Law, College of
Date of this Version
2004
Abstract
Although the nexus approach presents the best alternative to applying the ADA to a situation not contemplated by Congress, by relying on it, this Article makes value judgments and draws conscious conclusions regarding the nature of the Internet and how (and whether) our laws should be interpreted to accommodate the Internet’s unique role in our society. For example, this Article asserts that the ADA cannot apply to all Internet websites because the statute applies only to physical places of public accommodation. A judgment regarding the essence of the Internet is, of course, imbedded in this conclusion. The Internet is something other than a physical “place.” Additionally, relying on the nexus approach recognizes that although the Internet is not a place, it provides critical communication services and accessibility to goods and services sold by places of public accommodation. Therefore, the ADA should regulate the manner in which these physical places of public accommodation use their website to communicate with the public and to permit access to their goods and services because those types of roles should qualify as having a nexus to the place of public accommoda- tion. Finally, reliance on the nexus approach to conclude that the ADA plays only a limited role with regard to private websites reflects a value judgment regarding the applicability of statutory regulation to unforeseen, yet transformative, technological advancements such as the Internet. Applying the nexus approach involves a conscious decision that Congress, not the judiciary, is in the best position to regulate the Internet because Congress can, and should, balance the needs of the Internet industry with the requirements of individuals with disabili- ties. All of these broader issues are inherently contained in any discussion of whether the ADA applies generally to Internet websites; this Article addresses them within that context.
Part II of this Article provides a brief overview of the ADA’s require- ments as well as an examination of the analyses used by the court in Access Now and the NCD in arriving at contradictory conclusions regarding the ADA’s application to the Internet. Part III sets forth the nexus approach and its application to the Internet. Specifically, Part III analyzes both the ADA’s statutory language and the nature of the Internet for support regarding application of the nexus approach. The final section of Part III provides normative justifications for the application of the nexus approach rather than either of the more extreme alternatives. Finally, Part IV briefly discusses the practical require- ments for a website that may be regulated by the ADA.
Comments
Published in 55 MERCER L. REV. 963 (2004).