[nfbwatlk] [Wcb-l] Fwd: No more excuses: ADA alreday covers websites (andSection 504 too)

Mon Jun 29 15:28:14 UTC 2015

Mary Ellen:

There are at least two salient differences between the case decided last
week and any case involving cyberspace or devices such as point-of-sale
machines, dispensers of goods using touch-screens to make choices, home
appliances and the like. First, last week's case does not arguably involve
much of a monitary effect on business. That is, whether a business, church
or other entity admits/serves GLBT citizens will, I suspect, have negligible
effect upon commerce overall. Contrast this with retrofitting or even
designing technology with access for the blind or otherwise disabled in mind
which, despite much hype from us and others, is not necessarily the
negligible expense that we prattle on about. And, being somewhat
business-oriented, I think the Supreme Court would be loath to step in and
compel business and government to spend money, leaving that to the other two
branches of our government which, again despite our hype, move with glacial
slowness except when authorizing military expenses which, let's face it,
have a lot of local commerce fallout for Congressional constituents. I'll
leave it at that.

Second, again despite the hype, what is determined to be accessible is
legally vague at best and often isn't even determinable. If you doubt me,
ask yourself why different web pages work better with different
screen-readers. A truly effective technology requirement for an accessible
web would mandate that *all* screen readers would render *any* web page
fully accessible under *all* circumstances. In practice, this would mean
mandating design and programming standards, thus constraining innovation,
whether we want to admit it or not. And this sort of mandate is unlikely to
be accepted by business or programmers. And Congress follows the money! And
the Supreme Court is unlikely to mandate access when we can't even legally
define what access truly is. It's sort of the same situation as is the case
with pornography: the late Supreme Court Justice Potter Stuart once remarked
that he couldn't define pornography but he knew it when he saw it. We are in
the same boat. We know something is inaccessible but can't truly define in
legal terms what accessibility means. Business and the law want something
like: if you obey these two hundred fifty-five rules when designing your
equipment or web pages, accessibility is guaranteed. We can't truly say this
about any of our access.

Consider Section 508. Its standards can *help* make web sites and software
accessible but most of the Government doesn't pay much attention to them,
the standards are out-of-date and it's taking an inordinate amount of time
to craft updated standards, not least because it's hard to define what
accessibility means in legal terms and technology is changing so fast that
about the time one set of standards is crafted, it is already out-of-date.

In a way, technology is rather like blindness: there's the legal definition
and the functional definition. Both are needed but we must ask ourselves
why? Why isn't the functional definition good enough? Because we're dealing
with variable human beings, not widgets.

But I fear we will muddle along (and by "we", I mean the whole blindness
community) until we tackle some of these fundamental issues.

Same goes for audible pedestrian signals, a discussion of which is going on
over on Electronics-Talk in the guise of whether a traffic-signal-app for
the iPhone would be a good idea. IMO neither ACB nor NFB has truly logically
tackled the issue of whether or how safe it is for deaf-blind persons to
travel alone. The reason is simple: there lies a minefield.

But enough on this. Please know that I think cyberspace is or ought to be
covered by ADA; I'm just dubious what would happen were someone to have the
temerity and deep pockets to challenge a ruling favorable to us all the way
to the nation's highest court.

Mike Freeman

-----Original Message-----
From: nfbwatlk [mailto:nfbwatlk-bounces at nfbnet.org] On Behalf Of Mary ellen
via nfbwatlk
Sent: Sunday, June 28, 2015 8:11 PM
To: 'NFB of Washington Talk Mailing List'
Cc: Mary ellen
Subject: Re: [nfbwatlk] [Wcb-l] Fwd: No more excuses: ADA alreday covers
websites (andSection 504 too)

I'm curious to know your reasoning.  Obviously cyberspace wasn't mentioned
in ADA legislation.  As a practical matter, there was very little internet
commerce when the legislation was enacted.  If Congress were to amend the
legislation, we would want the internet to be specifically included.  I
think there are enough precedents to protect our right to access even though
the law didn't anticipate the technology.  Of course, it all depends on the
kind of judges on the bench when such a case reaches the court.  This past
week has demonstrated that judges are willing to interpret judicial
principles in ways not envisioned when the constitution was adopted.
Please, I don't want to get into a discussion on whether the court acted
wisely or foolishly, just to note that it doesn't seem shy about acting.

-----Original Message-----
From: nfbwatlk [mailto:nfbwatlk-bounces at nfbnet.org] On Behalf Of Mike
Freeman via nfbwatlk
Sent: Sunday, June 28, 2015 7:12 PM
To: 'NFB of Washington Talk Mailing List'
Cc: Mike Freeman
Subject: Re: [nfbwatlk] [Wcb-l] Fwd: No more excuses: ADA alreday covers
websites (andSection 504 too)

I obviously think that cyberspace is a place of public accommodation covered
under Title III of ADA. However, I confess to being dubious that if someone
were to take a judgment based upon this premise all the way to the Supreme
Court, the premise would be upheld.

Mike

-----Original Message-----
From: nfbwatlk [mailto:nfbwatlk-bounces at nfbnet.org] On Behalf Of Mary ellen
via nfbwatlk
Sent: Sunday, June 28, 2015 8:56 AM
To: 'NFB of Washington Talk Mailing List'
Cc: Mary ellen
Subject: Re: [nfbwatlk] [Wcb-l] Fwd: No more excuses: ADA alreday covers
websites (andSection 504 too)

Thanks for that information.  This is the same issue we've litigated over
and over again.  Web sites are part of the ADA.  I would hope that the deaf
community would support us in our access battles.  I don't expect them to do
more than cheer us on, since they have no knowledge of our issues and I
wouldn't want them trying to tell others how to deal with us.  I feel the
same about our support of them.  We can help because we've helped create
precedents that clearly state the web is covered by ADA.  Perhaps we can
even file amicus briefs if asked.  

The blind and the deaf often ask for things that seem contradictory.  They
want more visual information and we want more audio and tactile information.
In the end, of course, we all want access to information provided in useful
ways.

Stand in support of deaf people?  It's a natural, provided they lead the
way.  Will they stand with us?  I suppose that in a moral sense it doesn't
matter.  There's no moral ambiguity about captioning videos; it's simply the
right thing to do.

-----Original Message-----
From: nfbwatlk [mailto:nfbwatlk-bounces at nfbnet.org] On Behalf Of Debby
Phillips via nfbwatlk
Sent: Saturday, June 27, 2015 6:23 PM
To: nfbwatlk at nfbnet.org
Cc: Debby Phillips
Subject: [nfbwatlk] [Wcb-l] Fwd: No more excuses: ADA alreday covers
websites (andSection 504 too)

What's that old saying about, They came for the Communists, but I didn't
speak up, because I wasn't one.  They came for....  Well, if we don't speak
out about this whether it affects us or not, are we not allowing another
disability group to be discriminated against? The question I have is this
though: would they stand up 
with us if a website is not accessible for us?    Debby

 ---- Original Message ------
From: Marlaina Lieberg <1guidedog at gmail.com
Subject: [Wcb-l] Fwd: No more excuses: ADA alreday covers websites
(andSection 504 too) Date sent: Fri, 26 Jun 2015 10:08:29 -0700

Marlaina and guide dog, Nisha
1guidedog at gmail.com

Begin forwarded message:

From: Lainey Feingold <LF at LFLegal.com
Subject: No more excuses: ADA alreday covers websites (and Section 504 too)
Date: June 25, 2015 at 6:11:52 PM PDT
To: Lainey Feingold <LF at LFLEGAL.COM

Colleagues:

Today the U.S.  Department of Justice filed "Statements of Interest" in
cases against Harvard and MIT filed by the National Association of the Deaf.
The lawsuits allege that the universities failed to caption online video
content and that the failure violated the ADA and Section 504 of the
Rehabilitiation Act.  The DOJ documents support NAD's position.

The universities argued that the court should throw the cases out of court
because the ADA and 504 don't cover websites.  The schools also argued that
the court should wait for the Title III web regulations.  The DOJ couldn't
have written a stronger brief (one in each case).  The ADA already covers
websites.  There is no need to wait for regulations.

This is not the first time the DOJ has reminded us all that the ADA already
covers websites, just the most recent.  For other DOJ activity, see the
digital access legal update I wrote in March
at: http://lflegal.com/2015/03/legal-update-csun15/
<http://lflegal.com/2015/03/legal-update-csun15/>.  Another update coming
soon.

Here are the links to today's legal filings:

DOJ Statement of Interest in MIT case: http://1.usa.gov/1BFdCqs
<http://1.usa.gov/1BFdCqs

DOJ Statement of Interest in Harvard case: 
http://1.usa.gov/1J8Edfl <http://1.usa.gov/1J8Edfl

Happy reading,  Lainey

Lainey Feingold
Law Office of Lainey Feingold
http://lflegal.com/ <http://lflegal.com/
510.548.5062
LF at LFLegal.com <mailto:LF at LFLegal.com
Twitter: http://twitter.com/LFLegal <http://twitter.com/LFLegal

The information contained in this e-mail message may be privileged,
confidential and protected from disclosure.  If you are not the intended
recipient, any dissemination, distribution or copying is strictly
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