Those who believe that web content should be available to everyone regardless of disability received welcomed news on Tuesday, June 19. On that day, a federal district court judge in Massachusetts held that the Americans with Disabilities Act (ADA) applies to web-only businesses. The ruling came in a case brought by the National Association of the Deaf (NAD) against Netflix for the streaming video giant’s failure to provide closed captioning on most of its “Watch Instantly” programming streamed on the Internet.
Netflix had tried to get the case thrown out of court, arguing that the ADA only applies to physical places, and not to a web-only operation like Netflix’ streaming video service. Netflix also advanced a far-fetched argument that somehow the new 21st Century Communications and Video Accessibility Act (CVAA) prevented NAD from suing under the ADA. Federal District Court Judge Michael Ponsor rejected both these arguments, and the case will now move forward.
Congratulations to NAD and its legal team, led by the Disability Rights Education and Defense Fund (DREDF) in Berkeley. Thank you United States Department of Justice (DOJ) for weighing in on the side of NAD, on the side of an inclusive accessible web. [Jump to DOJ info below]
Changing Technology? Civil Rights Still Apply
The Judge’s 31 page Order is firmly rooted in prior court decisions and the legislative history of the Americans with Disabilities Act. Since as early as 1994 courts in the United States have held that public accommodations under the ADA “include providers of services which do not require a person to physically enter an actual physical structure.” Later in the 1990’s the Internet was mentioned in at least one appellate decision as being subject to the ADA’s non-discrimination provisions. Building on those earlier cases and on extensive legislative history, the June 19, 2012 Netflix order is very significant in its direct, detailed, and well-supported analysis of why the ADA’s coverage of private entities extends to websites that do not have a “nexus” (connection) to a brick and mortar establishment.
The Judge also recognized, as advocates and the U.S. Department of Justice have for years, that the ADA is flexible legislation that adopts to changing times. Do people with disabilities lose their their civil rights when engaging in new technologies? Judge Ponsor said no. As he wrote in his June 19, 2012 order,
[W]hile such web-based services [as Netflix streaming video] did not exist when the ADA was passed in 1990 and, thus, could not have been explicitly included in the Act, the legislative history of the ADA makes clear that Congress intended the ADA to adapt to changes in technology. See, e.g., H.R. Rep. 101-485 (II), at 108 (1990) (”[T]he Committee intends that the types of accommodation and services provided to individuals with disabilities, under all of the titles of this bill, should keep pace with the rapidly changing technology of the times.”). — Judge Michael Ponsor, U.S. District Judge for the District of Massachusetts
U.S. Department of Justice: Strong Support for ADA Coverage
The United States Department of Justice filed a Statement of Interest in the Netflix case arguing for ADA coverage and urging the Judge not to throw the case out of court. Given that DOJ’s proposed website regulations are stalled in the administrative process, the Department’s willingness to enter the case, and its strong statement in support of an inclusive, accessible web, was welcomed news to the global movement for an inclusive web.
The Department was unequivocal in stating that services such as Netflix streaming video are covered by the ADA:
Defendant Netflix is a public accommodation that offers its Watch Instantly and other services to the public. As such, Netflix is subject to title III of the ADA, even if it has no physical structure. — Statement of Interest of the United States Department of Justice in NAD v. Netflix (page 4)
And, contrary to some recent, well-circulated mis-statements by industries opposed to web accessibility, the DOJ’s public position in the Netflix case clarified that regulatory delay does not mean on-line discrimination should be tolerated:
The Department is currently developing regulations specifically addressing the accessibility of goods and services offered via the web by entities covered by the ADA. The fact that the regulatory process is not yet complete in no way indicates that web services are not already covered by title III. — Statement of Interest of the United States Department of Justice in NAD v. Netflix (page 10)
Links to the Department of Justice Statement in both Word and PDF format are available on the Department of Justice ADA website.