No ADA Coverage For Facebook

A former Facebook user who got booted from the site for inappropriate conduct that she says arose from her bipolar disorder can’t sue Facebook for discrimination under the Americans with Disabilities Act. The case arose in the federal court for the Northern District of California. That court is bound by the precedent set by the Ninth Circuit Court of Appeals. The Ninth Circuit has previously ruled that the ADA only applies to “places of public accommodation.” And in the Ninth Circuit’s view, a “place” is something made of bricks and mortar, not electronic bits. So a social network is not a “place.” And by its terms, the ADA doesn’t apply. This case caught my eye for a couple of reasons. First, my son Joe is finishing his first year of law school and he just wrote a paper on this very topic. The good news, he reached the same conclusion as the California court. It also caught my attention because the plaintiff made a creative attempt to get around the “physical place” limit. She argued that since Facebook provides gift cards to brick and mortar retailers, it could be subject to the ADA. Some courts have held that where a brick and mortar retailer maintains a Web site, the Web site can be subject to the ADA. The retailer Target lost on this point in a class action proceeding back in 2006. The court in Facebook, though, rejected the argument, since Facebook doesn’t operate the stores that provide the gift cards. Another reason the case caught my eye is that it raises an interesting question about how law should evolve in our digital age. Congress passed the ADA in the first Bush administration. And its concern clearly was on making sure that disabled folks could access physical places. Given that the Internet was in its early stages back then, I suspect no one really thought much about the issue. The question now, though, is whether the courts should assume that Congress would have included online only operations had they thought about it. My son Joe thinks the courts should not assume too much, and let Congress amend the law if it feels that’s necessary. I think he’s right. Smart kid.