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Law Office of Elaine B. Feingold
1524 Scenic Avenue
Berkeley, CA 94708
Access to technology and access to information are civil rights that are recognized and protected in the United States by various civil rights laws and implementing governmental regulations. The existence of laws, however, does not magically create accessibility. Laws are tools that are only as effective as the advocates who use them and the entities that enforce them. In an era of economic contraction and backlash against the rights of persons with disabilities, creative and conscientious advocacy strategies are critical . While litigation may be an effective enforcement strategy under appropriate circumstances, it is not the only way in which disability rights laws can, or should be enforced. Indeed, litigation should often (although not always) be a strategy of last resort.
Over the last several years, advocates have developed and used both litigation, and alternatives to litigation to advance, and protect the rights of persons with disabilities to technology and information access. This session will explore those strategies, particularly in the context of access to the World Wide Web and to ATMs. Participants will be encouraged to share successful advocacy strategies that have achieved accessible technologies.
OVERVIEW OF LAWS RELEVANT TO INFORMATION ACCESS GENERALLY AND ATM AND WEB ACCESS IN PARTICULAR
The following laws and regulations are among those in the United States that address the rights of persons with disabilities to information and technology access. (Internet resources for further information include: http://www.usdoj.gov/crt/ada/cguide.htm (United States Department of Justice Guide to Disability Rights Laws) ; http://www.usdoj.gov/crt/ada/adahom1.htm (U.S. Department of Justice ADA Homepage); http://www.w3.org/WAI/Policy/#US ; (summary of federal laws) http://www.jan.wvu.edu/links/adalinks.htm (Document Center of the federally-funded Job Accommodation Network (JAN).) Reference to relevant laws of other countries may be found on http://www.w3.org/WAI/Policy/
(1) Americans with Disabilities Act (statute: 42 U.S.C. 12181 et. seq)
Title I of the ADA, governing the employment of persons with disabilities by private employers, mandates that employers provide reasonable accommodations to covered employees if doing so does not create an undue burden. Providing accessible technology, information in alternative formats, and web accessibility are examples of types of reasonable accommodations that may be required. Title I regulations, issued by the Equal Employment Opportunity Commission, are found at 29 C.F.R. 1630 et seq. (See JAN website listed above for full text)
Title II of the ADA governs state and local government entities. In addition to a basic non-discrimination mandate, this section requires that the programs, services and activities of these entities be accessible to and usable by persons with disabilities. There is also an express obligation to provide auxiliary aids and services to effectively communicate with persons who cannot see visually delivered information or cannot hear aurally delivered information. As government entities provide increasing amounts of information on the Internet, web accessibility of public information becomes a matter of increasing concern. Title II regulations, issued by the U.S. Department of Justice, are found at 28 C.F.R. Part 35, sections 35.101 et seq.
Title III of the ADA requires nondiscriminatory treatment in the provision of goods and services by entities who own, lease or operate a place of public accommodations. The right to "effective communication" is expressly set forth in both the ADA itself and in implementing Title III regulations, which are found at 28 C.F.R. Part 36.
Department of Transportation ADA regulations Department of Transportation Regulations implementing transportation provisions of the ADA, including the right to accessible transit information, may be found at 49 C.F.R. Part 37 http://www.fta.dot.gov/library/legal/adar.htm. 49 C.F.R.37.167(f) specifically requires that "the entity shall make available to individuals with disabilities adequate information concerning transportation services. This obligation includes making adequate communications capacity available, through accessible formats and technology, to enable users to obtain information and schedule service." For DOT accessibility information generally, see http://www.dot.gov/accessibility/index.html
(2) Rehabilitation Act of 1973
Section 504 of the Rehabilitation Act Section 504 (28 U.S.C. 794(a) requires any entity receiving federal financial assistance to ensure program accessibility. Web-based information is often integral to programs of federally funded entities - and may often be the programs themselves.
Section 508 of the 1998 amendments to the 1973 Rehabilitation Act, 29 U.S.C. 794(d). Section 508 guarantees access to electronic and information technology procured by Federal agencies. The U.S. Access Board developed accessibility standards for the various technologies covered by the law, and those standards have been folded into the Federal government's procurement regulations. Further information may be found at http://www.section508.gov/ (GSA home page for section 508 compliance); http://www.access_board.gov (Access Board's section 508 page, which contains links to 508 regulations and other information.).
(3) The Air Carriers Access Act This under-used 1986 statute, enforced by the Aviation consumer Protection Division of the U.S. Department of Transportation, prohibits discrimination in connection with air transportation and related services. The applicability of this law to the provision of information by airlines, either over the telephone, in person, or over the Internet, has not been explored. Further information may be found at http://airconsumer.ost.dot.gov/
(4) State Civil Rights Laws: the civil rights laws of various states provide varying degrees of protection to the civil rights of persons with disabilities, and may or may not particularly address the right to accessible information and technology.
(5) Voting Accessibility for the Elderly and Handicapped Act of 1984: The right to accessible election information and independent access to voting technology is critical to the ability of persons with disabilities to exercise basic citizenship rights. Recently there has been activity on both the federal and state level to strengthen voting rights statutes. Current information may be found on the website of the American Association for Persons with Disabilities at http://www.aapd.com
(6) Telecommunications Act of 1996 and the Telecommunications Act Accessibility Guidelines of 1998, 36 CFR Part 1193. This law imposes accessibility obligations on manufacturers of telecommunications equipment and customer premises equipment. The Act is enforced by the Federal Communications Commission with which consumers may file complaints. Further information is available at http://www.access_board.gov
Individuals with Disabilities in Education Act This federal law, often referred to as Public Law 94-142, requires public schools to make available to all eligible children with disabilities a free appropriate public education in the least restrictive environment appropriate to their individual needs. Under the law, each eligible student must receive an Individualized Education Program, which will often address access to technology and information, and increasingly, to the Internet. (Useful information regarding the IEP process may be found at http://www.ed.gov/offices/OSERS/OSEP/Products/IEP_Guide/ .) The right to accessible information in the education context is also addressed by Section 504 (for educational institutions receiving federal financial assistance) and the ADA Title II (for state and local educational institutions) and Title III (for private schools.) See http://www.ed.gov/offices/OCR/index.html for information concerning the U.S. Department of Education enforcement of education rights under section 504 and the ADA. State laws may also specifically address educational rights to accessible information in various contexts. See, for example, California's 1999 Distance Education:
Access Guidelines for Students with Disabilities at http://www.htctu.fhda.edu/dlguidelines/final%20dl%20guidelines.htm.
ONE FORM OF ADVOCACY: STRUCTURED NEGOTIATIONS IN LIEU OF LITIGATION
In September, 1999, there were 12 accessible Automated Teller Machines (ATMs) in the world, none of which were in the United States. As of October 31, 2002, there are close to 10,000 Talking ATMs in the United States alone, and press reports have touted the installation of Talking ATMs in India, Australia, Spain and Italy. Virtually all of the Talking ATMS that are operational in the United States are there because of advocacy efforts undertaken by the blindness community in particular and the disability community generally. Years before the first Talking ATM was installed, advocates were meeting with industry representatives and serving on regulatory committees pressing the issue of accessible ATMs. The very first Talking ATM in the country was installed in the Office of the Treasurer of the City and County of San Francisco during a push by advocates and city staff to make City Hall - where the office is located - 100% accessible. Still other Talking ATMS were installed as a result of lawsuit settlements or individual advocacy efforts. In 2000, the blindness community mounted a rigorous and effective advocacy effort to ensure strong Talking ATM regulations in the proposed ADA Accessibility Guidelines (ADAAG) then being drafted by the Access Board.
By far the largest number of Talking ATMS in the country, however, have been installed as a result of settlement agreements negotiated by lawyers for the blindness community and the country=s largest financial institutions. Using an advocacy method referred to as structured negotiations, the principle components of which will be discussed during the session, these settlements were reached without lawsuits being filed. In several instances, the Talking ATM agreements also addressed the issue of accessible on-line banking and other aspect's of a bank's internet presence, and institutions have agreed to use the web content accessibility guidelines of the World Wide Web consortium in designing and generating webpages. (The agreement with Fleet bank is available on line at http://www.dlc_ma.org. The first of two agreements with Bank of America is available at http://www.icdri.org/ATMs/bank_of_america_atm_settlement_a.htm
Instead of litigation, the disability community, with the assistance of lawyers, approached financial institutions, offering an opportunity to engage in negotiations to achieve access solutions, rather than engage in the adversarial process of litigation. Every financial institution approached in this manner opted to negotiate. In the absence of litigation, with its heavy emphasis on procedures controlled by lawyers, disability community advocates, technical experts, industry representatives from both the "business" side and the "technical" side of corporations, as well as manufacturers and civil rights lawyers were able to engage in the type of creative dialogue that can more easily results in successful implementation of accessibility solutions in technology. Indeed, perhaps the single greatest advantage of a non-litigation approach to technology and information access is the opportunity for collaboration. Once a lawsuit is filed, principle communication is by necessity adversarial. Without litigation, representatives of industry have an opportunity to establish relationships with advocates and in a potentially deeper way learn the effects of communication barriers on people with disabilities. Such knowledge will frequently (although not always) be a sharp motivator for the provision of accessible technology.
TRADITIONAL LITIGATION AS A MEANS OF ACHIEVING ACCESS TO TECHNOLOGY
Traditional litigation has been used to obtain information and technology access with mixed results. One example where litigation has been successful is in the area of voting rights. Spearheaded by the Disability Vote Project of the American Association of Persons with Disabilities (AAPD), carefully targeted litigation has been used effectively to ensure access to polling places, voting machines and other voter information. See, for example http://www.aapd.com/docs/landmarksettledcvotemach.html (Press release announcing AAPD Washington D.C. Voting Access settlement.) Perhaps not coincidentally, litigation is but one aspect of AAPD's coordinated approach to advancing the voting rights of persons with disabilities, a strategy which also includes legislative advocacy, education, outreach and work with technology manufacturers. See, http://www.aapd.com/dvpmain/pollaccess/pollaccess.html (Examples of AAPD advocacy regarding voting access)
Litigation regarding web accessibility has not been as focused, and the results have been mixed . (In Martin v. Metropolitan Atlanta Transportation Authority, a federal district court in Georgia held that a local transit agency had violated regulations promulgated by the Department of Transportation pursuant to Title II of the ADA in part because the systems "web page was not formatted in such a way that it can be read by persons who are blind" who are using screen reader software. http://www.gand.uscourts.gov/documents/1001cv3255TWTinj.pdf. Shortly after this decision was issued, another district Court in Florida dismissed a lawsuit brought against Southwest Airlines for the inaccessibility of http://www.southwest.com on the grounds that this website was not a place of public accommodation under Title III of the ADA. http://www.bytowninternet.com/southwest.html (Court order in Access Now v. Southwest Airlines.) (A more cogent analysis of the application of the ADA to the web may be found in the Brief of the U.S. Department of Justice in Hooks v. OKBridge Inc arguing that an entity conducting business solely on the Internet may be a place of Public Accommodation under Title III of the ADA. http://www.usdoj.gov/crt/briefs/hooks.htm
KEY COMPONENTS OF EFFECTIVE ADVOCACY STRATEGIES
While appropriate methods for advancing the rights of persons with disabilities to information and technology access will of course vary by context, certain elements are crucial to any effective advocacy strategy, regardless of the law at issue and regardless of the advocacy method employed. These elements include the following:
Choosing objects of advocacy through careful research: Thorough research is key to effective advocacy. For example, the national Talking ATM advocacy effort focused initially on some of the country's largest banks, in order to avoid potential arguments about costs being prohibitive. Determining which website is an appropriate focus for advocacy, particularly if litigation is being considered, warrants careful consideration. For Web sites, it is important to document the ways in which the site is inaccessible. This involves conducting an evaluation of the Website. Resources regarding appropriate methods for Web site evaluation may be found at http://www.w3.org/WAI/eval/
Importance of documentation: Related to careful research is the need to obtain (and maintain) documentation of various steps in the advocacy effort. Barriers encountered by members of the disability community should be recorded, and recorded on an on-going basis. A successful advocacy effort mandates constant vigilance, particularly on issues of information technology that can change so rapidly. Written documentation of all contacts with the technology provider (website operator, ATM owner, government agency providing an inaccessible program) should be carefully maintained. Courts are increasingly troubled by disability rights litigation efforts that were not preceded by a good faith attempt to engage in discussions prior to the lawsuit being filed.
Importance of initial communication with technology/information provider: The manner in which a provider of information technology is approached can make the difference between a successful and unsuccessful outcome. First impressions are often lasting impressions, and thus all contact needs to be well thought out, serious, and, hopefully, designed to engage collaboration rather than force polarization. To the extent possible, examples should be given of other technology providers who have achieved accessibility in a similar context: other web pages that comply with applicable standards, other banks providing Talking ATMs, etc.
Reliance on experts in the field: The importance of relying on experts in the field of information technology prior to undertaking a serious advocacy effort of any type cannot be overestimated. Staff at the NIDRR- funded Trace Center at the University of Wisconsin at Madison have been involved in the field of accessible technology since long before enactment of the ADA. The Center's website offers a plethora of information critical to making various types of information technology accessible. http://www.tracecenter.org Similarly, the Website and staff of the Web Accessibility Initiative of the World Wide Web Consortium provide invaluable information and technical expertise to both community members pressing for Web accessibility, as well as providers seeking to improve the accessibility of their sites. http://www.w3.org/WAI/
Information sharing among advocates: One of the reasons that the national Talking ATM advocacy effort continues to be successful is that advocates share information and strategy. On any given issue, there is often no centralized location where all information is stored. As with most fields, however, in the area of disability rights and its application to technology and information, a short amount of time spent on the Web can provide a wealth of relevant contacts.
Monitoring and Compliance: Advocacy does not end with a commitment by a public or private entity to provide accessibility. In some ways, the most important parts of advocacy around technology issues begin at this stage. Implementation of any agreements must be monitored carefully. A method for community feedback should be established and form a part of any outreach effort.
Disability community empowerment: The goal of a successful advocacy effort is not simply achieving accessibility of a particular product or service. It should also include empowering persons with disabilities in a manner which encourages use of the accessibility achieved, and paves the way for future advocacy on other issues. Empowerment requires involvement of the community throughout the process to the fullest extent possible. The varying perspectives that participants bring to the process will ensure an inclusive solution that works for the end user and is truly accessible.
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