National Federation of the Blind v. Target Corp.

MEMORANDUM & ORDER Re: Defendant’s Motion to Dismiss; Plaintiffs’ Motion for Preliminary Injunction

Plaintiffs National Federation of the Blind, National Federation of the Blind of California, Bruce Sexton, and all those similarly situated, filed this action against Target Corporation (“Target”), seeking declaratory, injunctive, and monetary relief. Plaintiffs claim that Target.com is inaccessible to the blind, and thereby violates federal and state laws prohibiting discrimination against the disabled. Now before the court is defendant’s motion to dismiss for failure to state a claim. Having considered the parties’ arguments and submissions, and for the reasons set forth below, the court enters the following memorandum and order.

BACKGROUND 1

Target operates approximately 1,400 retail stores nationwide, including 205 stores in California. Target.com is a website owned and operated by Target. By visiting Target.com, customers can purchase many of the items available in Target stores. Target.com also allows a customer to perform functions related to Target stores. For example, through Target.com, a customer can access information on store locations and hours, refill a prescription or order photo prints for pick-up at a store, and print coupons to redeem at a store.

Plaintiffs allege that Target.com is not accessible to blind individuals. According to plaintiffs, designing a website to be accessible to the blind is technologically simple and not economically prohibitive. Protocols for designing an accessible internet site rely heavily on “alternative text”: invisible code embedded beneath graphics. A blind individual can use screen reader *950 software, which vocalizes the alternative text and describes the content of the web-page. Similarly, if the screen reader can read the navigation links, then a blind individual can navigate the site with a keyboard instead of a mouse. Plaintiffs allege that Target.com lacks these features that would enable the blind to use Target.com. Since the blind cannot use Target.com, they are denied full and equal access to Target stores, according to plaintiffs.

On February 7, 2006 plaintiffs filed this action in Superior Court of California for the County of Alameda. On March 9, 2006 defendant removed the case to federal court. Defendant now moves to dismiss the complaint for failure to state a claim. Defendant claims that each of the antidis-crimination laws protecting the disabled— the Americans with Disabilities Act, 42 U.S.C. section 12182, (“ADA”), Unruh Civil Rights Act, Cal. Civ.Code section 51 (“Unruh Act”), and the Disabled Persons Act, Cal. Civ.Code section 54.1 (“DPA”) — covers access to only physical spaces. Since Target.com is not a physical space, defendant asserts that the complaint does not state a claim under these laws. Additionally, defendant contends that even if the Unruh Act and the DPA do govern access to websites, applying these state laws to the internet would violate the dormant commerce clause.

LEGAL STANDARD

I. Motion to Dismiss

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). Because Rule 12(b)(6) focuses on the “sufficiency” of a claim—and not the claim’s substantive merits — “a court may [typically] look only at the face of the complaint to decide a motion to dismiss.” Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir.2002).

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be granted if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.1988). Allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996). The court need not, however, accept as true allegations that are conclusory, legal conclusions, unwarranted deductions of fact or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001); Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir.1994).

II. Motion for Preliminary Injunction

“A preliminary injunction is a provisional remedy, the purpose of which is to preserve the status quo and to prevent irreparable loss of rights prior to final disposition of the litigation.” Napa Valley Publ’g Co. v. City of Calistoga, 225 F.Supp.2d 1176, 1180 (N.D.Cal.2002) (Chen, Mag. J.) (citing Sierra On Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir.1984)). In light of these considerations, a plaintiff seeking preliminary injunctive relief must demonstrate either: “(1) a likelihood of success on the merits and the possibility of irreparable injury; or (2) that serious questions going to the merits [have been] raised and the balance of hardships tips sharply in [the plaintiffs] favor.” Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 917 (9th Cir.2003) (en banc) (per *951 curiam) (citing Clear Channel Outdoor, Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir.2003)); see also Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1119 (9th Cir.1999). The components of these two tests, together with the added consideration of the public interest, operate on a sliding scale or “continuum.” Southwest Voter Registration Educ. Project, 344 F.3d at 918. Consequently, “the less certain the district court is of the likelihood of success on the merits, the more plaintiffs must convince the district court that the public interest and balance of hardships tip in their favor.” Id. (citation omitted); see also Miller v. California Pac. Med. Ctr., 19 F.3d 449, 456 (9th Cir.1994) (en banc).

In cases where a party seeks mandatory preliminary relief the Ninth Circuit has held that there must be a showing that “the law and the facts clearly favor granting such relief.” Stanley v. University of Southern California, 13 F.3d 1313, 1320 (9th Cir.1994); Martin v. Int’l Olympic Committee, 740 F.2d 670 (9th Cir.1984). The “higher degree of scrutiny” is required because “prohibitory injunction[s] preserve[ ] the status quo ... [while a] mandatory injunction goes well beyond simply maintaining the status quo pendente lite and is particularly disfavored.” Stanley, 13 F.3d at 1320 (internal citations omitted); see also Brewer v. West Irondequoit Cent. School Dist., 212 F.3d 738, 744 (2d Cir.2000) superseded on alternate grounds by statute, Federal Rule of Civil Procedure Rule 52, as recognized in Zervos v. Verizon New York, Inc., 252 F.3d 163, 171 n. 7 (2d Cir.2001) (noting that an injunction is mandatory if it will alter rather than maintain the status quo or if it will provide movant with substantially all relief sought).

DISCUSSION

I. Motion to Dismiss

A. ADA

Title III of the ADA prevents discrimination against the disabled in places of public accommodation: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation.” 42 U.S.C. § 12182(a).

“Discrimination” under the ADA encompasses the denial of the opportunity, by the disabled, to participate in programs or services, and providing the disabled with separate, but unequal, goods or services. See 42 U.S.C. § 12182(b)(1)(A)(i-iii). To ensure that the disabled have full and equal enjoyment of the goods and services of places of public accommodation, the ADA requires “reasonable modification” of “policies, practices, and procedures,” the provision of auxiliary aids to ensure effective communication with the disabled, and the removal of architectural and communications barriers. 42 U.S.C. § 12182(b)(2)(A)(ii-iv). The ADA thus departs from certain anti-discrimination statutes in requiring that places of public accommodation take affirmative steps to accommodate the disabled. H.R.Rep. No. 101-485, pt.2, at 104 (1990); 42 U.S.C. § 12182(b)(2)(A)(ii-iv).

Defendant contends that Target.com is not a place of public accommodation within the meaning of the ADA, and therefore plaintiffs cannot state a claim under the ADA. Specifically, defendant claims that the complaint is deficient because it does not allege that “individuals with vision impairments are denied access to one of Target’s brick and mortar stores *952 or the goods they contain.” Def.’s Motion at 10. However, the complaint states that “due to Target’s failure and refusal to remove access barriers to Target.com, blind individuals have been and are being denied equal access to Target stores, as well as to the numerous goods, services and benefits offered to the public through Target.com.” Complaint ¶24. Plaintiffs’ legal theory is that unequal access to Target.com denies the blind the full enjoyment of the goods and services offered at Target stores, which are places of public accommodation. 2

Defendant contends that even if Target.com is the alleged service of Target stores, plaintiffs still do not state a claim because they fail to assert that they are denied physical access to Target stores. Although a plaintiff may allege an ADA violation based on unequal access to a “service” of a place of public accommodation, courts have held that a plaintiff must allege that there is a “nexus” between the challenged service and the place of public accommodation. Under Ninth Circuit law, a “place of public accommodation,” within the meaning of Title III, is a physical place. See Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir.2000) (concluding that places of public accommodation are “actual, physical places.”) 3 . The Ninth Circuit has declined to join those circuits which have suggested that a “place of public accommodation” may have a more expansive meaning. See Carparts Distribution Ctr., Inc. v. Automotive Wholesalers Assoc. of New England, Inc., 37 F.3d 12, 19-20 (1st Cir.1994) (holding that “public accommodations” encompasses more than actual physical structures and includes the defendant insurance company); Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir.1999) (noting, in dicta, that a “place of public accommodation” encompasses facilities open to the public in both physical and electronic space, including websites).

In Weyer, plaintiff sued an insurance company for offering a policy that allegedly discriminated against people with mental disabilities. The Ninth Circuit adopted the reasoning of the Third and Sixth Circuits, finding that there was “no nexus between the disparity in benefits and the services which ... [the insurance company] offers to the public from its insurance office.” Weyer, 198 F.3d at 1115. The court noted that although an insurance office is a place of public accommodation, an insurance company administering an employer-provided insurance policy is not a place of public accommodation. Id.

*953 Similarly, the Eleventh Circuit in Rendon v. Valleycrest Prod., Ltd. held that the telephone process for selecting contestants for “Who Wants to be a Millionaire” discriminated against people with hearing and other physical disabilities. 294 F.3d 1279, 1280-81 (11th Cir.2002). The court found that the studio where the show was filmed was a place of public accommodation and that competing on the show was a privilege provided by the place of public accommodation. Id. at 1283-84. Thus, the court held that by using a discriminatory process for screening potential contestants, defendant was denying disabled persons equal enjoyment of a privilege (competing on the show) of a place of public accommodation (the studio). Id. at 1284-85; see also Ford v. Schering-Plough Corp., 145 F.3d 601, 612-13 (3d Cir.1998) (holding that plaintiff failed to allege a nexus between the place of public accommodation and the insurance benefits offered by the employer); Stoutenborough v. National Football League, 59 F.3d 580, 583-84 (6th Cir.1995) (affirming the dismissal of a claim under Title III because the challenged service, the live telecast of a football game, was not offered by a place of public accommodation, the stadium).

Defendant argues that the above-cited cases stand for the proposition that the ADA prohibits only discrimination occurring on the premises of a place of public accommodation, and that “discrimination” is limited to the denial of physical entry to, or use of, a space. Each element of defendant’s argument will be addressed in turn.

1. Off-Site Discrimination

The ADA prohibits discrimination on the basis of disability “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.” 42 U.S.C. § 12182(a) (emphasis added). The statute applies to the services of a place of public accommodation, not services in a place of public accommodation. Id. To limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute. See id.; see also Rendon, 294 F.3d at 1285 (holding that a process for selecting contestants for a game show that screened out the disabled was actionable under Title III even though the process occurred outside the premises of the public accommodation); Stoutenborough, 59 F.3d at 582-83 (emphasis added) (concluding that Title III covers “all of the services which the public accommodation offers”); Weyer, 198 F.3d at 1115 (holding that “whatever goods or services the place provides, it cannot discriminate on the basis of disability in providing enjoyment of those goods and services”). To the extent defendant argues that plaintiffs’ claims are not cognizable because they occur away from a “place” of public accommodation, defendant’s argument must fail.

2. Physical Access

According to defendants, in order for plaintiffs’ claim to be actionable under the ADA, the “off-site” discrimination must still deny physical access to Target’s brick-and-mortar stores. Relying on Rendon, Access Now v. Southwest Airlines, 227 F.Supp.2d 1312 (S.D.Fla.2002) and Stoutenborough, defendant argues that the nexus theory applies only to the denial of physical access to a place of public accommodation, and thus plaintiffs’ claim that Target.com (rather than Target stores) is inaccessible, is not legally cognizable. However, consistent with the plain language of the statute, no court has held that under the nexus theory a plaintiff has a cognizable claim only if the challenged service prevents physical access to a public *954 accommodation. Further, it is clear that the purpose of the statute is broader than mere physical access&emdash;seeking to bar actions or omissions which impair a disabled person’s “full enjoyment” of services or goods of a covered accommodation. 42 U.S.C. § 12182(a). Indeed, the statute expressly states that the denial of equal “participation” or the provision of “separate benefits]” are actionable under Title III. See 42 U.S.C. § 12182(b)(1)(A).

Defendant’s reliance on Rendon, Access Now and Stoutenborough to support this proposition is misplaced. In Rendon, the court held that the plaintiff stated a claim by alleging that an off-site telephone screening process discriminated against the disabled who sought to enjoy a privilege (being a contestant on a television show) offered by a place of public accommodation (the studio). Rendon, 294 F.3d at 1286. Rendon neither states nor suggests that a plaintiff proceeding under the “nexus” theory must plead denial of physical access to a place of public accommodation. On the contrary, the court held that tangible barriers restrict the disabled individual’s right to access the physical space while intangible barriers “restrict a disabled person’s ability to enjoy the defendant entity’s goods, services and privileges.” Id. at 1283 (emphasis added).

In Access Now, the court held that plaintiff failed to state a claim under the ADA because plaintiff alleged that the inaccessibility of southwest.com prevented access to Southwest’s “virtual” ticket counters. Access Now, 227 F.Supp.2d at 1321. “Virtual” ticket counters are not actual, physical places, and therefore not places of public accommodation. Id. Since there was no physical place of public accommodation alleged in Access Now, the court did not reach the precise issue presently in dispute: whether there is a nexus between a challenged service and an actual, physical place of public accommodation.

Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir.1998) similarly does not support defendant’s argument. The court held that plaintiffs failed to allege a nexus between the challenged insurance benefits and a place of public accommodation. Id. at 612-13. The court noted that employer-provided insurance benefits are a “term or condition of employment” subject to the provisions of Title I. Id. at 612. Although the insurance office of MetLife was a place of public accommodation, the insurance benefits were offered by the employer, Schering; no nexus existed because the office did not itself offer the benefits to the plaintiff. Id. “It is all the services which the public accommodation offers, not all the services which the lessor of the public accommodation offers[,] which fall within the scope of Title III.” Id.

In Stoutenborough, the court found that there could be no Title III liability because the National Football League, the lessor of a public stadium, was not the entity that offered the challenged service.' In the words of the Sixth Circuit, “[t]he televised broadcast of football games is certainly offered through defendants, but not as a service of public accommodation. It is all of the services which the public accommodation offers, not all services which the lessor of the public accommodation offers which fall within the scope of Title III.” Stoutenborough, 59 F.3d at 583. Similarly, defendant contends, like the lessor in Stoutenborough, the owner in the present action (Target corporation) is the party through which Target.com is offered and thus a Title III claim is not actionable. See 42 U.S.C. § 12182. However, it is clear from the face of the complaint that many of the benefits and privileges of the website are services of the Target stores. Unlike in Stoutenborough, where there *955 “service” was offered by a separate party leasing the public space, the challenged service here is heavily integrated with the brick-and-mortar stores and operates in many ways as a gateway to the stores.

The case law does not support defendant’s attempt to draw a false dichotomy between those services which impede physical access to a public accommodation and those merely offered by the facility. Such an interpretation would effectively limit the scope of Title III to the provision of ramps, elevators and other aids that operate to remove physical barriers to entry. Although the Ninth Circuit has determined that a place of public accommodation is a physical space, the court finds unconvincing defendant’s attempt to bootstrap the definition of accessibility to this determination, effectively reading out of the ADA the broader provisions enacted by Congress. In Rendon, even though the disabled individual did not contest the actual physical barriers of the facility in question, the Eleventh Circuit found that Title III was implicated because a “discriminatory procedure that deprived [the individual] of the opportunity to compete to be a contestant ... at a place of public accommodation” was utilized. Rendon, 294 F.3d at 1281 (emphasis added) (internal citations omitted). Similarly, in the present action, plaintiffs have alleged that the inaccessibility of Target.com denies the blind the ability to enjoy the services of Target stores. The Ninth Circuit has stated that the “ordinary meaning” of the ADA’s prohibition against “discrimination in the enjoyment of goods, services, facilities or privileges, is ‘that whatever goods or services the place provides, it cannot discriminate on the basis of disability in providing enjoyment of those goods and services.’ ” Weyer, 198 F.3d at 1115 (emphasis added). Defendant’s argument is unpersuasive and the court declines to dismiss the action for failure to allege a denial of physical access to the Target stores.

3. Auxiliary Aids and Services

Alternatively, defendant asserts that under the auxiliary aid provision of the ADA, plaintiffs contentions should be dismissed. Title III of the ADA, in a section entitled “specific prohibitions,” defines discrimination to include:

a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the goods, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.

42 U.S.C. § 12182(a)(2)(A)(iii). This section explicitly exempts public accommodations from the obligation to provide auxiliary aids or services if doing so would fundamentally change the nature of the good or service, or result in an undue burden. Id.

In regulations implementing this section, the Department of Justice has explained that the ADA obligates public accommodations to communicate effectively with customers who have disabilities concerning hearing, vision, or speech. 28 C.F.R. § 36.303(c); see also Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 56 Fed.Reg. 35544, at * 33, (July 26, 1991). For example, a restaurant must ensure that an employee is available to explain a menu to a blind customer, and a museum offering audio tours must provide alternative formats of the tour that a deaf patron could use. 56 Fed.Reg. 35544 at *34. However, while a bookstore must ensure *956 that it communicates with its customers in formats which accommodate the disabled, a bookstore is not required to stock books in Braille. Id. at *41. “The purpose of the ADA’s public accommodations requirements is to ensure accessibility to the goods offered by a public accommodation, not to alter the nature or mix of goods that the public accommodation has typically provided.” Id. Indeed, the Department of Justice has explained that “the auxiliary aid requirement is a flexible one.” Id. at *34. So long as the public accommodation communicates effectively with customers, the public accommodation can choose amongst various formats and methods of communication. Id. For instance, if a menu cannot be read by a blind person, the restaurant need not make the menu available in Braille; the restaurant could ensure that waiters are available to explain the menu. Id.

Defendant contends that even if plaintiffs demonstrate a nexus between Target.com and Target stores, Target.com falls under the auxiliary aid provision of Title III. The auxiliary aid requirement allows a public accommodation to provide the information in any format, so long as it results in effective communication. Thus, defendant concludes that Target need not modify its website, so long as it provides the information contained therein in some other format, such as by telephone. However, the flexibility to provide reasonable accommodation is an affirmative defense and not an appropriate basis upon which to dismiss the action. After plaintiffs state a claim — by alleging that the website is not accessible to the blind — the burden then shifts to defendants to assert, as an affirmative defense, that they already provide the information on Target.com in another reasonable format (such as over the phone). Indeed, whether or not a blind-accessible Target.com is a form of communication similar to the provisions of Braille menus is not at all clear from the face of the complaint. Nor is it clear whether or not the addition of “alt-tags” and other accessibility programming features would alter the nature of the service. Defendant’s challenge is premature and the court declines to dismiss the action on this basis.

4. Conclusion

In sum, the court finds that to the extent that plaintiffs allege that the inaccessibility of Target.com impedes the full and equal enjoyment of goods and services offered in Target stores, the plaintiffs state a claim, and the motion to dismiss is denied. To the extent that Target.com offers information and services unconnected to Target stores, which do not affect the enjoyment of goods and services offered in Target stores, the plaintiffs fail to state a claim under Title III of the ADA. Defendant’s motion to dismiss this portion of plaintiffs’ ADA claim is granted. 4

*957 B. Unruh Civil Rights Act

The Unruh Act states that individuals with disabilities are “entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Cal. Civ.Code § 51(b). Defendant advances three separate reasons for dismissing plaintiffs’ claim under the Unruh Act. First, Target.com is not a business establishment. Second, the complaint does not allege, and cannot prove, that Target engaged in intentional discrimination against the disabled. Third, the Unruh Act does not require modification of Target.com. 5 However, in 1992, the California legislature amended the Unruh Civil Rights Act to state that a violation of the ADA is a violation of the Unruh Act. Cal. Civ.Code § 51(f). Thus, a plaintiff who pleads a violation of the ADA does not need to allege anything further in order to state a claim under the Unruh Act. Lentini v. California Cntr. for the Arts, 370 F.3d 837, 847 (9th Cir.2004). Since plaintiffs state a claim under the ADA, they state a claim under the Unruh Act as well and the court need not reach defendant’s challenges to plaintiffs’ Unruh claims.

Notwithstanding, it is worth noting that defendant’s argument that Target.com is not a business establishment is misplaced, since the complaint alleges that Target is a business establishment and Target.com is a service provided by Target and its stores. Complaint at ¶ 40. Plaintiffs make two separate allegations. First, defendant is violating the ADA and, thus the Unruh Act, by denying plaintiffs the full and equal enjoyment of a service (Target.com) of a place of public accommodation (Target). Second, defendant is denying the blind equal access to services provided in places of public accommodation (Target stores) by denying the blind access to Target.com. These two legal theories do not assume that Target.com is a business establishment, they rest upon the premise that Target.com is a service of a business establishment, and therefore defendant’s argument that a website cannot be a business establishment is unavailing.

C. Disabled Persons Act

The Disabled Persons Act states that:

Individuals with disabilities shall be entitled to full and equal access to accommodations, advantages, facilities, medical facilities, including hospitals, clinics, and physicians’ offices, and privileges of all common carriers, airplanes, motor vehicles, railroad trains, motorbuses, streetcars, boats, or any other public conveyances or modes of transportation (whether private, public, franchised, licensed, contracted, or otherwise provided), telephone facilities, adoption agencies, private schools, hotels, lodging places, places of public accommodation, *958 amusement, or resort, and other places to which the general public is invited.

Cal. Civ.Code § 54.1(a)(1) (emphasis added).

Defendant argues that the complaint fails to state a claim under the Disabled Persons Act for two reasons. First, the Disabled Persons Act applies to only physical places, and Target.com is not a physical place. Second, a claim under the Disabled Persons Act must be based on a violation of the building code, and plaintiffs do not allege a violation of the building code. However, similar to the Unruh Act, pursuant to Cal. Civ.Code § 54.1(d), a violation of the ADA is a violation of the DP A. The court need not reach defendant’s arguments.

D. Commerce Clause

Defendant argues that even if plaintiffs state a claim under the Unruh and Disabled Persons Acts, applying these statutes to regulate Target.com violates the dormant commerce clause. Defendant advances two reasons that such regulation would violate the commerce clause. First, state regulation of Target.com would regulate conduct occurring wholly outside of California. Second, state regulation of Target.com would regulate an area of commerce that is reserved exclusively for Congress.

1. Extraterritorial Regulation

The Commerce clause forbids a state from regulating commerce “that takes place wholly outside of the State’s borders, whether or not the commerce has effects within the State.” Healy v. Beer Inst., 491 U.S. 324, 336, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989) (quoting Edgar v. MITE Corp., 457 U.S. 624, 642-43, 102 S.Ct. 2629, 73 L.Ed.2d 269 (1982)). A state law directly controlling commerce “wholly outside the boundaries of a State” is per se invalid regardless of whether the legislature intended to regulate activities outside of the state. Id.; see also National Collegiate Athletic Association v. Miller, 10 F.3d 633, 639 (9th Cir.1993).

Although the Ninth Circuit has not reached this issue, courts in several circuits have invalidated state laws regulating the internet on the grounds that any regulation of the internet regulates conduct occurring outside the borders of the state. See, e.g., American Booksellers Found. v. Dean, 342 F.3d 96, 103 (2d Cir.2003) (striking down a Vermont law outlawing the knowing distribution of material harmful to a minor because residents of other states who post to the web would be subject to prosecution in Vermont); PSINet, Inc. v. Chapman, 362 F.3d 227, 240-41 (4th Cir.2004) (invalidating a Virginia law that criminalized the dissemination of material harmful to minors over the internet on the grounds that any regulation of the internet necessarily regulates conduct occurring entirely out-of-state); ACLU v. Johnson, 194 F.3d 1149, 1161 (10th Cir.1999) (concluding that a New Mexico law criminalizing the dissemination by computer of material harmful to a minor violated the commerce clause because state regulation of the internet necessarily controls transactions outside the state); Center for Democracy and Tech. v. Pappert, 337 F.Supp.2d 606, 662-63 (E.D.Pa.2004) (holding that a law requiring Internet Service Providers to remove or disable access to child pornography applied the policies of Pennsylvania to internet transactions in other states).

The cases cited above relied extensively on the analysis of the Southern District of New York in American Libraries Association v. Pataki, 969 F.Supp. 160 (S.D.N.Y.1997). At issue in that case was the constitutionality of a New York law criminalizing the intentional use of a computer to *959 transmit sexually explicit material to a minor.