Withdrawn: 28 CFR Parts 35 and 36, Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations (ANPRM)

B. Coverage limitations

It is the Department´s intention to regulate only governmental entities and public accommodations covered by the ADA that provide goods, services, programs, or activities to the public via websites on the Internet. Although some litigants have asserted that "the Internet" itself should be considered a place of public accommodation, the Department does not address this issue here. The Department believes that title III reaches the websites of entities that provide goods or services that fall within the 12 categories of "public accommodations," as defined by the statute and regulations. Because the Department is focused on the goods and services of public accommodations that operate exclusively or through some type of presence on the Web—whether hosting their own website or participating in a host´s website—the Department wishes to make clear the limited scope of its regulations. For example, the Department is considering proposing explicit regulatory language that makes clear that Web content created or posted by website users for personal, noncommercial use is not covered, even if that content is posted on the website of a public accommodation or a public entity. This would include individual participation in popular online communities, forums, or networks in which people upload personal videos or photos or engage in exchanges with other users. The Department could also make clear that public accommodations and public entities are not liable for inaccessible content posted to their sites by individuals not under their control as long as they provide their website users the ability to make their posts accessible.

In addition, the Department does not intend to propose regulatory text that reaches the informal or occasional trading, selling, or bartering of goods or services by private individuals in the context of an online marketplace. The Department could distinguish such occasional trading activity by individuals acting in a private capacity from legally established business entities, ranging from sole proprietorships to limited liability companies and corporations. As long as these business entities offer the goods or services of a public accommodation online, they would be responsible for making such offerings accessible to individuals with disabilities. Lastly, a public accommodation or public entity would not be required to ensure the accessibility of websites that are linked to its site, but that it does not operate or control. However, to the extent an entity requires users of its website to utilize another website in order to take part in its goods and services (e.g., payment for items on one website must be processed through another website), the entity may be liable for the accessibility of other sites it requires its patrons to use even if it does not operate or control the site.

Question 5. The Department seeks specific feedback on the limitations for coverage that it is considering. Should the Department adopt any specific parameters regarding its proposed coverage limitations? How should the Department distinguish, in the context of an online marketplace, between informal or occasional trading, selling, or bartering of goods or services by private individuals and activities that are formal and more than occasional? Are there other areas or matters regarding which the Department should consider adopting additional coverage limitations? Please provide as much detail as possible in your response.