Flight or Fight?

A Florida Ruling About Equal Access to the Web Illustrates Why Ethics and the Law Aren't the Same Thing

Angela Gunn Consumer Reports WebWatch Web Ethics Columnist>

I've mentioned in passing before that an ethical system is not identical to a legal system — that is, the law isn't an ethical map, and ethics don't always coincide with the law of the land. To illustrate, let's take a look at a recent court decision about whether Web sites are obligated to be equally accessible to visitors with disabilities as they are to unencumbered folk. The law says one thing. Ethics says something quite different.

The ruling in question was issued in U.S. District Court in Florida in the civil case, Access Now, Inc. and Robert Gumson v. Southwest Airlines. Gumson, who is blind, was unable to access the Southwest Web site even with assistive technology — the screen reader he uses, which translates written text into spoken text, ran into trouble on Southwest's graphics-heavy site. Not even Gumson's reader enabled him to surf the pages on which Southwest offers lower, Web-only fares, and he was able to make his reservation only with great difficulty.

He filed his suit based on the Americans with Disabilities Act, the 1990 law that stipulates that places of public accommodation (meaning everything from college campuses to bowling alleys) have to be equally accessible to all members of the public.

In the offline world, the ADA has brought us such benefits as wheelchair ramps and ATMs for the visually impaired. However, Judge Patricia Seitz on October 18 ruled that the ADA didn't apply in this case since, she ruled, there is no connection "between Southwest.com and a physical, concrete place of public accommodation." Among her reasons for dismissing the case, she noted that if Congress had intended in 1990 to include Web sites in the ADA, they'd have done so.

Seitz's faith in the 1990 Congress to have made provisions for a technology not introduced widely to the public until 1992 is touching, but we're not here to ponder that. And we're not going to meditate on the congruencies between buying a ticket from an airport ticket counter and an Internet site asking the same basic questions. Instead, let us consider the ethics of access: What Southwest ought to provide on the Web, according to the ethical framework we've established.

Southwest in 1995 became one of the first airlines to launch a Web site. A discount flyer, the company has used its site to let potential customers plan itineraries, check prices, and book flights. The Internet has been a successful venue for the airline — so much so, in fact, that Southwest has been able to offer additional discounts to customers through a special "Click 'n Save" program, a weekly offering of reduced airfare specials available over the Internet.

Southwest, not to mention thousands of other businesses, have been hoping that the Gumson case would be dismissed, because (they say) the cost of refitting their Web sites to accommodate visitors using assistive technologies, such as Gumson's audio reader, would be a substantial impediment to their ability to do business online. Restating this in terms of our previously constructed ethical framework, Southwest's Web site is the manifestation of X amount of effort on Southwest's part. To alter the site would represent an additional amount (Y) of effort for Southwest; X+Y = an amount of effort that would be too burdensome to Southwest to be worth the trouble.

Oh, please. It's not as if the Internet is intrinsically unfriendly to the unsighted — in fact, older Web pages are among the easiest for assistive technologies to parse, since they use mainly text, graphics, and simple links. And those sites work fine. You don't need rollovers, animations, Flash, or any other bells and whistles to sell an airline ticket. (Even more useful, albeit reader-unfriendly, aspects of the Southwest site are easy to adapt: Simple alternatives are available for the picklists from which Southwest asks customers to choose their origin and destination when pricing tickets.)

Nothing is happening on Southwest's Web site that couldn't be made accessible to the disabled. For Southwest to have designed it to be flashy at the price of general accessibility is simple laziness, if not outright stupidity, on their part — whatever they think X is equal to over there, friends, it's overvalued. They, or at the very least their designers, should have used their brains, and a minimum of ethics. By not doing so, and by offering certain low fares only to people who can surf their site in one particular way, they're telling the rest of us that we're not welcome — and that they'll charge us more for the "privilege" of doing business with a firm for which customer service apparently means only some customers.

Lest you think this is only a random company hurting itself in the marketplace, think again. Like most airlines post-9/11, Southwest is in no position to turn away customers; in fact, the airlines have had their hand out to Congress for taxpayer assistance repeatedly in the past 14 months. Apparently Gumson's tax dollars are good enough for Southwest; but if they don't need his business to the extent that they're willing to make the site more user-friendly, they don't need his tax dollars, or mine.

The law says Southwest is not in violation of the law. Fine. Perhaps another case will be filed one day and another court will see things differently. That's the glory of the legal system. Until then, there are small measures of relief available to the ethically minded. A deluge of stiffly worded letters to Southwest might impress on them that what's legal isn't necessarily what's ethical. Stiffly worded letters to one's congressperson the next time the airlines come begging are a fine idea as well.

Or perhaps there's a simpler way. As I browsed the Southwest site while preparing this column, I noticed that it includes a page explaining to would-be customers the reasons behind a recent controversial decision to require large passengers to purchase two tickets (and therefore two seats) on their flights. Following threats of lawsuits from offended and embarrassed flyers, Southwest president Colleen Barrett attempts to explain on that page that Southwest would be more sensitive to passengers in the future and had trained staff to enforce the policy more fairly and kindly. Ironically that page, which was added just months ago, uses almost no graphics and presents a great deal of information in simple text form; it's likely that Gumson's reader would have little or no trouble parsing that corner of Southwest's Web site.

Perhaps Barrett, working in conjunction with the designer who built that page, can explain how they can discriminate so unethically in making their site (and particularly its fares) inaccessible for visitors working around a disability — except when it's time to ask for their business back.

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Gunn is the co-founder of, and former Internet ethics columnist for, Yahoo! Internet Life and is currently the technology editor for Time Out New York weekly magazine. She has written hundreds of articles for PC Magazine, MSNBC.com, The Industry Standard, Business 2.0, CNN.com, Seattle Weekly, LA Weekly, and other publications.