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Subject: [nabs] Fw: [announce] ACB Web Accessibility comments for DOJ ANPRM
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From: "Eric Bridges" <ebridges@xxxxxxx>
To: <leadership@xxxxxxx>; <announce@xxxxxxx>
Cc: <iac@xxxxxxx>
Sent: Friday, January 21, 2011 4:29 PM
Subject: [announce] ACB Web Accessibility comments for DOJ ANPRM
Over the last few months a working group of ACB members have come
together
to produce comments in response to the Department of Justice's
Advanced
Notices of Proposed Rule Making (ANPRM) in the areas of audio
description,
equipment, and web accessibility. Below are our comments in
response to the
web accessibility ANPRM.
A great many thanks go to Kim Charlson, Paul Edwards, Pratik
Patel, and Mark
Richert for their dedication and very thoughtful construction of
these
three separate responses. Thank you to Pratik Patel for his
leadership
specifically in serving as chief author of the below comments.
Eric
Comments of the American Council of the Blind regarding the
Advance Notice
of Proposed Rulemaking on 28 CFR Parts 35 and 36; CRT Docket No.
110; RIN
1190-AA61, Nondiscrimination on the Basis of Disability;
Accessibility of Web Information and Services of State and Local
Government
Entities and Public Accommodations, published in the Federal
Register July
26, 2010, 75 FR 43452
January 21, 2011
For further information, contact
Eric Bridges
Director of Advocacy and Governmental Affairs
American Council of the Blind
2200 Wilson Boulevard, Suite 650
Arlington, VA 22201
202-467-5081
<mailto:ebridges@xxxxxxx> ebridges@xxxxxxx
Introduction
The American Council of the Blind (ACB) is a national membership
organization. Its members are blind, visually impaired, and fully
sighted
individuals who are concerned about the dignity and well-being of
blind
people throughout the nation.
Established in 1961, ACB is one of the largest organizations of
people who
are blind in the world, with more than 70 state and special
interest
affiliates and a nationwide network of chapters and members
spanning the
globe.
In framing our comments on web accessibility, the American
Council of the
Blind wants to begin by exploring some general principles that we
believe
are at the heart of where regulations must go in the future. To
do this, it
is necessary to take the same approach as the Department of
Justice did in
reviewing the history of web regulation as it applies to the
Americans with
Disabilities Act.
As the DOJ rightly asserts, there was an early commitment to
making website
accessibility a general principle of the ADA which was provided
through
various letters and public comments that the DOJ made available
in late
1990's. Instead of asserting that there was an ongoing,
affirmative
requirement that websites be accessible, the Department chose to
make web
accessibility a vague and an ambiguous requirement. It never
provided
specific guidance to covered entities. This approach did a
disservice to
people who were blind or have low vision in that it created an
assumption
that the best and only way that standards could be developed for
this group
was through painstaking standard development over years.
Differing efforts
through the creation and implementation of Section 508 guidelines
in the
late 1990's and early 2000's left web accessibility requirements
and
standards in disarray. It left covered entities to wonder which,
if any,
standards applies to them. Further fueling the unfortunate
situation was the
utter silence from the Department on specific guidance regarding
access to
the web. At the heart of this ANPRM is the same approach.
Specific questions
target specific pieces of equipment, aspects of the web, and
audio
description. The American Council of the Blind urges the
department to go
beyond this approach to the place the Department knew it should
have been in
1991. It is now time for the Department to clearly and
unequivocally
proclaim that accessibility of the web is an inherent component
for making
programs and activities and places of public accommodation
accessible. We
recognize that it will still be necessary to determine what
accessibility
means for specific kinds of equipment. We are aware that this
will mean
working to develop and implement standards that will apply to
specific parts
of the web. However, we are convinced that people with
disabilities have
waited long enough for a clear and general assertion by the
Department that
there is an affirmative obligation to assure that web platforms
that are
being used to make programs and activities accessible under Title
II and
websites being deployed in places of public accommodation under
Title III
must, within the constraints inherent in both titles, be
accessible.
There is another principle that we believe must be clearly
articulated as we
begin the second decade of the 21st century. Perhaps the best way
to
describe this notion is to again look at where we were in 1991
and where we
are today. In 1991 the web did not exist as we know it today. The
changes
brought about even in the last five years have been rapid and
unimagined.
Access to the internet was limited to research universities and
the
military. Rudimentary systems permitted text-based e-mail. Much
of the
interactivity that has come to define today's web environments
has come
about in the last ten years. Aspects of the web and the digital
life-style
have reached beyond the use of computing into the realm of an
ecosystem that
will come to be defined as the age of convergence. In 2011,
virtually every
piece of equipment being deployed makes use of computers. Many
pieces of
equipment are also directly connectable to the internet or can be
accessed
wirelessly or utilizing a remote control. Essentially, this means
that we
must go beyond looking at equipment, by itself. The accessibility
of
computers, whether tiny ones in washing machines or larger ones
in kiosks,
must be an inherent consideration in any regulations developed
for the web
and equipment accessibility. More to the point, it is no longer
possible or
credible to see the regulation of equipment, the web and audio
description
as separate endeavors. All three of the ANPRM areas overlap. It
is time that
the Department consider the adoption of general principles that
clearly
articulates the convergence that the computer chip has created.
The simple
truth is that, with the advent of inexpensive computer chips,
accessibility
of equipment is potentially readily achievable and can be
accomplished
without much difficulty or expense. However, if the Department
continues to
take the approach that it has in the past, there will be no clear
mandate
that manufacturers must accept for them to work to develop and
implement
standards that must apply to all equipment.
Clearly Title II entities are required to make their programs and
activities
accessible to people with disabilities. Where the web is
concerned, they
have been able to avoid compliance by claiming that web
accessibility is
either not required or that there is a lack of clarity. The net
result has
been the deployment of websites which are less accessible to
people who are
blind or have low vision. The Department has been complicit in
creating
decreased accessibility because it has consistently failed to
make it
clearly adopt and enforce web accessibility as a general
principle that
underpins the Americans with Disabilities Act.
Finally, we would argue that it is time that the Americans with
Disabilities
Act acknowledges other Federal laws that have begun to create
standards and
principles of accessibility. We believe that the standards that
are
currently available that apply to website accessibility under
Section 508
need to be consciously incorporated as minimum requirements for
state and
local governments. Many states have already chosen to adopt these
standards.
However, we believe that the Department has an affirmative
responsibility to
make 508 compliance an inherent component of Title II of the ADA.
We also
believe that creating general principles for web accessibility
which shall
apply to both Titles II and III of the ADA will have the effect
of advancing
the objectives that are at the heart of Section 255 and the newly
signed
Twenty-First Century Communications and Video Accessibility Act.
To summarize then, we assert that the failure to enforce web
access as a
general principle in 1990's has done an immense disservice to
people with
disabilities and more specifically we aver that people who are
blind or have
low vision have been most severely impacted by this failure. The
Department
must take this opportunity to clearly articulate that there is a
categorical
and ineluctable affirmative requirement for web accessibility
that applies
equally to state and local governments and places of public
accommodation.
The Department must espouse principles of universal design that
will, within
a reasonable time frame, require state and local governments to
only develop
and deploy web platforms that are accessible. We believe that, if
the
Department clearly adopts an unequivocal general principle, we
will
gradually get to a place where web accessibility will assume the
place it
should as a civil right for people with disabilities.
Answers to Questions Posed in the ANPRM
Question 1. Should the Department adopt the WCAG 2.0's ``Level AA
Success
Criteria'' as its standard for Web site accessibility for
entities covered
by titles II and III of the ADA? Is there any reason why the
Department
should consider adopting another success criteria level of the
WCAG 2.0?
Please explain your answer.
Answer to Question 1. While we believe that Level AA Success
Criteria of the
Web Content Accessibility Guidelines 2.0 is appropriate to apply
to all
covered entities doing business on the web, we ask the Department
to apply
these success criteria through the incorporation of the revised
section 508
guidelines. We further ask the Department to apply the World Wide
Web
consortium's Authoring Tools Accessibility Guidelines (ATAG) 1.0
in addition
to the Web "content" Accessibility Guidelines. As discussed in
the
introductory remarks, federal, state and local governments as
well as many
business and other entities not only operate a variety of
channels through
which communication occurs and services are rendered, but
increasing
convergence of hardware and software being used in the
communication and
service delivery makes it necessary to consider accessibility to
electronic
information in a holistic manner. A simple view of the web leads
to the
application of the Level AA success criteria; however, when seen
in an
environment of increased use of dynamic content, mobile devices,
kiosks, and
software application (apps), it becomes vital for the DOJ to
consider
communication as a whole. In an era of blurring boundaries for
the way
communication occurs, an approach that recognizes the web as a
single
component of a multi-faceted communication and business processes
will be
the only way to ensure that people who are blind or visually
impaired can
benefit from variety of services.
Indeed, we find the Department's singular view of the web as a
mere
consumption medium disconcerting. As will be discussed in
response to the
Department's other inquiries, it is no longer the case that web
sites appear
as a static canvas upon which a limited number of
technically-minded people
have the capacity to draw. Rather, the sophistication of
interactive
elements has taken us beyond what could have been conceivable in
the mid to
late 1990's. For a set of regulations designed to address future
technologies and environments, applying a model that relies on
the
understanding of the web from yesteryears' perspective does a
grave
disservice to people with disabilities. We ask the DOJ to rely on
the web as
a "platform" and not as a "site"-a platform that has the capacity
to serve
multiple needs (including content creation and content
consumption).
Ultimately, the web is but a single manifestation of the
electronic
communication system which is transforming our expectations of
technology.
And, as such, to ACB, it is vital that the Department make clear
the
unequivocal applicability of "effective communications" test to
the web. It
should be well understood that applying a technical set of
standards, be it
Section 508, ATAG, or WCAG, is merely one method of achieving
this effective
communication. The Department thusly discusses in its revised
Title II and
III regulations nature of effective communications: "In order to
be
effective, auxiliary aids and services must be provided in
accessible
formats, in a timely manner, and in such a way as to protect the
privacy and
independence of the individual with a disability." (Sections
35.160 and
36.303C.) This necessitates that covered entities take
appropriate steps to
ensure that all electronic communications, among other
activities, are
timely, are in appropriate formats, and accessible to persons
with
disabilities as they are to those without disabilities while
maintaining
their privacy and independence.
With this said, the Department's question recognizes that
technical
standards are needed for Title II and III entities to know what
they should
do in order to make their web platforms accessible to persons
with
disabilities. For many reasons, Level AA Success Criteria of the
Web Content
Accessibility Guidelines is the appropriate web accessibility
standard to
meet the content consumption need-especially when it is brought
in through
the latest revision of Section 508. Similarly, the Authoring
Tools
Accessibility Guidelines provide additional guidance on elements
of the
platform that allow users to create content. Among other
benefits, when the
adoption of WCAG occurs via the latest revision of Section 508,
it brings
along functional requirements for effective communication. This,
we believe,
will be vital as web content is delivered through systems and
devices that
are not yet on the market
WCAG 2.0, which has been developed as a result of a rigorous
multi-year
process, is robust and stable and has been designed to "keep up
with"
changing technology. The Abstract of WCAG 2.0 specifically states
"WCAG 2.0
success criteria are written as testable statements that are not
technology-specific." The WCAG 2.0 Level AA success criteria
focus on how
people with disabilities actually use and interact with web
sites, and allow
for flexibility by web designers and developers. Designed to
place emphasis
on outcomes and on design strategies that will ensure
accessibility, the
WCAG 2.0 guidelines are not tied to or dependent on any
particular
technology. They are as valid and usable in the cloud computing
environment
as in the dedicated server world, as appropriate on social
networking sites
as on e-commerce platforms and they are useful for people using
any of the
many varieties of assistive technologies that people with
disabilities
utilize to access and participate in the online world.
WCAG explains what is needed to allow people with disabilities to
use the
web, but does not mandate particular solutions tied to particular
technologies. Techniques for meeting criteria are offered, but
the criteria
themselves were specifically drafted to be forward looking - to
explain what
must be done, but not how to do it. Adherence to the WCAG 2.0
Level AA
success criteria would not require a Title II or III entity to
alter the
look or feel of its websites.
Secondly, a wide array of stakeholders was integrally involved in
developing
WCAG 2.0. Industry, government, people with disabilities, and
technology
experts all participated in the very open and public process that
led to
final adoption of WCAG 2.0. The multi-year process ended with a
detailed
Implementation Report demonstrating that the Guidelines were
effective and
able to be implemented in a wide range of web settings. The
report, which
points to specific sites using the WCAG 2.0 Success Criteria, is
online at
http://www.w3.org/WAI/GL/WCAG20/implementation-report/. Bringing
WCAG
through Section 508 revision will provide an added layer of
assurance. In
particular, the adoption of Section 508 will provide a clear
linkage to all
Title II entities-the explicit linkage that has been missing by
reference.
WCAG is an international - and internationally accepted -
standard.
Companies in the United States that do business abroad benefit
from a
consistent standard, adherence to which meets legal requirements
wherever
the Internet is accessed. International entities that operate
across
multiple boundaries will be able to utilize the WCAG
recommendations.
Additionally, WCAG 2.0 has extensive instructional and support
materials
including detailed and continually updated "How to Meet" and
"Techniques"
documents that provide specific information on how to satisfy the
guidelines
using different technologies. When the Section 508 refresh
process is
completed and WCAG is imported to Section 508, additional
resources will be
made available through http://www.section508.gov
<http://www.section508.gov/> .
Sites that already meet WCAG standards (either WCAG 2.0 or its
predecessor,
WCAG 1.0 (in place since 1999)) remind us that while web
accessibility
regulations may be new under the ADA, web accessibility itself is
not new as
conceived by the Department. The Department of Justice has long
recognized
web accessibility as a component of ADA implementation in theory.
The
Department must ensure that these important new regulations
recognize the
landscape that currently exists and move accessibility forward.
The fact
that the DOJ has long recognized web accessibility as part of the
ADA, and
that commercial entities, large and small, as well as state and
local
governments, are already using WCAG, helps demonstrate why the
standard is
appropriate and should be adopted by the Department. Again,
however, ACB
believes that this adoption of WCAG Level AA should not occur in
isolation
without a significant recognition of the fact that all covered
entities have
an affirmative obligation to provide effective communication to
persons with
disabilities. WCAG is a technical reference standard. The
techniques to
comply with WCAG vary from situation to situation and from
technology to
technology. The underlying need to effectively communicate does
not
diminish.
Consequently, we ask the department to avoid a simple adoption of
WCAG level
AA success criteria. Even if a covered entity provides a fully
accessible
website, there is no guarantee that the device or the medium
through which
this content is being delivered will be itself accessible. We
posit that
elements of the revised Section 508 criteria that specifically
address
functional requirements will provide additional assurance to
people who are
blind or visually impaired that vital communication is being
conducted in an
effective manner.
In addition, considering the platform needs that go beyond mere
content
consumption, we believe that it is essential to address the web's
transformative role in permitting cloud-based authoring. This not
only
provides the means to alter communication as seen through the
implementation
of such social networking phenomena as Facebook and Twitter, but
has
far-reaching implications for federal, state, and local
governments,
businesses, and the society as a whole. Leaving this portion of
the web
platform unaddressed will, in particular, mean limiting access to
vital
processes necessary for successful employment. ACB must ask the
Department
to not stand idle while a significant opportunity to address the
historic
unemployment rate among people who are blind or visually impaired
is
affected. If unaddressed, blind or visually impaired Americans
are likely to
lose even more ground in being able to perform necessary business
functions
which are a part of the day-to-day working environments. Whether
as business
owners, through self-employment, or as part of a covered
entity, persons
with disabilities do encounter significant number of situations
where they
are unable to use the content creation aspects of the web.
Therefore, we
must ask the Department to apply the Authoring Tools
Accessibility
Guidelines in addition to the revised Section 508.
Question 2. Should the Department adopt the section 508 standards
instead of
the WCAG guidelines as its standard for Web site accessibility
under titles
II and III of the ADA? Is there a difference in compliance
burdens and costs
between the two standards? Please explain your answer.
Answer to Question 2. Section 508 has been a critically important
standard
for the federal government; it was drafted to be that--a tool for
federal
agencies. As the Department knows, Section 508 is currently under
active
revision, in large part to assure conformance with WCAG 2.0. When
TEITAC,
the industry-consumer advisory committee assisting the Access
Board with the
Section 508 refresh, turned in its report on revision of the 508
standards
it made its recommendation as identical to WCAG 2.0 as possible
given that
WCAG 2.0 was not completed as of the report date. (See April 2008
TEITAC
Report to Access Board at
http://www.access-board.gov/sec508/refresh/report/, stating "The
Committee
worked to harmonize its recommendations with the W3C Web Content
Accessibility Guidelines 2.0 (WCAG 2.0) Working Group."
Moreover, all of
the commenters, both industry and consumer, that added
supplemental comments
to the final report addressing the web portions urged the access
board to
either adopt WCAG 2.0 for the Web portion of the new 508
standards or make
the new standards as identical as possible to WCAG 2.0.
Given the importance of international harmonization, and the
extensive
support materials available for WCAG 2.0, the Title II and III
web
regulations should refer to the efforts to harmonize Section 508
in order to
bring WCAT level AA success criteria for web content and
functional
requirements for other needs. Moreover, Authoring Tools
Accessibility
Guidelines should be relied upon in order to make interfaces
accessible for
content creation purposes.
Question 3. How should the Department address the ongoing changes
to WCAG
and section 508 standards? Should covered entities be given the
option to
comply with the latest requirements?
Answer to Question 3. As discussed in the response to Question 1
above, WCAG
2.0 is a stable international standard adopted after a rigorous,
open and
transparent process. It is designed to be flexible and allow for
new
technologies. We urge the Department to adopt "the most current"
version of
WCAG through Section 508 as the web accessibility standard for
Title II and
III entities. In addition, the most current version of ATAG can
be used by
Title II and III entities. In particular, the requirements for
Title II and
Title III entities must be harmonized. The unnecessary
bifurcation of
current set of requirements has led to enormous confusion and
difficulty in
implementation. If and when there is a WCAG 3.0, as with its
predecessors
1.0 and 2.0, it will have been designed with full input of all
stakeholders.
Moreover, as evidenced by the migration from WCAG 1.0 to WCAG 2.0
in 2008,
any update to WCAG Guidelines will not inconvenience anyone or
force anyone
who has adopted its predecessor to engage in costly and awkward
retrofitting. As such, the latest revisions of these
recommendations will
provide a single source for covered entities. We see a similar
process to
occur for the Authoring Tools Accessibility Guidelines, and
believe that the
most current versions of the standard must be applied.
The Department should avoid a scenario under which entities can
jump back
and forth between two standards (Section 508 and WCAG). This will
indeed be
the case if the Department does not use the revised Section 508
standard. We
can very well conceive scenarios where the application of Section
508 is
required for the Federal government and other covered entities
are asked to
only apply WCAG's level AA success criteria. Instead, we ask the
Department
to serve as a mediator to ensure that the Section 508 revisions
fully
incorporate WCAG.
But, beyond the discussion of technical standards, it is
inconceivable that
the Department would consider foregoing the opportunity to
emphasize the
need for effective communication. No matter what version of which
standard
is used, in no way does the obligation for the covered entity to
effectively
communicate with persons with disabilities diminished. It is
certainly the
case that technology changes will require a fresh perspective on
technical
needs; however, the fundamental principles inherent in
communication remain
the same.
Question 4. Given the ever-changing nature of many Web sites,
should the
Department adopt performance standards instead of any set of
specific
technical standards for Web site accessibility? Please explain
your support
for or opposition to this option. If you support performance
standards,
please provide specific information on how such performance
standards should
be framed.
Answer to Question 4. The criteria listed by the Department in
applying
"effective communication" in its latest revisions are quite
specific and
provide general performance guidance to covered entities. These
criteria
already apply to other aspects of DOJ's Title II and Title III
regulations.
Not to do the same for the web would be a fundamental departure
for the
DOJ. In particular, language suggested by other parties in
response to this
ANPRM suggests creating additional language to achieve
performance
criteria-language that is unproven in contexts other than single
instances.
In fact, this language has been used in settlements with a few
entities-a
fact which we find particularly curious because of the
compromised and
unproven nature of the language. Therefore, we strongly urge the
Department
to emphasize "effective communication" as the overarching
criteria by which
the entities will be judged.
The "effective communication" criteria, as suggested above,
emphasizes
usability and equal access for people with disabilities to the
full range of
activities and services available through the web platform of a
covered
entity. We recognize that such generalized criteria, however,
cannot replace
technical standards, which are critical to ensuring
accessibility. We,
therefore, also recognize the importance of adopting WCAG through
the
revised Section 508 and ATAG.
The ever-changing nature of many websites does not mean that
technical
standards are not needed, but simply means that those sites must
have
appropriate content management systems and robust accessibility
features,
characteristics and policies that ensure continued compliance
with web
accessibility standards. Generalized criteria, while important
and necessary
are not on its own specific or clear enough to ensure
accessibility for the
multi-layered complexity of websites provided by Title II and III
entities
and would not provide sufficient guidance to those entities that
seek to
make their websites accessible to people with disabilities. On
the other
hand, generalized "effective communication" criteria are needed
to ensure
that any new developments in the Internet or implementation
approaches that
are not captured by Section 508 and ATAG standards are undertaken
in a
manner that ensures equal accessibility and usability to people
with
disabilities.
The WCAG 2.0 Level AA Success Criteria are founded on principles
that go to
the core of accessibility in the context of the World Wide Web.
The Success
Criteria - which tell site developers what to do but not how to
do it - are
organized around four key principles: to be accessible, content
on the web
must be "perceivable, operable, understandable, and robust."
(See WCAG 2.0
introduction at
http://www.w3.org/TR/WCAG20/#intro-layers-guidance. The
"how" part of the Standards is in the Techniques documents, which
allow
developers to embrace new methods as new technologies become
available.)
WCAG does not specify "how" but only "what" should be
accomplished. It does
so in a testable fashion, an aspect of any web regulation of
great
importance to covered entities and developers. Because of this,
WCAG 2.0 has
many of the characteristics sought in effective communication
criteria. We
urge the Department to adopt a generalized effective
communication criteria
in addition to Section 508 and ATAG in part to clarify the
principles
underlying the technical standards.
This two-pronged regulatory construct (general performance and
technical
specifications) is currently used in the Department's new
construction
regulations. Section 36.401(a) of the DOJ's Title III regulations
defines
discrimination as including a failure to design and construct
facilities
that are "readily accessible to and usable by individuals with
disabilities"
and Section 36.406 requires that new construction "shall comply"
with the
technical standards set forth in the Standards for Accessible
Design.
For the reasons stated in response to Question 11 below there
should not be
a distinction between "new" and "existing" or "remodeled" web
sites (except
insofar as the undue burden defense will apply; both should be
required to
meet this two pronged approach to compliance.
Coverage limitations
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.
Answer to Question 5. In no place other than this question in
this ANPRM is
it more apparent that the Department's conception of the web
which is akin
to a physical "place of accommodation" is faulty. The evident
linkages among
covered entities and the services that they utilize in order to
communicate
with their customers by using related technologies, third-party
websites and
services, and emerging platforms are perhaps the very things that
would be
excluded by the Department's well-meaning (but less
understood)exclusions.
In a world where governments communicate by using social
networking,
educational institutions use virtual classroom platforms, and
commercial and
noncommercial entities use technologies in order to effect
cost-savings and
achieve efficiency, the boundaries between web sites is tenuous
at best and
nonexistent at worst. Moreover, these boundaries are rapidly
disappearing.
We fear that, by implementation date, the exemptions that the
Department
would conceive will have transformed into a genuine set of
concerns for
people with disabilities wherein, rather than affording
protection to
"small, noncommercial" entities as intended, these exclusions
will have
become a source for significant concern. In addition, the
technical basis
upon which the exemptions are conceived will have altered
dramatically. We
recognize the challenge of determining regulations in an area
that shows
exponential growth; however, a set of regulations that are based
on
"effective communication" as the base of all further conceptions
will allow
the DOJ to avoid the pitfalls inherent in relying on technical
limitations.
Rather than specify exemptions and exclusions in its rule, we ask
that the
Department leave all discussion of such matters to the technical
assistance
material it will make available. We find rules to be far more
effective if
and when they are constructed in an affirmative manner---i.e.,
what "is"
covered and applicable instead of what "is not."
Even in its technical assistance material, it is critical that
all
exemptions be very narrowly tailored. An accessible website
allows people
with disabilities to obtain information and participate in core
programs and
services provided by covered entities. Any exemption creates the
possibility
that people with disabilities will be locked out of an aspect of
those
programs, services, and information. Each instance of an
exemption must
therefore be both fully justified and extremely limited. We find
very little
on the web that is not necessary for a person who is blind or
visually
impaired to utilize in either a way that is related to
employment,
education, interacting with her government, or to conduct
essential life
activities.
Links to external pages
The ANPRM recognizes that a covered entity must be responsible
for a linked
website it does not operate or control "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)." If the Department creates an
exemption for
linked sites that a covered entity does not operate or control,
it is
crucial that a clear exception be made for external linked sites
that are
needed to participate in the goods and services offered by the
covered
entity. (In other words, any 'exemption' for linked sites must
have an
'exception' for certain types of linked sites.)
The interrelationship between sites is often hard to discern, and
a member
of the public with (or without) a disability may not even know
they are
leaving one site and going to another. For example, a bank may
contract with
a third party to provide online banking services; the bank may
not own,
operate or control the online banking site but online banking is
obviously
an important service the bank offers to the public.
In such a situation, existing ADA regulations governing
"contractual,
licensing, or other arrangements" would mandate that the bank
(the covered
entity) would be responsible for ensuring that the online banking
platform
conforms to the Department's new web accessibility regulations.
In other
words, the planned web accessibility regulations must not in any
way
undermine Section 36.202 of the current Title III regulations
which prevent
a Title III entity from discriminating "directly or through
contractual,
licensing or other arrangements."
In addition, it must be noted once again that in no way does the
use of an
externally-linked web site by a covered entity diminish the
entity's
obligation to effectively communicate with its customers. Would
the use of a
third-party web platform prevent blind or visually impaired
people from
using the products or services offered by the covered entity? The
current
trend highly suggests that it is most likely that excluding
categories of
sites damages the ultimate goal of providing full access.
Instead, we
recommend that the Department rely on undue burden as its primary
method for
gauging whether or not externally linked sites should or should
not be
covered.
Informal and occasional trading by private individuals
We appreciate the Department's concern about distinguishing
between business
entities (ranging from sole proprietorships to large
corporations) and
private individuals. An exemption from the web accessibility
regulations
that would address "informal or occasional trading, selling, or
bartering of
goods or services by private individuals" may be appropriate but
only if
certain (interrelated) key principles are incorporated into the
exemption.
These exemptions should be provided on a case by case basis
through
technical assistance. Even the thinking must be governed by the
overarching
principle of effective communication:
(a) Each page owned or controlled by a covered entity and used
by private
individuals for occasional trading, selling or bartering must
meet WCAG 2.0
Level AA and the generalized performance standard when
considering the page
without the content posted by the private individual. In other
words, if the
format for the content supplied by the private individual is
dictated,
managed or created by a covered entity, then that formatting must
be, and
must support, accessibility;
(b) The tools and content that the Title II or III entity
provide to the
public to enable private individuals (non-covered entities) to
post and
review content must meet the web accessibility requirements (this
ensures
that a person with a disability can use the tools and access the
content).
See our discussion of the Authoring Tools Accessibility
Guidelines and
further consider the web as a platform rather than a site;
(c) It must be possible for a private individual to create and
share
accessible content (i.e., content that conforms to the web
accessibility
regulations) on the page owned or operated by the covered entity
if they
choose to. In this regard, the Department should urge covered
entities to
encourage private party occasional sellers or traders to make
their content
accessible by offering technical assistance in an economical
fashion as part
of the guidelines and requirements and rules they already impose.
(d) The regulations must be cognizant that private individuals
may be
posting content with the very same tools on the very same covered
website
that other Title II or III entities are using. For example, a
private
individual may use eBay to sell one item, while a Title II or III
entity may
also use eBay. A regulatory exemption on this issue must be very
narrowly
tailored so as not to exclude content posted on a site by a Title
II or III
entity that is also used by private individuals. Just as
occasionally
selling one item may not transform an individual into a Title III
entity, so
too will using a general site to post content not shield a Title
III entity
from its obligations.
An exemption that includes these principles will ensure that
people with
disabilities will be able, themselves, to be the "informal and
occasional
seller, trader or barterer." A narrowly tailored exemption will
also ensure
that people with disabilities will have access to all content
that otherwise
covered entities post in a marketplace setting, and that
individual
occasional sellers, etc. choose to make accessible.
It is vital that the Department address the distinction between
accessible
content and the ability to post such content. While it may choose
to exempt
certain sites, it should not exempt platforms. In fact, the
Department's
regulations should look forward and encourage the posting of
accessible
content by application of Section 508 and ATAG requirements.
Web content created or posted by website users for personal,
noncommercial
use
As with an exemption for casual, private sellers, an exemption
for web
content created or posted for personal (narrowly and carefully
defined)
noncommercial (again carefully defined) use must be very narrowly
tailored.
The same core principles listed above must be included in any
exemption for
this type of content. Without them, people with disabilities will
be locked
out of social, professional and educational networks and other
community
sites the Internet is offering today, and will offer tomorrow.
Private communications between and among individuals who are not
covered
entities and who are communicating in a private context may be
appropriately
exempted from the regulation through technical assistance.
However, the
systems used for such private communication must not be. A
web-based
communication system used by a covered entity must be accessible.
When
communications between two individuals occur in other contexts,
however,
such as an academic environment, the regulatory result must be
different.
For example, two private individuals may use a photo-sharing site
for
nothing more than sharing family photos. Those individuals may
choose not to
share accessible content, but that site must offer tools to
support
accessible photo sharing for others who want it. On the other
hand, photos
of a school event shared by students on a site offered by the
school to
encourage student interaction must be accessible so that all
students,
including those with disabilities, can participate in this
virtual school
activity. The photos in these two examples may be shared on the
same site,
but the accessibility obligations would be quite different.
The Department must be very wary of creating an exemption that
would exclude
vast swaths of the Internet made available by covered entities
from much
needed accessibility requirements.
An exemption for personal, noncommercial use must recognize both
who is
creating content, the context in which it is delivered, and the
purpose for
which the content is intended. For example, colleges and
universities using
Facebook to communicate with students, or holding classes through
Facebook,
cannot be exempt from accessibility requirements. They remain
Title II or
III entities regardless of where they are conducting their
educational
programs and providing educational services. Content shared by
fellow
students in an online class in response to a class assignment or
teacher
request must be subject to the web accessibility regulations,
even though
there may not be a "commercial" purpose for the content. This is
crucial as
more educational institutions use the Internet to stream online
lectures,
post readings, and host student chat forums. Web accessibility
guidelines
must apply to Internet use for educational purposes so that
students with
disabilities are fully included in all aspects of the learning
process.
In today's web environment, the Department must carefully
delineate what is
meant by "noncommercial." There is significant content available
without
charge on major commercial sites that is posted by covered Title
II and III
entities. A covered entity (large or small) that posts content
for free on a
site such as YouTube or iTunes must not be exempt from providing
that
content in conformance with the Department's web accessibility
standards. A
Title II or III entity retains that characteristic regardless of
where their
activities take place. The core principles for any exemption in
the context
of content posted for personal noncommercial use require that
language in
any exemption include the following:
(a) Each page owned or controlled by a covered entity used by
the private
individuals for the exempted purposes (e.g. private use) must
meet the
Department's web accessibility regulations when considering the
page without
regard to the content posted by the private individual for the
exempted use.
(In other words, if the format for the content supplied by the
private
individual is dictated, managed or created by a covered entity,
then that
formatting must be, and must support, accessibility);
(b) The tools and content provided by the Title II or III
entity to
private individuals to enable them post and review the exempted
content must
themselves meet the web accessibility requirements;
(c) It must be possible for a private individual to create and
share
accessible content on the page owned or operated by the covered
entity if
they choose to; and
(d) Any exemption must be narrowly tailored to private
individuals
communicating with private individuals for private purposes. For
example, a
school that is otherwise a Title II or III entity that uses a
website to
facilitate the exchange of information with or between its
students must
ensure that all content on that website - even content posted by
an
individual student -- is accessible.
Ultimately, no matter what exemption the Department chooses to
apply through
technical assistance, it should carefully consider the
applicability of
effective communication to the entity in question. The DOJ is no
longer
considering auxiliary aids and services within the context of
physical
modifications; it must recognize the challenges that it faces in
tailoring
narrow regulations in an increasingly expanding digital world.
Compliance Issues
Question 6. What resources and services are available to public
accommodations and public entities to make their Web sites
accessible? What
is the ability of covered entities to make their Web sites
accessible with
in-house staff? What technical assistance should the Department
make
available to public entities and public accommodations to assist
them with
complying with this rule?
Answer to Question 6. There are significant resources available
to the
public to assist in making websites comply with WCAG 2.0 Level AA
via the
revised Section 508. The Web Accessibility Initiative of the
World Wide Web
Consortium has abundant resources available at
<http://www.w3.org/WAI/>
http://www.w3.org/WAI/. Many private and non-profit organizations
also
provide covered entities with resources, including training
materials,
direct training, site evaluation, site remediation, and site
creation.
Similarly, the World Wide Web Consortium further provides
resources for
training related to the Authoring Tools Accessibility Guidelines.
With appropriate training, or already qualified staff, even the
smallest
covered entities should be able to make their websites accessible
with
in-house staff or reasonable outside assistance. The revision of
Section 508
will mean that further resources will be available through
GSA-maintained
http://www.section508.gov <http://www.section508.gov/> . These
training
resources combined with free tools and techniques available
through other
sources will make the work of the entities more than achievable.
DOJ Technical assistance is always a welcomed addition to
available
resources, and guidance on the new web accessibility regulations
should be
incorporated into the Department's ADA Technical Assistance
services. Given
extensive resources available in the private and non-profit
marketplace, it
is our believe that the Department will be able to reuse a
significant
amount of material already available. We see no reason that the
Department
will be unable to utilize the material at Section508.gov.
The technical assistance material that the Department does
provide, however,
must ensure that it covers emerging technologies as well as
technologies
from 10 years ago. We find it very important to engage with the
Department
to ensure that people who are blind or visually impaired are no
longer left
behind.
Question 7. Are there distinct or specialized features used on
Web sites
that render compliance with accessibility requirements difficult
or
impossible?
Answer to Question 7. No. All pages and all functions of a
website can be
made accessible in conformance with WCAG 2.0 Level AA Success
Criteria via
Section 508 and ATAG. The Department should not embark on the
slippery slope
of carving out site features to be exempt from coverage. This is
particularly so given the rapidly evolving nature of the web. A
feature that
may require extra effort to make accessible today may be either
readily
accessible - or obsolete -- tomorrow. We find it particularly
disconcerting
that the Department is seeking exemptions to technologies and
platforms that
may just be on the verge of being successful or are just
beginning to be
deployed. Rather than allowing the freedom to innovate in the
accessibility
space, the Department is encouraging stagnancy. We are compelled
to remind
the DOJ once again that these regulations should be designed to
look toward
the future.
Moreover, the "undue burden" defense should be available in
connection to
covered entities that meet the well-established Department of
Justice undue
burden criteria. There is no reason, and no empirical or
statutory
justification, for the Department to create new exceptions to a
well-developed and effective legal framework. Additional defenses
and
exceptions in the web context are not needed.
When faced with accessibility challenges, covered entities have
shown
creativity. For some time, for example, it was believed that the
very nature
of a visual CAPTCHA rendered the security measure inaccessible to
blind
computer users. Entities committed to web access, however, have
developed
and instituted alternative audio CAPTCHAs that, when properly
designed and
implemented, eliminate what was once, and all too often continues
to be, an
absolute barrier to online access for individuals with visual
impairments.
Logic And text-based CAPTCHAs, which render the security feature
accessible
to individuals with both visual and hearing impairments, are also
now
available.
Examples of companies with alternative audio or logic CAPTCHAs
include Bank
of America, Ing Direct, Rite Aid, and the country's three largest
credit
reporting agencies, which use a unique telephone-based CAPTCHA
for those who
cannot see the standard visual CAPTCHA. (Information about Bank
of America's
accessible online security program known as "Sitekey" available
at
http://www.bankofamerica.com/privacy/index.cfm?template=sitekey.
Telephone-based CAPTCHA used by national credit reporting
agencies can be
found through http://www.annualcreditreport.com
<http://www.annualcreditreport.com/> . Rite Aid's audio CAPTCHA
can be found
at https://www5.riteaid.com/myriteaid/forgot-password#
<https://www5.riteaid.com/myriteaid/forgot-password> . A simple
logic
CAPTCHA can be found at http://lflegal.com/contact.
Question 8. Given that most Web sites today provide significant
amounts of
services and information in a dynamic, evolving setting that
would be
difficult, if not impossible, to replicate through alternative,
accessible
means, to what extent can accessible alternatives still be
provided? Might
viable accessible alternatives still exist for simple,
non-dynamic Web
sites?
Answer to Question 8. There are no "viable accessible
alternatives" to the
particular manner in which information, programs and services are
offered on
a covered entity's web site. Even the most simple, non-dynamic
websites have
unique online characteristics that cannot be replicated in a
different
format.
The Internet is not just a format that is instantly available 24
hours a
day, 7 days a week. It is a method of service and information
delivery that
allows a user to find content that the user may not know he was
looking for.
Well-designed, accessible sites allow all users to privately
interact with
information in a way that is unique to the online world.
In this regard, we once again ask the Department to consider the
"effective
communication" tests that it has established for covered Title II
and Title
III entities. The expectation of independence and privacy
required cannot
simply be established by a covered entity offering a
telephone-based
service.
A staffed 24/7 phone service might be able to answer some
questions, or even
provide some services, but a phone staff could never, for
example, read
aloud all information on a site to a person with a visual
impairment in the
order the person wants to read the information. A phone service
can never
provide an equivalent alternative for the ability to
independently engage
one's curiosity in the pursuit of information, programs and
services that a
website offers. Similarly, other alternatives such as Large
Print, Braille,
electronic or audio formats of web content can never be equally
accessible
to a website. Even the simplest web information can be updated
and changed
on a moment's notice. The same cannot be said of information
mailed (or
emailed) to a person's house.
Even assuming a simple, one-page static website operated by a
Title II or
III entity with a staffed 24-7 phone service, regulations would
be unable to
meaningfully define "simple" or account for the fact that a site
can become
dynamic overnight. The ground-breaking regulations under
consideration give
the Department an opportunity to provide site owners and
operators with
clear direction on web accessibility. The Department's
regulations should
not allow Title II and III entities to avoid accessibility with
the claim
that accessible alternatives are provided.
Effective Date
Question 9. The Department seeks comment on the proposed time
frames for
compliance. Are the proposed effective dates for the regulations
reasonable
or should the Department adopt shorter or longer periods for
compliance?
Please provide as much detail as possible in support of your
view.
Answer to Question 9. Single Implementation Date. The Department
should
adopt a single deadline by which a covered entity's website must
meet the
new web regulations. For the reasons stated here, that deadline
should be
six months after the Department's new rule is published in the
federal
register. A staggered implementation date - with one date for
"new or
completely redesigned" websites, another for existing sites, and
yet another
for "new pages" on "existing sites," is confusing to both the
general public
and web designers. Unnecessary conflict and potential litigation
will arise
over whether a site has been "completely redesigned" or whether
new pages
were added to an existing site. The only exceptions for full
accessibility
by the single implementation deadline discussed here should be
for (i)
legacy pages which exist for historic purposes, addressed in
Question 10
below; and (ii) situations where the entity can satisfy the undue
burden
defense in connection with content posted before the effective
date of the
regulation and not substantially refreshed thereafter.
When a member of the public goes to a web site, they don't know
if it is
new, wholly redesigned, or partially redesigned. The public needs
to have a
consistent and realistic expectation of accessibility and covered
entities
need a clear standard for implementation. If the covered entity
deems it
necessary to have the content available on its platform, then it
should make
it accessible by the appropriate date unless it applies for the
undue burden
defense.
Effective Date. As the Department is intimately aware, the
regulatory
process does not happen overnight. The public is currently
responding to an
ANPRM on the issue of web accessibility, which will be followed
by an NPRM
and then the final regulation. Given the length of the process,
the web
accessibility requirements should be effective within six months
of the
publication of the new regulation.
The Department of Justice has repeatedly made clear that the ADA
as
currently written already applies to the websites of Title II and
III
entities, and that those entities are required to make their
websites
accessible. The current rulemaking should be seen as clarifying
existing law
and setting more specific standards for assessing compliance with
the ADA.
Any implementation delay is inconsistent with the Department's
previously
stated position.
Moreover, covered entities both public and private have been
making their
websites accessible for many years. Bank of America committed to
online
accessibility in 2000. (The bank's web accessibility agreement,
the first in
the country, is on line at
http://lflegal.com/2000/03/bank-of-america-initial-agreement/.
Major League
Baseball undertook a very significant commitment in 2010 to make
not only
http://www.mlb.com <http://www.mlb.com/> comply with WCAG 2.0
Level AA, but
to ensure that all thirty team sites meet accessibility
standards. (The MLB
web accessibility agreement is available on line at
http://lflegal.com/2010/02/mlb-agreement/. Amazon, eBay and
Target Stores
have rigorous accessibility programs, as do many other sites
currently
operating on line. More information about some of the large
commercial
entities that have committed to web accessibility can be found at
http://lflegal.com/2010/09/doj-anprm-web/.
Instead of recognizing companies that have already taken steps to
ensure
that their websites are available to people with disabilities, a
two year
implementation delay as suggested by the Department rewards
companies that
have ignored the Department's position on this issue and have not
yet
brought their sites into compliance. As long as the standards
adopted by the
Department do not differ widely from currently accepted
accessibility
standards (and they would not with a rule embracing WCAG 2.0
Level AA via
the adoption of the revised Section 508 and the adoption of ATAG)
there is
no reason for a significant delay.
On the other hand, a two-year implementation period will be
harmful to
people with disabilities because covered entities will be
encouraged to
delay implementing accessibility and will be empowered to
implement
inconsistent levels of accessibility. Such a delay will stall
overall
progress towards making the Internet accessible. As a result,
people with
disabilities will continue to be unnecessarily excluded from
online goods,
services, information, and communities.
Although a phase-in period may be appropriate for other types of
regulations
such as ADA construction standards, it does not make sense in the
context of
web design. Accessibility enhancements can often be made without
any
significant delay, pages are constantly refreshed and new content
is both
constant and essential to the modern Internet. Few if any
websites even take
two years to design from scratch, or two years to redesign. Thus,
a two year
waiting period following publication of the final regulations,
especially in
light of the publicity this matter will receive through the ANPRM
and NPRM
processes, is simply unwarranted.
With today's demands for fresh, current, online presence, few if
any Title
II or III entities would leave their websites unchanged, updated,
unrefreshed for two years. This means that if a two year waiting
period were
granted, websites would be built, redesigned, refreshed and
updated without
reference to accessibility.
For these reasons, with the exception of legacy pages discussed
below, we
urge the Department to adopt a single implementation date no
later than six
months after the final rule is published in the federal register.
Question 10. The Department seeks comment regarding whether such
a
requirement would cause some businesses to remove older material
rather than
change the content into an accessible format. Should the
Department adopt a
safe harbor for such content so long as it is not updated or
modified?
Answer to Question 10. Once again, the Department's question
considers web
accessibility from the prism of what should be "excluded" rather
than what
should be "included." Reframing the covered content in terms of
its usage
and purposes may be helpful in understanding the distinction. The
entire
process, as considered through the lens of "effective
communication" takes
on a different and distinct cast. Effective communication begs
the question
that should be asked when considering any exemption: What purpose
does the
content serve? Most covered entities keep existing sites because
the
content, features, and services that such sites provide serve a
useful
purpose to the mission of the entity in question. As such, the
role that the
content plays is important to the entity. If it is so, then it
must be
important to the communication it provides to people who are
blind or
visually impaired. No exemption, however small, can change this
fact. If the
covered entity chooses to remove pages, it is difficult to
imagine that it
does so solely because it finds the requirement burdensome. If
the pages
serve no purpose and are removed, the accessibility requirement
will not
have been the primary reason for their removal.
As with the exemptions discussed in response to Question 5 above,
an
exemption (or "safe harbor") for older online content that has
not been
updated or modified must be very narrowly tailored. This
exemption should be
limited to pre-existing website pages that are no longer actively
viewed or
used. The Department must be careful not to exempt all existing
content as
supposed "legacy" content. (Existing content (posted prior to the
effective
date of the new regulations and not substantially refreshed
thereafter)
should be subject to the undue burden defense.)
Question 11. Should the Department take an incremental approach
in adopting
accessibility regulations applicable to Web sites and adopt a
different
effective date for covered entities based on certain criteria?
For instance,
should the Department's regulation initially apply to entities of
a certain
size (e.g., entities with 15 or more employees or earning a
certain amount
of revenue) or certain categories of entities (e.g., retail Web
sites)?
Please provide as much detail and information as possible in
support of your
view.
Answer to Question 11. There should be a consistent requirement
for all
websites provided by covered entities.
Carving out an exception for revenue or number of employees is
not
necessary. The well-established "undue burden" defense will be
available to
Title II and III entities that cannot meet the new regulations
for content
posted prior to the effective date and not substantially
refreshed since the
effective date. The five-pronged definition of "undue burden,"
which takes
into account the size of an entity, its financial and other
resources, the
number of its employees and other factors will adequately protect
the
legitimate interests of covered entities without erecting
additional
barriers to implementation of new web accessibility regulations.
Entity size is also not a predictor of ability to satisfy either
a
generalized performance standard or WCAG 2.0 Level AA criteria.
The WCAG 2.0
Implementation Report includes sites of various sizes that have
met levels
A, AA and AAA Success Criteria.
http://www.w3.org/WAI/GL/WCAG20/implementation-report/.
The Department should also clarify, as it has done elsewhere,
that if full
compliance with the new web accessibility regulations would
create an "undue
burden" for content posted prior to the effective date and not
substantially
refreshed after that date for a Title II or III entity, the
covered entity
must comply with those regulations, to the "maximum extent
feasible" and/or
provide an alternative even if full compliance would result in an
undue
burden.
Cost and Benefits of Web Site Regulations
Question 12. What data source do you recommend to assist the
Department in
estimating the number of public accommodations (i.e., entities
whose
operations affect commerce and that fall within at least one of
the 12
categories of public accommodations listed above) and State and
local
governments to be covered by any Web site accessibility
regulations adopted
by the Department under the ADA? Please include any data or
information
regarding entities the Department might consider limiting
coverage of, as
discussed in the ``coverage limitations'' section above.
Response to Question 12. Question the relevance of this
particular inquiry.
There was no need to estimate the number of entities covered by
the original
Title II and III regulations, and the requested information
should not
affect their further regulatory actions here. A cursory Google
search
indicates that vast numbers of Title II and III entities will be
covered by
new web accessibility regulations. More importantly, millions of
Americans
with disabilities will benefit from clear regulatory guidance
from the
Department of Justice on this important issue - guidance that
underscores
the Department's long-publicized position that accessible
websites are
required by the existing ADA and its regulations.
As these regulations are merely intended to clarify the
Department's
already-existing stands, we find the need for an economic impact
analysis
unnecessary. For covered entities which should have already been
in
compliance with the DOJ's application of the ADA to the web, the
economic
impact resulting from a clarification is irrelevant.
Question 13. What are the annual costs generally associated with
creating,
maintaining, operating, and updating a Web site? What additional
costs are
associated with creating and maintaining an accessible Web site?
Please
include estimates of specific compliance and maintenance costs
(software,
hardware, contracting, employee time, etc.). What, if any,
unquantifiable
costs can be anticipated from amendments to the ADA regulations
regarding
Web site access?
Answer to Question 13. Many entities keep answers to these types
of
questions confidential for proprietary reasons. Some of the
factors involved
in building accessibility into a website are discussed in a
document
entitled "Financial Factors in Developing a Web Accessibility
Business Case
for Your Organization," available on the Web Accessibility
Initiative
Website at http://www.w3.org/WAI/bcase/fin.html. It is widely
recognized
that costs of accessibility enhancements comprise a very small
percentage of
the overall cost of maintaining a web presence.
While there are certainly initial accessibility-related start-up
costs for
entities that have not yet undertaken any accessibility work and
minimal
on-going costs for maintaining access, these costs must be seen
as an
investment in full equality in the 21st century to millions of
people with
disabilities. The undue burden defense will be available to
covered entities
who have not yet complied with the law and need to enhance
content posted
prior to the effective date and not refreshed since that date,
and will
protect such entities from unwarranted costs in meeting the new
web
guidelines. Cost factors should be irrelevant to providing access
to new and
re-designed websites, just as they are when considering access to
new
construction and alteration in the built environment.
As the Department has clearly recognized, covered entities should
have
provided accessibility to its websites and services; if such
entities have
not done so, the economic impact and the costs associated with
bringing the
web presence in compliance should be seen as that needed for the
purpose of
retrofitting. It is not a new burden.
ACB has recognized and always worked with companies interested in
making web
accessibility a priority. In doing so, the organization has
always worked to
ensure that entities always consider accessibility from the
design and
development phase. This ensures that training, and development
costs are
negligible and are clearly a part of doing business.
Question 14. What are the benefits that can be anticipated from
action by
the Department to amend the ADA regulations to address Web site
accessibility? Please include anticipated benefits for
individuals with
disabilities, businesses, and other affected parties, including
benefits
that cannot be fully monetized or otherwise quantified.
Answer to Question 14. We find the need to justify potential
benefits from
these regulations that will clarify web accessibility
requirements utterly
insulting.
The benefits from long-overdue Title II and III web accessibility
regulations are incalculable. Benefits will flow to people with
disabilities
and the non-disabled public. Web accessibility regulations will
be good for
private sector businesses, for consumer health and healthcare
generally, for
the market economy as a whole, for the education system in the
United
States, for public sector services, and more.
The Department's introduction to the web ANPRM recognizes the
significant
and diverse ways in which Americans in the 21st century spend
time online.
Bringing accessibility to each of these arenas benefits people
with
disabilities and society as a whole.
Indeed, a question as to the benefits of web accessibility is the
same as a
question about the benefits of the Internet to society overall.
Given the
rapid migration of government services, commerce, education and
healthcare
resources to the web, it is manifest that many if not most public
and
private institutions believe greater utilization of the web to be
in their
best interests. Their actions must also represent a belief that
greater use
of the Internet benefits the public as well. That being so, it
should hardly
be necessary to make a separate argument regarding the benefits
of Internet
accessibility for persons with disabilities. Society has already
answered
that question for everyone. Nonetheless, we briefly address the
Department's
question here.
State and Local government web accessibility ensures civic
engagement by the
widest possible range of citizenry. As more and more government
entities,
large and small, migrate information and services to the web,
citizens with
disabilities who use computers are either denied access to those
services or
have to obtain them in a more expensive manner (from public
employees) if
government websites are not accessible. As our population ages it
will be
able to stay civically engaged if state and local government
websites comply
with government-mandated web accessibility requirements. In
addition,
accessible online services, information and goods allow people to
stay in
their communities (including rural communities) when otherwise
they would be
required to move to urban and institutional settings because of
lack of
transportation, physical access, and other factors.
The Department is not coming in "ahead of the curve" on the issue
of
accessible online information and services by public entities.
(There are
millions of examples of programs, services and information on
line. One is
the website of the Pennsylvania Adoption agency - a detailed site
benefiting
and serving families touched by adoption, kids waiting to be
adopted,
potential adopting parents http://www.adoptpakids.org/. It is an
example
that demonstrates the many categories of individuals who will
benefit from
the proposed regulations.) Regulations must be strong and robust
to make
sure citizens with disabilities are not locked out of the new
public sector
reality.
Similarly, significant education programs and resources offered
by both
Title II and III entities are already on line, and again, the
Department's
regulations in many ways need to play "catch-up." Some
institutions provide
those resources through accessible web pages, but many more do
not. The ones
that have not must not be rewarded by delayed implementation or
regulations
guaranteeing anything less than full accessibility. Students with
disabilities at all levels - from grade school through higher
education,
trade school, and supplemental programs will benefit from the
Department's
proposed web accessibility regulations. Making all online
education tools
and information available to all citizens who wish to benefit
from them has
untold positive consequences for the country. Again this is
important for
people of all ages, and is critical for the lifelong education of
our
population that all are predicting will be needed to keep them
competitive
and employed.
Benefits to the private retail sector are readily apparent. The
more
individuals who can use a website that sells products or
services, the more
products and services those individuals can purchase. The sooner
and more
completely Title III entities open their virtual doors to the
disabled
public, the sooner that segment of the public can become
customers. And in
the future, the elderly, who also benefit from web accessibility,
will
comprise an increasing percentage of consumers with resources.
Purchases made online have already come to predominate over
purchases made
in brick-and-mortar stores for many types of products, and there
are several
reasons that people with disabilities would be particularly
likely to shop
online if accessible websites enabled them to do so. Physical
barriers in
the built environment, as well as a lack of accessible
transportation, make
it difficult for many people with disabilities to travel to
retail
establishments. People with visual impairments cannot
independently navigate
the array of products available at a store and the information
conveyed on
the labels of those products as is possible when those same
products are
displayed on an accessible website in an accessible manner.
People with
hearing or speech impairments may similarly find it difficult to
obtain
information from store personnel about merchandise when they can
easily find
that same information online. And of course, people with
disabilities want
to shop on line for the same reasons that their non-disabled
peers do,
including convenience, privacy, and cost savings. The Internet
actually
holds enormous potential to level the playing field of commerce
for people
with disabilities in a way never experienced before, and robust
regulations
from the Department of Justice on web accessibility will ensure
that this
potential is realized.
Benefits resulting from accessible online healthcare and medical
information
will also be significant. In August 2010, a Harris poll found
that "The
Internet is now a very important source of health information,
education and
perhaps reassurance for a majority of Americans." The poll found
that "more
than half of the searchers have discussed information they found
online with
their doctors or have searched online because of a discussion
with their
doctors." See report on Harris Poll at http://bit.ly/aOdXF4.
Potentially increased employment of people with disabilities is
also a
likely benefit of web accessibility regulations. Many jobs are
now done on
line, and certainly many jobs are advertised on line. Many Title
II and III
entities have a section on their websites for career seekers to
gather
information and often fill out job applications. Access to this
employment
source by people with disabilities is a benefit to those
individuals, and to
society at large.
Accessibility of online travel information will benefit both
travelers with
disabilities and the sellers of the travel-related goods and
services they
are purchasing. The web is now widely used for researching hotels
and
airfares, making reservations, booking services at travel
destinations, and
more. The travel industry will benefit from more individuals
being able to
use their online services.
The ability to participate in online entertainment and
communities will be a
significant benefit to people with disabilities from the proposed
regulations. In 2010, Major League Baseball demonstrated the
possibility of
this benefit in upgrading its websites, including online video
and audio
players to ensure their accessibility to persons with visual
impairments.
Significant statistical resources are available demonstrating
both the
numbers of people with disabilities in the United States today
and the
number of Americans online. The intersection of these resources
bolster the
Department's efforts to regulate in this area and underscore the
importance
of web accessibility regulations to a wide swath of the American
public.
(Various 2010 Disability statistics are available on line at
http://www.disabilitycompendium.org/. See also
http://dsc.ucsf.edu/main.php.
General statistics related to Internet use in the United States
is available
from the Advisory Committee to the Congressional Internet Caucus
at
http://www.netcaucus.org/statistics/.
Question 15. What, if any, are the likely or potential unintended
consequences (positive or negative) of Web site accessibility
requirements?
For example, would the costs of a requirement to provide
captioning to
videos cause covered entities to provide fewer videos on their
Web sites?
Answer to Question 15. The likely or potential unintended
positive
consequences of website accessibility requirements are discussed
in response
to Question 14 above.
In addition to those benefits, it is widely recognized and
understood that
accessible web pages are easier to use on mobile devices (where
significant
amounts of online time is spent), assist in the sought-after
"search engine
optimization", and are friendlier for other automated access
techniques.
Accessibility also makes a site easier to use with
next-generation
intelligent agent browsers. We are not aware of any negative
consequences,
either likely or potential.
The specific answer to the Department's question about captioning
is a
resounding "no." First, the technologies for captioning
web-based videos
and other audio content are expanding by the day and many
mainstream tools
are now available, including the free auto-timing and
auto-captioning tools
available via Google's YouTube site. The free MAGpie caption
authoring tool
provided by the National Center for Accessible Media is also
useful and
widely used for captioning the audio content of all kinds of
videos. See
http://ncam.wgbh.org/invent_build/web_multimedia/tools-guidelines/magpie.
Second, the cost to caption a video is a very small fraction of
the cost to
create any commercial video even today and those costs are
expected to
continually decrease to approaching zero in the future. Third, if
it is an
undue burden for a covered entity to caption some or all of its
video
content posted prior to the effective date of the new
regulations, the
Department's undue burden regulations will be applicable. No
public entity
will be required by new regulations to provide fewer videos. (See
response
to Question 11.)
The most significant positive impact of these regulations will be
the way in
which accessibility to digital content will have to be approached
by covered
entities. The need to provide access to variety of content and
platforms
will result in entities to innovate in order to ensure that they
can provide
accessible information. The mindset of "separate but equal" will
have to
disappear in light of the Department's application of the
effective
communication test. Despite what is often argued by industry
regarding
innovation, it remains a fact that accessibility improvements do,
in fact,
constitute innovation.
Question 16. Are there any other effective and reasonably
feasible
alternatives to making the Web sites of public accommodations
accessible
that the Department should consider? If so, please provide as
much detail
about these alternatives, including information regarding their
costs and
effectiveness in your answer.
Answer to Question 16. No. See response to Question 8.
Impact on Small Entities
Question 17. The Department seeks input regarding the impact the
measures
being contemplated by the Department with regard to Web
accessibility will
have on small entities if adopted by the Department. The
Department
encourages you to include any cost data on the potential economic
impact on
small entities with your response. Please provide information on
capital
costs for equipment, such as hardware and software needed to meet
the
regulatory requirements; costs of modifying existing processes
and
procedures; any affects to sales and profits, including increases
in
business due to tapping markets not previously reached; changes
in market
competition as a result of the rule; and cost for hiring web
professionals
for to assistance in making existing Web sites accessible.
Answer to Question 17. As noted elsewhere (see answer to Question
11), the
Department's undue burden analysis will allow small businesses to
consider
various costs identified in Question 17 when considering web
accessibility
obligations for content posted prior to the effective date of the
regulations and not refreshed after that date.
It is to be expected that entities not familiar with or
experienced in
providing website accessibility will be fearful of its
implications and will
foresee potential costs and burdens that arise out of their fear
rather than
out of the experience of those who have embraced the concept.
Therefore, we
urge the Department to look behind the fears and expect that any
responders
who allege such risks provide data to support their claims and to
distinguish actual experience from unfounded, albeit sincere,
fear.
As stated elsewhere, the costs of providing and creating access
is
remarkably different if done so at the entity level. Rather than
considering
accessibility as something with which an entity must comply, a
full
consideration of providing universal access by integrating access
into
product and service design ensures that innovation occurs. The
increased
market opportunity can more than offset any cost being considered
by a small
entity.
Question 18. Are there alternatives that the Department can
adopt, which
were not previously discussed in response to Questions 11 or 16,
that will
alleviate the burden on small entities? Should there be different
compliance
requirements or timetables for small entities that take into
account the
resources available to small entities or should the Department
adopt an
exemption for certain or all small entities from coverage of the
rule, in
whole or in part. Please provide as much detail as possible in
your
response.
Answer to Question 18. As discussed in previous questions, there
should not
be different compliance requirements or timetables for small
entities
because those entities will be able to avail themselves of the
undue burden
defense for content posted prior to the effective date of the new
regulations. For the same reason, and for the reasons stated in
response to
Questions 9 and 11, under no circumstances should small entities,
regardless
of the definition, be exempted from coverage in whole or in part.
It is difficult to imagine that the Department is considering
exemptions for
entities based on a mistaken understanding of web as being
entirely
analogous to the physical environment. As previously discussed,
building
accessibility to the web requires a commitment, some training,
and a careful
attention to detail. In particular, no categorical exemptions
should be
granted for covered entities form having to meet the effective
communication
test. Exemptions, if granted, should be on a case by case basis.
Other Issues
Question 19. The Department is interested in gathering other
information or
data relating to the Department's objective to provide
requirements for Web
accessibility under titles II and III of the ADA.
Are there additional issues or information not addressed by the
Department's
questions that are important for the Department to consider?
Please provide
as much detail as possible in your response.
Answer to Question 19. There are a few significant questions and
considerations that the Department has left unaddressed.
First, in its economic analysis, the Department has failed to
entirely
consider the impact of not clarifying and implementing
accessibility
requirements would be on people with disabilities. Rather than
asking what
benefits would clarifying rules would have on people with
disabilities, we
posit that the Department should consider the negative impact of
not
clarifying rules. The listing of the benefits that the Department
has asked
responders to provide should, in and of itself, serve as a
reminder that the
impact of not acting is significant on people who are blind or
visually
impaired and, indeed, all people with disabilities. We find it
particularly
galling that people with disabilities must justify having full
access to
information, communication, and services that covered entities
provide.
Secondly, we further find it difficult that the Department
considers web
accessibility in isolation. The ecosystem which increasingly
represents the
web includes electronic communication of many different kinds.
For example,
the DOJ does not address e-mail as a communication medium at all.
Many
covered entities have been using inaccessible electronic mail to
communicate
with employees and customers. It is absolutely essential that any
regulations promulgated by the Department include all forms of
electronic
communications.
Thirdly, the department has made several references to captioning
for videos
on the web. Despite publishing an ANPRM that deals particularly
with audio
description, the Department has failed to make any references to
audio
description for web video. ACB is concerned that the regulations
that the
Department plans to publish will not address audio description
requirements
for the web. The department must not forego audio description in
its
conception of what it considers effective communication.
And finally, we highly urge the Department to question the
regulations it is
about to promulgate in terms of their applicability to
technologies and
circumstances that will be in effect 20 years from now. We are
uncertain
that the conception of these regulations are even adequate to
address the
current challenges we face. We specifically ask the Department to
view
pervasive use of social networking as a single instance of
all-around
communication medium that defies boundaries. When all covered
entities view
social networking as the means to reach their customers and
provide better
services and support, it should be important to the Department to
see that
people who are blind or visually impaired are given the
opportunity to
participate in as many ways as possible. For dignity,
independence, and
privacy, people with disabilities ask nothing less than equal
treatment. It
is not the question of how to provide access to a particular
medium that the
Department should be considering; rather the question should be
how to make
all communication accessible.
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