[Cabs-talk] Fw: Civil Rights Division Pushes for Internet Accessibility

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Sent: Friday, April 23, 2010 11:56 PM
Subject: Civil Rights Division Pushes for Internet Accessibility


For your information - Laurie


Civil Rights Division Pushes for Internet Accessibility
April 22, 2010

By Leah Nylen

A Justice Department official told a House Judiciary panel Thursday that the 
Civil Rights Division will continue to push for accessibility on the 
internet for Americans with disabilities.

Samuel R. Bagenstos, the Principal Deputy Assistant Attorney General for 
Civil Rights, said that division has worked to ensure that websites for 
state and local governments and public accommodations comply with the 
American with Disabilities Act and are accessible by assistive technologies, 
such as text readers or Braille displays, which convert text to Braille for 
blind web users.

“As public servants entrusted with the welfare of our citizens, we in the 
federal government must provide the leadership to make certain that 
individuals with disabilities are not excluded from the virtual world in the 
same way that they were historically excluded from ‘brick and mortar’ 
facilities,” Bagenstos said in testimony before the House Judiciary 
Subcommittee on the Constitution, civil rights and civil liberties. “If we 
are not careful, as technology becomes more sophisticated the gap will grow 
wider, and people with disabilities will have less access to our public 
life.”

Bagenstos also highlighted a recent case by the Disability Rights Section at 
Civil Rights Division involving universities that wanted to incorporate 
e-book readers. Earlier this year, the DOJ reached settlement agreements 
with five universities that had agreed to participate in a Kindle e-book 
reader pilot program with Amazon.com. Although the Kindle has the ability to 
turn text to speech, the blind have no way of navigating the menus to turn 
on that feature. In the agreement with the DOJ, the schools promised they 
would not require students to purchase the Kindle or any other e-book reader 
that was not fully accessible, Bagenstos said. Although it was not part of 
the Justice Department suit, Amazon.com also announced that it would make 
the Kindle accessible to the blind.

Read Bagenstos’ full remarks below.

Chairman Nadler, Ranking Member Sensenbrenner, and Members of the 
Subcommittee, it is an honor to appear before you today to discuss the 
rights of individuals with disabilities to have access to emerging 
technologies. The Civil Rights Division enforces the Americans 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 – 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 of Justice 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 enforce Title I of 
the ADA, which prohibits disability discrimination in employment, in cases 
involving state and local government employees. Most of the 
nondiscrimination requirements of Title III 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 
Department also enforces the statute on which the ADA is based, Section 504 
of the Rehabilitation Act of 1973, 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 expressly mentions 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 Technologies

Information technologies play a significant and ever expanding role in 
everyday 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 and driver’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 and services to their customers. 
So-called e-commerce is a rapidly expanding segment of the American 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 and 
information technologies are swiftly becoming a gateway to employment and 
education. Employment recruiting and hiring systems are often web based. In 
many cases, the only way 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 learn about potential 
employers’ needs and policies. And schools at all levels are increasingly 
offering programs and classroom instruction through the Internet. Many 
colleges and universities offer degree programs online; some universities 
exist exclusively on the Internet. Even if 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 
discussion groups, and for a wide variety of administrative and logistical 
functions in which students and 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 equal opportunity for individuals 
with disabilities to participate in and benefit from all aspects of American 
civic and economic life will be served in today’s technologically advanced 
society only if it is clear to businesses, employers and educators, among 
others, that their web sites must be accessible.

But the Internet is not the only information or electronic technology that 
is altering the way in which we do business and provide education in this 
country. Facing an exponential rise in the cost of standard print text 
books, colleges and universities are beginning to use electronic books and 
electronic book readers instead. Electronic book readers are typically 
lightweight, hand-held devices with screens and operating controls. Texts in 
an electronic form appear on the screens of these devices to simulate the 
experience of reading a book. The texts 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 
experts predict that traditional print texts will be replaced by electronic 
or digital texts within three to five years.

As public servants entrusted with the welfare of our citizens, we in the 
federal government must provide the leadership to make certain that 
individuals with disabilities are not excluded from the virtual world in the 
same way that they were historically excluded from “brick and mortar” 
facilities. Emerging technology promises to open up opportunities for people 
with disabilities throughout our society. But a digital divide is growing 
between individuals with and without disabilities. If we are not careful, as 
technology becomes more sophisticated the gap will grow wider, and people 
with disabilities will have less access to our public life.

These problems – and the corresponding opportunities – are likely to become 
more acute in the years to come. As the population ages, more and more 
Americans will need access to emerging technologies to continue working and 
to access the healthcare system. The 2006 National Health Interview Survey 
(NHIS), revealed that 13.6 percent of Americans 65 to 74 years of age 
reported having a vision loss and 21.7 percent of Americans 75 years of age 
and older reported having a vision loss. Advances in the availability of 
accessible technologies will increase – and are already increasing – the 
long-term employability of individuals 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 
neurological disabilities. People who are blind or have low vision are often 
the most affected by inaccessible information and electronic technology. 
Many individuals with visual impairments use an assistive technology known 
as a screen reader that enables them to access the information on computers 
or Internet sites. Screen readers read text aloud as it appears on the 
computer screen. Individuals who are blind may also use refreshable Braille 
displays, which convert the text of websites to Braille. Sometimes, those 
individuals will use keyboards in lieu of a mouse to move up and down on a 
screen or sort through a list and select an item.

The most common barriers on websites are posed by images or photographs that 
do not provide identifying text. A screen reader or similar assistive 
technology cannot “read” an image. When images appear on websites without 
identifying text, therefore, there is no 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 an individual 
using a screen reader oriented and allow him or her to gain access to the 
information the image depicts. Similarly, complex websites often lack 
navigational headings or links that would make them easy to navigate using a 
screen reader. Web designers can easily add those headings. They may also 
add cues to ensure the proper functioning of keyboard commands. They can 
also set up their programs to respond to voice interface technology. Making 
websites accessible is neither difficult nor especially costly, and in most 
cases providing accessibility will not result in changes to the format or 
appearance of a site.

Accessibility issues arise outside of the Internet as well. Most 
significantly, as schools increasingly use electronic texts, the 
inaccessibility of many electronic book readers has become more and more 
salient. At the same time, however, the use of electronic texts holds great 
promise for people with disabilities. Students who are blind or have low 
vision have long used a form of electronic text as an accommodation that 
enables them to access the course materials their classmates use. These 
electronic texts, which are converted from standard 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 low vision, however, the texts must be coded with structural data so 
that the assistive technology can properly identify where to begin reading 
or where a sentence or paragraph begins and ends.

This system disadvantages blind students in colleges and universities as 
compared with sighted students, because it can take considerable time for a 
university to locate texts from publishers, and convert the text to a format 
usable by a screen reader or similar assistive technology. As a result, all 
too often course materials are not available to blind students until well 
after classes have begun. If you ask just about any disability student 
services center at a major university, you will learn how significant this 
problem really is. Imagine as a student being unable – on a routine basis – 
to obtain your course materials for the first 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 this method can result in a “text dump,” which lacks structural 
data to ensure proper reading by assistive technologies. Conversion errors, 
too, are common. So, the choice available to blind students prior to use of 
the new, electronic book readers was to receive accurate materials months 
into the semester or inaccurate materials in a more timely manner.

The emergence of dedicated electronic book readers thus holds great 
potential to place students with disabilities on equal footing with other 
students. But that happy result will occur only if the electronic book 
reader is equipped with text-to-speech capabilities, so that it may read the 
electronic text aloud. In a few moments, I will discuss the Department of 
Justice’s settlements in investigations of colleges and universities that 
used the Kindle DX, an inaccessible electronic book reader, as part of a 
pilot project. At the time the Kindle DX was used in this pilot project, it 
contained text-to-speech capabilities B meaning that it could read the 
electronic text aloud, rendering the text audible and therefore accessible 
to blind persons. Unfortunately, the device did not include a similar audio 
option for the menus or navigational controls. Without text-to-speech for 
the menu or navigational controls, blind students could not operate the 
electronic book reader independently, because they had no way of knowing 
which book they selected or how to access the search, note taking or 
bookmark functions of the device. Electronic book readers developed by 
companies other than Amazon also pose barriers to use by individuals who are 
blind or have low vision, typically because they entirely lack a 
text-to-speech function.

But a dedicated electronic book reader can be made accessible. From the user 
perspective, an accessible electronic book reader might speak each option on 
a menu aloud, as the cursor moves over it, and then speak the selected 
choice aloud once made by the user. Special key strokes might be programmed 
specifically for blind users. For example, the user would press the alt-A 
key any time something related to accessibility is needed, at which point a 
menu with additional choices would come up allowing the user to scroll over 
the menu as described above. Appropriate coding would mean that the text, 
even mathematical formulas, or poetry in which line lengths vary, would be 
read aloud coherently. In this way, 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 to 
access the benefits of emerging technologies is an essential part of our 
disability rights enforcement at the Department of Justice. Because the 
Internet was not in general public use when Congress enacted the ADA and the 
Attorney General promulgated regulations to implement it, neither the 
statute nor the regulations expressly mention it. But the statute and 
regulations create general rules designed to guarantee people with 
disabilities equal access to all of the important areas of American civic 
and economic life. And the Department made clear, in the preamble to the 
original 1992 ADA regulations, that the regulations should be interpreted to 
keep pace with developing technologies. 28 C.F.R. pt. 36, App. B.

The Department of Justice has long taken the position that both state and 
local government websites and the websites of private entities that are 
public accommodations are covered by the ADA. In other words, the websites 
of entities covered by both Title II and Title III of the statute are 
required by law to ensure that their sites are fully accessible to 
individuals with disabilities. The Department is considering issuing 
guidance on the range of issues that arise with regard to the Internet sites 
of private businesses that are public accommodations covered by Title III of 
the ADA. In so doing, the Department will solicit public comment from the 
broad range of parties interested in this issue.

There is no doubt that the Internet sites of state and local government 
entities are covered by Title II of the ADA. Similarly, there is no doubt 
that the websites of recipients 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 in a technical 
assistance publication, Accessibility of State and Local Government Websites 
to People with 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 technical assistance publication also 
provides guidance with simple steps to ensure that government websites have 
accessible features for individuals with disabilities.

As to private places of public accommodation, only two cases – both in 
federal district courts – have specifically addressed the application of ADA 
Title III to their websites, and those cases have reached different 
conclusions. But the position of the Department of Justice has been clear: 
Title III applies to the Internet sites and services of private entities 
that meet the definition of “public accommodations” set forth in the statute 
and implementing regulations. The Department first made this position public 
in a 1996 letter from Assistant Attorney General Deval Patrick responding to 
an inquiry by Senator Harkin regarding the accessibility of websites to 
individuals with visual impairments. The letter has been widely cited as 
illustration of the Department’s position. The letter does not state whether 
entities doing business exclusively on the Internet are covered by the ADA. 
In 2000, however, the Department filed an 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 Internet 
is subject to the ADA’s prohibitions on discrimination on the basis of 
disability. And in a 2002 amicus brief in the Eleventh Circuit in Rendon v. 
Valleycrest Productions, the Department argued against a requirement, 
imposed outside of the Internet context by some federal courts of appeals, 
that there be a nexus between the challenged activity and a private entity’s 
brick-and-mortar facility to obtain coverage under Title III. Although 
Rendon did not involve the Internet, our brief argued that Title III applies 
to any activity or service offered by a public accommodation either on or 
off the premises.

The Disability Rights Section of the Department of Justice’s Civil Rights 
Division began to provide technical assistance to a host of public and 
private entities that were in the process of assisting federal agencies with 
Section 508 compliance, and much of its guidance on making Internet sites 
accessible developed from there. There are several sets of standards 
describing how to make websites accessible to individuals with disabilities. 
Government standards for website accessibility were developed pursuant to 
Section 508. Many entities elect to use the standards that were developed 
and are maintained by the Web Accessibility Initiative, 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 complaints 
from 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 Reading Rights Coalition B each alleging that colleges or 
universities were violating their obligations under the ADA and Section 504 
by having their students use electronic book readers that were inaccessible 
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 Kindle DX in a classroom 
setting. The NFB and the ACB, along with an individual blind plaintiff, also 
filed suit in federal district court against Arizona State University; they 
argued that the pilot project 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 
separate settlement agreements with Case Western Reserve University, Reed 
College, and Pace University. The Department of Justice and the NFB and the 
ACB also jointly settled the litigation against Arizona State University in 
an agreement signed on January 11, 2010. Since that time, on March 29, 2010, 
the Department entered into a final settlement agreement with Princeton 
University.

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 dedicated electronic book reader that is not fully accessible to 
individuals who are blind or have low vision. The agreements become 
effective at the end of the pilot projects. The agreements also contain a 
functional definition of accessibility when applied to dedicated electronic 
book readers B the universities must ensure that students who are blind or 
have low vision are able to access and acquire the same information, engage 
in the same interactions, and enjoy the same services as sighted students 
with substantially equivalent ease of use. The purpose behind these 
agreements is to underscore that requiring use of an emerging technology in 
the classroom that is inaccessible to an entire population of individuals 
with disabilities – individuals with visual disabilities – is discrimination 
that is prohibited by the Americans with Disabilities 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 colleges 
and universities, Amazon.com, Inc., which is not covered by the ADA or 
Section 504 in its capacity as the manufacturer of the Kindle DX, posted a 
notice on its website indicating its intention to make the menu and 
navigational controls of the Kindle DX fully accessible to individuals who 
are blind or have low vision by extending the text-to-speech feature to 
these functions by the end of the year 2010.

The accessibility of electronic text readers stands to improve dramatically 
the experience of students with visual disabilities. The instantaneous 
downloading of texts is obviously a “night and day” difference for blind 
students who are used to waiting for their materials until well into the 
semester or to receiving inferior materials that are difficult to follow. 
Moreover, if accessible electronic book readers are used in the classrooms 
of the future, students with 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 to rely on 
separate accommodations to gain access to course materials. Such integration 
is the core goal of the ADA and Section 504.

As we come to realize anew each day, the pace of technological change is 
amazing; what appeared impossible just months or years ago is now 
commonplace. Advancing technology can open doors for people with 
disabilities and provide the means for them to have full, equal, and 
integrated access to American life. But technological advances will leave 
people with disabilities behind if technology developers and manufacturers 
do not make their new products accessible. In carrying out its 
responsibilities under the ADA and the Rehabilitation Act, the federal 
government must make sure that the legal protections for the rights of 
individuals with disabilities are clear and sufficiently strong to ensure 
that innovation increases opportunities for everyone. We must avoid the 
travesty that would occur if the doors that are opening 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 Subcommittee 
may have.

Source: 
http://www.mainjustice.com/2010/04/22/civil-rights-division-pushes-for-internet-accessibility/

Read other testimony - 
http://judiciary.house.gov/hearings/hear_100422_1.html