The
National Federation of the Blind (NFB), a non-profit group based in
Baltimore, and one of its members, Bruce 'BJ' Sexton, a student in
California, are suing the retail giant. The action was filed on
behalf of all blind people in California who are denied access to
Target.com.
The complaint cites various problems with Target.com: alt-text
is missing from images, preventing screen readers from describing
them to blind users; purchases cannot be completed without a mouse
because keyboard controls do not work; image maps are inaccessible;
and headings are missing that are needed to navigate. In short, the
site is badly designed, says the NFB.
The lawsuit was brought in February, alleging breaches of the
federal ADA and two state
statutes, the Unruh Civil Rights Act and the Californian Disabled
Persons Act.
Target filed a motion to have the case dismissed. On Wednesday,
in the US District Court for the Northern District of California,
Judge Marilyn Hall Patel dismissed that motion. But her ruling is
not a hands-down victory for web accessibility: Patel did not rule
that Target.com or any other website is required to be accessible;
and she threw out part of the NFB lawsuit.
Limited claim
The ADA claim in the lawsuit is a narrow one. The ADA talks of
the need for places of public accommodation to be accessible to the
disabled. It lists hotels, cinemas, banks and zoos as examples of
such places. An attempt to add websites to that list has failed
before: in 2002, a Florida district court judge characterised a
blind person's argument against Southwest Airlines as "emotionally
attractive" but not "legally viable".
Mindful of that ruling, the NFB took a different approach
against Target. Its main argument identified Target.com not as a
place of public accommodation but rather as a service and benefit
offered by Target stores in California, which are themselves public
accommodations.
The NFB's argument under the ADA is not that a blind person
cannot place an order at Target.com. Instead, this case looks at
the website's store locator, which helps people to find a local
store's location and opening hours. It looks at the online
pharmacy, where customers can order a prescription refill before
driving to and collecting orders at a Target store. And it looks at
discount coupons on its website, that can be printed and redeemed
when you visit a store.
Struan Robertson, editor of OUT-LAW.COM and a technology lawyer
with Pinsent Masons, said: "This case is very unlikely to establish
whether the ADA applies to sites like MySpace, Google, Yahoo!,
YouTube, Amazon.com or any other US-based, pure-play dot.coms."
But Mazen Basrawi, Equal Justice Works Fellow at the
Berkeley-based Disability Rights Advocates, who is representing the
NFB and BJ Sexton, told OUT-LAW, "If a pure internet business
looked at this case and said 'we're off the hook', they're greatly
mistaken."
He points out that the California laws are wider in scope than
the ADA – and the arguments under these state laws survived
Target's attempt to remove them from the case in last week's
opinion.
Basrawi also suggests the day of the ADA's application to all
websites could come. He pointed to a case that came before an
appeals court in Illinois, in which a judge said that the ADA does
apply to websites. He acknowledged that the case was not concerned
with website accessibility and therefore the judge's statement is
not binding on other courts. "The issue won't be fully resolved
until it's decided by the Supreme Court," he said.
Judge Patel summarised the NFB's argument thus: "Plaintiffs'
legal theory is that unequal access to Target.com denies the blind
the full enjoyment of the goods and services offered at Target
stores, which are places of public accommodation."
Target tried to argue that a website is not covered by the ADA
at all. Judge Patel clearly disagreed: "The statute applies to the
services of a place of public accommodation, not services in a
place of public accommodation. To limit the ADA to discrimination
in the provision of services occurring on the premises of a public
accommodation would contradict the plain language of the
statute."
She continued: "it is clear that the purpose of the statute is
broader than mere physical access – seeking to bar actions or
omissions which impair a disabled person's 'full enjoyment' of
services or goods of a covered accommodation."
She acknowledged and distinguished the 2002 Florida ruling in
the case brought against Southwest Airlines by disabled rights
charity Access Now on behalf of a blind internet user.
"In Access Now, the court held that plaintiff failed to state a
claim under ADA because plaintiff alleged that the inaccessibility
of southwest.com prevented access to Southwest's 'virtual' ticket
counters," she wrote. "'Virtual' ticket counters are not actual,
physical places and therefore not places of public accommodation.
Since there was no physical place of public accommodation alleged
in Access Now, the court did not reach the precise issue presently
in dispute: whether there is a nexus between a challenged service
and an actual, physical place of public accommodation."
She added: "the challenged service here is heavily integrated
with the brick-and-mortar stores and operates in many ways as a
gateway to the stores."
This nexus between a website and a brick-and-mortar store was
key to Patel's interpretation of the ADA. "Her opinion is applying
existing precedent to web access as we expected she would do," said
Basrawi. "So far as the website has any services unconnected with
the physical store, those things are off-limits … She did eliminate
the possibility of the claim reaching beyond where there is that
nexus; but there's still a lot of room for manoeuvre because so
much of the website is connected with the stores."
Patel hinted that if inaccessibility is proved, it might be
sufficient for Target to offer the relevant website services in
another format, such as over the phone.
She also wrote: "To the extent that Target.com offers
information and services unconnected to Target stores, which do not
affect the enjoyment of goods and services offered in Target
stores, the plaintiffs fail to state a claim under Title III of the
ADA."
This could be interpreted as excluding core parts of the
Target.com site from the judgment. Basrawi reads it differently:
browsing online with a view to purchasing in-store is a common use
of a website, he points out. So arguably the entire site should
become accessible.
Basrawi described the ruling as "fantastic," notwithstanding the
need for a nexus between a website and a physical location. "That
is a large part of ecommerce," he said. "The court clarified that
the law requires that any place of public accommodation is required
to ensure that it does not discriminate when it uses the internet
as a means to enhance the services it offers at a physical
location."
Basrawi is also pleased that the court refused to dismiss the
claims under the state legislation. Judge Patel disagreed with
Target that, if the court applied the Unruh Act and Disabled
Persons Act to Target.com, the practical effect would be to force
it to modify its website for all customers nationwide.
"Target could choose to make a California-specific website," she
wrote. And "even if Target chooses to change its entire website in
order to comply with California law, this does not mean that
California is regulating out-of-state conduct."
Target argued that the internet requires uniform, national
regulations. Only Congress, not California, should regulate
Target.com, it said. But Patel disagreed: "a state's ability to
extend benefits or protections to its citizens through its laws is
not necessarily precluded by the failure of Congress to act.
Indeed, Congress' inaction can be viewed as an encouragement to
state legislatures to fill the gaps left in the statute. Thus, the
lack of Congressional action explicitly addressing accessibility
requirements for private websites should not be construed to bar
the extension of the protections of California statutes to these
websites."
Accordingly, California's disability rights laws, rather than
the ADA, could be the stick that forces US websites to become
accessible.
"I thought using Target.com was fun"
As for the claim that Target.com is not accessible to blind
users, further proof will be needed. Target offered declarations
from three blind individuals who said they had successfully
navigated the site. "I was able to access Target.com, navigate the
various links on the site, and search for specific products," said
one user of screen reader JAWS. "I thought using Target.com was
fun," said another.
NFB said Target's test users were not typical blind shoppers but
"web Olympians" with unusually high levels of skill in web
technology, "individuals who enjoy the challenges of
troubleshooting and the difficulties of overcoming barriers on a
given website."
The NFB's own test users were attacked by Target: many of them
admitted to spending a short time on the site before concluding
that it was inaccessible, said Target.
International web accessibility law
There is another federal law in the US that deals with web
accessibility. The rule, known as Section 508, mandates
accessibility requirements in federal procurement. But it does not
generally apply to private sector websites. In contrast, the UK has
a sweeping obligation on all websites offered to the public: they
must be accessible and usable by disabled people.
Other countries may follow the UK's approach. On 25th August
2006, the United Nations published an agreed text of a draft
International Convention on the Rights of Persons with
Disabilities. It addresses web accessibility among its many
provisions.
Amongst the draft Convention's provisions is a clause which
orders signatory states to "take appropriate measures to ensure to
persons with disabilities access, on an equal basis with others, to
… information, communications and other services, including
electronic services".
A second clause orders signatory states to urge "private
entities that provide services to the general public, including
through the internet, to provide information and services in
accessible and usable formats for persons with disabilities".
The Convention, if implemented into US law, could be an
opportunity to remove the ambiguity surrounding the ADA's
application to websites. But while the US participated in
negotiations to formulate the draft convention, it said that it
would not sign it. A spokesman for the US State Department, which
deals with international affairs, said at the time that adequate
protection was provided by ADA.
When this was put to Basrawi, he was not surprised to learn that
the US would not be signing up. He pointed out that the Bush
administration is not keen on international treaties.
Target did not respond to a request for comment for this
story.
