises.