A trade group representing Amazon, Facebook, Google, and other Web companies says that online commerce sites could face “ruinous obligations” if they are required to accommodate users with disabilities.
The Internet Association makes the argument in a proposed friend-of-the-court brief, which urges the 9th Circuit Court of Appeals to rule that the Americans with Disabilities Act
does not apply to eBay.
“Applying the ADA to all Web sites may place uncertain, conflicting, burdensome, and possibly ruinous obligations on members of The Internet Association,” the group says in papers filed last week.
The lawsuit dates to 2010, when deaf Missouri resident Melissa Earll alleged that eBay violated federal and state anti-discrimination laws by requiring her to confirm her identity via the telephone before selling used books on the site. U.S. District Court Judge Edward Davila in San Jose, Calif. threw out the lawsuit last year, ruling that eBay has no obligation to comply with the Americans with Disabilities Act. Davila accepted eBay's argument that the ADA, which prohibits discrimination in “places” of public accommodation, doesn't extend to Web-only businesses.
Earll recently asked the 9th Circuit to revive her case. She says that limiting the ADA to physical structures leaves disabled people like herself without protection from discrimination by Web site operators.
EBay counters that Davila correctly interpreted the 1990 law, which does not specifically mention discrimination on the Internet. The Internet Association last week asked to weigh in on eBay's side. The trade group argues that the Web is too technically complex to make compliance with the ADA feasible for many companies.
“The Internet is complicated, and its technical inner workings are regulated not by any government, but by a combination of individual technologists and an interconnected web of technically savvy multi-stakeholder bodies that have overseen the Internet’s evolution from the beginning,” the group argues. “Neither the Justice Department nor the Federal Communications Commission has a handle on what technical standards would comply with the ADA’s requirements, in part because existing technical standards make for amorphous legal standards.”
The group adds that applying the ADA to Web-only companies would affect small businesses and individuals who lack the technical skills to design sites that would accommodate people with disabilities. “This potential for significant liability, without a clear and workable legal standard that can be complied with, would potentially have disastrous effects on innovation and the Internet economy,” the group says.
Earll's lawyer, Michael Aschenbrener, previously said that eBay could have authenticated his client's identity simply by using a text messaging service.
In a similar case, a federal judge in Massachusetts recently ruled that the ADA applies to Netflix. In that matter, U.S. District Court Judge Michael Ponsor allowed the National Association of the Deaf to proceed with claims that Netflix discriminates by failing to provide closed captioning online. Netflix eventually settled the lawsuit by agreeing to offer closed captioning on streaming video.
But many other judges have come to the opposite conclusion and ruled that the ADA doesn't apply to Web businesses unless they also have brick-and-mortar storefronts.