[Nfbmo] Fw: [nfbmi-talk] Statement of Daniel Goldstein, Before Congress, Achieving the Promise of the Americans with Disabilities Act in theDigital Age - Current Issues, Challenges, and Opportunities

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Fri May 7 10:46:24 UTC 2010

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Subject: [nfbmi-talk] Statement of Daniel Goldstein, Before 
Congress,Achieving the Promise of the Americans with Disabilities Act in 
theDigital 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
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 
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 
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:
[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:
[10]  Purchasing of Accessible Electronic
Resources Resolution, American Library
Association, July 15, 2009.  Retrieved at:
[11]  Letter to Eve Hill from Martin Gomez,
August 31,
2009.  <
[12]  Bill McCoy, Adobe eBooks - Update on
Accessibility Support, October 8, 2009.
[13]  National Federation of the Blind and
Blackboard to Demonstrate New Accessibility
Features at CSUN, March 25, 2010.
 ("National Broadband Plan").
[15]  Id.
[16]  National Broadband Plan at 181 ("Addressing
Issues of Accessibility for Broadband Adoption and Utilization").
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