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

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Sat May 8 09:07:12 CDT 2010


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



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

[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_
Electronic_Resources_Resolution_revised_52.doc.
[11]  Letter to Eve Hill from Martin Gomez, August 31, 2009.
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
[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
[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”).
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