Must Websites Comply with the ADA (and State-Law Equivalents)? National Federation of the Blind v. Target

By Eric Goldman

National Federation of the Blind v. Target Corp., No. C 06-01801 (N.D. Cal. Sept. 6, 2006)

This case got a fair amount of attention when it first came out, so I’m a little late to this party. However, I think there were some key points from this case that got overlooked.

Must Websites Comply with the ADA?

To the limited extent addressed by the precedent, websites have not been obligated to comply with the ADA (or similar anti-discrimination laws). See, e.g., Access Now v. Southwest Airlines; Noah v. AOL. This is because the laws apply to physical spaces, not virtual spaces. This opinion breaks with the precedent by denying a motion to dismiss by Thus, this case could stand for the proposition that websites may be required to comply with the ADA.

However, I think this opinion is substantially narrower than that. The court says that may be tightly integrated with Target’s physical stores to the point where the inability to use the website may interfere with blind people’s ability to fully enjoy the physical stores. (On that front, FN 4 is telling: “It appears from a review of the website in question—which the court notes is not in evidence but nonetheless does raise some questions—that Target treats as an extension of its stores, as part of its overall integrated merchandising efforts.”)

Thus, this reasoning should only apply to “bricks ‘n’ clicks” retailers who have both physical and online stores and integrate the two. Thus, the reasoning does not apply to pure e-commerce retailers with no offline stores or to web publishers of any sort. It should also exclude retailers who completely separate their online and offline stores.

(Having said that, it’s a no-brainer that businesses should try to accommodate blind visitors to their websites; not only are blind visitors a valuable market segment, but it’s the right thing to do).

In any case, the court just refused a motion to dismiss. As a result, Target’s ultimate liability remains to be determined. It may be noteworthy that the judge denied the motion for a preliminary injunction despite the favorable legal ruling to the plaintiff.

Must Websites Comply with State-Level ADA Equivalents?

I think the even more important ruling in this case relates to the dormant commerce clause (DCC). Based on the DCC, Target tried to dismiss claims under some California state laws that overlap the ADA. This is not a new issue on the Internet–there is a pretty good list of DCC cases, but with an odd split. In one line of cases, I believe every court that has opined on state anti-Internet porn laws have deemed them invalid under the DCC. In contrast, most other courts, especially those involving anti-spam laws, have upheld state Internet regulation from DCC challenges.

Here, Target argues that the CA ADA-equivalents will have an extraterritorial effect by forcing Target to change its website even for non-CA residents. Judge Patel breezily dismissed this argument, saying that Target should just build a CA-specific website to comply with CA law. She continued:

Pataki asserts that someone who puts content on the internet has “no way to determine the characteristics of their audience . . . [such as] age and geographical location.” Pataki, 969 F. Supp. at 167. This is simply incorrect. It is common practice for websites for entities operating in multiple countries to have a single site that directs customers to different versions based upon language. Websites can determine the location of a user from information they provide, such as a credit card number, or from the internet service provider an individual uses. It may, or may not, be prohibitively expensive for a website to tailor its content based on the location of its users, but it is certainly technically feasible.

It’s true that this is technically feasible, but that’s hardly insightful. Other than outcomes that break the laws of physics, anything is possible with the proper application of time and money. But this argument misses two critical points.

First, applying CA law here to require Target to display an interstitial page to request geographic information from web visitors may regulate the interaction between two entities not resident in CA. (This is harder to see when Target chooses to do business generally in CA, but consider this argument in the context of the Alaska anti-adware law where I believe no adware vendor is resident in Alaska but they still must ask non-Alaskan residents for geographic information due to the Alaska law.) This is exactly the kind of extraterritorial effect that the DCC should preclude. This is also a place where the Internet is just different from offline circumstances because of an implicit tautology: the laws require websites to authenticate visitors to determine if these visitors trigger the website’s requirement to comply with the law–thus, the laws required the websites to take certain steps even in the circumstances where the laws don’t apply because the interaction is between two non-residents. (Which is almost certainly true in 99%+ of adware downloads putatively governed by “ask geography before downloading” requirement of the Alaska anti-adware law).

Second, and more importantly, this would be a terrible policy result. It’s hard to imagine the counterfactual Internet where every website visitor is bombarded by interstitials or pop-ups from every website requesting geographic information before they can proceed to see the website’s contents. This would be a horrible user experience that would inhibit the seamless floating from website to website that characterizes the web’s link economy. We just won’t go across websites as freely as we do today. Also, some users would be uncomfortable with providing geographic information to the website. (Some users provide this geographic information unwittingly through their IP addresses, but many do not).

The battle over geographic authentication rages on, and this case’s pithy analysis doesn’t do much to advance our understanding. Nevertheless, it gives us another important data point that our days of being able to browse the web without constant self-reporting of geography may be numbered. Personally, if that comes to pass, I’ll miss the Internet the way it is today.