VIRTUAL ACCESS: A NEW FRAMEWORK FOR DISABILITY AND HUMAN FLOURISHING IN AN ONLINE WORLD

While many commentators have noted the wealth and class disparities that emerge from the digital divide, disability adds another important lens through which to consider questions of access and equity. Online accessibility for disabled people has fallen prey to the same assumptions and impediments that led to the Americans with Disabilities Act (“ADA”) addressing disability access in the offline world. Addressing these shortcomings requires a significant conceptual shift in our understanding of “access,” even among disabled people. Offline, the sidewalk or doorway hindered access to those who needed assistance walking or moving. Today’s virtual sidewalks and doorways complicate access in fundamentally different but no less important ways. This Article reframes the legal, normative, and theoretical dimensions of the intersection of disability and online access to suggest a more granular approach than those provided by existing judicial and scholarly interventions. Our approach sets forth three recommendations. First, we suggest greater attention to online analogues for offline legal categories that create different zones for human interaction: public forums, public accommodations, nonpublic spaces, and what one of us has termed “private public forums”—the privately owned venues that functionally replace the public forum, especially online. Second, contrary to the approach adopted in some jurisdictions, we propose eliminating any requirement of a physical nexus between an online site and an in-person operation. Third, we recommend directing most regulatory requirements toward three kinds of commercial entities whose power, influence, and design functionality best position them to remedy existing gaps in online disability access—entities we call design services, communication platforms, and online mediators. Design services provide browsers, operating systems, and website design tools and templates. Communication platforms connect individual users through social media and other sharing mechanisms. Online mediators aggregate information to connect customers with product and service providers. If these three kinds of companies can set design norms for individual websites and apps, much of the framework for disability access will be in place. But as we will explain, not all individual users can or should be forced to incur compliance costs related to website and application design—some small sites are properly exempted from such oversight. For this reason, we suggest that design services make disability access the baseline; that communication platforms and online mediators implement accessibility once they reach certain size or revenue thresholds; and that certain users be permitted to opt out of disability access features.