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<DIV dir=ltr class=OutlookMessageHeader align=left><FONT size=2
face=Tahoma>-----Original Message-----<BR><B>From:</B>
chapter-presidents-bounces@nfbnet.org
[mailto:chapter-presidents-bounces@nfbnet.org]<B>On Behalf Of </B>David
Andrews<BR><B>Sent:</B> Thursday, May 06, 2010 11:19 PM<BR><B>To:</B>
david.andrews@nfbnet.org<BR><B>Subject:</B> [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<BR><BR></FONT></DIV>
<DIV align=center><B><BR>Statement of Daniel F. Goldstein, Esq. <BR>Partner,
Brown, Goldstein & Levy, LLP<BR></DIV> <BR>
<DIV align=center><BR>Before the United States House Committee on the
Judiciary<BR> <BR>Subcommittee on the Constitution, Civil Rights, <BR>and
Civil Liberties<BR> <BR>on<BR> <BR>Achieving the Promise of the
Americans with Disabilities Act in the<BR>Digital Age – Current Issues,
Challenges, and Opportunities<BR> <BR> <BR>Thursday April 22,
2010<BR> <BR></DIV> <BR> <BR> <BR> <BR> <BR> <BR> <BR> <BR> <BR> <BR> <BR> <BR> <BR><BR></B>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. <BR>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. <BR>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.
<BR>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.
<BR>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.<BR> <BR><B>A.
The ADA and Public Accommodation Websites<BR> <BR></B>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.<BR>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. <BR><A name=_ftnref1></A>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,<A name=_ftnref2></A>[1]
Target settled and has since made its website fully accessible.[2] <BR><A
name=_ftnref3></A>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.<A
name=_ftnref4></A>[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] <BR>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. <BR>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. <BR>Despite
this obvious reality of life in the internet era, one district court, in
<I>Access Now v. Southwest Airlines Co</I><A name=_ftnref5></A>. 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 <I>Southwest</I> 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. <BR>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. <BR>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.<BR>These agreements and the <I>Target</I> 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 <I>Target</I><A
name=_ftnref6></A> decision and one year following the decision found a
significant improvement in overall accessibility.[6]<BR>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.
<BR>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. <BR>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. <BR>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.
<BR> <BR><B>B.
Inaccessible Digital Information in Education<BR> <BR></B><A
name=_ftnref7></A>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. <BR><A
name=_ftnref8></A>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.<BR>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.<BR> <BR><B>i.
Universities and Amazon’s Kindle DX<BR> <BR></B>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.<BR>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.<BR><A
name=_ftnref9></A>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]<BR> <BR><B>ii.
Libraries and Adobe Digital Editions<BR></B> <BR>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.<BR><A name=_ftnref10></A>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.<A name=_ftnref11></A>[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.<A name=_ftnref12></A>[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.
<BR> <BR><B>iii.
California State University and BlackBoard<BR></B> <BR>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.<BR><A
name=_ftnref13></A>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]
<BR> <BR><B>C.
The Next Steps to Access to Technology<BR></B> <BR>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.<BR><A
name=_ftnref14></A>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.”<A
name=_ftnref15></A>[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.”<A name=_ftnref16></A>[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. <BR>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. <BR>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.<BR>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. <BR> <BR>Thank
you<BR><BR><BR><A name=_ftn1></A>[1] <I>Nat’l Fed’n of the Blind v. Target
Corp., </I><A name=_ftn1></A>452 F.Supp.2d 946 (N.D. Cal 2006).<BR><A
name=_ftn2></A>[2] <I>Nat’l Fed’n of the Blind, v. Target Corp., No.
</I><A name=_ftn2></A>3:06-cv-01802-MHP Doc. 210 (N.D. Cal. Mar. 9, 2008) (final
judgment and order approving settlement and dismissing claims).<BR><A
name=_ftn3></A>[3] <I>See Weyer v. Twentieth Century Fox Film Corp.</I>,
198 F.3d 1104, 1114 (9th Cir. 2000) (concluding that places of public
accommodation are “actual, physical places.”); <I>see also</I> <I>Ford v.
Schering-Plough Corp.</I>, 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); <I>Stoutenborough v. National
Football League</I><A name=_ftn3></A>, 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).<BR><A name=_ftn4></A>[4]<I> See
Carparts Distribution Ctr., Inc. v. Automotive Wholesalers Assoc. of New
England, Inc.</I>, 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); <I>Doe v. Mutual of Omaha Ins. Co.</I><A
name=_ftn4></A>, 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).<BR><A name=_ftn5></A>[5]
<I>Access Now, Inc. v. Southwest Airlines Co.</I>, 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. <I>See</I> <I>Access Now, Inc. v. Southwest Airlines Co.</I><A
name=_ftn5></A>, 385 F. 3d 1324 (11th Cir. 2004). <BR><A
name=_ftn6></A>[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.<BR><A name=_ftn7></A>[7] Project GOALS Evaluates 100 Pages in
Higher Education for Accessibility Against Section 508 Standard, NCDAE
Newsletter, April 2008. Retrieved: <A
href="http://ncdae.org/community/newsletter/april2008/"
eudora="autourl">http://ncdae.org/community/newsletter/april2008/<BR></A><A
name=_ftn8></A>[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: <A
href="http://www.sloan-c.org/publications/survey/pdf/learningondemand.pdf">http://www.sloan-c.org/publications/survey/pdf/learningondemand.pdf</A>
<A name=_ftn8></A><BR> <BR><A name=_ftn9></A>[9] <A
href="http://www.whitehouse.gov/blog/2010/03/09/one-step-closer-full-access"
eudora="autourl">http://www.whitehouse.gov/blog/2010/03/09/one-step-closer-full-access<BR></A><A
name=_ftn10></A>[10] <B>Purchasing of Accessible Electronic Resources
Resolution, American Library Association, July 15, 2009. Retrieved at:
</B><A name=_ftn10></A><A
href="http://bbi.syr.edu/events/2009/docs/Purchasing_Accessible_%0bElectronic_Resources_Resolution_revised_52.doc">http://bbi.syr.edu/events/2009/docs/Purchasing_Accessible_<BR></A><A
href="http://bbi.syr.edu/events/2009/docs/Purchasing_Accessible_%0bElectronic_Resources_Resolution_revised_52.doc">Electronic_Resources_Resolution_revised_52.doc</A>.<BR><A
name=_ftn11></A>[11] Letter to Eve Hill from Martin Gomez, August 31,
2009. <A
href="http://www.readingrights.org/477">http://www.readingrights.org/477</A><A
name=_ftn11></A><BR><A name=_ftn12></A>[12] Bill McCoy, Adobe eBooks -
Update on Accessibility Support, October 8, 2009. <A
href="http://blogs.adobe.com/billmccoy/2009/10/adobe-ebooks--.html">http://blogs.adobe.com/billmccoy/2009/10/adobe-ebooks--.html</A>
<A name=_ftn12></A><BR><A name=_ftn13></A>[13] National Federation of the
Blind and Blackboard to Demonstrate New Accessibility Features at CSUN, March
25, 2010. <A
href="http://www.nfb.org/nfb/NewsBot.asp?MODE=VIEW&ID=566">http://www.nfb.org/nfb/NewsBot.asp?MODE=VIEW&ID=566</A>
<A name=_ftn13></A><BR><A name=_ftn14></A>[14] <A
href="http://www.broadband.gov/plan/executive-summary/"
eudora="autourl">http://www.broadband.gov/plan/executive-summary/</A><A
name=_ftn14></A> (“National Broadband Plan”).<BR><A name=_ftn15></A>[15]
<I>Id</I><A name=_ftn15></A>.<BR><A name=_ftn16></A>[16] National
Broadband Plan at 181 (“Addressing Issues of Accessibility for Broadband
Adoption and Utilization”).<BR></BODY></HTML>