Law professor Eric Goldman points to a “really terrible” ruling in a case called National Association of the Deaf v. Netflix that “has potentially ripped open a huge hole in Internet law” by concluding that Internet sites are “places of public accommodation” for the purposes of the Americans with Disabilities Act, simply ignoring a boatload of precedent concluding just the opposite. As Goldman explains, this is apt to unleash a costly and innovation‐stifling flood of litigation:
Could YouTube be obligated to close‐caption videos on the site? (This case seems to leave that door open.) Could every website using Flash have to redesign their sites for browsers that read the screen? I’m not creative enough to think of all the implications, but I can assure you that ADA plaintiffs’ lawyers will have a long checklist of items worth suing over. Big companies may be able to afford the compliance and litigation costs, but the entry costs for new market participants could easily reach prohibitive levels.
And then there’s linkages with other civil rights statutes, such as Title II of the Civil Rights Act of 1964 (an anti‐discrimination law) and state laws, that use similar language as the language interpreted in this ruling. If all of those statutes are back in play too, the range of obligations imposed on websites–and the opportunities for aggressive plaintiffs’ lawyers–expand exponentially. Expect lots of consumer claims that a website discriminated against them based on an impermissible criterion. It’s safe to say that the legal rules at issue in this case could have billions of dollars of impact between the web coding obligations and the potential litigation frenzies.
That wouldn’t be terribly surprising: The ADA has certainly led to its share of costly unintended consequences in the physical realm. But there are a few reasons why the statute seems particularly ill‐suited for application to the Web.
At the risk of belaboring the obvious: Web sites are not “places” at all, except in a metaphorical sense: They are streams of information transmitted to users. (There is, of course, some physical place where the server is located, but that place is typically not physically open to the public.) The court treats this as a kind of trivial semantic distinction rendered moot by the advance of technology, even suggesting that it would be “absurd” to exempt Netflix and Amazon from the rules written for the local cineplex and bookshop. But there are actually quite a few crucial distinctions between Internet sites and traditional brick‐and‐mortar businesses, which make it a rather surprising leap to insist that a statute designed for literal “places” naturally extends to the metaphorical digital “sites” that serve similar functions.