The question of the effects of technological change on the interpretation of statutes is a complicated one. Particularly for statutes that govern a broad range of issues, the advent of new technology can precipitate re-examination of the rationale behind, and nature of, the relevant law. The Americans with Disabilities Act was enacted, in part, to give Americans with disabilities greater access to public space, allowing them to enjoy the advantages such access offers on an equal footing with the able-bodied. The adoption of digital technology across society and, in particular, the widespread ubiquity of the internet now raise questions about legal obligations of content creators and businesses who do business primarily or exclusively online. The Americans with Disabilities Act regulate “places of public accommodation”, but that regulation seems to lack teeth where websites are concerned, since a website or internet service is not located anywhere in particular. At the same time, excluding all internet businesses from the regulations of the ADA seems both unfair and inimical to the purposes of the statute as enacted by Congress.
This Comment argues that courts and scholars addressing the applicability of the Americans with Disabilities Act to online entities have given insufficient attention to the concept of place. Place means more than simply “a discrete physical location.” The law, far from being a structural entity that forms ex nihilo, arises in part out of human language, which in turn arises from human experience. This Comment offers evidence that both the average person and the court should conceive of “place” in a broad sense. To do so, this Comment draws on jurisprudence outside the field of disability law, namely the realms of trespass and search-and-seizure.
this Comment demonstrates that law applicable to the Internet outside the context of the ADA, such as courts’ rulings on Internet searches and seizures under the Fourth Amendment and trespass to chattels under tort law, has been applied to the Internet already and consistently treats the Internet in the same manner it does a physical location. The Department of Justice’s potential recognition of this fact as they prepare to apply the Web Content Accessibility Guidelines 2.0 to publicly-operated websites under Title II of the ADA is exemplary for how the courts should apply the ADA’s regulations to privately-owned businesses that operate online.
Kelby S. Carlson,
From Storefront to Dashboard: The Use of the Americans with Disabilities Act to Govern Websites,
Cath. U. L. Rev.
Available at: https://scholarship.law.edu/lawreview/vol67/iss3/8