Responses to Section B. Coverage limitations (Question 5)

B. Coverage limitations

It is the Department's intention to regulate only governmental entities and public accommodations covered by the ADA that provide goods, services, programs, or activities to the public via Web sites on the Internet. Although some litigants have asserted that “the Internet” itself should be considered a place of public accommodation, the Department does not address this issue here. The Department believes that title III reaches the Web sites of entities that provide goods or services that fall within the 12 categories of “public accommodations,” as defined by the statute and regulations. Because the Department is focused on the goods and services of public accommodations that operate exclusively or through some type of presence on the Web—whether hosting their own Web site or participating in a host's Web site—the Department wishes to make clear the limited scope of its regulations. For example, the Department is considering proposing explicit regulatory language that makes clear that Web content created or posted by Web site users for personal, noncommercial use is not covered, even if that content is posted on the Web site of a public accommodation or a public entity. This would include individual participation in popular online communities, forums, or networks in which people upload personal videos or photos or engage in exchanges with other users. The Department could also make clear that public accommodations and public entities are not liable for inaccessible content posted to their sites by individuals not under their control as long as they provide their Web site users the ability to make their posts accessible.Show citation box

In addition, the Department does not intend to propose regulatory text that reaches the informal or occasional trading, selling, or bartering of goods or services by private individuals in the context of an online marketplace. The Department could distinguish such occasional trading activity by individuals acting in a private capacity from legally established business entities, ranging from sole proprietorships to limited liability companies and corporations. As long as these business entities offer the goods or services of a public accommodation online, they would be responsible for making such offerings accessible to individuals with disabilities. Lastly, a public accommodation or public entity would not be required to ensure the accessibility of Web sites that are linked to its site, but that it does not operate or control. However, to the extent an entity requires users of its Web site to utilize another Web site in order to take part in its goods and services (e.g., payment for items on one Web site must be processed through another Web site), the entity may be liable for the accessibility of other sites it requires its patrons to use even if it does not operate or control the site.Show citation box

Question 5. The Department seeks specific feedback on the limitations for coverage that it is considering. Should the Department adopt any specific parameters regarding its proposed coverage limitations? How should the Department distinguish, in the context of an online marketplace, between informal or occasional trading, selling, or bartering of goods or services by private individuals and activities that are formal and more than occasional? Are there other areas or matters regarding which the Department should consider adopting additional coverage limitations? Please provide as much detail as possible in your response.

Any exemptions should be very limited, since accessibility considered at design time are cost effective and insures the greatest accessibility. Any exemptions should be based on how the website is used, popularity, revenue and resources to maintain and develop the website. For example, Facebook is considered a system for personal expression and at face value could be considered a potential exemption since it is a free service and is used for personal expression. But many Facebook pages are designed to communicate and share information for educational, commercial or public service purposes, and from an educational perspective the concepts of social interaction using Facebook are a popular topic of research. The use of “free” services like Facebook, YouTube and Google Docs are often used as part of instruction in higher education, so extending ADA to include these types of services is critical for accessible education, since it is difficult or impossible to ban their use in higher education. Entities should only be exempted when they are determined to have a minimal impact on public commerce and education because of the limited usage scope of the web resource (e.g., a web site for a local, small-scale business venture) or a web resource geared for use by only a small group of people (e.g., a web site for a social club), even though such resources maybe visible to anyone on the web.

Possible Exemption Criteria:

• 1. Small businesses with online sales below a certain amount of gross revenue

  2. Non-profit organization website with a operating budget below a certain amount

  3. Personal websites maintained by individuals or families for non-commercial purposes, non-public service, and non-educational purposes

  4. Social clubs with membership below a certain number of people that have a website to promote club events, ideas, and values