Department of Justice statement on web accessibility

RantWoman supposes the following item exists as a link somewhere, but since she received text, text is what is shown here.


-----Original Message-----

From: Pratik Patel
Subject: [VICUG-L] DOJ's official statement on applicability of ADA for websites
Below please find a statement from Samuel R. Bagenstose given at aCongressional hearing which looked at ADA and digital issues.
Regards,
Pratik


STATEMENT OF SAMUEL R. BAGENSTOS PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL FOR CIVIL RIGHTS DEPARTMENT OF JUSTICE BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES COMMITTEE ON THE JUDICIARY UNITED STATES HOUSE OF REPRESENTATIVES CONCERNING EMERGING TECHNOLOGIES AND THE RIGHTS OF INDIVIDUALS WITH DISABILITIES PRESENTED ON APRIL 22, 2010

Chairman Nadler, Ranking Member Sensenbrenner, and Members of the Subcommittee, it is an honor to appear before you today to discuss the rights ofindividuals with disabilities to have access to emerging technologies. The Civil Rights Division enforces theAmericans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act, and we have a substantial role in implementing Section 508 of the Rehabilitation Act. Pursuant to these statutes, access to the internet and emerging technologies is not simply a technical matter, but a fundamental issue of civil rights. As more and more of our social infrastructure is made available on the internet in some cases, exclusively online B access to information and electronic technologies is increasingly becoming the gateway civil rights issue for individuals with disabilities. Congress adopted the Americans with Disabilities Act in 1990. The statute is a comprehensive, broad-reaching mandate to eliminate discrimination on the basis of disability in all of the areas of American civic and economic life. The Department ofJustice is responsible for enforcement and implementation of Titles II and III of the ADA, which cover State and local government entities and private businesses, respectively. We also enforceTitle I of the ADA, which prohibits disability discrimination in employment, in cases involvingState and local government employees. Most of the nondiscrimination requirements of TitleIII apply to private businesses that fall within one of the categories of public accommodation established in the statute and the Attorney General's implementing regulations. The Departmentalso enforces the statute on which the ADA is based, Section 504 of the Rehabilitation Act of1973, 29 U.S.C. 794, which prohibits discrimination in federally assisted and federally conducted programs and activities. When Congress enacted the ADA and Section 504, the internet as we know it today the ubiquitous venue for information, commerce, services, and activities did not exist. For that reason, although the ADA and Section 504 guarantee the protection of the rights of individuals with disabilities in a broad array of activities, neither law expresslymentions the internet or contains requirements regarding developing technologies. When Congress amended the Rehabilitation Act in 1998, it added section 508. That provision specifically requires Federal government agencies to ensure that their electronic and information technologies, including their websites, are accessible to individuals with disabilities. 29 U.S.C. 794(d).Within the Civil Rights Division the Disability Rights Section is responsible for enforcement of the civil rights statutes relating to the accessibility of information technologies to individuals with disabilities. In this testimony, I will first discuss the importance of accessible technology to people with disabilities. I will then talk about the significant barriers that keep people with disabilities from having full and equal access to emerging technologies. I will then discuss the actions the Department of Justice is taking to ensure that emerging technologies do not leave people with disabilities behind.

Disability Rights and Developing TechnologiesInformation technologies play a significant and ever expanding role ineveryday life in America. The most developed and entrenched of these technologies, the internet, has become a gateway to the full range of activities, goods, and services available offline. Constituents of State and local government use the internet to renew library books anddriver's licenses, to file tax forms, and even to correspond with elected officials. Increasingly,businesses even those with substantial physical sales facilities use websites to sell goods andservices to their customers. So-called e-commerce is a rapidly expanding segment of theAmerican economy. Ensuring nondiscriminatory access to the goods and services offered through the internet is therefore essential to full societal participation by individuals with disabilities. It is not simply e-commerce that is affected, however. Electronic andinformation technologies are swiftly becoming a gateway to employment and education.Employment recruiting and hiring systems are often web based. In many cases, the onlyway to apply for a job or to sign up for an interview is on the internet. Job applicants research employment opportunities online, and they use the internet to most efficiently learnabout potential employers' needs and policies. And schools at all levels are increasingly offering programs and classroom instruction through the internet. Many colleges and universitiesoffer degree programs online; some universities exist exclusively on the internet. Evenif they do not offer degree programs online, most colleges and universities today rely upon the internet and other electronic and information technologies in course assignments and discussiongroups, and for a wide variety of administrative and logistical functions in which studentsand staff must participate. For many individuals with disabilities who are limited in their ability to travel or who are confined to their homes, the internet is one of the few available means of access to the goods and services of our society. The broad mandate of the ADA to provide an equalopportunity for individuals with disabilities to participate in and benefit from all aspectsof American civic and economic life will be served in today's technologically advanced societyonly if it is clear to businesses, employers, and educators, among others, that their web sitesmust be accessible. But the internet is not the only information or electronic technology thatis altering the way in which we do business and provide education in this country. Facing anexponential rise - 2 -in the cost of standard print text books, colleges and universities arebeginning to use electronic books and electronic book readers instead. Electronic book readers aretypically lightweight, hand-held devices with screens and operating controls. Texts in anelectronic form appear on the screens of these devices to simulate the experience of reading a book. Thetexts that appear on screen are formatted to look just like they would in a print version.Colleges and universities are likely to use digital and electronic text books more and more. Some expertspredict that traditional print texts will be replaced by electronic or digital textswithin three to five years. As public servants entrusted with the welfare of our citizens, we in theFederal government must provide the leadership to make certain that individuals withdisabilities are not excluded from the virtual world in the same way that they were historicallyexcluded from Abrick and mortar@ facilities. Emerging technology promises to open upopportunities for people with disabilities throughout our society. But a digital divide is growing betweenindividuals with and without disabilities. If we are not careful, as technology becomes moresophisticated the gap will grow wider, and people with disabilities will have less access to ourpublic life. These problems-and the corresponding opportunities-are likely to become moreacute in the years to come. As the population ages, more and more Americans willneed access to emerging technologies to continue working and to access the healthcaresystem. The 2006 National Health Interview Survey (NHIS), revealed that 13.6 percent ofAmericans 65 to 74 years of age reported having a vision loss and 21.7 percent of Americans 75years of age and older reported having a vision loss. Advances in the availability ofaccessible technologies will increase-and are already increasing-the long-term employability ofindividuals with progressive blindness and other vision disabilities. Technological Barriers to Accessibility Millions of people have disabilities that affect their use of the web -including people with visual, auditory, physical, speech, cognitive, and neurologicaldisabilities. People who are blind or have low vision are often the most affected by inaccessibleinformation and electronic technology.1 Many individuals with visual impairments use an assistivetechnology known as a screen reader that enables them to access the information on computers orinternet sites. Screen readers read text aloud as it appears on the computer screen. Individualswho are blind may also use refreshable Braille displays, which convert the text of websites toBraille. Sometimes, those individuals will use keyboards in lieu of a mouse to move up and down on ascreen or sort through a list and select an item. 1People who have difficulty using a computer mouse because of mobilityimpairments, for example, may use an assistive technology that allows them to controlsoftware with verbal commands. But websites and other technologies are not always compatible withthose assistive technologies. Captioning of streaming videos may also be necessary in orderto make them accessible to individuals who are deaf or hard of hearing. And individualswith difficult memory or cognitive impairments may be affected by complex websites. - 3 -The most common barriers on websites are posed by images or photographs thatdo not provide identifying text. A screen reader or similar assistive technologycannot Aread@ an image. When images appear on websites without identifying text, therefore, there isno way for the individual who is blind or who has low vision to know what is on the screen.The simple addition of a tag or other description of the image or picture will keep anindividual using a screen reader oriented and allow him or her to gain access to theinformation the image depicts. Similarly, complex websites often lack navigational headings or links thatwould make them easy to navigate using a screen reader. Web designers can easily add thoseheadings. They may also add cues to ensure the proper functioning of keyboard commands. Theycan also set up their programs to respond to voice interface technology. Making websitesaccessible is neither difficult nor especially costly, and in most cases providing accessibilitywill not result in changes to the format or appearance of a site. Accessibility issues arise outside of the internet as well. Mostsignificantly, as schools increasingly use electronic texts, the inaccessibility of many electronicbook readers has become more and more salient. At the same time, however, the use of electronictexts holds great promise for people with disabilities. Students who are blind or have lowvision have long used a form of electronic text as an accommodation that enables them to access thecourse materials their classmates use. These electronic texts, which are converted fromstandard print texts, are read on a computer, using a screen reader or a refreshable Braille display.In order for these electronic texts to be truly usable by someone who is blind or who has lowvision, however, the texts must be coded with structural data so that the assistive technologycan properly identify where to begin reading or where a sentence or paragraph begins and ends. This system disadvantages blind students in colleges and universities ascompared with sighted students, because it can take considerable time for a university tolocate texts from publishers, and convert the text to a format usable by a screen reader orsimilar assistive technology. As a result, all too often course materials are not available toblind students until well after classes have begun.2 If you ask just about any disability studentservices center at a major university, you will learn how significant this problem really is.Imagine as a student being unable B on a routine basis B to obtain your course materials for thefirst four months of the semester. As an alternative to obtaining converted texts from the publisher,universities may scan printed texts in order to provide them in electronic form. But thismethod can result in a Atext dump,@ which lacks structural data to ensure proper reading byassistive technologies. Conversion errors, too, are common. So, the choice available to blindstudents prior to use of the new, electronic book readers, was to receive accurate materials months intothe semester or inaccurate materials in a more timely manner. 2As the Disability Resource Center ("Center") at Arizona State University,one of the universities involved in the Kindle matter that I will discuss in a moment,informs blind students in its handbook, for example, Atextbook/print conversion is a time intensiveprocess, especially for technical subject matter, and can require up to four months tocomplete.@ See www.asu.edu/studentaffairs/ed/drc/services_alternative_format_procedure.htm.(emphasis added). - 4 -The emergence of dedicated electronic book readers thus holds greatpotential to place students with disabilities on equal footing with other students. But thathappy result will occur only if the electronic book reader is equipped with text-to-speechcapabilities, so that it may read the electronic text aloud. In a few moments, I will discuss the Departmentof Justice=s settlements in investigations of colleges and universities that used theKindle DX, an inaccessible electronic book reader, as part of a pilot project. At the time the KindleDX was used in this pilot project, it contained text-to-speech capabilities B meaning that itcould read the electronic text aloud, rendering the text audible and therefore accessible to blindpersons. Unfortunately, the device did not include a similar audio option for the menus ornavigational controls. Without text-to-speech for the menu or navigational controls, blind students couldnot operate the electronic book reader independently, because they had no way of knowingwhich book they selected or how to access the search, note taking, or bookmark functions ofthe device. Electronic book readers developed by companies other than Amazon also posebarriers to use by individuals who are blind or have low vision, typically because theyentirely lack a text-tospeech function. But a dedicated electronic book reader can be made accessible. From the user
perspective, an accessible electronic book reader might speak each option ona menu aloud, as the cursor moves over it, and then speak the selected choice aloud once madeby the user. Special key strokes might be programmed specifically for blind users. Forexample, the user would press the alt-A key any time something related to accessibility isneeded, at which point a menu with additional choices would come up allowing the user to scroll overthe menu as described above. Appropriate coding would mean that the text, evenmathematical formulas, or poetry in which line lengths vary, would be read aloud coherently. In thisway, the user with the disability would gain access to all the information on the printed page. The Department of Justice Positions Regarding Website Accessibility. Ensuring that people with disabilities have a full and equal opportunity toaccess the benefits of emerging technologies is an essential part of our disabilityrights enforcement at the Department of Justice. Because the internet was not in general public usewhen Congress enacted the ADA and the Attorney General promulgated regulations toimplement it, neither the statute nor the regulations expressly mention it. But the statute andregulations create general rules designed to guarantee people with disabilities equal access to all ofthe important areas of American civic and economic life. And the Department made clear, in thepreamble to the original 1992 ADA regulations, that the regulations should be interpreted tokeep pace with developing technologies. 28 C.F.R. pt. 36, App. B. The Department of Justice has long taken the position that both State andlocal government websites and the websites of private entities that are publicaccommodations are covered by the ADA. In other words, the websites of entities covered by bothTitle II and Title III of the statute are required by law to ensure that their sites are fullyaccessible to individuals with disabilities. The Department is considering issuing guidance on therange of issues that arise with regard to the internet sites of private businesses that are publicaccommodations covered by - 5 -Title III of the ADA. In so doing, the Department will solicit publiccomment from the broad range of parties interested in this issue. There is no doubt that the internet sites of State and local governmententities are covered by Title II of the ADA. Similarly, there is no doubt that the websites ofrecipients of Federal financial assistance are covered by Section 504 of the Rehabilitation Act.The Department of Justice has affirmed the application of these statutes to internet sites ina technical assistance publication, Accessibility of State and Local Government Websites to Peoplewith Disabilities (http://www.usdoj.gov/crt/ada/websites2.htm), and in numerous agreements with State and local governments and recipients of Federal financial assistance. Our technicalassistance publication also provides guidance with simple steps to ensure that government websiteshave accessible features for individuals with disabilities. As to private places of public accommodation, only two cases B both inFederal district courts B have specifically addressed the application of ADA Title III totheir websites, and those cases have reached different conclusions. But the position of the Departmentof Justice has been clear: Title III applies to the internet sites and services of privateentities that meet the definition of Apublic accommodations@ set forth in the statute and implementingregulations. The Department first made this position public in a 1996 letter from AssistantAttorney General Deval Patrick responding to an inquiry by Senator Harkin regarding theaccessibility of websites to individuals with visual impairments. The letter has been widely cited asillustration of the Department=s position. The letter does not state whether entities doingbusiness exclusively on the internet are covered by the ADA. In 2000, however, the Department filedan amicus brief in the Fifth Circuit in Hooks v. OKbridge, which involved a web-only business;the Department=s brief explained that a business providing services solely over the internetis subject to the ADA=s prohibitions on discrimination on the basis of disability.3 And in a 2002amicus brief in the Eleventh Circuit in Rendon v. Valleycrest Productions, the Department arguedagainst a requirement, imposed outside of the internet context by some Federal courtsof appeals, that there be a nexus between the challenged activity and a private entity=sbrick-and-mortar facility to obtain coverage under Title III. Although Rendon did not involve theinternet, our brief argued that Title III applies to any activity or service offered by a publicaccommodation either on or off the premises.4 The Disability Rights Section of the Department of Justice=s Civil RightsDivision began to provide technical assistance to a host of public and private entitiesthat were in the process of assisting Federal agencies with Section 508 compliance, and much of itsguidance on making internet sites accessible developed from there. There are several sets ofstandards describing how to make websites accessible to individuals with disabilities. Governmentstandards for 3Department of Justice Brief as Amicus Curiae at p. 7, Case No.SA-99-CV-214-EP, Aug. 1, 2000 (on appeal from the United States District Court for theWestern District of Texas.) The unpublished, per curiam opinion can be found at 232 F.3d 208 (5th Cir.2000).4Department of Justice Brief as Amicus Curiae, Case No. 01-11197, June 18,2002 (on appeal from the United States District Court of the Southern District ofFlorida). 294 F.3d 1279 (11th Cir. 2002). - 6 -website accessibility were developed pursuant to Section 508. Many entitieselect to use the standards that were developed and are maintained by the Web AccessibilityInitiative, a subgroup of the World Wide Web Consortium ("W3C7"). The Department of Justice Positions Regarding Other Emerging Technologies In June of last year, the Department of Justice received several complaintsfrom the National Federation of the Blind ("NFB"), the American Council of the Blind("ACB"), and a coalition of disability rights groups collectively known as the ReadingRights Coalition B each alleging that colleges or universities were violating their obligationsunder the ADA and Section 504 by having their students use electronic book readers that wereinaccessible to individuals who are blind for course materials. Case Western Reserve University,Princeton University, Pace University, Reed College, and Arizona State University, among others,had formed a pilot project with Amazon.com, Inc., to evaluate the viability of using the KindleDX in a classroom setting. The NFB and the ACB, along with an individual blind plaintiff, alsofiled suit in Federal district court against Arizona State University; they argued that the pilotproject violated Title II and Section 504. Nat=l Fed. of the Blind , et al. v. Arizona Bd. of Regents,et al., Case No. CV 09-1359 GMS (D. Az. 2009). The Department of Justice investigated each complaint and, on January 13,2010, the Department issued a press release announcing that it had reached separatesettlement agreements with Case Western Reserve University, Reed College, and Pace University.5The Department of Justice and the NFB and the ACB also jointly settled the litigation againstArizona State University in an agreement signed on January 11, 2010. Since that time, onMarch 29, 2010, the Department entered into a final settlement agreement with PrincetonUniversity. These settlement agreements provide that the universities will not purchase,require, or in any way incorporate into the curriculum the Kindle DX or any other dedicatedelectronic book reader that is not fully accessible to individuals who are blind or have lowvision. The agreements become effective at the end of the pilot projects. The agreementsalso contain a functional definition of accessibility when applied to dedicated electronicbook readers B the universities must ensure that students who are blind or have low vision areable to access and acquire the same information, engage in the same interactions, and enjoy thesame services as sighted students with substantially equivalent ease of use. The purposebehind these agreements is to underscore that requiring use of an emerging technology in theclassroom that is inaccessible to an entire population of individuals withdisabilitiesBindividuals with visual disabilitiesBis discrimination that is prohibited by the Americans withDisabilities Act of 1990 ("ADA") and Section 504 of the Rehabilitation Act of 1973 ("Section 504"). During the course of its investigations and negotiations with the collegesand universities, Amazon.com, Inc., which is not covered by the ADA or Section 504 in itscapacity as the 5Agreement between United States and Case Western Reserve University, Jan.13, 2010; Agreement between United States and Pace University, Jan. 13, 2010;Agreement between United States and Reed College, Jan. 13, 2010. - 7 -manufacturer of the Kindle DX, posted a notice on its website indicating itsintention to make the menu and navigational controls of the Kindle DX fully accessible toindividuals who are blind or have low vision by extending the text-to-speech feature to these functionsby the end of the year 2010. The accessibility of electronic text readers stands to improve dramaticallythe experience of students with visual disabilities. The instantaneous downloading of textsis obviously a Anight and day@ difference for blind students who are used to waiting for theirmaterials until well into the semester or to receiving inferior materials that are difficult tofollow. Moreover, if accessible electronic book readers are used in the classrooms of the future, studentswith and without disabilities will be able to use the same devices, albeit in different ways,resulting in an integrated experience for students with disabilities who will not have torely on separate accommodations to gain access to course materials. Such integration is thecore goal of the ADA and Section 504. As we come to realize anew each day, the pace of technological change isamazing; what appeared impossible just months or years ago is now commonplace. Advancingtechnology can open doors for people with disabilities and provide the means for them tohave full, equal, and integrated access to American life. But technological advances will leavepeople with disabilities behind if technology developers and manufacturers do not maketheir new products accessible. In carrying out its responsibilities under the ADA and theRehabilitation Act, the Federal government must make sure that the legal protections for the rightsof individuals with disabilities are clear and sufficiently strong to ensure that innovationincreases opportunities for everyone. We must avoid the travesty that would occur if the doors that areopening to Americans from advancing technologies were closed for individuals with disabilities because we were not vigilant. I look forward to answering any questions that Members of the Subcommitteemay have.