[nabs-l] Statement of Daniel Goldstein, Before Congress, Achieving the Promise of the Americans with Disabilities Act in the Digital Age – Current Issues, Challenges, and Opportunities

[David Andrews]

Statement of Daniel F. Goldstein, Esq.
Partner, Brown, Goldstein & Levy, LLP


Before the United States House Committee on the Judiciary

Subcommittee on the Constitution, Civil Rights,
and Civil Liberties

on

Achieving the Promise of the Americans with Disabilities Act in the
Digital Age – Current Issues, Challenges, and Opportunities


Thursday April 22, 2010















Mr. Chairman, members of the Committee, thank you 
for inviting me here today.  As a partner in the 
Baltimore, Maryland law firm of Brown, Goldstein 
& Levy, LLP, I have been engaged in disability 
rights law, principally on behalf of the National 
Federation of the Blind (“NFB”), since 1986.  In 
1999, the NFB asked me to assist it in devising a 
strategy to promote the accessibility of digital 
information through education, negotiation and 
litigation.  I have devoted much of the last 11 years to that effort.
The ADA has played a valuable role in that 
undertaking, as we have worked to make websites, 
workplace software applications, ATMs, voting 
machines, cell phones and e-book reading devices 
accessible to people with vision and print disabilities.
The challenge is immense.  Digital information is 
everywhere, from consumer electronics and home 
appliances to the internet, computer screens and 
mobile devices to ticket kiosks and ATMs.  It is 
difficult to identify an activity in modern 
American life in which digital information does not play a role.
Because digital information is composed of zeros 
and ones, it is not inherently visual, aural or 
tactile but can be presented in any one or all of 
those modes with equivalent facility.  Thus, the 
ubiquitous use of digital information should be 
great news for those who cannot access print 
because of a disability – whether it’s a vision 
disability, a learning disability, an 
intellectual disability, or a manual impairment 
or spinal cord injury.  Similarly, digital 
information that was traditionally presented as 
speech can now produce mainstream accessibility 
for those with hearing impairments.
Sadly, however, the potential for the disability 
community to have mainstream and therefore equal 
access has not been realized.  So much electronic 
information is presented so that it is accessible 
only to one sense, resulting in persons with 
disabilities having unequal access and therefore 
being denied the opportunity for equal 
participation in all spheres of life.  Thus, to 
give you a homely example, something as simple as 
setting the thermostat in one’s house, which a 
blind person could formerly do by adding tactile 
markings to the dial that controlled the 
thermostat, is now an inaccessible 
activity.  Even though digital temperature 
controls could communicate both visually and 
audibly, most provide only visual information, 
leaving blind people worse off than before.

A.                The ADA and Public Accommodation Websites

The ADA is key to unlocking these doors.  Title 
III of the ADA applies to public accommodations, 
defined as 12 categories of commercial entities 
that interact with the public.  We believe both 
the intent and the language of the ADA cover 
websites and other digital information and 
services provided by those covered entities, 
regardless of whether those entities also operate brick-and-mortar locations.
In 1999, on behalf of the NFB, I filed suit in 
federal court in Massachusetts against America 
Online for violating Title III of the ADA by 
failing to make its service accessible to the 
blind.  The First Circuit had held in the context 
of insurance services that a public accommodation 
may be covered under Title III of the ADA without 
the activity being linked to a physical place of 
public accommodation.  We were anxious to follow 
that case law to its logical conclusion that 
websites that offer the services of a public 
accommodation, as delineated in Title III, are 
likewise covered by the ADA.  However, AOL 
quickly decided to make its website fully 
accessible, so the matter was settled without 
creating any judicial precedent.
In 2006, we filed suit against the Target 
Corporation over the inaccessibility of its 
website.  After the federal court in San 
Francisco ruled that the portions of the website 
that had a nexus to the physical stores were 
covered by the ADA,[1] Target settled and has 
since made its website fully accessible.[2]
Opponents of the application of Title III to 
commercial and educational websites might argue 
that some federal case law supports the 
proposition that e-commerce is outside the scope 
of the ADA.  There is a line of reasoning adopted 
in some circuits that a place of public 
accommodation, within the meaning of Title III, 
must be an “actual, physical” place.[3]  These 
courts have held that to state a claim under 
Title III, the plaintiff must allege either that 
there has been discrimination in a physical 
place, or that there is a “nexus” between the 
challenged act of discrimination and a physical 
place of public accommodation.  This approach 
stands in stark contrast to the more commonsense 
view adopted by several other circuits that the 
phrase “public accommodation” encompasses more 
than just physical structures.[4]
Most cases addressing the “place” argument have 
been in the context of insurance, considering 
whether the ADA’s non-discrimination requirements 
govern the substance of insurance policies.  None 
of the circuit courts adopting the “physical 
place” line of reasoning have addressed the 
precise question of whether public accommodations 
that operate through the internet or its websites 
are places of public accommodation under Title 
III. So we do not currently know what conclusion 
these circuits would reach on that issue.
In today’s increasingly online society, limiting 
the ADA (or any civil rights law) to only those 
businesses that operate in physical facilities 
would undermine the fundamental goals of civil 
rights.  Given that one of the essential purposes 
of Title III is to eliminate discrimination 
against people with disabilities in the basic, 
day-to-day activities that are a fundamental part 
of living and functioning in a community, it is 
hard to imagine that coverage would depend on 
whether a covered entity offers its services and 
goods in a physical location, door-to-door, by 
phone, or online.  In an age where hundreds of 
millions of Americans are increasingly using the 
internet every day to shop for groceries, plan 
their travel, conduct business, do their banking, 
attend college classes, and socialize with 
friends and family, it is undeniable that these 
websites are an indispensable part of basic, 
day-to-day life in the community.
Despite this obvious reality of life in the 
internet era, one district court, in Access Now 
v. Southwest Airlines Co. has erroneously 
extended the “physical place” line of reasoning 
to conclude that it would not apply Title III to 
prohibit discriminatory access to Southwest’s 
website where the plaintiff had failed to allege 
a “nexus” between the site and a physical, 
brick-and-mortar place.[5]  I have no doubt that 
the district court’s interpretation of Title III 
in the Southwest case was incorrect, and that a 
federal Court of Appeals squarely presented with 
the issue should reach the conclusion that Title 
III applies to goods and services provided over 
the internet.  But the fact that the district 
court strayed so far from Title III’s fundamental 
purpose was troubling, and is one of the reasons 
that I applaud the Committee’s decision to hold this hearing.
In light of Assistant Attorney General Perez’s 
affirmation last week that the Department of 
Justice continues to believe that public 
accommodations are covered by Title III even when 
they reach the public only via websites, it seems 
to me that the time has come to test this 
proposition in the courts as well as through the 
development of regulations by the Department of Justice.
Court cases aside, in the years since the 
internet has become a mainstay of American life, 
some advocates and covered entities have reached 
agreements about accessibility of internet 
sites.  Among the websites that have reached such 
agreements, variously, with the NFB, the American 
Council of the Blind and the New York and 
Massachusetts Offices of Attorney General 
are:  Amazon.com, Apple’s iTunes, Major League 
Baseball, CVS, Radio Shack, Rite Aid, Staples, 
Ramada Hotels, and Priceline.com.  Other 
companies with commercial websites have reached 
out proactively to secure certification from the 
NFB that their websites are accessible, including 
both large companies like G.E. and NewEgg and 
small businesses like my law firm.
These agreements and the Target case have had a 
positive impact in increasing website 
accessibility across the commercial industry.  A 
study of the top thirty-two online retailers’ 
websites that analyzed the websites’ 
accessibility one year before the Target decision 
and one year following the decision found a 
significant improvement in overall accessibility.[6]
Using the standards and tools provided by the 
ADA, we are seeing voice-guided ATMs and 
Accessible Point-of-Sale Machines.  In the case 
of the former, with the recent announcement by 
Bank of America that all of its ATMs now have 
voice-guidance and my settlement with the largest 
nonbank deployer of ATMs, Cardtronics, 
inaccessible ATMs are becoming the exception rather than the rule.
ATMs, however, provide an important lesson.  The 
technology to make ATMs accessible is older than 
the technology to make ATMs and the additional 
cost of accessibility in manufacturing and 
deploying ATMs is marginal.  However, delay by 
banks and other deployers of ATMs to comply with 
the ADA until the national fleet of ATMs was 
mature led to a tremendous and unnecessary 
increase in costs in retrofitting or replacing 
functioning inaccessible ATMs.  It also 
needlessly delayed the blind from having this 
convenience that so many rely on.
When new technologies find acceptance in the 
marketplace, their adoption and improvement often 
occurs with dizzying speed.  When accessibility 
is not built in from the outset, however, the 
disability community suffers significant 
competitive disadvantages whose later correction 
may come only as that technology is being 
replaced by something newer or better.  When a 
Microsoft offers first Windows Vista and then 
Windows 7 that were accessible from the day each 
went on the market, or Apple develops, as it has, 
a technology that allows the controls of its iPad 
to be accessible to the blind, this is cause for celebration.
The list of other technologies that have been 
accessible from their entry into the market, 
however, remains far too short.  Gratuitous 
barriers to accessibility are still the rule, not 
the exception.  Improved clarity about the 
application of the ADA to public accommodations 
operating over the internet will help.  As is 
demonstrated by the experience of educational 
institutions, once the purchasers of technology 
understand their obligations and insist on 
accessibility by their suppliers, accessibility becomes mainstreamed.

B.                Inaccessible Digital Information in Education

Nowhere is the impact of digital information felt 
more than in the field of education.  The impact 
is pronounced here, perhaps more than in any 
other sphere because digital information and 
electronic technology have the potential to 
change the game for students with print 
disabilities.  However, educational institutions 
are not meeting that potential.  For example, a 
2008 study that examined the accessibility of 
postsecondary education web pages found that 97% 
of the institutions in its sample contained 
significant accessibility barriers.[7]  The study 
examined only top or home pages of university 
websites, suggesting that the significant 
barriers are even more deeply entrenched than indicated by the study.
That the vast majority of educational 
institutions fail to recognize their obligations 
under the ADA to make their website information 
accessible is only the tip of the 
iceberg.  Reliance on online education is steeply 
increasing, with online enrollments growing 
substantially faster than overall higher 
education enrollments in the past six 
years.[8]  Meanwhile, digital books, course 
management systems, and other educational 
technologies have become an integral part of 
post-secondary education.  Many of these 
technologies are completely – and gratuitously – 
inaccessible to students and others with print disabilities.
While universities and institutions have often 
failed to appreciate their obligations under the 
ADA and their commercial power as consumers of 
educational technology, some positive examples of 
success demonstrate the kind of impact 
institutions can have if their obligations under 
the ADA are made clear and enforceable.

i.                   Universities and Amazon’s Kindle DX

In February 2009, the Kindle 2 was introduced 
with a read-out-loud feature, but with on-screen 
navigation that was not voiced and was therefore 
inaccessible to the blind.  The Association of 
American Publishers and the Authors Guild sought 
to have Amazon terminate this feature.  In 
response, the Reading Rights Coalition was 
formed, thirty-two nonprofits representing the 
print-disability community­including, among 
others, the blind, people with dyslexia and other 
learning disabilities, those with cerebral palsy, 
and those with upper spinal cord injuries.  The 
Coalition worked on one hand to protect the 
inclusion of Text-to-Speech while fighting to 
have Amazon allow its menus to talk and thus make the device accessible.
In May 2009, Amazon announced the launch of its 
Kindle DX e-book reader, which it had designed 
for educational use.  Because Amazon failed to 
include accessible navigational controls, the 
device was inaccessible to the blind.  Six 
colleges and universities simultaneously 
announced they would be deploying the Kindle DX 
during the 2009 – 2010 academic year.  The 
National Federation of the Blind and the American 
Council of the Blind filed a complaint in federal 
court against Arizona State University and filed 
complaints with the Department of Justice and 
Department of Education against the remaining 
schools (Pace University, Case Western Reserve 
University, Reed College, Princeton University, 
and the University of Virginia’s Darden School of 
Business).  These complaints alleged that by 
deploying the inaccessible Kindle, the colleges 
and universities violated their obligations under 
Titles II and III of the ADA to provide equal 
access to their services.  While sighted students 
would benefit from the instant access, 
notetaking, and other services of the Kindle, 
blind students would be left behind, forced to 
rely on separate methods of access that are 
significantly inferior to even the print textbook 
experience.  The complaint against the University 
of Virginia is still pending with the Department 
of Education, but the NFB, the ACB and the 
Department of Justice secured settlements with 
the other five schools under which those schools 
agreed, after the end of this semester, not to 
deploy inaccessible e-book readers.
While those complaints were pending, other 
universities stepped forward to publicly pledge 
they would not adopt e-book technologies on their 
campus – including the Kindle – unless and until 
they were accessible.  Those universities 
included Syracuse University, the University of 
Wisconsin and the University of Illinois.  In 
response to this pressure, Amazon announced that 
it would release a fully accessible Kindle in the 
summer of 2010.  And on March 9, 2010, the 
Reading Rights Coalition, the Association of 
American Publishers and the Authors Guild issued 
a joint statement, released on the White House 
blog, supporting mainstream accessibility when 
books are issued in formats other than print, 
such as e-books and audio books.[9]

ii.                 Libraries  and Adobe Digital Editions

Adobe Digital Editions is the leading commercial 
e-book format used by libraries and also the 
format that can be read on the inaccessible Sony 
e-book reader.  Until March 2009, Adobe e-books 
had been accessible to those who require speech 
to access text and who downloaded those books to 
a PC.  In March 2009, however, Adobe stopped 
support of that accessible system and switched to 
a new, inaccessible e-book platform, called Adobe 
Digital Editions.  As a result, numerous public 
library patrons with disabilities could no longer 
access their libraries’ digital collections.
Advocacy from the Burton Blatt Institute and the 
Reading Rights Coalition prompted the American 
Library Association to adopt a resolution 
strongly recommending that libraries ensure that 
all electronic resources they procure are 
accessible to people with 
disabilities.[10]  Shortly thereafter, the Los 
Angeles Public Library, responding to a letter 
from the Reading Rights Coalition, agreed to 
suspend future procurement of Adobe Digital 
Editions books until they are fully 
accessible.[11]  In response, Adobe announced 
that it would release an accessible Adobe Digital 
Editions in 2010.[12]  Thus, when institutional 
customers of technology, like libraries, act on 
their obligations under the ADA, the developers 
of those technologies find strong economic 
motivation to remove the barriers to accessibility.

iii.              California State University and BlackBoard

California State University succeeded in moving 
one of the leading course-management software 
systems, BlackBoard Learn, toward 
accessibility.  In the late-1990’s, the 
Department of Education’s Office of Civil Rights 
launched an investigation into California State 
University campuses’ compliance with, among other 
statutes, Title II of the ADA.  In response, the 
Cal State system revamped its approach to 
providing access to students with disabilities 
and has become a leader and model for educational 
institutions to follow.  Specifically, rather 
than delegating accessibility obligations to an 
isolated Disability Student Services office, as 
most universities do, Cal State established a 
system-wide, coordinated approach to 
accessibility.  Under this approach, 
accessibility experts work closely with the 
University’s information officers to ensure that 
the technology the university employs is accessible.
Through this arrangement, Cal State requires that 
new technologies it procures be accessible to its 
students. When Cal State put out a request for 
proposals for new course management software, it 
turned down BlackBoard – the leading purveyor of 
course management software – because it did not 
meet Cal State’s accessibility 
requirements.  Since that time, BlackBoard has 
issued two new releases of its software that 
greatly enhance its accessibility.[13]

C.                 The Next Steps to Access to Technology

We are not even halfway there on making the 
internet accessible and in making accessible the 
technologies used in the workplace and offered 
through public accommodations, like educational 
institutions.  And, of course, new technologies 
continue to develop and flourish with astonishing 
speed.  The barriers to accessibility, however, 
are not the result, for the most part, of 
intractable technological issues and need not 
(and as a practical matter, would not) slow down 
innovation.  The biggest contributor to the 
growing accessibility gap continues to be a lack 
of commitment to making technology accessible.
The ADA was a tremendous normative statement of 
the importance we attach as a nation to equal 
opportunity without regard to disability.  But 
while the disability community has the 
responsibility to use the ADA and the other tools 
offered by federal and state laws, government 
must continue to make clear its commitment to 
that promise as well.  The National Broadband 
Plan, for example, states as one of its goals 
that “every American should have affordable 
access to robust broadband service, and the means 
and skills to subscribe if they so 
choose.”[14]  It envisions, among other things 
“improvements in public education through 
e-learning and online content” and improvements 
in health care through the expansion of 
“e-care.”[15]  Without concrete steps to build in 
accessibility at every stage and level, this 
promise to “every American” will not be 
realized.  Recognizing this, the National 
Broadband Plan specifically states that 
“hardware, software, services and digital content 
must be accessible and assistive technologies 
must be affordable.”[16]  The Plan calls on the 
federal government to be a model of 
accessibility, to specifically support innovation 
in accessibility, and to clarify and modernize 
its accessibility laws, enforcement efforts, and 
subsidy programs.  In that respect, the federal 
government has a long way to go, as it has failed 
to monitor and enforce the provisions of Section 
508 of the Rehabilitation Act.
The National Education Technology Plan, currently 
in draft form, addresses to some degree the need 
for Education Technology to be designed for 
mainstream accessibility for those with 
disabilities and we hope the final draft will be 
more robust.  However, recent draft rules 
regarding Health Information Technology fail to 
wholeheartedly incorporate 
accessibility.   Again, the federal government 
must make sure that the execution follows the good intentions.
Our milestones under the ADA thus far have been 
significant, but we remain far behind where we 
ought to be in an era that relies so 
intrinsically upon digital information.  The near 
future will only expedite the transition to 
digital information in critical sectors – 
including education, employment, health care, 
commerce and social life.  If we do not ensure 
that people with disabilities have equal access 
to digital information, they face exclusion from participation in our society.
The commitment we have already seen from the 
Department of Justice will take us nearer that 
goal. The Department of Education, Department of 
Health and Human Services, General Services 
Administration, Federal Communications 
Commission, and others have important 
opportunities to advance accessible technology as 
well.  There are good reasons to believe that the 
disability community, acting for itself and with 
the support of governmental entities, can make 
great strides toward the day that it no longer 
must settle for separate and unequal access to 
technology, but will have, instead, the same 
access to mainstream technology and thus an equal 
opportunity to participate in the educational, 
economic and social life of this country.

Thank you


[1]  Nat’l Fed’n of the Blind v. Target Corp., 
452 F.Supp.2d 946 (N.D. Cal 2006).
[2]  Nat’l Fed’n of the Blind, v. Target Corp., 
No. 3:06-cv-01802-MHP Doc. 210 (N.D. Cal. Mar. 9, 
2008) (final judgment and order approving settlement and dismissing claims).
[3]  See Weyer v. Twentieth Century Fox Film 
Corp., 198 F.3d 1104, 1114 (9th Cir. 2000) 
(concluding that places of public accommodation 
are “actual, physical places.”); see also Ford v. 
Schering-Plough Corp., 145 F.3d 601, 612–13 (3d 
Cir. 1998) (holding that plaintiff failed to 
allege a nexus between the place of public 
accommodation and the insurance benefits offered 
by the employer); Stoutenborough v. National 
Football League, 59 F.3d 580, 583–84 (6th Cir. 
1995) (affirming the dismissal of a claim under 
Title III because the challenged service, the 
live telecast of a football game, was not offered 
by a place of public accommodation, the stadium).
[4]  See Carparts Distribution Ctr., Inc. v. 
Automotive Wholesalers Assoc. of New England, 
Inc., 37 F.3d 12, 19–20 (1st Cir. 1994) (holding 
that “public accommodations” encompasses more 
than actual physical structures and includes the 
defendant insurance company); Doe v. Mutual of 
Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999) 
(noting that a “place of public accommodation” 
encompasses facilities open to the public in both 
physical and electronic space, including websites).
[5]  Access Now, Inc. v. Southwest Airlines Co., 
227 F.Supp.2d 1312 (2002).  On appeal, the 11th 
Circuit dismissed the appeal without reaching the 
merits of the case, so the 11th Circuit has not 
yet addressed the issue.  See Access Now, Inc. v. 
Southwest Airlines Co., 385 F. 3d 1324 (11th Cir. 2004).
[6]  Jonathan Frank, "Web Accessibility for the 
Blind: Corporate Social Responsibility? or 
Litigation Avoidance?," pp.284, Proceedings of 
the 41st Annual Hawaii International Conference 
on System Sciences (HICSS 2008), 2008.
[7]  Project GOALS Evaluates 100 Pages in Higher 
Education for Accessibility Against Section 508 
Standard, NCDAE Newsletter, April 
2008.  Retrieved: http://ncdae.org/community/newsletter/april2008/
[8]  I. Elaine Allen and Jeff Seaman, Learning on 
Demand: Online Education in the United States, 
2009, Babson Survey Research Group, January 
2010.  Retrieved at: 
<http://www.sloan-c.org/publications/survey/pdf/learningondemand.pdf>http://www.sloan-c.org/publications/survey/pdf/learningondemand.pdf 


[9] http://www.whitehouse.gov/blog/2010/03/09/one-step-closer-full-access
[10]  Purchasing of Accessible Electronic 
Resources Resolution, American Library 
Association, July 15, 2009.  Retrieved at: 
<http://bbi.syr.edu/events/2009/docs/Purchasing_Accessible_%0bElectronic_Resources_Resolution_revised_52.doc>http://bbi.syr.edu/events/2009/docs/Purchasing_Accessible_
<http://bbi.syr.edu/events/2009/docs/Purchasing_Accessible_%0bElectronic_Resources_Resolution_revised_52.doc>Electronic_Resources_Resolution_revised_52.doc.
[11]  Letter to Eve Hill from Martin Gomez, 
August 31, 
2009.  <http://www.readingrights.org/477>http://www.readingrights.org/477
[12]  Bill McCoy, Adobe eBooks - Update on 
Accessibility Support, October 8, 2009. 
<http://blogs.adobe.com/billmccoy/2009/10/adobe-ebooks--.html>http://blogs.adobe.com/billmccoy/2009/10/adobe-ebooks--.html
[13]  National Federation of the Blind and 
Blackboard to Demonstrate New Accessibility 
Features at CSUN, March 25, 2010. 
<http://www.nfb.org/nfb/NewsBot.asp?MODE=VIEW&ID=566>http://www.nfb.org/nfb/NewsBot.asp?MODE=VIEW&ID=566 

[14] 
http://www.broadband.gov/plan/executive-summary/ (“National Broadband Plan”).
[15]  Id.
[16]  National Broadband Plan at 181 (“Addressing 
Issues of Accessibility for Broadband Adoption and Utilization”).