000630	04.wma
000000	Clifford R. Michel:  Okay, Mark, you've talked about the facts in the Target case and the judge's ruling.
000006	What are the takeaway points that we should address?
000009	Mark Howitson:  Sure.
000010	Well, the implications of Patel's ruling in the Target case are many.
000014	And the first one is sort of the surprise to many of us that now their suggestion, contrary to what looked like most of the case law,
000022	certainly contrary to the Southwest case that Amira mentioned, the Southwest Airlines case,
000027	that now there looks to be some support for the notion that there is a place in cyberspace and a place of public accommodation would include a website.
000036	So now what you have is certainly web retailers that are linked to a bricks and mortar operation are sitting there going, well, wait a second.
000046	We have bricks and mortar operations in California.
000048	We also have a website.
000049	I mean, if you walk through any shopping mall, every single store in that shopping mall is going to have a website.
000055	So every single one of them needs to stop and look at the Target case and say, well, it looks to me, based on this Target case,
000101	that we are now going to have to make sure our website is accessible to people who are visually impaired and maybe hearing impaired.
000109	And so, therefore, they're sitting there going now we're going to have to spend the time and the money to fix our websites to accommodate them in the off chance
000117	that this opinion isn't somehow rendered void by further appeals or what may very well end up being a settlement.
000125	So the implication of Patel's ruling, at least for certainly web retailers, is that.
000130	It's unclear, frankly, from the history of the case law from the ADA itself and from the Target case, whether or not this opinion would extend
000143	so far as to web-only presence.
000145	So if you can think of a company that offers its services on a web-only basis, the question would be, well are they going to be subject to this ruling
000153	because if Patel ruled that cyberspace was a place, by virtue of the fact that there was a link between the target.com website and the Target stores, well,
000203	what if we don't have any bricks and mortar operations.
000206	And the one that comes to mind is amazon.com.
000208	They're not a client or anything, but that's an example of a web-only retailer.
000213	And the question if they were sued, the question would be, well, is that a website that needs to provide access to people who are visually impaired.
000223	Clifford R. Michel:  So although the Target ruling utilizes the nexus between the Internet space and the online store in which the plaintiff
000234	wanted to be able to utilize services of Target through the Internet, although that nexus is clear and at the basis of the ruling by Judge Patel in the Target case,
000245	I would think that the Internet-only retailers are very concerned about this issue.
000251	Mark Howitson:  Indeed.
000252	And I can say we represent a number of Internet-only retailers or Internet-only Service Providers that are offering their services to the world.
000301	And they are worried, too, in the sense that they are not maybe where they should be in terms of getting their website compliant
000309	so that people who are visually impaired or hearing impaired can use it.
000312	So certainly when we're talking to clients, we're not advising Internet-only retailers or Internet-only businesses, don't worry about.
000319	You don't have anything to worry about.
000321	Because frankly, there's enough pressure mounting that it may very well become the case that they need to accommodate people who are visually impaired
000330	or hearing impaired as well.
000333	But as a matter of law right now, no case is going so far as to say that an Internet-only business has to comply with the American Disabilities Act.
000341	But then again, prior to September 6th when the Target case came out, we would have said at least in Ninth Circuit, you know,
000347	Internet is not a place so you don't have to worry, because really there was no case that would go that far.
000351	And so now certainly any business doing anything in Internet has to start thinking about whether or not it's compliant with the Title III
000400	of the American Disabilities Act.
000401	Clifford R. Michel:  I would be very surprised if website design courses in computer science departments across the country are not addressing this
000410	and revising their curriculum to address this issue.
000414	Mark Howitson:  I would think they are.
000415	I mean, not long after the Target case we got a number of calls from clients asking us what's the status, what do we have to do.
000422	And I think that's a good thing.
000424	I think it's a good reason for a lot of reasons, but nevertheless, there is no question that there is a great deal of uncertainty about this issue in the law.
000431	You can draw a clear contrast between the target opinion and the opinion in the Southwest Airlines case, because those two cases couldn't be more different.
000441	The Southwest case basically takes the position that you need to have a physical location.
000445	And in that case the plaintiff was suing, claiming that the southwest.com web check-in service did not allow people who were visually impaired to check in.
000455	So clearly there they're saying, well, look, there's no place in cyberspace in that case.
000502	But here, I mean, the facts are quite similar and the court takes a completely different view.
000506	But the court, frankly, Patel does, in her opinion, she mentions the Southwest case and just sort of in a backhanded manner says, well,
000514	that's different and they never dealt with a specific issue.
000516	But, you know, if you asked me to look at those two cases, I have to say they're completely different.
000520	There's a complete difference of opinion across the Circuits about what is and what is not a place of public accommodation.
000526	So you might say, okay, well, what's that tell us?
000528	Well, that tells us that I think that sooner or later the Supreme Court is going to have to jump into this issue again.
000534	Since it's already ruled on an ADA issue once, it's going to have to jump in this issue again
000538	and start dealing with what is a place of public accommodation in the age of the Internet.
000544	Somebody pointed out, you know, when the ADA was enacted, the Internet was nothing like what it is today.
000549	You can appreciate in the ADA they have an actual list of things that constitute places of public accommodation.
000556	The Internet is not mentioned there once.
000559	So it's hard to imagine that if the ADA were being enacted today, that the legislative body, let's put it that way, would not have mentioned that issue.
000608	Well, wait a second.
000609	So much retail, so much business is done on the Internet, they would have had to have hearings and discuss the issue of well,
000616	is Internet a place of public accommodation.
000618	It just wasn't an issue back in the day when they were creating the ADA.
000622	Clifford R. Michel:  All right, let's take a break here and when we come back I'd like to ask you more about how you think the Supreme Court
000628	would address the issue, Mark.
000629	Mark Howitson:  Sure.
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