wwwSince 2010 the Department of Justice has been in the process of creating rules for web access under the ADA. No rules have been proposed, and this month the DOJ announced that it was splitting the proposed rule making into two parts and delaying the issuance of a notice of proposed rule making for both. The original proposed rules were to cover both Title II entities (cities other municipalities) and Title III entities (private businesses operating as places of public accommodation. The Title II rules will now proceed as a separate process with an earlier proposed date.

This is only the most recent of a number of delays in the projected date for the proposed rules, and may reflect nothing but the complexity of the needed rules; however, the fact that Title II and Title III have been divided may reflect a deeper concern. With the exception of a decision last summer [Nat. Ass’n of the Deaf v. Netflix, Inc., 869 F.Supp.2d 196 (D. Mass 2012] the courts have not been receptive to the idea that the internet constitutes a place of public accommodation subject to the requirements of Title III. In fact, just a month after the Massachusetts decision a district court in California rejected the idea that Title III governed web accessibility. [Cullen v. Netflix, Inc., 880 F.Supp.2d 1017 (N.D. Cal. 2012)]. The argument that the program access provisions of Title II apply to a municipal website is much stronger than the argument that a web site is a place of public accommodation.

It is also possible that someone at DOJ has realized that application of the ADA to the web creates issues that are not merely technical, but concern the nature of “business” on the web. Title III of the ADA makes no distinctions based on the size or profitability of a business that constitutes a place of public accommodation, but does limit its coverage to enterprises that are likely to have money to pay the price of accessibility. Even the kinds of non-profit entities listed in Section 12181(7)(K) commonly have funds from donors and therefore have a budget of some kind to devote to ADA compliance. The same cannot be said of public websites, which include millions of blogs and hobbyist sites. These sites are created by users with little or no web expertise based and are often free, though they may include ads whose revenue goes to the service providing the blog space. There are also many small business web sites created with free or low-cost software that amount to little more than advertisements and contact information and which generate no revenue at all. Unfortunately, if the words “place of public accommodation” are stretched to include a company like Netflix it is difficult to see a principled distinction that would exclude these websites. They all serve the public in some way, and although most were created at no cost and generate no revenue there is no profit or revenue requirement in the text of the ADA.

Extending the ADA to the web also raises a host of jurisdictional issues. It isn’t hard to know whether a brick and mortar business is located in the United States, but it may be impossible to know where a web site is “located.” In fact, to talk about the location of web site is in some ways non-sensical because the entire point of the world wide web is that the physical location of the server hosting a web site doesn’t really matter.

Despite these problems and the strong likelihood that the courts will reject any regulation of the web under Title III the DOJ promises proposed Title III web access rules in mid-2014. The largest on-line retailers are already working on web access issues, and small businesses that rely on the web for sales or to serve paying customers are well advised to try to get ahead of the curve on accessibility. Even proposed rules will undoubtedly trigger new lawsuits aimed at any business that appears substantial enough to want to settle and pay the plaintiff’s attorney. Even more important, in a competitive economy no business can afford to ignore the buying power of those with disabilities, particularly those whose disabilities make them more likely to use the internet than go to traditional stores.

Business sense is not, however, the same thing as regulatory compulsion. The DOJ has argued that it must create web access rules despite the language of the ADA because Congress could not foresee the development of the internet when the ADA was passed. This amounts to an admission that the DOJ’s rule making, though it may be well-intentioned with respect to the needs of the disabled, has no support at all in the language of the ADA and amounts to an effort to amend the law through the rule making process. Businesses cannot ignore the coming rules, but the DOJ would be well advised to drop the effort entirely until Congress acts; otherwise we will have incoherent regulations with unintended consequences for a host of web sites that make no money and cannot afford ADA compliance.