Two Court Rulings Completely Disagree With Each Other Over Whether Websites Need To Comply With Americans With Disabilities Act

from the waiting-for-the-supreme-court dept

On March 19th, there was a ruling [pdf] in a case in a federal district court in Vermont, brought by the National Federation for the Blind against Scribd, saying that the Americans with Disabilities Act (ADA) applied to the internet, and thus Scribd had to comply with the ADA. The specific concern is whether or not a website is a "place of public accommodation." Three years ago there was a similar ruling against Netflix (also brought by the National Federation for the Blind), which we noted had some troubling aspects to it. Since then, there have been a number of cases that have gone the other way. And, indeed, just this week the 9th Circuit appeals court upheld a lower court ruling [pdf] saying that Netflix does not need to comply with the ADA.

The 9th Circuit ruling made quick work of things, noting that it has ruled on this issue before and websites are not places of public accommodation:

We have previously interpreted the statutory term “place of public accommodation” to require “some connection between the good or service complained of and an actual physical place.” ... Because Netflix’s services are not connected to any “actual, physical place[],” Netflix is not subject to the ADA.

The court in the Scribd, case, however, sees things differently (and, Vermont is a long way from the 9th Circuit, so those precedents do not apply in Vermont). The Vermont court is well aware that the 9th Circuit -- and others -- don't think websites are places of public accommodation:

On the narrow end, the Ninth, Third, and Sixth Circuits each considered ADA claims brought by an employee who received benefits through his or her employer that were issued by a third party insurance company. All three courts held that Title III did not apply because there was not a sufficient connection between the discrimination the plaintiffs alleged and a physical place. Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000) (explaining that “some connection between the good or service complained of and an actual physical place is required”); Ford v. Schering-Plough Corp., 145 F.3d 601, 613 (3d Cir. 1998) (holding “public accommodation” and the list of examples in the statute were not ambiguous and did not refer to non-physical access); Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1011 (6th Cir. 1997) (en banc) (noting that “a public accommodation is a physical place” and a benefit plan offered by an employer is not a good offered by a place of public accommodation).

However, the Vermont court also notes that other Circuits have interpreted the ADA more broadly:

On the broad end, other circuit courts have read Title III to apply even in the absence of some connection to a physical place. In Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, 37 F.3d 12, 19 (1st Cir. 1994), the First Circuit explained that public accommodations are not limited to physical structures. The court reasoned that by including “travel service” on the list of examples in the definition, Congress clearly contemplated that “service establishments” could include providers of services that do not require a person to physically enter a structure or site but may instead conduct their business by telephone or correspondence. Id. It would be “absurd” to conclude people who enter an office to purchase a service are protected by the ADA but people who purchase the same service over the telephone or by mail are not.

It lists a few other examples as well -- including the Netflix case from 2012 -- and then notes: "Clearly there is more than one reasonable interpretation of the language at issue here." And thus, it comes down on the side of saying the ADA should apply, noting how important a law it was in stopping discrimination. It leans heavily on that 2012 ruling against Netflix:

Taking into account all of the relevant background information explored above, the Court finds Judge Ponsor’s reasoning in Netflix persuasive. The Internet is central to every aspect of the “economic and social mainstream of American life.” PGA Tour, 532 U.S. at 675. In such a society, “excluding businesses that sell services through the Internet from the ADA would ‘run afoul of the purposes of the ADA and would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges, and advantages available indiscriminately to other members of the general public.” Netflix, 869 F. Supp. 2d at 200 (quoting Carparts, 37 F.3d at 20).

The Court must therefore determine whether the services Scribd offers properly fall within any of the general categories of public accommodations listed in the statute. Construing the list of categories liberally, Plaintiffs have persuasively argued that Scribd’s services fall within at least one of the following categories: “place of exhibition or entertainment,” a “sales or rental establishment,” a “service establishment,” a “library,” a “gallery,” or a “place of public display or collection.” ... Therefore, the Court finds that Plaintiffs have sufficiently alleged that Scribd owns, leases, or operates a place of public accommodation. Accordingly, Scribd’s motion to dismiss is denied.

With so many conflicting rulings, it sounds like this is a situation where either Congress needs to update the ADA to clarify, or the Supreme Court needs to step in. And while we're very much against discrimination, broadly applying the ADA to websites would have some serious consequences, going well beyond what the law is supposed to be doing. We're already seeing folks like Team Prenda abusing the ADA to shake down small physical shops -- and you can bet that if the law is determined to apply widely to websites, they'll quickly return to their old ways of shaking down folks online as well. Yes, websites should strive to be created to accommodate people with different issues, but using a law that was clearly designed for physical retail stores, and saying it needs to automatically apply to all websites seems like a bad way to do this.

Filed Under: 9th circuit, ada, americans with disabilities act, internet, place of public accommodation, vermont, websites
Companies: netflix, scribd

Vermont's Automatic License Plate Readers: 7.9 Million Plates Captured, Five Crimes Solved

from the the-finest-in-haystacking-technology dept

The sales pitch for automatic license plate readers is how great they are at helping cops solve crimes. From hunting down stolen cars to tracking pedophiles across jurisdictions, ALPRs supposedly make policing a breeze by gathering millions of time/date/location records every single day and making it all available to any law enforcement agency willing to buy the software and pay the licensing fees.

The systems come with civil liberties baggage -- privacy issues that aren't completely articulable, at least not in terms of what the courts have held to contain sufficient expectations of privacy. A single photo of a car on a public road isn't a privacy violation. But what about dozens or hundreds of photos that more resemble a passive tracking system than a set of public snapshots? That's a bit more of a gray area -- one that hasn't been fully explored by the courts at this point. Adjacent decisions notwithstanding, ALPRs are mildly intrusive and have troubling implications due to their capabilities, but at this point, they still operate within the confines of the Constitution.

So, if civil liberties are still intact, what's the next point of attack? Maybe it's the alleged efficiency. Are law enforcement agencies getting their money's worth?

It's a trick question. First and foremost, it's the public's money paying for these. In many cases, DHS grants have paid for ALPRs, with local agencies name-checking terrorism and extremism to increase the odds of obtaining funds. Even when paid for out-of-pocket, it's still the public footing the bill.

The systems aren't cheap. And from what VPR (NPR Vermont) has uncovered, they're not really worth the expense. (via Digital Fourth)

Over the past five years, law enforcement agencies in Vermont have invested more than $1 million in technology that gathers millions of data points every year about the whereabouts of vehicles across the state.

Yet even with the millions of scans, the system has not led to many arrests or breakthroughs in major criminal investigations, and it hasn’t led to an increase in the number of tickets written for the offenses the technology is capable of detecting.

No one sells a city council (or the general public) on the wonders of ALPRs by highlighting how many unregistered vehicles might be ticketed or pointing out other mundane traffic enforcement benefits they might provide. Probably just as well, considering these systems have had no discernible effect in these areas.

It's the "big ticket" crimes that sell ALPRs and push them past the complaints of those concerned about citizens' privacy and civil liberties. Kidnapping, auto theft, child pornographers, terrorism, etc. These are the sort of thing that put lead in legislators' collective pencils, stirring them to approve funding or sign off on grant requests, and so on. How do Vermont's ALPRs stack up against capital-C "crime?"

In the 18 months leading up to Jan. 1, 2013, the 61 license plate readers operating in the state at the time did a lot of recording. A VPR study of public information from local, state and federal law enforcement showed that during that time period, police across the state logged 7.9 million license plates and stored them in a central, statewide database along with the time and location they were scanned.

Despite the financial investment in the systems, they were helpful in solving fewer than five crimes in 2013. The number of tickets written for driving with a suspended license and driving with an expired registration (two violations that ALPRs can detect) hasn’t gone up since the technology was introduced in mid-2009.

Millions of plates. Five (5) crimes solved. Number of tickets issued flat.

So, what do you do? As a legislator who approved funding for this, do you accept this as part of the learning curve or do you demand more from the technology? Do you tell the public, "We appreciate your input but feel that a literal handful of successful criminal investigations far outweighs any privacy issues or budgetary concerns"?

An interview with an officer who uses the ALPR system adds some nuance to the discussion, including the fact that law enforcement's civil liberties precautions contribute to the perceived inefficiency of the system. But underneath it all, it's viewed as just another "tool" for local law enforcement to use, albeit one that can't seem to pull its own weight. No one wants to say the equipment is non-essential or possibly redundant, but the officer interviewed (Sergeant Cram) makes this damning statement.

Despite the $25,000 tool, Cram says the majority of the Winooski Police Department’s traffic stops are still done the old-fashioned way, with officers stopping drivers for infractions like rolling through a stop sign or failing to yield at a crosswalk.

Still, Cram says the federally-funded ALPR is a valuable tool, even though he doesn’t think the city would have put up $25,000 of its own money to buy one.

The city wouldn't have ended up with one if the DHS wasn't giving them away. That's how extraneous this "tool" is. The lack of successful criminal investigations backs this up. The fact that traffic enforcement has remained stagnant even with the addition of several million plate scans per year is the final nail in the coffin.

No one -- at least not in Vermont -- needs this technology. But if someone else is willing to pay, they'll take it. And they'll use it. And years down the road, they'll likely still have nothing to show for it but a massive database tracking the movement of millions of non-criminals.

Filed Under: alpr, crimes, license plate reader, license plates, vermont

Vermont's Case Against Notorious Scanner Patent Troll Moves Forward

from the fighting-back dept

Last year, there were a few stories concerning a really despicable (more than usual) patent troll called MPHJ Holdings. Joe Mullin, over at Ars Technica, had dug deep into the details, finding a bunch of shell companies all sending demand letters to various small companies demanding around $1,000 per employee for using a network-connected scanner that includes a "scan to email" feature (i.e., pretty much any scanner on the market today). There were all sorts of sketchy things about MPHJ, and it was pretty clear that it and all its shell companies were effectively shaking down small businesses. It was so egregious that Vermont's Attorney General sued the company, claiming that it was engaged in "unfair and deceptive acts" with its threat letters.

Over the last year, MPHJ has fought hard to get the case out of a Vermont state court and into a federal court, arguing that it was a patent case (which is covered by federal law). The federal district court sent it back to the Vermont state court, saying that it's not really a patent case at all, but about the company's threat letters. Specifically, it stated:

"the State is targeting bad faith conduct irrespective of whether the letter recipients were patent infringers."

MPHJ appealed this ruling to CAFC, the appeals court that handles all patent cases (and is somewhat notorious for constantly expanding patent law through its decisions). Last week, however, CAFC rejected MPHJ's appeal, without even getting into the issue of whether or not this is a patent case. Instead, it simply noted that the law says appeals courts can't review orders remanding a case to a state court. Case closed, no jurisdiction. Pack your bags for Vermont, MPHJ lawyers.

Of course, the more important case involving MPHJ is the one in which it brazenly decided to sue the FTC for investigating its actions. The decision on that case could come at any time. You never can tell how a court will rule, but the odds are not likely to be in MPHJ's favor on that one either...

Filed Under: cafc, deceptive practices, extortion, patent troll, scanner patent, vermont
Companies: mphj

Vermont Declares War On Patent Trolls; Passes New Law And Sues Notorious Patent Troll

from the wow dept

I've always liked the state of Vermont -- but mainly because it was a nice place to visit. But, now the state appears to be declaring war on patent trolls. A new anti-patent trolling law has been quietly enacted, H.299, which targets patent trolls. Or, as it says "bad faith assertions of patent infringement." It does this by amending the state's consumer protection laws, to give tools to judges to recognize when patent litigation is done in bad faith (i.e., for trolling, rather than legitimate reasons). Eric Goldman summarizes the law this way:

Vermont’s law (H.299, to be codified at 9 V.S.A. § 4195-4199) is entitled “Bad Faith Assertions of Patent Infringements.” However, it doesn’t define “bad faith patent assertion.” Instead, it enumerates factors to help judges distinguish legitimate from illegitimate patent assertions. Factors that suggest a bad faith patent assertion include not identifying the patent(s)-at-issue, the patent owner, and exactly how the recipient’s behavior violates the patent; demanding too quick a response or too much money; and making deceptive or meritless assertions. Factors that suggest a legitimate patent assertion include commercializing the patented invention; being either the original inventor (i.e., not having bought the patent for assertion purposes) or an educational institution; and having successfully enforced the patent in court.

The law would allow those threatened by trolls to sue back and seek damages, even if no lawsuit has been filed. In other words, it helps those who are being shaken down and don't want to settle. That's a nice feature, but there are some reasons to be skeptical. It also allows the state Attorney General to go after patent trolls. While the law may scare of some patent trolls, I think Eric Goldman is right that a state-based solution is neither a good idea for this, nor is it probably legal. Patent law is a federal law, and federal preemption likely means that state laws that impact patents aren't allowed. This tries to hide it as a consumer protection law, which is an interesting strategy, but I could easily see this law being tossed out.

Of course, even before the law was officially on the books, it looks like Vermont's Attorney General has already sued a patent troll under existing consumer protection laws (raising questions as to why the new law is necessary). In this case, the troll is one we've written about a few times. Remember the series of rotating shell companies that had claimed that businesses who had a networked scanner need to pay $1,000 per employee? Yeah, that one.

The Vermont Attorney General claims that many of the statements made in the threat letters sent out by the rotating set of shell companies include "deceptive statements" and "deceptive practices" that violate consumer protection laws:

Defendant engaged in unfair trade practices in commerce in violation of the Vermont Consumer Protection Act, 9 V.S.A. § 2453(a) including:

a. Stating that litigation would be brought against the recipients, when Defendant was neither prepared nor likely to bring litigation;
b. Using legal counsel to imply that Defendant had performed a sufficient pre-suit investigation, including investigation into the target business and their potentially infringing activities, that would be required to justify filing a lawsuit;
c. Targeting small businesses that were unlikely to have the resources to fight patent-litigation, or even to pay patent counsel;
d. Sending letters that threatened patent-infringement litigation with no independent evidence that the recipients were infringing its patents;
e. Shifting the entire burden of the pre-suit investigation onto the small businesses that received the letters;
f. Propounding burdensome information demands on any business that claimed not to infringe the patents; and
g. Using shell corporations in order to hide the true owners of the patents, avoid liability, and encourage quick settlements.

Defendants engaged in deceptive trade practices in commerce in violation of the Vermont Consumer Protection Act, 9 V.S.A. §2453(a), by making deceptive statements in the threatening letters which would likely lead consumers to believe the following:

a. Defendant would sue the target business if they did not respond within two weeks;
b. Defendant would sue the target business if they did not pay money;
c. Defendant had a reasonable basis for identifying the target businesses as infringing its patents;
d. Subsidiary Shell LLCs were exclusive licencees able to enforce the patents;
e. Target companies were within the sending Shell LLC's alleged area of exclusivity;
f. Defendant's licensing program had received a positive response from the business community;
g. Many or most businesses were interested in promptly purchasing a license from Defendant;
h. Based on prior licensing agreements, the fair price of a license was between $900 and $1200 per employee;
i. Target businesses were receiving a third letter, which refers to two prior letters, when in many cases recipients had received no prior letters.

The lawsuit also claims that lawyer Jay Mac Rust is really the person who owns the patents via the company MPHJ. As you may recall, last month we wrote about Mac Rust after Joe Mullin at Ars Technica interviewed him in connection with the case. At the time, Mac Rust claimed that he was just one lawyer working for the owner of the patent, but who handled the "irate" recipients. So it's interesting to see the claim that he's really the guy behind MPHJ. As we've noted, there's long been an assumption that the use of shell companies is often done to hide the fact that it's the patent lawyers themselves who own the patents being used.

The use of consumer protection law in response to patents is an interesting strategy. I'm skeptical as to how well it will actually work in court, but there's no denying that many of the claims made in threat letters are, in fact, untrue and could be deemed deceptive (this kind of thing might work against copyright trolls as well). No matter what, this is going to be a key case to follow.

Filed Under: attorney general, consumer protection, jay mac rust, networked scanners, patent trolls, patents, scanning, vermont
Companies: mphj, paperless post

Supreme Court Says Pharma Companies Can Have Access To Drug Prescription Info To Pressure Doctors Into Prescribing More Expensive Drugs

from the feeling-safer? dept

Earlier this year, we wrote about the Sorrell v. IMS Health case, which pitted questions of free speech vs. medical privacy. Basically, Vermont had passed a law that barred data-mining and pharma firms from buying up detailed prescription data that pharmacies had collected per government request. The pharma companies wanted that data, because (for example) if they learned that Dr. Smith was prescribing generic versions of their pills, they could send a "salesperson" (and I use that term lightly) to pressure him into instead prescribing their more expensive drug. The pharma companies argued that this was a violation of their free speech rights. While I'm a strong First Amendment advocate, I didn't see how this argument made much sense. After all, the only reason this data exists is because the government required it be collected. As such, it seems reasonable that they should be required to make sure such info remains private. No such luck.

The Supreme Court ruled that such a law violates the First Amendment. The key issue, it appears, is the fact that this law is targeted specifically at pharma firms. Carving out certain groups, companies or individuals is definitely seen as a no-no. Still, recognizing that, I'm somewhat confused by the ruling. The only reason this information exists in the first place is that the government required pharmacies to hand it over (I believe as part of their attempt to find illegal drug users). And we're talking about medical data. Given that, it seems perfectly within the realm of possibilities that the government should be able to regulate who has access to that sensitive data. But the Supreme Court didn't feel that way. I agree with the dissent (Justices Breyer, Kagan and Ginsburg), in suggesting that the Court doesn't seem to fully recognize the situation, and how this is hardly a restriction on free speech.

That said, if there's some silver lining here, it's that the Supreme Court has issued yet another pro-First Amendment ruling. With so many attempts to abuse copyright law to stifle speech lately, including some cases that have half a chance of making it all the way to the Supreme Court, hopefully the court will similarly recognize the role of the First Amendment in not allowing the government to censor forms of speech they don't like.

Filed Under: data, first amendment, pharmacies, vermont

Prosecutors In Vermont Don't Want Limits On Computer Search Warrant

from the why? dept

The EFF has the unfortunate story of how prosecutors in Vermont, doing an investigation into an identity theft, requested an incredibly broad warrant to seize computer equipment, CDs, mobile phones and other devices in someone's home. The judge realized this might be way too broad, and limited the warrant, "putting reasonable bounds on the search, as well as including basic privacy protections for information and data not connected to the identity theft under investigation." It's hard to see how anyone could argue against such limits... but apparently, the prosecutors feel otherwise. They filed a petition in the Vermont Supreme Court to allow the original, overly broad warrant be allowed instead. I can't fathom the argument for such a fishing expedition. Warrants are supposed to be narrowly executed around the specific crime being investigated. The court limits made sense here, and yet prosecutors seem to be admitting that they want to go fishing for anything else they can find as well.

Filed Under: computers, privacy, searches, vermont, warrants

The Underground iPhone Users Of Vermont Trying To Hide From AT&T

from the how-dare-these-people-want-to-give-us-money dept

It's no secret that Apple's new iPhone is quite popular across the nation, with competitors everywhere trying to figure out how to respond. There certainly have been some complaints about some of the limitations imposed by the iPhone, but people everywhere are trying to find workarounds. Tech.Blorge alerts us to the fact that a bunch of iPhone users in Vermont have had to go virtually underground to get and use iPhones. The problem, apparently, is that since AT&T has an exclusive deal to offer the iPhone, they don't want people using it primarily on roaming networks. Right now, you cannot get AT&T wireless service in Vermont -- and AT&T's contract threatens to cut off anyone who buys or uses an iPhone there. Of course, that's not going to stop some people, who are ordering iPhones from elsewhere and even setting up P.O. Boxes out of state where the 300 page iPhone bills can be sent. They know that they're risking being cut off but they just can't help it. For their part, AT&T insists that they will cut off anyone they find who lives in an area not served by AT&T wireless (which is actually a fairly large area), or anyone who uses more than 40% of their iPhone time on roaming networks. This, of course, is a bit ridiculous. These people want to pay money. They're happy customers or both Apple and AT&T -- and the company wants to cut them off. If expense is the problem, they should just charge them more for roaming, but cutting them off completely in the name of an exclusivity contract doesn't make any sense. It makes the iPhone and wireless service from AT&T less valuable, which is exactly the opposite of what the exclusivity clause was supposed to do.

Filed Under: iphone, roaming, vermont
Companies: apple