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The term "digital divide" is the measure by which society is segregated into two groups, those who can effectively use information from and communicate over the Internet and those who cannot.1  There are many facets of the "digital divide" including nationality (citizens of highly developed countries are more likely to have Internet access than citizens of less developed nations) and income (the more affluent will be better equipped to access the Internet than the indigent).2

This paper is concerned with the narrow facet of the "digital divide" that separates the disabled from the non-disabled and how the law can strive to remedy that segregation. Of course, Internet access alone will not entirely solve the problem for some of the population.  People also must be literate and possess the skills necessary to operate computers to access information on the Internet.  Once the disabled have access to the Internet they can be taught how to use it effectively.  But without physical accessibility to the Internet intellectual connection is impossible.

First, the limited impact of the Rehabilitation Act's accessibility standards, implemented through section 508, is considered.  Second, the argument for applying the Americans with Disabilities Act, ADA, to the Internet is analyzed.  Third, the few court opinions addressing the issue of whether or not application of the ADA to the Internet is appropriate is discussed.  Fourth, several reasons for making the Internet accessible regardless of statutory requirements are presented.  And finally, a series of tips are presented to create an accessible web site that can be easily understood by all readers, even those with no background in web site programming.

At the outset, some preliminary discussion of the origins of the Internet and the prevalence of disabilities in America are necessary.

The original Arpanet, created by the Department of Defense in the 1960s, has expanded many times over to create the foundation for the Internet today.  The progress of the Internet was furthered significantly when the National Science Foundation, NSF, saw the potential for the Internet to connect researchers at major universities.4

  The law has been unable to keep pace with the unanticipated growth of the Internet due to the rapidity at which it has expanded and the diversity among the plethora of organizations that have become a part of the Internet.  As a result, there is significantly less regulation of the Internet than other communication media.

Moreover, considering the amount of information available on the billions of web sites that form the Internet, it is easy to imagine how the search and navigational problems would increase for a user with a vision, hearing, or severe dexterity problem.

According to the U.S. Census Bureau, in 1992 15% of the United States population, 38,000,000 people, had a disability.5  The Census Bureau, for the purposes of their study, defined disability as a limitation in one's major activity due to a chronic health condition.6

It must be noted that the sheer number of disabled people revealed by the study may be misleading in the context of Internet access.  Many people who are rightfully viewed as disabled have no, or very little, problem accessing the Internet.  For example, a person in a wheelchair is definitely disabled but that disability may not affect Internet access.  The individual in the wheel chair may be unable to access an Internet terminal at a public library due to the height of the desk but that is not the type of access addressed by this paper.  Rather, this paper is concerned with the technological obstacles, such as poor programming language, that impede Internet access rather than the physical ones.

Another group that would not be helped by a technologically accessible Internet is the mentally disabled.  There is no course of action that would make the Internet accessible to individuals with a mental disability that prohibits their understanding of the information they may find.  Therefore the scope of this paper must be further limited to those with physical, not mental, disabilities that significantly interfere with their access to the Internet.

The majority of the disabled community in need of attention in this area falls into one or more of the following groups, (1) the blind, (2) the deaf, and (3) those with severe dexterity problems, such the paraplegic.  It is not asserted that 15% of the population is unable to access the Internet, but rather that there is a portion of the population in need of assistance.
Another study by the U.S. Census Bureau suggested that the likelihood of developing a disability increases with age.7  Among all Americans under the age of 22, only 1.7% has a disability.8  The percentages gradually increase among different age brackets to a staggering 53.5% of the population over the age of 80.9

Thanks to rapid developments in medicine, Americans are living longer.  The percentage of elderly people in this country will continually increase.  As the number of elderly increases the number of Americans with a disability that impedes Internet access may increase as well.  The need to accommodate them becomes more important as time goes by; the problem will not just go away.

A statistical caveat must be made at this point.  As expressed above, the raw percentages given by the Census Bureau's study need to be analyzed in the Internet access context.  As a general proposition, the human being does not develop a life altering disability simply by aging.  For the most part the increased prevalence of disabilities is due to arthritis, the breaking of brittle bones putting a person in a wheelchair, or aging organs becoming less effective, as with diabetes.  None of the preceding disabilities affect Internet access in their usual states.

However, there are consequences of aging that are more severe.  Cataracts or glaucoma may cause blindness, hearing could become severely impaired, or a stroke or heart attack could cause paralysis.  These disabilities are exactly those that need to be addressed in the Internet access domain.  So, again, it is not implied that all elderly people are unable to access the Internet due to a disability, but rather that the likelihood of developing an Internet related disability grows with age.
Congress has attempted to address the problem of disability access to the Internet through legislation.  The impact of that legislation is discussed next.

A. Section 508 of the Rehabilitation Act of 1973 was Congress' first attempt at reform.

The Rehabilitation Act of 1973 was Congress' first attempt to halt discrimination against the disabled long before the Internet was considered in the public domain.  The main emphasis of the Act was employment discrimination.  Businesses were urged to accommodate the needs of disabled workers.10  The Rehabilitation Act established a program for the disabled akin to the affirmative action programs for racial minorities.11  The Act also created an "access board" to ensure disabled persons would be able to access the workplace.12

Section 508 encompasses all electronic and information technology developed, procured, maintained, or used by federal departments and agencies.13  It also requires that all electronic and information technology is comparably accessible to all federal employees regardless of disabled status.14  There is an exception to the rule.  If the employer can show that an accommodation would pose an "undue burden," comparable access is not required.15

Section 508 also instated the Architectural and Transportation Compliance Board, an agency of the Department of Justice, to define "electronic and information technology" as well as set forth performance criteria necessary to implement the Act's requirements.16  A regulation from the access board provides that "[T]he term electronic and information technology includes, but is not limited to, telecommunications products (such as telephones), information kiosks and transaction machines, World Wide Web sites, multimedia, and office equipment such as copiers and fax machines."17  Obviously, the explicit inclusion of "web sites" shows the intent to give all disabled federal employees equal access to federal web sites.  Those web sites would be accessible to the disabled public at large as well.

 The Architecture and Transportation Compliance Board also set forth several performance criteria.  Those criteria specifically address the difficulties that those with vision, hearing and dexterity problems encounter when attempting to access the Internet.18

The major drawback of the section 508 regulations is that they only apply to federal agencies. Many state legislatures have recently implemented their own form of section 508 requirements applicable to state agencies and public universities.19  The fact remains, unfortunately, that the vast majority of web sites on the Internet are not regulated at all and access remains a problem for the disabled.

In the 1980s, when the section 508 amendment to the Rehabilitation Act was adopted, the Internet was in its infancy stages.  Neither Congress, nor anyone else for that matter, ever contemplated that the Internet would become such an integral part of the average person's everyday life.  Had Congress known what the Internet would become it would have required the Internet to be equally accessible to disabled individuals.  As a result of this congressional oversight very few web sites are covered by the accessibility standards of section 508.

Congress took the first step in the march towards equal access to the Internet for the disabled in the section 508 of the Rehabilitation Act.  Congress did not intend, nor has any court held, the Rehabilitation Act to apply to private entities on the Internet.  The ADA, however, has been applied to web sites by at least one circuit court.

B. The Americans with Disabilities Act of 1990 further addressed the issue of equality for the disabled.
On July 26, 1990 President Bush signed the ADA into law.20  President Bush described the Act as "the world's first comprehensive declaration of the equality of people with disabilities, and evidence of America's leadership internationally in the cause of human rights."21  The basic purpose of the ADA is to prevent discrimination of many types against those with disabilities.

The ADA consists of four titles.22  Title I addresses discrimination against the disabled in employment.23  Title II deals with discrimination against the disabled in public services that are operated by state and local governments.24  Title III prohibits discrimination against the disabled in "places of public accommodation" operated by private entities.25  Title IV is a catchall entitled "miscellaneous provisions".26  Title IV sets out certain exemptions from coverage and special rules under the ADA.  Perhaps the most significant section in the Internet context is section 12204, which appoints the Architectural and Transportation Barriers Compliance Board to set the standards of access that "public accommodations" must meet.27  The argument could be made that since this is the same agency that has set Internet accessibility standards under the Rehabilitation Act, these standards should be incorporated into the ADA.  This assertion has yet to be interpreted by courts, however.

The most persuasive claim for ADA applicability to the Internet is made under Title III.  To make the claim a plaintiff must first show that web sites are "places of public accommodation."  The ADA does not expressly define "public accommodation" but rather merely sets forth a list of entities that qualify as a "public accommodation".28  The following "public accommodations" could be construed to include the Internet:

(C) a motion picture house, theatre, concert hall, stadium, or other place of exhibition or public gathering;
(D) an auditorium, convention center, lecture hall, or other place of exhibition or entertainment;
(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
(H) a museum, library, gallery, or other place of public display or collection;29

 One caveat is that a "public accommodation" must "affect commerce."31  This, most likely, means that Title III of the ADA only applies to those web sites that are operated commercially.  Hence, the ADA may not cover web sites that do not charge a fee or promote a product.  However, many free web sites rent space to advertisers to keep the site free for its users.  The practice of charging an advertising fee is sufficient to "affect commerce."

 During the peer review process a colleague posited, "why should accessibility of purely informational web sites, such as The New York Times, be required when the hard copy of the newspaper is not accessible?"  The web site and the newspaper itself may convey the same information but the Internet is inherently different.  The Internet can be described as a "place," even though abstract, whereas the newspaper is simply an object.  The headquarters of the New York Times, however, would be covered under the ADA.  A disabled person must be given equal access to the building itself where he could actually request a copy of the newspaper in an accessible form, such as Braille, and under the ADA the New York Times would have to honor that request.  This question does go directly to the heart of the debate centering on ADA applicability to the Internet.

Is cyberspace a place?  The Internet fits many of the categories of "public accommodations" so the answer must be yes.

 After proving that the Internet is a "public accommodation," a plaintiff must allege discrimination by the public accommodation under section 12182 of the ADA.32  Section 12182 provides three ways in which a "public accommodation" may discriminate on the basis of disability.  First, it is a form of discrimination to deny an individual the opportunity to "participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity."33  Second, discrimination may occur when an entity affords "an individual ... with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals."34  Third, an action by an entity that provides services separate from what is provided to other individuals is discrimination.35
 Finally, if a plaintiff is able to convince a court that the Internet is a "public accommodation" under the ADA and puts the web site operator's conduct within one of the enumerated discriminatory practices, the plaintiff must state a claim under the "specific prohibitions" section.36

 Under the "specific prohibitions" section there are four causes of action.37  First, the plaintiff can claim that the web site prevents individuals with disabilities from "fully and equally enjoying" the content of the site.38  Second, a plaintiff may allege that the web site has failed to make "reasonable modifications...to afford (access) to individuals with disabilities."39  Third, a claim could be made that the entity has failed to take steps "to ensure that no individual with a disability is excluded ... because of the absence of auxiliary aids and services."40  Fourth, an allegation may be made that the entity has failed to remove "communication barriers" within the web site.41

The "specific prohibitions" section does provide some defenses for defendants.  Under the "auxiliary aids and services" claim an entity has two defenses.42  An entity may refuse to implement the "auxiliary aids and services" if they would "fundamentally alter" the service or impose an "undue burden" upon the entity.43  Neither "fundamentally alter" nor "undue burden" is defined within Title III of the ADA so it is unclear how much bite these defenses have.  However, as will be discussed below, making a web site accessible will in no way alter a web site nor impose a financial burden.  A minimal burden will be imposed on programmers but it is negligible.

An entity is not required to remove "communication barriers" where the removal is not "readily achievable."44  "The term 'readily achievable' means easily accomplishable and able to be carried out without much difficulty or expense."45  As previously stated the cost and difficulty of making a web page accessible is minimal.  Therefore, a defendant should not be able to use any of the preceding defenses as an excuse not to make their web site accessible.

 Regardless of the preceding arguments, a 1996 opinion letter from the Department of Justice assured Senator Tom Harkin that Title III of the ADA was fully applicable to web sites.

Covered entities under the ADA are required to provide effective communication, regardless of whether they generally communicate through print media, audio media, or computerized media such as the Internet. Covered entities that use the Internet for communications regarding their programs, goods, or services must be prepared to offer those communications through accessible means as well.46

The Department of Justice is given enforcement powers under the ADA.47  Therefore, this statement should be compelling to a judge.  However, this assertion has yet to be considered by any court.  At least one court has explicitly refused to apply the ADA to a web state in holding that it only applies to "concrete, physical structures" and not to the abyss of cyberspace.48
The following section will examine the few cases that have been heard on this controversial issue along with the reasoning of the courts in deciding for or against the ADA's applicability to the Internet.

Whether the ADA applies to the Internet remains unresolved by most courts.  The Supreme Court of the United States has yet to hear a case on this issue.  In fact, very few district courts have even addressed the problem.  Only two cases appear to be directly on point.  The cases are district court cases from two different jurisdictions and have contrary outcomes but can be reconciled with each other.  One other case that arose in 1999 had the potential of deciding this issue once and for all but it was settled before trial.

A. Access Now, Inc. v. Southwest Airlines49

Access Now, Inc. is an access advocacy organization for disabled individuals.  They filed suit against Southwest Airlines on behalf of a blind individual.  The complaint alleged that Southwest was in violation of the ADA by not making its web site accessible to the blind.  Specifically, plaintiff pursued all four cause of action set forth above.  Namely, (1) the communication barriers removal provision of the ADA, (2) the auxiliary aids and services provision of the ADA, (3) the reasonable modifications provisions of the ADA, and (4) the full and equal enjoyment and participation provisions in Title III of the ADA.50

The Eleventh Circuit recognized that this was a case of first impression.51  Never before had an Eleventh Circuit court been asked to decide whether an Internet web site was a place of "public accommodation."  The implications of this case within the Eleventh Circuit, as well as other jurisdictions, could be immense.  If the court held that Southwest's web site was a "public accommodation" many other entities maintaining web sites would be put on notice.  Many would be scrambling to make their web sites accessible to the disabled, while others would be shutting their web sites down completely in order to avoid ADA liability.

Unfortunately this court ruled against the plaintiff and did not require Southwest make its web site accessible to the blind.  The Eleventh Circuit relied on its statutory interpretation of "places of public accommodation".  First the court found that a web site does not fall within one of the enumerated categories of public accommodations.52  "Under the doctrine of ejusdem generis, where general words follow a specific enumeration of persons or things, the general words should be limited to persons or things similar to those specifically enumerated."53  Furthermore, the court held that the list was exclusive and all encompassing thereby limiting all places of public accommodation to those expressly set out in the statute.  Third, and most devastating to the cause, the court surmised that Congress intended Title III of the ADA to only govern "access to physical, concrete places of public accommodation."54

In reaching its decision the Eleventh Circuit attempted to distinguish a prior case interpreting "public accommodation."55  In Rendon the Eleventh Circuit held that the selection process for the television game show "Who Wants To Be A Millionaire" unfairly discriminated against the disabled and violated the ADA.  In order to qualify for the show contestants were required to answer trivia questions over the phone by using the touch tone keypad.  Those contestants who answered the questions the fastest were chosen to actually appear on the show.  Plaintiffs in Rendon alleged that the telephone selection process deprived "the plaintiffs of the opportunity to compete for the privilege of being a contestant on the game show."56  The court noted that the plaintiffs stated a claim under Title III of the ADA since they demonstrated "a nexus between the challenged service and the premises of the public accommodation," specifically the studio where the show was recorded.57
The Eleventh Circuit distinguished Rendon on the fact that "the public web site at issue here is neither a physical, public accommodation itself as defined by the ADA, nor a means to accessing a concrete space such as the specific television studio in Rendon."58

It is at this point when this case becomes reconcilable with Metro Atlantic Rapid Transit Authority, discussed below, where another district court heard a nearly identical case and ruled for the plaintiffs.  Immediately after the Eleventh Circuit concluded its discussion about the requirement of a nexus between the service and a physical place, it mentioned that Plaintiffs did not allege that the web site impeded their access to a specific airline ticket counter or travel agency.59  This suggests that if plaintiffs had simply claimed that Southwest's web site impeded their access to a ticket counter or travel agency the nexus to a concrete physical place may have been sufficiently demonstrated and the outcome might have been different.

The court also summarily rejected a First Circuit case interpreting "public accommodation."60  In Carparts the First Circuit held that a "public accommodation" is not limited to physical structures but also applies to health-benefit plans.61  The Eleventh Circuit recognized that under the holding of the First Circuit case Internet web sites would be included as a "public accommodation".62  However, the court simply stated that the First Circuit interprets Title III of the ADA more broadly than they do.63

B. Martin v. Metropolitan Atlanta Rapid Transit Authority64

This was a class action suit in the District Court of Georgia on behalf of plaintiffs who have "profound physical impairments."65  The complaint alleged a variety of violations of both the ADA and the Rehabilitation Act.  The complaint of relevance here is plaintiffs' averment that MARTA's web site, which provided information on routes and route schedules, was inaccessible to the blind.66

The court refused to grant MARTA's motion for summary judgement.  "[T]he plaintiffs have met their burden to show a likelihood of success on the merits for defendants' failure to make available to individuals with disabilities adequate information concerning transportation services through accessible formats and technology to enable users to obtain information and schedule service."67  The court made an even stronger statement in the next paragraph.  "Until these deficiencies are corrected, MARTA is violating the ADA."68

C. National Federation for the Blind v. AOL

Before Access Now and Metro Atlantic Rapid Transit Authority, a suit was commenced against AOL.  In November of 1999 the National Federation for the Blind filed a complaint in United States District Court for the District of Massachusetts.  The NFB alleged that AOL failed to remove communications barriers presented by its designs, thus denying the blind and visually impaired independent access to this service in violation of Title III of the ADA.  The complaint lists three features of AOL that prohibit access to the blind.69  The NFB is quick to point out that this list is not exclusive and there are other ways in which AOL impedes the access of blind users in violation of the ADA.70

First, the sign up process is inaccessible to blind users.  In order to sign up for an AOL account users are required to enter their name, billing address, and credit card number, as well as other relevant information into blank fields on a web page.71  Text is displayed on the screen to describe what information is desired in each field but the display method used by AOL is incompatible with screen reading programs.72  Therefore, blind users are unable to determine what information is desired and, thus, unable to sign up for AOL at all.73

Second, if a blind user does somehow manage to sign up for AOL the welcome screen, which appears immediately upon signing in, is inaccessible.74  Much of the text on the welcome screen is in graphical form, unrecognizable by screen readers, which prohibits a blind user from fully utilizing the AOL service.75

Third, the method by which AOL performs keyword searches over the Internet is inaccessible.76  Assuming a blind user is able to locate the space for entering a keyword search or a web address, AOL's software does not communicate to the screen reader that a search is being performed.77  Thus, when a result appears on the screen the blind user is unaware that anything new is available to read.78

As a result of these three allegations plaintiffs ask for an injunction.79  "Without injunctive relief, individual Plaintiffs and members of the organizational Plaintiffs will continue to be unable to independently access and use Defendant's AOL service in violation of Plaintiffs' rights under the ADA."80

NFB states four claims for relief, identical to those made in the Southwest case.81  Count one alleges a violation of the communication barriers removal provision of the ADA.82  Count two asserts that AOL is violating auxiliary aids and services mandate of the ADA.83  Count three avers a violation of the ADA's reasonable modification mandate.84  Finally, count four states that AOL is in violation of the full and equal enjoyment of services mandate of the ADA.85

AOL's legal counsel decided to settle.  In the settlement agreement AOL, not admitting to application of the ADA to its service, acquiesced to three actions.86 First, AOL agreed to post its accessibility policy on its web site making it available to all that are interested.87 Second, AOL agreed create an accessibility checklist to guide and educate its employees in making the service fully accessible.88  Third, AOL agreed to enter into agreements with screen reader technology companies to ensure the newer versions of AOL were compatible.89

It is not clear what AOL's motives were in settling.  However, the two most likely reasons lend significant support to the argument for making the Internet accessible to the disabled.

One probable inference is that AOL, after studying the ADA and any previous cases, decided that there was a high probability that they would be found liable.  Therefore, to avoid embarrassment and bad publicity AOL opted for a settlement.  If this is the thinking of AOL's undoubtedly competent lawyers it lends support to the argument that the ADA is applicable to the Internet.

Another, equally supportive, proposition is that AOL conducted a cost-benefit analysis and determined that it was much easier and cost effective to make its service accessible.  Furthermore, AOL may have realized that the blind population represents an untapped resource.  Making AOL accessible to the blind as well as other people with disabilities would increase their business.  As a result of this investigation AOL may have concluded that the cost of litigation was pointless considering their service could be made accessible very easily and inexpensively and make AOL more money in the long run.

Regardless of which proposition is true it lends support for making all web sites accessible.  If the plain meaning of the ADA evinces Congress' intent to have its provisions apply to all facets of life, including the Internet, then web designers need to start making accommodations.  On the other hand, if making a web site is cheap and easy there is no reason for web designers not to make their web sites accessible since it will only increase their exposure among the millions of people with a disability in this country.  This is especially true considering that the AOL service is probably more complex than the majority of other web sites on the Internet.  If it is feasible for AOL it is most likely feasible for simpler web sites.
VI. Web pages designed to be accessible run more efficiently.

 The dilemma of web programmers in deciding whether or not to follow accessibility guidelines is analogous to the situation of a construction contractor faced with building codes.  Cutting corners with building materials and techniques may go unnoticed by inspectors.  This fact may lure many contractors to skimp on things here and there when constructing a new edifice.  However, a few extra dollars today has the potential of avoiding both monetary and punitive penalties in the future.
 The chances of getting caught are minimal but the contractor is taking a significant risk.  If the violations are discovered after the construction is complete, either the violations must be corrected or a significant fine will be imposed.  In either case any money saved by cutting corners in the construction will be lost as well as additional money on top of that.  The correct materials and labor must be purchased presently while all the previous labor and materials are useless and already paid for.  Additionally, the added cost of deconstruction must be factored.  In the long run it is more efficient to build within the code requirements.

 Budgetary efficiency aside, there are other benefits in following the set standards namely comfort, convenience, and reputation.  A well-insulated house will save the homeowners on heating and cooling bills.  A building constructed with proper support beams will need less maintenance and last longer.  Furthermore, a well constructed home will gain praise from prospective homeowners which may stir up business for the quality concerned contractor.

 The case for making web pages accessible from their initial inception is even more compelling.  In the construction context using cheaper building materials that do not fulfill code requirements could save a significant amount of money.  However, in the Internet context no additional materials are necessary to make a web page accessible, each user provides all the equipment he or she needs.  For the most part all that is necessary is that designers eliminate bad programming habits.  If all programmers wrote their computer code identically, accessibility problems would be reduced significantly.

 Furthermore, making web pages accessible to the disabled is beneficial to the web site operator.  When clear and concise HTML is implemented the web site can boast faster pages, easier navigation, and reach a wider audience.90  By making the site accessible it can be visited not only by the disabled, who make up a large amount of the population, but also those using cell phones, slow modems, or text-only browsers.91 Furthermore, especially in the case of commercial web sites, members of the disabled community, or others who obtain access, may express their gratitude by rewarding the site operator with their business.

 There are a variety of options available to web designers who seek to make their pages accessible to the disabled.  Accessibility software can be purchased from local computer stores and there are services available on the Internet that will test a web site for free.  Before using any accessibility checkers there are a few simple steps web site designers should follow to alleviate future headaches.

A. Use clear programming language.93

It is imperative to ensure that the HTML is clear.94  Clear programming language ensures that the page is presented well in all Internet browsers.95  Since people use a variety of different browsers, this step is essential to ensure all users have access.  To ensure good programming language designers need to be conscientious of their bad habits.  Many free HTML validators are available on the Internet that will check the HTML for clarity.96

B. Provide alternate content for non-textual material.97

A blind individual needs to use a screen reader to access the Internet.  The screen reader can only convey text to the user, not graphics that lack a textual accompaniment.98  Therefore, it is essential to provide descriptions of all non-textual components of a web page to promote equal access.

C. Use colors cautiously.99

Internet users with limited sight may be thwarted by the use of colors.100  The text and the background colors of a web site need to have enough contrast to allow visually impaired people to distinguish the text from the background.101
A fully accessible web site cannot use colors as the sole means of conveying a message.102  For example, a web page that instructs users to follow the blue links is of no help to an individual who cannot see the color blue.103

D. Provide an alternative that uses no frames.104

Most screen readers, as well as some browsers can only read text.  Therefore, it is important to provide a no frames alternative.105

E. Use proper tags.106

The use of proper tags on web pages is essential for the disabled, especially the blind, to access the site.  Some web programmers, in order to make a page more aesthetically pleasing, will use programming language that is confusing to those using screen readers.  For example, programmers may use tags in order to have the text appear further away from the sides of the page107.  A screen reader would read these tags and convey to the user a completely different meaning than was intended.108

F. Make links easily identifiable.109

Links are often presented as graphics on a web page rather than text.110  When graphical links are converted to text either in a text-only browser or by a screen reader, adjacent links will often run together and appear as one long link.111  Therefore, to make a web page accessible to all users links must me clearly identifiable independent from one another.112

G. Check for browser compatibility.113

Browser compatibility is always an implicit consideration when trying to make a web page accessible, most significantly with text-only browsers.114  Another aspect of designing a fully accessible web site is the avoidance of browser specific programming.115  Anybody can check a web page's accessibility on a variety of different browsers at http://www.anybrowser.com.116

H.   Use an accessibility checker.

If all of the preceding steps were followed there should be no problems but a few errors may have slipped through the cracks.117  It never hurts to double check.

VIII.Web sites should be made equally accessible to the disabled.

The number of disabled people who are unable to access the Internet is growing annually.  Likewise, the number of people who rely on the Internet everyday to communication with one another, to access to information, and to perform daily life activities is also increasing.  As a result of the growing demand for Internet access and the increasing probability that one will develop a disability that impedes Internet access in his or her lifetime the question of whether the web should be fully accessible to the disabled must be answered in the affirmative.

All federal agencies are required to make their web sites accessible.  The Architectural and Transportation Barriers Compliance Board has issued the accessibility standards.  Since the use of the Internet has expanded beyond the exclusive use of the government and into the realm of the public, there is no reason why the rest of the Internet should not be held to those standards.  In fact there are many compelling reasons in support of accessibility.  Compliance with the anti-discrimination provisions under the ADA and the increased necessity of having Internet access in modern society are two.

The issue of whether the ADA actually applies to the Internet remains largely undecided.  However, the few courts that have heard the issue have favored making the web accessible.  Under the express language of the ADA, it will only apply to those web sites that "affect commerce."  Therefore, many non-profit web sites may not be regulated under the ADA, but significantly more of the Internet will become accessible.

Many web site operators may not be concerned about legal liability or decide that their site does not affect commerce.  However, the fact remains that there is no good reason not to make a web site accessible.  The additional cost of designing an accessible web page is marginal.  An accessible web site benefits all users as well as the operator by running more efficiently.

By neglecting the disabled community, web sites are not achieving maximum exposure.  In the commercial context this means less revenue.  For the advocacy groups it means less public support.  Is there any reason why a legitimate web site would not strive to achieve greater exposure?  This author can think of none.

1Digital Divide Network, Digital Divide Basics, at http://www.digitaldividenetwork.org/content/sections/index.cfm?key=2
2Id.
3 Go for Hosting, The History of the Internet, at http://www.hosting.go4hosting.com/tuto.htm.
4Id.
5Disability Statistics Center, Disability in the United States: Prevalence and Causes, 1992, at http://dsc.ucsf.edu/UCSF/pub.taf?_function=search&recid=65&grow=1
6Id.
7Disability Statistics Center, How Does Disability Vary by Age in the U.S., at http://dsc.ucsf.edu/UCSF/pub.taf?_UserReference=DE1151E0524E55B4C2119F60&_function=other&_array=OTH6&grow=5
8Id.
9Id.
10 29 USC § 794(d)
11 Id.
12 Id.
13Architectural and Transportation Barriers Compliance Board, 65 Fed. Reg. at 80,500.
14Id.
15Id.
16Electronic and Information Technology Accessibility Standards, 36 CFR part 1194 (2000), available at http://www.access-board.gov/sec508/508standards.htm
17Id.
18 Id.
19RESNA, Technical Assistance Project, available at http://www.resna.org/taproject/index.html
20ADA Technical Assistance Centers, Historical Context of the Americans with Disabilities Act, available at http://www.adata.org/whatsada-history.html
21Id.
2242 USC § 12101 et seq.
23Id.
24Id.
25Id.
26Id.
2742 USC § 12204
2842 USC § 12181(7)
29Id.
30See infra note lx.
31Id.
3242 USC § 12182
3342 USC § 12182(b)(1)(A)(i)
3442 USC § 12182(b)(1)(A)(ii)
3542 USC § 12182(b)(1)(A)(iii)
3642 USC § 12182(b)(2)(A)
37Id.
3842 USC § 12182(b)(2)(A)(i)
3942 USC § 12182(b)(2)(A)(ii)
4042 USC § 12182(b)(2)(A)(iii)
4142 USC § 12182(b)(2)(A)(iv)
42Id.
43Id.
44Id.
4542 USC § 12181(9)
In determining whether an action is readily achievable, factors to be considered include -
(A) the nature and cost of the action needed under this chapter;
(B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility;
(C) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
(D) the type of operation or operations of the covered entity including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity.

46Department of Justice Opinion Letter to Senator Tom Harkin (1996), available at http://www.usdoj.gov/crt/foia/cltr204.txt
47Department of Justice, ADA Enforcement, at http://www.usdoj.gov/crt/ada/enforce.htm
48See infra note lx.
49 227 F. Supp. 2d 1312
50Access Now, Inc. v. Southwest Airlines, 227 F. Supp. 2d 1312, 1316 (11th Cir. 2002)
51Id. at 1315
52Id. at 1317
53 Id. at 1318
54Id. at 1318
55Rendon v. Valleycrest Productions, Ltd., 294 F. 3d 1279 (11th Cir. 2002)
56Id. at 1286
5757Id. at 1284
58See supra note lx.
59Id. at 1321
60Carparts Distribution Center, Inc. v. Automobile Wholesaler's Association of New England, 37 F.2d 12 (1st Cir. 1994)
61Id. at 19
62See Access Now, 227 F. Supp. 2d at 1319
63Id.
64 225 F.Supp.2d 1362
65Martin v. Metropolitan Atlanta Rapid Transit Authority, 225 F.Supp.2d 1362, 1364 (N.D. Georgia 2002)
66Id. at 1365
67Id. at 1377
68Id. at 1377
69Liberty Resources, Complaint of the National Foundation [sic] for the Blind, etc. vs. America Online, available at http://www.libertyresources.org/news/aol_3.html
70Id.
71Id.
72Id.
73Id.
74Liberty Resources, Complaint of the National Foundation [sic] for the Blind, etc. vs. America Online, available at http://www.libertyresources.org/news/aol_3.html
75Id.
76Id.
77Id.
78Liberty Resources, Complaint of the National Foundation [sic] for the Blind, etc. vs. America Online, available at http://www.libertyresources.org/news/aol_3.html
79Id.
80Id.
81Liberty Resources, Complaint of the National Foundation [sic] for the Blind, etc. vs. America Online, available at http://www.libertyresources.org/news/aol_4.html
82Id.
83Id.
84Id.
85Id.
86National Federation for the Blind, National Federation of the Blind/America Online Accessibility Agreement, available at http://204.245.133.32/Tech/accessibility.htm
87Id.
88Id.
89Id.
90Nielson, Jakob, Designing Web Usability: The Practice of Simplicity, (New Riders Publishing, Indianapolis, 2000).
91Id.
92Beit Nirenberg, Steps to Making Your Web Page Accessible to the Disabled, at http://www.geocities.com/bnirenberg/access_steps.html
93Id.
94Id.
95Id.
96Id.
97Beit Nirenberg, Steps to Making Your Web Page Accessible to the Disabled, at http://www.geocities.com/bnirenberg/access_steps.html
98Id.
99Id.
100Id.
101Id.
102Beit Nirenberg, Steps to Making Your Web Page Accessible to the Disabled, at http://www.geocities.com/bnirenberg/access_steps.html
103Id.
104Id.
105Id.
106Id.
107Beit Nirenberg, Steps to Making Your Web Page Accessible to the Disabled, at http://www.geocities.com/bnirenberg/access_steps.html
108Id.
109Id.
110Id.
111Id.
112Beit Nirenberg, Steps to Making Your Web Page Accessible to the Disabled, at http://www.geocities.com/bnirenberg/access_steps.html
113Id.
114Id.
115Id.
116Id .
117Beit Nirenberg, Steps to Making Your Web Page Accessible to the Disabled, at http://www.geocities.com/bnirenberg/access_steps.html