Should Netflix Be Accessible to the Deaf?
Several court cases argue that disability laws that apply to public places should apply to online spaces, too.
TORI SMITH EKSTRAND
April 16, 2015
When President George H.W. Bush signed the Americans with Disabilities Act 25 years ago this July, his hope was that the law would ensure that people with disabilities were given “independence, freedom of choice, control of their lives,” and “the opportunity to blend fully and equally into the rich mosaic of the American mainstream.”
It was a profound moment in legislating, described by many as the most sweeping American anti-discrimination bill to be passed since the Civil Rights Act of 1964.
One critical part of the law, known popularly as the ADA, ensures against discrimination on the basis of disability in “places of public accommodation.” Many of us have seen the effects of this provision over the past 25 years: The law has led to more ramps and accessible doorways, transit areas for wheelchair users, and signs with Braille. Title III of the ADA defines a “place of public accommodation” as a place that affects commerce and falls within 12 specific categories established by the statute. These include private businesses—such as hotels, restaurants and grocery stores—and public institutions, like parks, schools and libraries.
There are few, if any, spaces left untouched by Title III, save for one: the Internet.
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But that may be changing. In recent weeks, two federal courts have released conflicting decisions on the matter. In March, a U.S. district court in Vermont refused to dismiss a lawsuit against the ebook- and PDF-hosting site, Scribd, that argued the Internet should be a place of accommodation under the ADA. But earlier this month, a federal appeals court ruled otherwise, saying that the ADA did not apply to Netflix because it was not a physical structure.
The decisions highlight a longstanding split in the appeals courts regarding whether or not non-physical structures are covered by Title III. Observers say it is too early to know whether the differences will continue or whether the U.S. Supreme Court—or Congress—will ultimately weigh in on the matter.
“…excluding businesses that sell services through the Internet would run afoul of the purpose of the ADA…”
The result has been a sore spot for the disabled for some time now, particularly as more of our professional, commercial, and private lives move online. The Internet, they say, is a space that should be covered by the ADA as much as any other.
“It’s very inaccessible depending on the industry, depending on the sector,” said Jonathan Lazar, a professor of computer and information sciences at Towson University, who’s been studying this issue for 15 years. “Some of the largest e-commerce sites are fully accessible. Some of our best government sites are fully accessible.” But Lazar and others say the majority of websites are not.
When the disabled go online, much of their activity can be hampered by the rich sensory experience the rest of us take for granted. The hearing-impaired face either the absence of closed-captioning or apps that do a poor job of providing it. The seeing-impaired are unable to access screen readers that orally interpret online text or send it to a Braille display. They often miss important visual elements—like “submit” buttons—because they aren’t coded appropriately for the blind. Those with other physical or cognitive challenges face a variety of problems that range from websites that lack the code to “speak” to assistive devices (in the case of those with multiple or more severe physical disabilities) to an inability to understand what information is provided (in the case of those with cognitive or developmental disabilities).
“If you want to stay connected to the dads in your neighborhood to know what activities are going on, or if you want to stay connected to your church because you want to know what the social activities are, they might be using Facebook. To not be able to access it means you’re out of the loop,” said Mark Riccobono, the president of the National Federation of the Blind (NFB), whose organization has been active in the fight to have the Internet labeled as a place of accommodation. Facebook has been moving to make more parts of its service accessible, this month announcing an accessibility toolkit for developers.
Riccobono and others argue they are often unable to access important health or financial information and social or employment opportunities online. In short, they say they get shut out of living. And that’s unnerving for plaintiffs like Heidi Viens, a blind single parent, who wanted to access online books to read to her sighted 4-year-old daughter.
Sometimes, “it’s almost like looking at a roadmap with no labels on the road,” says Viens, who was blinded in an accident 14 years ago, when she was 22. Other times, she says, “there are all the roads, but I don’t know which one I’m supposed to take.”
Viens and the NFB sued Scribd under the ADA, alleging that the site, which provides access to more than 40 million titles including ebooks, academic papers, and legal filings, violated Title III of the ADA because its website and mobile apps were inaccessible. Last month, a U.S. district court in Vermont ruled for the plaintiffs and refused to dismiss the lawsuit. The court found that Scribd’s services fell within a least one of the statute’s categories as a place of exhibition or entertainment, a sales or rental establishment, a service establishment, a library, a gallery, or a place of public display or collection.
“Now that the Internet plays such a critical role in the personal and professional lives of Americans, excluding disabled persons from access to covered entities that use it as their principal means of reaching the public would defeat the purpose of this important civil rights legislation,” wrote Judge William K. Sessions III.
“What made this decision particularly valuable was not just that the court said that the ADA applies to e-commerce but that the court did that by recognizing the very elastic nature that was intended by Congress when it enacted the ADA,” said Daniel F. Goldstein, who represented the plaintiffs in the case. “The ADA as it was structured was truly intended to be a comprehensive mandate to integrate people with disabilities into mainstream life.”
Scribd has filed an appeal. In the meantime, a spokeswoman said the company is working on accessibility refinements, but that there is little legal guidance on what is required. The DOJ is expected to advance rule-making on accessibility guidelines for companies like Scribd later this spring.
The ruling in Vermont was the second within the past few years to broadly read the ADA, a view that the disabled say is supported by the act’s legislative history and the Department of Justice’s position that the ADA applies to the Internet and web-based goods and service providers. In National Association of the Deaf (NAD) v. Netflix, a U.S. district court in Massachusetts ruled that the statute should be read to include the Internet as a place of public accommodation. In that 2012 case, the NAD argued that Netflix, denied deaf subscribers equal enjoyment and access to its site by limiting closed captioning to a few movie selections.
In his opinion, Judge Michael A. Ponsor wrote that “excluding businesses that sell services through the Internet would run afoul of the purpose of the ADA and would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges, and advantages available indiscriminately to other members of the general public.” Netflix ultimately entered into a consent decree with the association.
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A ruling from the Ninth Circuit Court of Appeals earlier this month highlighted the work still to be done, say disability activists. In that case, Donald Cullen, a deaf Netflix subscriber, also sued Netflix to require it to provide more extensive closed-captioning. The Ninth Circuit held that precedent required some connection between the good or service and a physical place. In an unpublished opinion, the appeals court agreed with the district court that there was no such connection in the case.
Beyond arguments that the ADA does not apply to the Internet, critics say the costs for website remediation are significant and difficult to calculate.
“Like many Internet-based companies, Scribd’s website has been developed by many unique individuals over several years and is the compilation of their efforts and refinements,” said the Scribd spokesperson Lyndsey Besser. “Each sentence of code builds on the last. Adhering with the current requests could require a complete rewrite of Scribd’s code, which could take years of computer engineering efforts.”
Lazar, the professor at Towson University, is not persuaded by such arguments. Accessibility boils down to good labeling and coding practices, he says, much of which is not new. “Accessibility is innovation,” he said. “Accessibility is about serving your existing customers and expanding your customer base. Accessibility is about good customer service.” Planning for accessibility at the outset adds only about 2 percent or 3 percent to development costs, he says.
Furthermore, Lazar and others say accessibility tools can be a source of multiple downstream uses, much like parents who use wheelchair ramps for strollers. The research on costs and benefits of accessibility development is in its infancy, but investigators like Lazar are working on it. Accessibility proponents say much of the stumbling block lies in our own misunderstanding about how the disabled actually live and what online communication makes possible for them. For instance, blind viewers enjoy and want access to online videos—something many sighted viewers are surprised to learn.
The lawsuits continue. In February, the NAD sued Harvard and MIT for denying the hearing-impaired access to thousands of videos and audio tracks that each university makes publicly available, for free, on broad-ranging topics of general interest. These include, for example, campus talks by President Barack Obama and Microsoft founder Bill Gates; educational videos made by MIT students for use by K-12 students; “self-help” talks; entire semesters’-worth of courses; and regular podcasts such as the “HBR IdeaCast” by the Harvard Business Review. A sampling of these videos by the NAD demonstrates the poor use of closed-captioning applications.
This is why many developers say the solution lies not just with lawsuits or changes in the ADA, but with developers themselves. Tim Berners-Lee has been particularly active encouraging developers to begin new sites with accessibility in mind. His Web Accessibility Initiative (WAI) within the World Wide Web Consortium (W3C) is conducting research about what the disabled need online and is offering guidance and standards to developers to make accessibility a priority and to assist with remediation of older sites.
The movement into mobile programming represents an opportunity, developers say. The WAI has already been heavily involved in mobile accessibility and has published working guidelines in response to very strong developer interest in improving accessibility as more sites move onto mobile, according to Judy Brewer, the WAI’s director.
Until then, Heidi Viens says she will keep fighting to make sites more accessible.
“If I can make something easier for someone behind me then it was worth it,” she says. “I don’t want them to think they have to do it for me because I’m complaining. It needs to be done every time without asking.”