Haben Page 19

  The U.S. District Court for the District of Massachusetts was the first court to hold that the ADA covers internet-based businesses. The National Association of the Deaf sued Netflix for failing to provide captions for its online video streaming services. Captions—text that appears on screen—allow Deaf people to access the audio content of videos. Netflix argued that the ADA does not cover virtual businesses. Judge Ponsor disagreed, ruling that the ADA does in fact cover virtual businesses like Netflix. That 2012 Netflix case marked a new era for accessibility advocates.

  When Dan finishes speaking, Scribd’s attorney takes the lectern before Judge Sessions. Tonia Ouellette Klausner works for the behemoth Wilson, Sonsini, Goodrich & Rosati. Based in the firm’s New York City office, Tonia’s extensive work defending companies has earned her a spot on the list of “New York Super Lawyers.” On top of that, she also went to school in Vermont.

  Court: Do you know what happened to Judge Ponsor’s case, the Netflix case? It was in 2012, so was it appealed?

  Tonia: No. Netflix settled the case.

  Court: Okay.

  Tonia: Which is unfortunate we don’t have the benefit of the First Circuit weighing in on here.

  Plaintiffs argue that while Scribd does operate equipment and equipment falls within the definition of facilities—if I can just use their chart here, their quote from the statute, what the Department of Justice has said—it’s not just that a business has to operate a facility or operate equipment. If it did, every single business in America would be covered by Title III. That may be what Plaintiffs would like, but that’s not what the statute says and that’s not what the regulations say. It has to be a place of public accommodation, which means a facility. So, it has to be a facility. It has to be physical; somebody operating equipment or a building, but that facility has to fall within—and fall within at least one of the twelve categories listed in the ADA.

  There are two parts to the test. It has to be a place, a facility, and it has to fall within one of those categories. And a subscription reading service, an online publisher, doesn’t fall within any of those categories. It hasn’t for years…

  Court: What they are basically suggesting is that the computer is the equipment, i.e. the facility, and based upon that they are providing library services—because, I mean essentially, you’re an online library, aren’t you?

  Tonia: No. It’s not a library. You don’t check out books. You don’t go in and peruse things. It is a—the Plaintiffs in their complaint characterize it as a subscription reading service and an online publication platform.

  Court: Well, okay. All right.

  Tonia: All right. Thank you.

  Court: Thank you. Okay. Thank you and appreciate very much your coming today and I will take it under advisement.

  Maxine jumps to her feet, pulling me out of the world of words. The floor and table shift as people pack up. My pulse is still racing with adrenaline. Did we convince the court? Will the judge classify Scribd as a “place” of public accommodation?

  My co-counsel Mehgan pulls the keyboard over and types, “We’re going to meet up at the Farmhouse to debrief.”

  I nod. “That’s a nice one. I had lunch there yesterday.”

  “Do you want to walk there together?”

  “Yeah. I just want to take a few minutes to thank the typists. Then I want to stop by the bathroom. Then I want to let Maxine use the bathroom. Actually”—I give her an apologetic smile—“would it be okay if I meet you there?”

  “Of course. Take your time. We’ll save you a seat.”

  The thank-yous and farewells take a while, and half an hour goes by before I finally leave the courthouse. My California winter coat staves off just a sliver of the biting Burlington cold. Maxine “parks” in the snow, then hops back up on the sidewalk. My right hand holds her leash while my left hand holds the arm of my friend Cameron Lash. We met in Boston when she was training to become an interpreter. She is a gifted communicator who brings joy everywhere she goes. She recently facilitated communication for me in Ethiopia where I keynoted several disability rights celebrations, garnering support for the Tsehay Zewde Memorial Scholarship for blind women attending college. Cameron also joined me in China where I met with disability rights leaders and gave a lecture at Renmin University’s Law School in Beijing. Now Cameron is in Vermont on a different kind of disability rights mission.

  As we walk through downtown Burlington, I ask Cam, “You know at the end when Scribd’s lawyer was arguing that Scribd is not a library?”

  “Kind of. But honestly Haben, it’s all a bit of a blur. I was just trying to type as fast as I can.”

  “You did great! I just have a small question about tone and body language. At the very end, Scribd’s attorney was claiming, again, that Scribd is not a library. The judge responded, ‘Okay. All right.’ Do you remember his tone? Was it like a skeptical, ‘Okay, all right,’ or was it—”

  Cameron squeezes my arm. My heart rate rockets into high alarm. She continues walking. I walk beside her in silence.

  A minute later, Cameron’s body relaxes. “That was him!”

  I gasp. “The judge?”

  “Yes! He was walking in front of us!”

  “Do you think he heard me?” My face grows hot.

  “I don’t know…I don’t think so. He was about thirty feet ahead, walking on a sidewalk going perpendicular to us.”

  “Okay.” I take a deep breath.

  “What were you asking me?”

  Sifting through my thoughts, I discover the question has faded. “I was asking you about the judge’s tone and facial expressions, but now I feel like that’s not important. The words are enough. We’ll find out what he thinks when he publishes his opinion.”

  “How long until it’s published?” Cam asks.

  “There isn’t a specific date.” I shrug. “A few weeks to a few months.”

  “Wowzer.”

  I smile. “Yeah.”

  Two weeks later, I sit working at my desk in a warm California office. Sunlight pours in through floor-to-ceiling windows. They give Maxine an unobstructed view of the birds and squirrels enjoying Berkeley’s Martin Luther King Jr. Civic Center Park.

  When my parents visited my office, they clucked at the bare walls, instructing me on what to put up. One wall now has a scarf decorated with Ethiopian coffee scenes. Dr. Tedros, Ethiopia’s Minister of Foreign Affairs, presented it to me. The scarf serves as a light, silky reminder of our recent trip to Ethiopia. Another wall displays my Harvard Law degree. My parents don’t understand exactly what I do—“Something to do with disabilities.” They don’t understand exactly why I’m not rich. But they understand that I’ll be okay.

  As a public service lawyer, my salary is far below what a Harvard Law graduate would typically make, but still exceeds the average income for blind Americans, seventy percent of whom struggle with unemployment. The Harvard Low Income Protection Plan supports my public service work by subsidizing part of my student loans. In a society that casts people with disabilities as inferior to the nondisabled, having a meaningful job, health insurance, and a law degree feels like a privilege. So I spend hours at my desk working to dismantle our world’s barriers.

  An email announces new activity in the Scribd case. Judge Sessions made his decision! Heart pounding, I begin to read:

  UNITED STATES DISTRICT COURT

  FOR THE

  DISTRICT OF VERMONT

  NATIONAL FEDERATION :

  OF THE BLIND, on behalf :

  of its members and itself, :

  and HEIDI VIENS, :

  Plaintiffs, :

  : Case No. 2:14-cv-162

  v. :

  :

  SCRIBD INC., :

  :

  Defendant. :

  Opinion and Order

  Plaintiffs National Federation of the Blind (“NFB”) and Heidi Viens, a member of NFB residing in Colchester, Vermont, brought this suit against Scribd, Inc. (“Scribd”). The Plaintiffs’ Co
mplaint alleges that Scribd has violated Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12182, because its website and mobile applications (“apps”) are inaccessible to the blind.

  Scribd has moved to dismiss the Complaint with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. ECF No. 13. Scribd argues that the Plaintiffs have not alleged facts demonstrating that it owns, leases, or operates a place of public accommodation because the ADA does not apply to website operators whose goods or services are not made available at a physical location open to the public. The Court disagrees. For the reasons discussed below, the Court denies Scribd’s motion to dismiss.

  I leap out of my chair and drop down to the floor. “Maxine, we won!”

  She lifts her head and points her magnificent shepherd ears.

  The court ruled that the ADA does in fact cover internet-based businesses. Deciding otherwise would lead to absurd results, like excluding services provided door-to-door or over the phone. Many companies provided services over the phone or door-to-door in 1990 when Congress passed the ADA, and Congress expected the statute to cover these “places.” The court affirmed that Congress intended for the ADA to be a broad statute that evolves with technology. “Now that the Internet plays such a critical role in the personal and professional lives of Americans, excluding disabled persons from access to covered entities that use it as their principal means of reaching the public would defeat the purpose of this important civil rights legislation.”

  National Federation of the Blind v. Scribd is the first case in the Second Circuit to hold that the ADA covers online businesses, and the second case in the entire country. We’ve broken ground, set legal precedent, and made history. The court’s decision will send a strong message to online businesses around the country: make websites and apps accessible, or else.

  Accessibility is not only mandated by law, it’s also good business. People with disabilities are the largest minority group. There are more than fifty-seven million Americans with disabilities, and there are more than 1.3 billion people with disabilities around the world. Organizations that design with disability in mind gain access to this gigantic market. Removing barriers also gives employers the opportunity to tap into a significant talent pool.

  Guidelines—which are free and easy to find—exist to teach developers how to make websites and apps accessible. The Web Content Accessibility Guidelines, Android accessibility guidelines, and Apple accessibility guidelines are just a few. Despite conventional belief, computer programs are not inherently visual. Computer programs start as 1’s and 0’s. Developers have the power to convert those 1’s and 0’s into engaging applications that everyone can access.

  As my hands pet Maxine’s soft ears, my mind tallies all the things I now need to do: share the good news with our clients, draft a case update, collaborate with my team on next steps…The next stage of the case is discovery, and then the trial. There is a good chance Scribd will decide to settle. Defendants in ADA cases tend to settle after losing the motion to dismiss. The prospect of facing months or years of expensive litigation makes defendants realize that they’d save money, and win customers, if they just choose inclusion. We’ll see what Scribd decides.

  In the meantime, today’s court decision calls for a celebration.

  Chapter Twenty-Four

  The White House ADA Celebration

  Washington, DC. Summer 2015.

  “Now we’re in the East Room!” Cameron and I have just walked into a spacious room in the White House. “Let’s see…there’s a small stage with a podium. It has the presidential seal in front, and a U.S. flag just behind it.”

  “Wow, the presidential seal.” My pulse speeds up just thinking about it. “I wonder if I’ll be speaking at that podium…”

  “Haben Girma, are you nervous?”

  “No way,” I say automatically. Then I consider my emotions. She’s right. I’m feeling nervous, but my heart is thumping with excitement, too. “Do you see anyone who looks like they work here?”

  Cameron’s body shifts as she scans the room. “There are two people on the right having a discussion. One of them has a clipboard.”

  “A clipboard? The White House really needs to upgrade their tech.”

  “Want to tell her?”

  I laugh. “Sure!”

  We cross the room. Cameron facilitates the conversation. “This woman says, ‘You look familiar. Are you the introducer?’”

  Smiling, I nod. “What’s your name?”

  “I’m Sally. We’re really happy to have you here. If there is anything you need, you just let me know.”

  “Would it be okay if I go on stage and check out the podium?”

  “You don’t need to worry about that. We have someone who will walk you on and off the stage.”

  I gesture to Cam. “This is Cameron. She’s going to walk on and off stage with me.”

  “I’m sorry,” Sally says. “We actually can’t do that. Our person will go with you.”

  My stomach drops. The need to advocate is ceaseless, even among family, even at a disability rights event. Taking a deep breath, I start again. “I’m Deafblind and need someone who can facilitate communication and provide visual descriptions. Cameron has experience working with me. She’s facilitated communication in all kinds of environments, from Ethiopia to China. Does your person have training working with Deafblind people?”

  “I understand what you’re saying, but we have a protocol we need to follow,” Sally explains.

  “Oh, is it for security reasons? How about having both of them go up with me?”

  “She’s not authorized to go on stage. I’m really sorry.”

  I can feel the air being squeezed out of my lungs. The tension builds as my mind searches for a solution. All while the clock ticks forward, moving closer and closer to our start time.

  I switch tactics. “Where is this person? Maybe I can train them. Can you introduce us?”

  “Sure, let me get him.”

  We follow Sally into an adjacent room. Cameron shows me a table, and I slide the braille computer off my aching wrist. Cam writes, “Sally’s on the other side of the room talking to a tall guy in a military uniform. Oh my word! Haben, I don’t even know what to say. How the heck are you? Wait, they’re coming over. His name is Ryan. I’m passing him the keyboard.”

  Cameron steps back from the table, and Ryan takes her place at the keyboard. “Hi!”

  The exclamation mark makes me smile. “Nice to meet you, Ryan. It looks like you’ve figured out how this works. The keyboard is connected to the braille computer through Bluetooth. Everything you type comes through instantly. Don’t worry about spelling or punctuation.”

  “Okay. Does it autocorrect?”

  “I’m used to reading through typos, so my mind autocorrects.”

  “That’s impressive.”

  “Thanks.” I smile. “Let’s talk about guiding. The main thing to remember is to lead with your body. Some people grab my arm and try to pull me. That’s disempowering. Instead, offer your arm. That respects my right to choose. Make sense?”

  “Yes.”

  “Great. You can touch your arm to mine and I’ll know what you mean. If I decide to let you lead, I’ll hold your arm just above your elbow. Your elbow is connected to your shoulder, which is ultimately connected to your core. So when you walk, turn, or stop, I’ll be able to feel it through your arm.”

  “Okay. Just so you know, there are a few steps going up to the stage and coming down from it,” Ryan types.

  “I’ll be able to feel when your body moves up or down. You can also signal by touching my hand. I’ll show you. Can we go on stage and practice?”

  “Sure. Do I bring the keyboard?”

  “I’ll take that.” I stack the keyboard on top of the braille computer, then carry both in my right arm.

  Ryan moves to my left. He’s taller than I expected, so I hold his arm just below his elbow. He hea
ds to the East Room at a good pace, not the usual slow shuffle of first-time guiders. “By the way, if the path is ever too narrow for both of us to walk side-by-side, you can communicate by putting your arm behind you.” Gently, I move his arm behind his back and step behind him. “That tells me we need to walk single file.” Guiding his arm back to his side, I move back to his right side. “Try to convey environmental information the way a dancer expresses music.” Ryan’s arm arcs to the left as he turns. “Exactly!” His left hand touches my left hand, the one holding his arm. I feel for the first step with my foot, then walk up the steps. A moment later we’re at the podium where I set up the keyboard and braille computer. “You did great, Ryan. Do you have any questions for me?”

  “Would it be okay if I walk on your right side?”

  I give him a quizzical look. “Sure…Why?”

  “It will make it easier for the audience to see you.”

  “Oh…” I’m surprised and touched by his suggestion. “That’s really thoughtful. Yeah, let’s do that. Do you know where I’m supposed to go after my speech?”

  “Yes, we’ll exit on the right, go down the steps, and then you can stand there during the president’s speech. Do you want a chair?”

  I smile. “Yes, please. It’s hard to read while standing. Cameron and Michael will be typing the speech, so they’ll need chairs, too. Can we reserve three chairs?”

  “Sure. I’ll let them know.”

  “Great. Thanks, Ryan. I think we’re all set. Let’s walk off the stage.” Collecting the keyboard and computer, I cradle my tech in my left arm. Ryan switches to my right side, and together we leave the stage.

  Cameron and I congregate around a cocktail table near the door. “How did it go?” she asks.

  “Shrug.” I voice the word, playfully giving Cameron a visual description as I raise my shoulders and drop them. “No, actually, he did great. He seems really thoughtful. But the point of having someone experienced is that they would know what to do when the unexpected happens. I’m confident we’ll do great as long as everything goes smoothly. But if something bizarre happens…”