The internet challenges core assumptions of standing doctrine. Standing jurisprudence places a premium on tangible injuries, like physical or monetary harms, and plaintiffs who allege intangible injuries can only enter federal court if their harms were traditionally recognized as a basis for a lawsuit in early American courts. But the internet is a recent invention, and intangible harms that occur online have no clear historical precedent.

Nowhere is this tension more evident than in a circuit split that has recently emerged on whether disability rights advocates who sue hotels because their reservations websites lack information about accessible features, like handrails and accessible entrances, have standing. The advocates claim that a Department of Justice regulation called the “Reservation Rule” requires hotels to provide information about accessible rooms, entrances, and other features on their reservations websites. Yet, hotels’ websites remain widely noncompliant, effectively excluding disabled individuals from the internet economy and leading some to cancel travel plans altogether. To enforce the Reservation Rule, some disability rights advocates have begun navigating to hotels’ reservations websites and determining whether they provide accessibility information, despite having no plans to travel to the hotels. If the websites lack such information, the advocates sue. The question is whether such individuals who merely “test” hotels’ compliance with the regulation have standing to sue.

Courts are divided on the issue. Four courts of appeals have held that such testers do not have standing. These courts have reasoned that because such testers do not plan to visit the hotels, they do not suffer any concrete injury. Meanwhile, three courts of appeals have found standing for such testers under an informational or stigmatic harm theory. Under the former, testers suffer concrete injury because hotels deprive them of information to which they are legally entitled. And under the latter, testers experience legally cognizable discrimination when they visit noncompliant websites which effectively only serve nondisabled people.

However, these courts’ reasoning is defective. The courts of appeals denying standing fail to appreciate that online harm can be concrete injury in fact under Article III. And the courts of appeals granting standing ignore the Supreme Court’s pessimism about informational injury theories. These courts have also failed to adduce any compelling historical analogues for the testers’ intangible harms, as the Supreme Court’s precedent requires.

Practically no scholarship assesses the circuit split generated by such testers. The only papers remotely addressing this division narrowly locate its cause in conflicting Supreme Court caselaw, comment upon its significance on public law litigation, or analyze what plaintiffs must show to demonstrate future harm as opposed to whether the alleged harm is concrete. The papers often take an unsympathetic line against disability rights advocates and fail to propose solutions that would help courts adjudicate issues of standing.

Crucially, the existing scholarship entirely ignores a key phenomenon at the root of the circuit split: the internet. No scholar has appreciated that courts’ disagreement stems from their differences in applying standing doctrine to testers’ internet-based harms. While scholars disagree on theories of standing for internet-based injuries, no scholar has proposed and defended a theory of concrete injury that resolves this circuit split. And although scholars have debated whether websites fall under the Americans with Disabilities Act’s ambit, that issue is analytically and practically distinct: It arises when disability rights advocates attempt to force inaccessible websites to incorporate screen reader software and concerns courts’ interpretation of the ADA’s text. By contrast, this issue concerns the constitutional question of Article III jurisdiction and arises when otherwise accessible websites nonetheless lack information required by disabled people to equally enjoy the websites.

This Note makes two contributions to the literature. First, it situates the circuit split in the context of the internet. It demonstrates many courts of appeals’ unwillingness to consider virtual harm without a connection to a physical location as concrete injury in fact under Article III. In doing so, the Note argues that Article III does not distinguish between digital and physical harm, and plaintiffs could suffer concrete injury in fact in physical or digital spaces. Second, the Note develops and defends a new theory of standing for disability rights testers. On this theory, such testers experience intangible harm when they visit informationally deficient reservations websites because the absence of information about accessible entrances and handrails inhibits them from fully enjoying a space open to the public—the website—compared to nondisabled people. This harm is concrete injury in fact under Article III because it is analogous to one recognized by early American courts: denial of equal enjoyment of an inn’s services. The theory also represents a faithful application of existing circuit court precedent from a distinct but factually analogous issue to Laufer’s case. This precedent holds that disabled people have standing to sue when they encounter informational barriers that prevent them from fully enjoying a place that serves the public. Applied to Laufer’s case, it dictates that she, too, suffers concrete injury in fact under Article III.

More broadly, the Note articulates a methodology that plaintiffs who encounter modern, internet-based harms can employ to access federal courts, and that courts can use to evaluate the strength of their arguments. It illuminates how standing doctrine, which seems tailored to the analog world, can still fit the digital.