December 01, 2000

The National Federation of the Blind Sues AOL - Human Rights Magazine, Winter 2000

The National Federation of the Blind Sues AOL

By Cynthia D. Waddell

On November 4, 1999, the National Federation of the Blind (NFB) and nine individual, blind plaintiffs, filed suit in U.S. district court, charging that America Online’s Internet Service (AOL) is inaccessible to blind users. The lawsuit seeks injunctive and declaratory relief to bring AOL into compliance with Title III of the ADA.

In learning of the AOL suit, some readers may ask, "How can a blind person surf the Net?" The same question could also be asked as to how a blind person can read a document or even compose a document on a computer. Up to this point, persons with visual disabilities, specific learning disabilities, and mobility disabilities have relied on assistive computer technology to provide the tools for surfing the Net or creating a document. In this case, screen reader technology has been extremely helpful because Webpages coded for accessible Web design can be converted into Braille or synthesized speech by a screen reader audibly reading the page out loud to the user.

The AOL suit highlights the fact that people using screen reader technology for work or play are finding serious barriers in their access to Internet service providers and Internet portals. The complaint points out that AOL has designed its service to be incompatible with screen access programs and that AOL has failed to remove communication barriers presented by its design.

Not surprisingly, the complaint identifies four counts grounded in the ADA’s statutory prohibition against discrimination against disability: (1) violation of the ADA’s communication barriers removal mandate; (2) violation of the ADA’s auxiliary aids and services mandate; (3) violation of the ADA’s reasonable modification mandate; and (4) violation of the ADA’s full and equal enjoyment of services mandate.

However, the AOL case is not just about coding Webpages for accessibility. There are multiple barriers in the design and usability of the AOL service. For example, it is alleged that the AOL proprietary software does not function in a way to enable screen readers to effectively and fully convert the information on the Webpage. Problems include the use of unlabeled graphics, keyboard commands that must be activated through a mouse, customized graphical controls, and channels hidden within unlabeled graphics.

More specifically, some of the illustrative barriers identified in the complaint include: (1) an inaccessible online AOL service sign-up form that is not designed to inform the user as to the content requested for each blank field; (2) a "welcome" screen with features such as "favorites," "parental controls," and "chat rooms" where the text is hidden within graphics and cannot be read by the screen reader; and (3) a browser software designed to operate in such a way that screen readers do not know when the browser is running, causing great difficulty in the ability for blind users to enter a keyword search or a Web address or even to tab through links.

These barriers to "effective communication" mean that the plaintiffs cannot use a number of AOL service features. Some of the inaccessible features identified in the complaint include:

AOL’s "online interactive community" (electronic mail services, "buddy list" feature, public bulletin boards, public and private "chat rooms," and "auditorium" events), AOL’s nineteen "channels" providing informational content and commerce and community opportunities pertaining to news, sports, games, finance, shopping, health, travel, kids, and other subjects, as well as AOL’s personalization and control features that permit members to automatically update their stock portfolios, for example, or block their children’s access to inappropriate Websites.

One of the threshold questions is whether AOL is a "covered entity" under Title III of the ADA. For the AOL service to be a covered entity, it must satisfy any one of the numerous statutory definitions for a public accommodation. For example, the complaint alleges that AOL is a place of exhibition and entertainment, a place of public gathering, a sales and rental establishment, a service establishment, a place of public display, a place of education, and a place of recreation.

According to plaintiffs' co-counsel, Joseph P. Davis, a trend is developing among circuit courts to expand the reach of Title III to encompass public accommodations that are not physical structures: "The provision of services over the Internet is a natural extension of the court's logic. The ADA is designed to protect the ability of individuals with disabilities to enjoy the goods and services of a public accommodation that are freely available to nondisabled members of the citizenry. The Internet is the fastest growing arena of commerce, entertainment, education, and public discourse. The breadth of the ADA, and its fundamental purpose to protect equal access to the disabled community, encompasses the explosion of services now available in cyberspace. Nothing in the statute expressly limits the applicability of the Act to those public accommodations that were in widespread use at the time of the Act's enactment in 1990, and we expect that the courts will hold once and for all that Internet service providers must comply with Title III in the provision of those services."

This is not the first ADA Internet complaint to be filed and certainly not the last, given the growth of the digital economy and the fact that, unfortunately, accessible Web design barriers are systemic. Perhaps the AOL suit will be settled by the time this article is published, with AOL serving as an accessible model to the Web community. But whether it is or isn’t, this suit serves as an example of the need for heightened awareness by Web companies to be responsive to the access needs of people with disabilities both here and around the world.