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  1. I. TITLE III AND THE INTERNET: THE WEB AS THE INTERNET AND THE WEBSITE AS THE PLACE

I. TITLE III AND THE INTERNET: THE WEB AS THE INTERNET AND THE WEBSITE AS THE PLACE

As a doctrinal matter, the conceptions of Title III as applied to the Internet most favorable to people with disabilities treat the Internet as the web and websites as places—as in Title III’s “places of public accommodation.” This is partially a result of the ADA’s inception in a pre-Internet society, where the goal of an accessible world necessarily took root in physical places. But it has also proved facile in the context of the Internet; Title III has the capacity to win accessibility cases primarily focused on websites, because websites are easy to understand as metaphorical places. This Part begins with a short history of Title III and its website- and place-centrism, and how it has driven disability-law scholars to theorize about the Internet as the Web and websites as places.

Enacted in 1990, the ADA was intended as a comprehensive and unqualified civil rights remedy for discrimination against people with disabilities. The ADA’s preamble makes explicit that the purpose of the ADA is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”17 In signing it into law, President George H.W. Bush declared that the ADA “signal[ed] the end to the unjustified segregation and exclusion of persons with disabilities from the mainstream of American life.”18

17. 42 U.S.C. § 12101(b)(1) (2012).

18. Statement by President George Bush upon Signing S. 933, Pub. L. No. 101-336, 1990 U.S.C.C.A.N. 601–02 (July 26, 1990). Compare Lawrence O. Gostin, The Americans with Disabilities Act at 25: The Highest Expression of American Values, 313 J. AM. MED. ASS’N. 2231, 2234 (2015) (lauding the role and breadth of the ADA in improving the state of equality for people with disabilities and influencing the development of international disability instruments), with Arlene S. Kanter, The Americans with Disabilities Act at 25 Years: Lessons to Learn from the Convention on the Rights of People with Disabilities, 63 DRAKE L. REV. 819,

If the anti-discrimination goal of the ADA was broadly scoped, its implementation was drawn at least rhetorically with the physical, built world of the late 1980s and early 1990s in mind. Title III, the portion of the ADA intended to deal with the accessibility of private businesses, explicitly prohibits discrimination against people with disabilities in “any place of public accommodation.”19 Title III likewise defines public accommodations extensively in terms of places—places of lodging,20 places of exhibition or entertainment,21 places of public gathering,22 places of public display or collection,23 places of recreation,24 and places of exercise.25 Moreover, it illustrates them in terms of traditionally physical buildings—hotels and motels,26 restaurants and bars,27 theaters and concert halls,28 stores and shopping centers,29 laundromats and banks,30 museums and libraries,31 parks and zoos,32 daycare centers and homeless shelters,33 and gyms and bowling alleys.34

Of course, the legislative history of the ADA makes clear that it was not intended to exclude future technology, noting that “the types of accommodation and services provided to individuals with disabilities, under all of the titles of [the ADA], should keep pace with the rapidly changing technology of the times.”35 But however Congress might have intended the ADA to apply to the Internet is obscured by the fact that the commercial Internet was essentially nonexistent when the ADA was signed into law in July of 1990.36 In fact, it was not until five months later that Tim Berners-Lee hosted the first website,37 five years later that the Federal Networking Council resolved to officially recognize “the Internet” in the form that it more or less exists today,38 and nearly ten years later than advocates and policymakers first began to debate the applicability of the ADA to the Internet.39

819 (2015) (criticizing the ADA’s anti-discrimination approach and lauding the human rights approach of the Convention on the Rights of People with Disabilities).

19. 42 U.S.C. § 12182(a) (emphasis added); see also Jacobus tenBroek, The Right to Live in the World: The Disabled in the Law of Torts, 54 CALIF. L. REV. 841, 848, 850 (1966) (referring to “the right to live in the world” for people with disabilities).

20. 42 U.S.C. § 12181(7)(A).

21. Id. § 12181(7)(B).

22. Id. § 12181(7)(D).

23. Id. § 12181(7)(H).

24. Id. § 12181(7)(I).

25. Id. § 12181(7)(L).

26. Id. § 12181(7)(A).

27. Id. § 12181(7)(B).

28. Id. § 12181(7)(C).

29 Id. § 12181(7)(E).

30. Id. § 12181(7)(F).

31. Id. § 12181(7)(H).

32. Id. § 12181(7)(I).

33. Id. § 12181(7)(K).

34. Id. § 12181(7)(L).

35. H.R. REP. NO. 101-485, pt. 2, at 381 (1990), as reprinted in 1990 U.S.C.C.A.N. 303, 391.

36. E.g., LAZAR ET AL., supra note 6, at 89.

37. Frequently Asked Questions: Examples of Early WWW Hypertext: What Was the First Web Page?, https://www.w3.org/People/Berners-Lee/FAQ.html#Examples [https://perma.cc/FXD5-G3UZ].

38. BARRY M. LEINER, VINTON G. CERF, DAVID D. CLARK, ROBERT E. KAHN, LEONARD KLEINROCK, DANIEL C. LYNCH, JON POSTEL, LARRY G. ROBERTS & STEPHEN WOLFF, BRIEF HISTORY OF THE INTERNET 17 (1997), https://www.Internetsociety.org/wp-content/uploads/2017/09/ISOC-History-of-the-Internet_1997.pdf [https://perma.cc/N72G-3BZT].

39. See BLANCK, supra note 5, at 81–82 (discussing the early days of the debate over the ADA’s applicability to the Internet in the late 1990s and early 2000s).

A congressional hearing in 2000 previewed the two defining features of the emerging debate over the ADA’s applicability to the Internet. First, the debate would center specifically on the web and websites. The use of websites by private businesses predominated usage of the early Internet, and so the question of website accessibility appeared exhaustive of the question of Internet accessibility.40 Nearly every witness, whether in support of the ADA’s applicability or against, spoke of the Internet, the web, and websites interchangeably. 41

Second, the debate would turn on whether the Internet could be conceived of as a physical “place” in the statute’s terms. Some witnesses argued that “[t]he Internet has become a place of public accommodation,”42 while others argued that“[c]yberspace isn’t a physical place” as contemplated by Title III’s list of “places.”43

Nearly two decades of litigation have calcified these features of the debate. First, Internet accessibility under Title III has hinged on whether websites can be properly conceived as places of public accommodation even though they do not occupy a physical space.44 Nearly all Title III Internet-related litigation has been focused on websites, and primarily on compatibility with screen readers for blind people.45

As to the second, even before the Internet became a concern, the federal courts had split over whether Title III was limited to physical places. The leading set of cases split over whether the content of insurance policies, and not simply the physical structure of insurance company offices, were covered by Title III.46

40. See Applicability of the Americans with Disabilities Act (ADA) to Private Internet Sites: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 106th Cong. 1–2 (2000) (testimony of Chairman Charles Canady) (referring interchangeably to “greater handicapped accessibility of the Web,” the applicability of the ADA to “private Internet Web sites,” and “the impact of the ADA on the Internet”); id. at 6 (testimony of Gary Wunder) (“[L]et’s lower [the bar for accessibility] for Web sites and the Internet.”); id. at 19, 21 (testimony of Judy Brewer) (framing the hearing in terms of “Web accessibility” and referring interchangeably to the “Web industry” and the “Internet industry”); id. at 25 (testimony of Susyn Conway) (referring interchangeably to the “World Wide Web” and the“Internet”).

41. See id.

42. Id. at 10 (Testimony of Dr. Steven Lucas).

43. Id. at 38 (Testimony of Elizabeth K. Dorminey).

44. See, e.g., BLANCK, supra note 5, at 82; LAZAR ET AL., supra note 6, at 89.

45. See infra notes 47–51 and accompanying text.

46. Compare Pallozzi v. Allstate Life Ins., 198 F.3d 28, 32 (2d Cir. 1999) (subsequent history omitted) (extending Title III to insurance policies sold in insurance offices and noting that Title III “was meant to guarantee them more than mere physical access”), and Carparts Distribution Ctr., Inc. v. Auto. Wholesaler’s Ass’n, 37 F.3d 12, 20 (1st Cir. 1994) (extending Title III to the administration of a health benefit plan and noting that Title III “make[s no] mention of physical boundaries or physical entry”), with McNeil v. Time Ins., 205 F.3d 179, 186 (5th Cir. 2000) (same), Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1115 (9th Cir. 2000) (same), Ford v. Schering-Plough Corp., 145 F.3d 601, 612–13 (3d Cir. 1998) (declining to extend Title III to an insurance policy as a “place” even though insurance offices are covered under Title III), and *Parker v. Metro. Life Ins., 121 F.3d 1006, 1014 (6th Cir. 1997) (same). *See also Torres v. AT&T Broadband, LLC, 158 F. Supp. 2d 1035, 1038 (N.D. Cal. 2001) (declining to extend Title III to AT&T’s digital cable service); Doe v. Mut. of Omaha Ins., 179 F.3d 557, 558–59 (7th Cir. 1999) (declining to apply Title III to the content of an insurance policy but recognizing in dicta that Title III extends to public accommodations “whether in physical space or in electronic space”) (citing Carparts, 37 F.3d at 19); Stoutenborough v. Nat’l Football League, Inc., 59 F.3d 580, 583 (6th Cir. 1995) (declining to extend Title III to the televised broadcast of football games).

That split has continued into the era of Title III Internet litigation along three lines:

  1. Nexus-Between-Website-and-Place: One line of cases, followed by courts in the Ninth and Eleventh Circuits, concludes that websites alone are not public accommodations but can be the subject of a Title III claim to the extent they have a sufficient nexus to a physical place of public accommodation—often found, for example, with websites for retail establishments.47

  2. Standalone-Websites-as-Place: A second line of cases, followed by courts in the First, Second, and Seventh Circuits, concludes that even standalone websites can comfortably be considered places of public accommodation under Title III.48 The common thread of reasoning in these cases is that websites can be “analogous to a brick-and-mortar store or other venue that provides similar services.”49

  3. Physical Places Only (No Websites): A third line of cases, followed in the Third Circuit, concludes that websites cannot be treated as public accommodations even with a nexus to a physical place of public accommodation.50

47. E.g., Gomez v. Bang & Olufsen Am., Inc., No. 1:16-CV-23801-LENARD, 2017 WL 1957182, at 3 (S.D. Fla. Feb. 2, 2017) (“[A] website that is wholly unconnected to a physical location is generally not a place of public accommodation under [Title III],” but “if a plaintiff alleges that a website’s inaccessibility impedes the plaintiff’s ‘access to a specific, physical, concrete space[,]’ and establishes some nexus between the website and the physical place of public accommodation, the plaintiff’s ADA claim can survive a motion to dismiss.”). Compare Earll v. eBay, Inc., 599 F. App’x 695, 696 (9th Cir. 2015) (concluding that eBay’s website was not connected to any “actual physical place” and thus not subject to Title III) (quoting Weyer, 198 F.3d at 1114)), Jancik v. Redbox Automated Retail, LLC, No. SACV 13-1387- DOC (RNBx), 2014 WL 1920751, at 9 (C.D. Cal. May 14, 2014) (rejecting that Redbox’s instant video delivery website was sufficiently integrated with its physical kiosks to support a Title III claim), Cullen v. Netflix, Inc., 880 F. Supp. 2d 1017, 1024 (N.D. Cal. 2012) (concluding that Netflix’s website was not an “actual physical place” and therefore not a place under Title III) (quoting Weyer, 198 F.3d at 1114)), Young v. Facebook, Inc., 790 F. Supp. 2d 1110, 1115–16 (N.D. Cal. 2011) (rejecting that the sale of gift cards at retail outlets formed a sufficient nexus to treat the Facebook’s website as a “place” under Title III), Ouellette v. Viacom, No. CV 10-133-M-DWM-JCL, 2011 WL 1882780, at 1, *4–5 (D. Mont. Mar. 31, 2011) (concluding that various websites including Google, YouTube, and Myspace lacked a nexus to a physical location to support a Title III claim), and Access Now, Inc. v. Sw. Airlines Co., 227 F. Supp. 2d 1312, 1318 (S.D. Fla. 2002) (rejecting that Southwest Airlines’ website had a sufficient connection with a physical location to be a place of public accommodation under Title III), *aff’d on other grounds, 385 F.3d 1324 (11th Cir. 2004), with Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 905 (9th Cir. 2019), cert. denied, 140 S. Ct. 122 (2019) (concluding that Domino’s Pizza’s website had a sufficient nexus to brick-andmortar Domino’s Pizza franchises to support the place element of a Title III claim), Gorecki v. Hobby Lobby Stores, Inc., No. CV 17-1131-JFW(SKx), 2017 WL 2957736, at 3 (C.D. Cal. June 15, 2017) (recognizing a sufficient nexus between Hobby Lobby’s website and stores to sustain a Title III claim), Gil v. Winn Dixie Stores, Inc., 242 F. Supp. 3d 1315, 1321 (S.D. Fla. 2017) (concluding that Winn-Dixie’s website had a sufficient nexus to its physical grocery stores to uphold a Title III claim), and Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946, 954–55 (N.D. Cal. 2006) (accepting a Title III claim against Target’s website, which the court deemed “heavily integrated with [Target’s] brick-and-mortar stores and operat[ing] in many ways as a gateway to the stores”); compare Stern v. Sony Corp. of Am., 459 F. App’x 609, 610 (9th Cir. 2011) (rejecting a sufficient connection between the accessibility of Sony’s video games with its video game conventions and retail stores), with Rendon v. Valleycrest Prods., 294 F.3d 1279, 1285 (11th Cir. 2002) (upholding a Title III challenge to an off-site screening process for a game show).

48. E.g., Morgan v. Joint Admin. Bd., 268 F.3d 456, 459 (7th Cir. 2001) (rejecting the argument that a Title III public accommodation must “literally . . . denot[e] a physical site, such as a store or a hotel”); Access Now, Inc. v. Blue Apron, LLC, No. 17-CV-116-JL, 2017 WL 5186354, at 4 (D.N.H. Nov. 8, 2017) (concluding that Blue Apron, the meal ingredient delivery service, is a place of public accommodation as a sort of “online ‘grocery store’”); Markett v. Five Guys Enters. LLC, No. 17-CV-788 (KBF), 2017 WL 5054568, at *2 (S.D.N.Y. July 21, 2017) (holding that Five Guys’ website was its own place of publicaccommodation in addition to being closely related to Five Guys’ brick-and-mortar hamburger restaurants); Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381, 385, 387 (E.D.N.Y. 2017) (holding that a website for the sale of art supplies was a “place” under Title III); Nat’l Fed’n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 573 (D. Vt. 2015) (rejecting “that only physical places open to the public can be public accommodations”); Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 200 (D. Mass. 2012) (citing *Carparts, 37 F.3d at 19) (noting that the application of Title III “as applying to web-based businesses is supported by [Carparts], which held that ‘places of public accommodation’ are not limited to ‘actual physical structures’”).

49. See Nat’l Ass’n of the Deaf, 869 F. Supp. 2d at 200.

50. E.g., Anderson v. Macy’s Inc., No. 2:12-CV-00556, 2012 WL 3155717, at 4 (W.D. Pa. Aug. 2, 2012) (rejecting a Title III claim against Macy’s website notwithstanding a connection to Macy’s retail stores); see also Peoples v. Discover Fin. Servs., Inc., 387 F. App’x 179, 183–84 (3d Cir. 2010) (rejecting a Title III claim regarding customer support for a credit card used to purchase in-person prostitution services); cf. Noah v. AOL Time Warner Inc., 261 F. Supp. 2d 532, 544 (E.D. Va. 2003), aff’d, No. 03-1770, 2004 WL 602711, at 1 (4th Cir. Mar. 25, 2004) (declining to treat AOL chat rooms as places of public accommodation under Title II of the Civil Rights Act).

As a result of this uncertainty, many Title III website cases settle prior to judicial resolution.51

51. See LAZAR ET AL., supra note 6, at 91 (“If the law has remained cloudy, it is in part because entities who might argue the degree to which they are subject to Title III have chosen instead to reach settlement agreements to make their web sites and services accessible.”); id. at 92 (noting Title III settlements with H&R Block, Peapod, eBay, Monster.com, Amazon, Ticketmaster, Travelocity, Wellpoint, and Charles Schwab); Lainey Feingold, Settlements in Structured Negotiation, LFLEGAL.COM, https://www.lflegal.com/negotiations/ [https://perma.cc/MB5H-6ATR] (listing dozens of website settlements from 1999–2018); see also Michael Ashley Stein, Michael E. Waterstone & David B. Wilkins, Cause Lawyering for People with Disabilities, 123 HARV. L. REV. 1658, 1682 (2010) (noting that successful disability law outcomes, such as the Target litigation, often involve a sophisticated team of firms and attorneys dedicated to nuanced disability cause lawyering with an understanding of the value of settlements); Michael E. Waterstone, Michael Ashley Stein & David B. Wilkins, Disability Cause Lawyers, 53 WM. & MARY L. REV. 1287, 1321 (2012) (noting that forcing settlements in web accessibility cases is often preferable because of the risk of an adverse ruling by the Supreme Court); Minh N. Vu, Kristina M. Launey, Susan Ryan & Kevin Fritz, Website Access and Other ADA Title III Lawsuits Hit Record Numbers, SEYFARTH SHAW: ADA TITLE III NEWS & INSIGHTS (July 17, 2018), https://www.adatitleiii.com/2018/07/website-access-and-other-ada-title-iii-lawsuits-hit-record-numbers/ [https://perma.cc/3P8F-RSCS] (projecting approximately 10,000 Title III website cases would be filed in 2018). For example, the first Title III web case was filed against America Online by the National Federation of the Blind in 1999, but settled in 2000 without a judicial determination. See BLANCK, supra note 7, at 81; Wired Staff, AOL Settles Accessibility Suit, WIRED: BUSINESS (July 28, 2000, 3:00 AM), https://www.wired.com/2000/07/aol-settles-accessibility-suit/ [https://perma.cc/N9VAXC2G]. This trend continues today. E.g., ACB, et al. v. Hulu LLC, DISABILITY RIGHTS ADVOCS., https://dralegal.org/case/acb-et-al-v-hulu-llc/ [https://perma.cc/T57L-ZRBK] (describing the settlement of Title III claims against Hulu); Amazon.com, Inc. Agree to Expand Closed Captions on Amazon Video, NAT’L ASS’N DEAF, https://www.nad.org/2015/10/14/amazon-com-inc-agree-to-expand-closed-captions-on-amazon-video/ [https://perma.cc/QY3C-LBSC] (describing a settlement between Amazon and the National Association of the Deaf). One leading civil rights attorney has formally articulated a dispute resolution methodology specifically aimed at facilitating settlements in website and other cases. See generally LAINEY FEINGOLD, STRUCTURED NEGOTIATION (2016). But see Richard A. Posner, The Economic Approach to Law, 53 TEX. L. REV. 757, 762 (1975) (citing William M. Landes,* An Economic Analysis of the Courts*, 14 J. L. & ECON. 61 (1971)) (suggesting that the frequency of litigation should increase, not decrease, in the face of uncertainty).

Advocates and scholars have also become increasingly concerned with the perspective of the Department of Justice (DOJ),52 which is charged with administering regulations for the implementation of Title III53 and routinely files amicus briefs and negotiates settlements in website accessibility cases.54 While DOJ’s view on the applicability of Title III to standalone websites has been historically supportive,55 a 2010 DOJ rulemaking to implement Title III website regulations languished56 and then was formally withdrawn in 2017 by then-Attorney General Jeff Sessions.57

52. E.g., BLANCK, supra note 5, at 145–47; LAZAR ET AL., supra note 6, at 89.

53. 42 U.S.C. § 12186(b) (2012).

54. See U.S. Dep’t of Justice Civil Rights Div., ADA Enforcement: Title III, ADA.GOV, https://www.ada.gov/enforce_current.htm#TitleIII [https://perma.cc/B2E3-TB62] (listing the DOJ’s numerous interventions in Title III cases); see also Robert L. Burgdorf, Jr., Restoring the ADA and Beyond: Disability in the 21st Century, 13 TEX. J. C.L. & C.R. 241, 274 nn.151– 52 (2008) (describing DOJ’s settlement practices).

55. A 1996 letter from Assistant Attorney General Deval Patrick suggested that at least some websites could be covered under Title III. Letter from Deval L. Patrick, Assistant Attorney Gen., to Senator Tom Harkin (Sept. 9, 1996), https://www.justice.gov/crt/foia/readingroom/frequent_requests/ada_tal/tal712.txt [https://perma.cc/7QX7-KCV6]. In 2010, DOJ issued an Advanced Notice of Proposed Rulemaking in 2010 on web accessibility specifically endorsing several of the nexus cases and implying endorsement of the applicability of Title III to standalone websites. Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, 75 Fed. Reg. 43,460, 43,463–64 (July 26, 2010) (noting that Title III’s “broad and expansive nondiscrimination mandate reaches goods and services provided by covered entities on Web sites over the Internet” and noting its “repeate[d] affirm[ation of] the application of title III to Web sites of public accommodations”). DOJ has also filed statements of interest in Title III website cases. E.g., Statement of Interest of the United States of America in Opposition to Defendant’s Motion for Judgment on the Pleadings at 4–12, Nat’l Ass’n Deaf v. Netflix, Inc., No. 3:11-cv-30168 (D. Mass. May 15, 2012), https://www.ada.gov/briefs/netflix_SOI.pdf [https://perma.cc/7KMN-2MYG] (arguing that Netflix’s website is subject to Title III).

56. In 2017, the administration placed the web rulemaking on its inactive list. Office of Info. & Reg. Affairs, Unified Agenda of Regulatory and Deregulatory Actions, REGINFO.GOV, https://www.reginfo.gov/public/jsp/eAgenda/InactiveRINs_2017_Agenda_Update.pdf [https://perma.cc/UN8B-6Q6J].

57. Department of Justice: Semiannual Regulatory Agenda, 83 Fed. Reg. 1890, 1890–91 (Jan. 12, 2018), https://www.govinfo.gov/content/pkg/FR-2018-01-12/pdf/2017-28223.pdf [https://perma.cc/D2Z2-CNXJ]. DOJ explained the withdrawal without addressing the substance of the split in a vague letter to Representative Ted Budd. Letter from Stephen E. Boyd, Assistant Attorney Gen., to Rep. Ted Budd (Sep. 25, 2018), https://www.adatitleiii.com /wp-content/uploads/sites/121/2018/10/DOJ-letter-to-congress.pdf [https://perma.cc/4LDZRZ2H].

As a result, much of the disability law literature on Internet accessibility has been dedicated to narrow arguments debating the doctrinal contours of Title III’s applicability to websites in place-centric terms.58 Many of the articles and notes advocate for resolving the circuit split by treating standalone websites as “places”under Title III,59 though some have argued in favor of either requiring a nexus from a website to a physical location60 or limiting Title III’s application to physical sites.61

58. See Areheart & Stein, supra note 8, at 453 n.23 (noting that the pre-2015 “legal scholarship to address this issue consists of student notes that invoke valuable doctrine, but are in want of normative grounding or of broader implication”).

59. E.g., Burgdorf, supra note 54, at 285–86 (arguing that standalone websites should be covered); Carrie L. Kiedrowski, The Applicability of the ADA to Private Internet Web Sites, 49 CLEV. ST. L. REV. 719, 723 (2001) (same); Jeffrey Scott Ranen, Was Blind but Now I See: The Argument for ADA Applicability to the Internet, 22 B.C. THIRD WORLD L.J. 389, 391–92 (2002) (same); Adam M. Schloss, Web-Sight for Visually-Disabled People: Does Title III of the Americans with Disabilities Act Apply to Internet Websites?, 35 COLUM. J.L. & SOC. PROBS. 35, 49–50 (2001) (same); see also Colin Crawford, Cyberplace: Defining a Right to Internet Access Through Public Accommodation Law, 76 TEMP. L. REV. 225, 234 (2003) (criticizing “highly location-bound conceptions of public accommodation law” as “both wrong-headed and out of step with the historical development and purposes of public accommodation law.”); Senator Tom Harkin, The Americans with Disabilities Act Ten Years Later: A Framework for the Future, 85 IOWA L. REV. 1575, 1578–79 (2000) (suggesting a broad application of the ADA to the web); Matthew A. Stowe, Interpreting “Place of Public Accommodation” Under Title III of the ADA: A Technical Determination with Potentially Broad Civil Rights Implications, 50 DUKE L.J. 297, 326–27 (2000) (lauding the Doe court’s decision to “tak[e] the emphasis off the physicality of ‘places of public accommodation”); Tara E. Thompson, Locating Discrimination: Interactive Web Sites as Public Accommodations Under Title II of the Civil Rights Act, 2002 U. CHI. LEGAL F. 409 (2002).

60. E.g., Michael Goldfarb, Access Now, Inc. v. Southwest Airlines, Co.—Using the“Nexus” Approach to Determine Whether a Website Should be Governed by the Americans with Disabilities Act, 79 ST.JOHN’S L. REV. 1313, 1317 (2005) (arguing for applying the nexus approach); Richard E. Moberly, The Americans with Disabilities Act in Cyberspace: Applying the “Nexus” Approach to Private Internet Websites, 55 MERCER L. REV. 963, 978–79 (2004) same); see also Michael P. Anderson, Ensuring Equal Access to the Internet for the Elderly: The Need to Amend Title III of the ADA, 19 ELDER L.J. 159, 181 (2011) (acknowledging the nexus test but recommending amending the ADA to broaden Title III’s reach); Jonathan Bick, Americans with Disabilities Act and the Internet, 10 ALB. L.J. SCI. & TECH. 205, 225 (2000) (discussing the possibility of the nexus test); see also Samuel H. Ruddy, Websites, Apps, Accessibility, and Extraterritoriality Under Title III of the Americans with Disabilities Act, 108 GEO. L. J. ONLINE 80, 101–02 (2019) (arguing that the nexus requirement should also apply to the data centers in which websites are hosted to address extraterritoriality considerations).

61. E.g., Ali Abrar & Kerry J. Dingle, From Madness to Method: The Americans with Disabilities Act Meets the Internet, 44 HARV. C.R.-C.L. L. REV. 133, 136 (2009) (suggesting rejecting the nexus test in favor of a text-based vs. “media-rich” content test); Michael O. Finnigan, Jr., Brian C. Griffith & Heather M. Lutz,* Accommodating Cyberspace: Application of the Americans with Disabilities Act to the Internet, 75 U. CIN. L. REV. 1795, 1825 (2007) (arguing that Title III should apply only to physical places); Goldman, supra note 12; Paul Taylor, The Americans with Disabilities Act and the Internet*, 7 B.U. J. SCI. & TECH. L. 26, 51 (2001) (suggesting “carefully addressing the potential pitfalls” of applying Title III to website).

While few scholars have made a broader normative case for applying the ADA to the Internet,62 some recent scholarship has sought to articulate a theory for Internet accessibility rooted in terms of civil and human rights, including the UN Convention on the Rights of Persons with Disabilities (CRPD)63 and First Amendment values of freedom of information, democratic self-governance, personal autonomy, and selfexpression.64 But that theory, too, has expressly equated Internet accessibility with website accessibility.65 Bradley Areheart and Michael Stein specifically declare in Integrating the Internet that their version of “‘Internet accessibility’ . . . is principally concerned with the opportunity to traverse and navigate the Internet, which means mediating and utilizing the Internet’s constituent websites.” 66 Victoria Ekstrand acknowledges the importance of Internet accessibility in other contexts, such as devices and networks, but declares the proliferation of cases under Title III warrants a specific focus on websites.67 Peter Blanck likewise speaks primarily to the importance of making “web content” accessible.68

62. Areheart & Stein, supra note 8, at 453 n.23; see also Michael Waterstone, The Untold Story of the Rest of the Americans with Disabilities Act, 58 VAND. L. REV. 1807, 1811–12 (2005) (noting that the majority of “high-profile” disability scholarship is focused on Title I of the ADA).

63. Convention on the Rights of Persons with Disabilities art. 21, Dec. 13, 2006, 2515 U.N.T.S. 44910 (requiring member states to “take all appropriate measures to ensure that persons with disabilities can exercise the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice,” including “urging private entities” and “encouraging the mass media” to make their information and services accessible,“including through the Internet”).

64. See BLANCK, supra note 7, at 33–45 (casting Internet accessibility in terms of human rights, freedom to information, and the democratic values of the First Amendment); Areheart & Stein, supra note 8, at 476 (casting Internet accessibility as a normative function of the Civil Rights Act of 1964 and the First Amendment values of democratic self-governance, personal autonomy, and self-expression); Victoria Smith Ekstrand, Democratic Governance, SelfFulfillment and Disability: Web Accessibility Under the Americans with Disabilities Act and the First Amendment, 22 COMM. L. & POL’Y 427, 430 (2017). But cf. Gottfried v. FCC, 655 F.2d 297, 311 n.54, 312 (D.C. Cir. 1981), rev’d in part sub nom. Cmty. Television v. Gottfried,459 U.S. 498 (1983) (rejecting the notion that the First Amendment affirmatively required television stations to include closed captions with their broadcasts).

65. But cf. Joshua Newton, Virtually Enabled: How Title III of the Americans with Disabilities Act Might Be Applied to Online Virtual Worlds, 62 FED. COMM. L.J. 183 (2010) (arguing for the application of Title III to non-web virtual worlds).

66. Areheart & Stein, supra note 8, at 452 n.20 (emphasis added).

67. Ekstrand, supra note 64, at 430.

68. BLANCK, supra note 5, at 14–15.

Likewise, recent Internet accessibility scholarship has advocated for web accessibility in explicitly place-centric terms, even beyond those imposed by Title III itself. Areheart and Stein argue in Integrating the Internet that the ADA should be interpreted broadly to cover the Internet by channeling disability pioneer Jacobus tenBroek’s seminal (and pre-ADA) right “to live in the world” to a right to “live in the Internet.”69 Areheart and Stein argue that “[f]or a growing number of people, the Internet is their world—a place where one can do nearly everything one needs or wants to do.”70 Ekstrand argues that “the Internet serves as another important place of public accommodation for disabled citizens,” citing the Supreme Court’s holding in Packingham v. North Carolina that websites are “the principal sources for . . . speaking and listening in the modern public square.”71 Blanck similarly points to the Supreme Court’s description of the web as a “sprawling mall offering goods and services” in Reno v. ACLU as an “encouraging” metaphor for resolving Title III’s applicability to websites.72

69. Areheart & Stein, supra note 8, at 456–57 (citing tenBroek, supra note 19, at 843, 847–48).

70. Id. at 456, 458 (emphasis added) (criticizing the “digital architectural barriers [that] are springing up every day to undermine Title III’s normative social integration mandate.”). But see Burgdorf, supra note 54, at 284–85 (“From my perspective, the overemphasis on‘place’ in Title III [web cases] is misplaced.”).

71. Ekstrand, supra note 64, at 435–36 (quoting Packingham v. North Carolina, 137 S. Ct. 1730, 1732 (2017)).

72. BLANCK, supra note 5, at 84 (citing Reno v. ACLU, 521 U.S. 844, 853 (1997)) (emphasis added) (“The Web is thus comparable, from the readers’ viewpoint, to both a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services.”).

Both litigation and academic efforts to address Internet accessibility have consistently cast the web as a proxy for the Internet and conceptualized websites as places under the meaning of Title III. In the next Part, I position Title III in the context of Internet law’s internal/external perspectives literature to unpack the consequences of disability advocates’ and scholars’ place- and website-centric approach.