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A federal trial court in Florida, in the case Access Now v. Southwest Airlines, recently ruled that Southwest Airlines does not need to make its Web site accessible to blind persons under the Americans with Disabilities Act (ADA). The court so ruled because the Web site, www.southwest.com, is not a “place of public accommodation” under the ADA, and instead exists in cyberspace. THE ADA Congress passed the ADA in 1990 to provide “a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities,” and clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.” Specifically, the ADA prohibits disability discrimination in “places of public accommodation.” DISABILITIES IN CYBERSPACE There are about ten million visually impaired people in the United States, and, according to the plaintiffs, approximately 1.5 million of them use the Internet. A number of companies have developed assistive technologies, like voice-dictation software, voice-navigation software, and magnification software to help visually impaired people navigate through different degrees of text and graphics located on Web sites. Still, these software programs differ in their capabilities, including the ability to convert text and graphics into meaningful audio signals for visually impaired people. The question thus arises whether the ADA requires Web site operators to modify their sites to provide complete access for visually impaired persons. THE SOUTHWEST AIRLINES SITE Southwest Airlines was the first airline to set up a home page on the Internet. Its Web site, www.southwest.com, allows customers to check airline fares and schedules, book flights, hotel and car reservations, and to learn about sales and promotions. Approximately, 46 percent, or more than $500 million, in passenger revenue for Southwest Airlines for the first quarter of 2002 resulted from online bookings through www.southwest.com. THE LAWSUIT Plaintiffs, Robert Gumson — a blind person, and Access Now — a non-profit corporation, filed suit contending that the airline’s technology violates the ADA because the goods and services offered on www.southwest.com are not accessible to blind people using screen readers. The plaintiffs alleged that while the site “offers the sighted customer the promise of independence of on-line airline/hotel booking in the comfort and safety of their home, even if a blind person like Gumson has a screen reader with a voice synthesizer on their computer, they are prevented from using the southwest.com website because of ifs failure to allow access.” Specifically, the plaintiffs argued that the “southwest.com website fails to provide �alternative text’ which would provide a �screen reader’ program the ability to communicate via synthesized speech what is visually displayed on the website.” Southwest Airlines filed a motion to dismiss the plaintiffs’ complaint. The airline argued that its Web site is not covered by the ADA because it is not a “place of public accommodation.” THE COURT’S DECISION The court analyzed the applicable ADA regulations in considering Southwest Airlines’ motion. One of those regulations defines a facility covered by the ADA as “all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.” From there, the court concluded that “to fall within the scope of the ADA as presently drafted, a public accommodation must be a physical, concrete structure,” and that “to expand the ADA to cover �virtual’ spaces would be to create new rights without well-defined standards.” Therefore, “because the Internet website, southwest.com, does not exist in any particular geographical location, plaintiffs are unable to demonstrate that Southwest’s website impedes their access to a specific, physical, concrete space such as a particular airline ticket counter or travel agency,” the court granted Southwest Airlines’ motion and dismissed the plaintiffs’ complaint. WHERE DO WE GO FROM HERE? The world is moving more and more into Cyberspace. Indeed, even in this specific context, Southwest Airlines derives almost one-half of its revenues from online sales. So, it certainly seems that laws that protect people with disabilities in the physical world should extend to the online world. Of course, federal courts are called upon to interpret and apply the laws as presently written by Congress. It therefore would not be surprising to see efforts to change the ADA to reflect the new world order. Such change would cause burden and expense for Web site operators, but that has been true for brick and mortar companies already operating under the ADA. If society decides to protect people with disabilities, those afflicted with disabilities deserve consistency. Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP where he focuses on litigation and information technology issues. His Web site is www.sinrodlaw.comand he can be reached at [email protected].

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