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IP (link to IP ctr), tech HED: Net Rights for the Disabled? By Ritchenya A. Shepherd national law journal staff reporter

a suit against America Online, filed by the National Federation for the Blind, could have widespread ramifications in the online industry and for a variety of other service-based businesses, lawyers say. The suit puts squarely before a federal court the question of whether an Internet-based service is a public accommodation and therefore, under the Americans With Disabilities Act (ADA) of 1990, is required to provide access to people with disabilities. “It’s a 500-pound gorilla that party-goers can’t ignore,” said Robert A. Naeve, a labor and employment partner at San Francisco’s Morrison & Foerster L.L.P. “If the court rules that AOL is a public accommodation, it could require anyone engaging in e-commerce to make their Web site…accessible to people with disabilities.” The Baltimore-based federation brought suit on Nov. 4 in U.S. district court in Boston, claiming that AOL is in violation of the ADA because its proprietary software is not compatible with the screen-access software used by blind people. “We get hundreds of complaints about AOL every year,” said Dr. Marc Maurer, the group’s president. Members call, he said, “asking how they can make their machines work with AOL, and the answer is: You can’t.” Blind people use software to monitor their computer screens and convert text into synthesized speech or Braille. But such programs cannot read many of AOL’s unlabeled graphics of custom controls and can’t process functions requiring use of a mouse rather than keystrokes, the complaint says. There are about 700,000 blind people in the United States, Dr. Maurer said. A recent poll says that 60% to 70% of the federation’s 50,000 members use computers. “We have called AOL many times and written a few times. They have said they’re all for access, but they never do anything about it,” he said. The law on whether online providers are public accommodations isn’t clear. “There’s nothing that addresses it squarely in the statute,” said Gary D. Friedman, a New York labor and employment partner at Chicago’s Mayer Brown & Platt. Justice Department view A 1996 opinion by the Department of Justice concluded that the ADA does apply to companies and government agencies offering products and services over the Internet, but that opinion never has been judicially interpreted, said Jonathan S. Quinn, a partner at Chicago’s Sachnoff & Weaver Ltd. And a DOJ regulation requiring public accommodations to ensure access to their goods indicates that they are not required to alter the nature or mix of those goods, Mr. Naeve said. He cited the example of a bookstore, which must make its facility physically accessible but does not have to stock Braille or large-print books. The federal circuit courts are split over whether the ADA,which enumerates places of accommodation such as concert halls, parks and restaurants,can be stretched to cover other types of service businesses. The U.S. courts of appeal for the 3d and 6th circuits “flat out say that a public accommodation is a physical place,” Mr. Naeve said. “If you follow that, then the Internet is not a public accommodation.” However, the 1st Circuit,where the NFB sued,has held otherwise. In a 1994 case, Car Parts Distribution Center v. Automotive Wholesalers Association, 37 F.3d 12, the court held that being a public accommodation doesn’t demand a physical structure for people to enter. “What the plaintiffs in the AOL case are arguing represents a rather expansive interpretation of the ADA,” said Edward S. Mazurek, a labor and employment partner at Morgan, Lewis & Bockius L.L.P. in Philadelphia. In addition to affecting on-line businesses, such a reading of the statute could affect other service providers, such as telecommunications companies and insurance companies, which could be forced to alter access to their services to accommodate people with disabilities. Given the stakes, it appears to be in AOL’s interest to settle, Mr. Friedman said: “They have a lot to lose….They don’t want to create any adverse law.” AOL would not comment on the possibility of a settlement. But the company already is well on its way to making its service more accessible to the blind, said company spokesman Nicholas J. Graham. Next year, AOL plans to release an updated version of its software that can interface with screen readers, as well as a feature to allow AOL members to have their e-mail read to them over the telephone.

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