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Presenter(s)
Lainey Feingold
Law Office of Elaine B. Feingold
1524 Scenic Avenue
Berkeley, CA 94708
Phone: 510.548.5062
Fax: 510.548.5508
Email: lfeingold1@earthlink.net
Crista Earl
Director, Web Operations
American Foundation for the Blind
11 Penn Plaza Suite 300
New York, NY 10001
Phone: 212. 502-7605
Email: crista@afb.net
I. INTRODUCTION
Does the ADA require public or private websites to be accessible? If it does, do ADA standards for accessible websites differ from requirements under section 508? What about other federal and state disability rights laws? What does "accessible" mean when discussing legal requirements of various laws? How do the W3C web content accessibility standards fit in? Is litigation the best way to use these laws to make the web more accessible, or are their other alternatives? What have courts had to say about web access? Are there private settlements that can be used as models? What are government agencies doing about these issues? These are some of the questions that this session will explore.
II. RECENT LEGAL DEVELOPMENTS REGARDING WEBSITE ACCESSIBILITY
(1) Financial Industry Settlements with Blind Community Requiring W3C Compliance
As of September 2004, seven major financial institutions have signed legally binding agreements with the blind community requiring accessibility of banking websites. The institutions are Bank of America, Fleet (recently acquired by Bank of America), Washington Mutual, First Union/Wachovia, Bank One (recently acquired by Chase), Citizens Bank and Sovereign Bank(See footnote 1 at end of paper). Representatives of the blind community involved in these agreements include the California Council of the Blind, the Bay State Council of the Blind, and the Florida Council of the Blind, as well as blind individuals in California, Florida, Massachusetts and Illinois. In the various cases the community was represented by the author, Linda Dardarian of the Oakland civil rights firm of Goldstein, Demchak, Baller, Borgen & Dardarian, and/or Stan Eichner and Jane Alper of the Boston-based Disability Law Center.
The agreements generally require substantial compliance with the Web Content Accessibility Guidelines established by the World Wide Web Consortium, commonly know at the W3C, and available on the Web at www.w3.org/TR/WCAG10/ . These guidelines explain how to make Web content accessible to people with various types of disabilities, who may access the Web using screen reader software (software that reads the content of a web page out loud to persons who cannot see the screen content), may be unable to hear audible content, may need to enlarge font sizes, or may need to access the web using only a keyboard (no mouse) because of a physical impairment. The Guidelines, in their own words, "do not discourage content developers from using images, video, etc., but rather explain how to make multimedia content more accessible to a wide audience."
In addition to language specifically referencing the W3C guidelines, the legal agreements contain various enforcement mechanisms to ensure that the community and its attorneys are kept apprised of a bank's progress towards meeting its W3C obligations. These mechanisms vary among the agreements, and may include semi-annual reporting to lawyers and representatives, meetings with technical staff, or the hiring of jointly agreed upon experts to review problems and progress.
Results of the banks' commitments to accessible websites are now apparent on banking websites. Bank of America's Web Accessibility page, for example, contains a list of "tips for users of screen readers". See http://www.bankofamerica.com/accessiblebanking/index.cfm?template=ab_web_access . The Fleet site has an accessibility link on the home page, leading the reader to a page with an option to learn more about Web Accessibility, including "General Instructions for Users with Vision Disabilities." Visitors to both sites are given details about efforts to make the Web sites accessible, and are provided with accessible forms through which the banks can be contacted regarding accessibility issues . On the Bank One accessibility page, readers are told that the bank "is actively engaged in efforts necessary to meet online usability and web page design requirements recommended by the World Wide Web Consortium (W3C) in its Web Content Accessibility Guidelines 1.0", and are given a list of tips and recommended settings. The legal agreements signed by the banks require that this type of information be posted.
The agreements with Banks addressing web access also mandate installations of Talking ATMs and provision of printed materials in alternative formats. These settlements were reached using a process of "structured negotiations" in lieu of formal litigation. Instead of litigating, attorneys for the blind community have offered an alternative approach that bypasses procedural wrangling and instead works directly on finding solutions to inaccessible banking services. Using structured negotiations, and with the ADA and state disability laws as a backdrop, bank representatives have met with blind community representatives and their attorneys to hammer out agreements that ensure that banking services will be available to persons with vision impairments. By avoiding the rigid strictures of litigation, the parties were able to work in a collaborative manner and their consultants and web designers were able to speak candidly and share information and expertise. Particular issues of concern to individual institutions are more easily addressed in this format.
(2) August, 2004 New York State Attorney General Settlements. In August 2004, the New York State Attorney General's Office announced that it had reached settlement agreements concerning the accessibility of two travel-related websites. As explained by Assistant Attorney General Elizabeth Nieliwocki who handled the cases: "Upon investigation, the New York Attorney General's Office discovered that the PRICELINE.COM and RAMADA.COM web sites had several elements that made the sites inaccessible to the assistive technology used by persons who are blind and visually impaired, such as screen reader software. For example, the PRICELINE.COM web site contained links and images that were not properly labeled, certain tables and forms were not labeled and pop-up windows did not provide a "close window" link at the top of the window. Accordingly, critical functions of PRICELINE.COM, such as making a hotel reservation, were difficult for blind and low vision users of assistive technology to accomplish.
In addition, the RAMADA.COM web site did not utilize text alternatives for certain non-text elements, such as images, including the navigation bar buttons on every page of the site and important images in search result tables, such as "Check Rates." Further, the targets of certain links were not clearly identified and several "Click Here" links were used, search result tables did not use row and column headers so that table results could be clearly understood, no site map was provided, and many form fields were not labeled, thus making it difficult or impossible to decipher the information necessary to complete a particular form. As such, certain elements of RAMADA.COM were difficult for people who are blind and visually impaired to navigate, such as finding a hotel, making a reservation, retrieving and canceling a reservation and enrolling in "Trip Rewards."
Working in cooperation with the Attorney General's office, Priceline.com, Inc. ("Priceline") and Ramada Franchise Systems, Inc. ("Ramada") agreed to implement accessibility standards authored by the Web Accessibility Initiative of the World Wide Web Consortium ("W3C"). Generally, the companies agreed to implement most of the Priority 1 and 2 guidelines of the W3C. The "Airlines" section of the PRICELINE.COM web site already complies with the accessibility measures agreed to with the Attorney General's office, and the remainder of the web site will comply by October 15, 2004. RAMADA.COM will comply by March 31, 2005.
As a result of the agreements reached with the Attorney General's office, both web sites will ensure that non-text elements (such as images), tables, frames (separate areas of a web page), visual and time-based multi-media presentations, dynamic content, pop-up windows, and scripts and applets will be usable or easier to navigate. In addition, PRICELINE.COM will include a web page and Frequently Asked Questions page specifically for blind and visually impaired users and a "skip navigation" link that will allow users of assistive technology to skip redundant navigation links. The RAMADA.COM web site will avoid using blinking content and will not include periodically auto-refreshing pages, which can be confusing for users of assistive technology and for those with cognitive and visual disabilities. In addition to such remedial steps, Priceline will pay the State of New York $37,500, and Ramada will pay $40,000, as costs of the Attorney General's investigation.
Persons with additional questions or comments regarding the New York settlements can contact Ms. Elizabeth Nieliwocki at 212-416-6494 or elizabeth.nieliwocki@oag.state.ny.us
(3) Court Decision in Access Now v. Southwest Airlines In September, 2004, the 11th Circuit Court of Appeals issued its long-awaited opinion in Access Now, Inc. v. Southwest Airlines Co. At issue was an October, 2002 Order of the U.S. District Court for the Southern District of Florida holding that Title III of the Americans with Disabilities Act did not require Southwest Airlines to have a website that was accessible to persons with disabilities. The plaintiffs appealed the ruling, supported by amicus briefs from the World Wide Web Consortium and the disability community. The disability community brief was signed by a broad cross-section of groups who came together to make a strong legal statement that the ADA should apply to the Internet. The groups joining the effort were The American Association Of People With Disabilities (AAPD), American Council Of The Blind (ACB), American Foundation For The Blind (AFB), Bazelon Center For Mental Health Law, Disability Rights Advocates (DRA), Disability Rights Education And Defense Fund (DREDF), National Association Of The Deaf (NAD), National Association Of Protection And Advocacy Systems (NAPAS), And National Federation Of The Blind (NFB). The amicus briefs are available on line on www.icdri.org at http://www.icdri.org/legal/swa_amicus_brief.htm (Disability community brief) and http://www.w3.org/2003/03/17-brief.html (W3C brief). Ten months after hearing argument in November 2003, the Appeals Court dismissed the appeal without deciding any of the issues in the case. As stated by the Court, "Unfortunately, we are unable to reach the merits of this case, however, because none of the issues on appeal are properly before us."
Specifically, the appellate court did not decide whether or not Title III of the ADA applied to the Southwest Airlines web site in particular, or to any website generally. It did not decide whether or not the Southwest site was accessible, and did not decide what standard would be used to evaluate website accessibility under the ADA. The 11th Circuit Opinion also recognized that the Southwest Airlines case was complicated by the fact that Southwest is an airline and airlines are covered by the Air Carriers Access Act.
In other words, the 11th Circuit decided that the Southwest Airlines case was not a proper vehicle for deciding issues of Title III coverage of websites. The court did recognize, however, the importance of the issue: "In declining to evaluate the merits of this case, we are in no way unmindful that the legal questions raised are significant. The Internet is transforming our economy and culture, and the question whether it is covered by the ADA--one of the landmark civil rights laws in this country--is of substantial public importance. Title III's applicability to web sites--either because web sites are themselves places of public accommodation or because they have a sufficient nexus to such physical places of public accommodation--is a matter of first impression before this Court. Unfortunately, this case does not provide the proper vehicle for answering these questions."
III. LAWS THAT CAN POTENTIALLY BE USED TO INCREASE THE ACCESSIBILITY OF WEBSITES IN THE UNITED STATES
What will be next year's legal developments affecting the accessibility of the Web? The answer to that question depends on what advocates do to enforce various laws that can potentially be used to increase the accessibility of public and private websites. A brief summary of these laws follows:
(1) Americans with Disabilities Act (statute: 42 U.S.C. 12181 et. seq.)
For an excellent summary of the various ways the ADA is, and can be used to increase the accessibility of the world wide web, including references to relevant court cases as of its July, 2003 publication date, see "When the Americans with Disabilities Act Goes Online: Application of the ADA to the Internet and the Worldwide Web", Position Paper of the National Council on Disability (July 10, 2003) drafted by Steven Mendelsohn and available at http://www.ncd.gov/newsroom/publications/2003/adainternet.htm
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. Employer-provided websites that must be accessed to perform the job (or apply for the job) may need to be made accessible under Title I requirements. Title I regulations, issued by the Equal Employment Opportunity Commission, are found at 29 C.F.R. 1630 et seq. While they do not specifically address website accessibility, the regulations contain the following broad definition of reasonable accommodation that could easily encompass accessibility improvements to websites: "Modifications or adjustments to the work environment [or application process], or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position.
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. While these regulations do not specifically address web access, the effective communication requirements provide a backdrop for effective advocacy on this issue.
Title III of the ADA requires nondiscriminatory treatment in the provision of goods and services by entities that 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. The Southwest Airlines case, currently on appeal, is the only reported decision regarding the applicability of Title III to websites. See part IV below for a discussion of issues to be considered before using this part of the ADA as the basis for website advocacy.
Department of Transportation ADA regulations Department of Transportation Regulations implementing transportation provisions of the ADA, including the right to accessible transit information, are 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." In 2003, in the case of Martin v. MARTA (N.D. GA 10/08/02); .MARTA.) The U.S. District Court for the Northern District of Georgia held that this regulation required the transit agency to make its web-based scheduling information accessible. 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. There are particular requirements for website accessibility in the standards that mirror some, but not all, of the W3C requirements. See 36 C.F.R. 1194.22 Further information may be found at http://www.access_board.gov/508.htm (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 over the Internet has not been the subject of ACAA regulations, but pending matters may change that by the time of CSUN 2005. 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 issue of accessible websites. A useful compilation of state information technology accessibility laws, policies, standards and other resources that are available on-line was compiled in April 2003 by the Information Technology Technical Assistance and Training Center (ITTATC), Georgia Institute of Technology, and is available on line at http://www.ittatc.org/laws/report_3.cfm and http://www.ittatc.org/laws/stateLawAtGlance.cfm
(5) 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 www.htctu.fhda.edu/dlguidelines/final%20dl%20guidelines.htm.
(6) Telecommunications Act of 1996 and the Telecommunications Act Accessibility Guidelines of 1998, 36 CFR Part 1193. This law (commonly referred to as Section 255) 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/telecomm/FAQ.htm. Currently, the Federal Communications Commission (FCC) is considering the possible expansion of regulatory authority to Internet protocol-enabled communications, commonly referred to as VoIP. The disability community and others have urged the Commission to extend current access provisions of telecommunications law and regulation to IP-enabled services such as instant messaging, low cost phone services, and distance learning. The Commission has not yet indicated a time for releasing a new rule for comment.
IV ISSUES FOR EFFECTIVE WEB ACCESSIBILITY ADVOCACY After the New York Attorney General's Office publicly announced their web accessibility settlements with Ramada and Priceline in August 2004, there were postings on various listserves debating the pros and cons of web access litigation. How do recent legal developments in the field of web accessibility influence that discussion? Part I of this paper lists three recent legal developments affecting website accessibility. Two of these developments tell of successful advocacy outcomes: seven banks and two travel sites have signed legal agreements containing specific compliance obligations designed to ensure that their websites are accessible to persons with disabilities. The third development, regarding the Southwest Airlines case, involved the disability community's effort to un-do the potentially harmful effects of a District Court decision. While that decision is still on the books, its only potential precedential value is in the Southern District of Florida. And the Eleventh Circuit's recognition that the case was complicated because the defendant was an airline should further limit its usefulness to those opposed to website accessibility. The successful outcomes with the travel services and banks were not the results of lawsuits. The bank settlements were brought about by structured negotiations by blind advocacy organizations and their attorneys, and the travel site settlements were the result of investigations brought by zealous and skilled attorneys in a state agency. This is not to say that a lawsuit over an inaccessible website may never be a good advocacy strategy. But litigation in this area is a strategy to be used only with an abundance of caution. Among the considerations are the following: (1) Careful Selection of target websites and the importance of documentation: Determining which website is an appropriate focus for advocacy, particularly if litigation is being considered, warrants careful consideration. It is important to document the ways in which the site is inaccessible, which should involve conducting an evaluation of the website by knowledgeable end users or professionals in the field of web access. Resources regarding methods for web site evaluation may be found at http://www.w3.org/WAI/eval/ There are currently very few reported court decisions involving web accessibility. While advocacy efforts can be applied to virtually any website, early cases in the area that might result in litigation are best directed at sites with significant problems that deprive users of basic services, products and programs and that do not have unique factual backgrounds. Although all titles of the ADA will hopefully be broadly applied to the Internet, it may be strategic for early cases brought under the ADA to relate to websites operated by entities with related "bricks and mortar" operations.
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 website operator 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. While advance notice is not required (and should not be legislated) it is both a good practice and one likely to result in more favorable outcomes.
(2) 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: for example, other web pages that comply with applicable standards. The New York Attorney General settlements, and the agreements signed by the banks, should be referred to. Other state Attorneys General may be persuaded to undertake their own investigations when presented with well-documented problems and the strong precedent set in New York.
(3) Reliance on experts in the field and information sharing: 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 and specifically about designing more usable websites. http://www.tracecenter.org . 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/ The American Foundation for the Blind maintains a very thorough website on many issues of importance to the blind community (www.afb.org) and its section on web accessibility contains alot of helpful information and resources. http://www.afb.org/Section.asp?SectionID=57&TopicID=167. Crista Earl, Director of Web Operations for the American Foundation served as technical consultant to the New York State Attorney General's office during the Priceline and Ramada cases. The lawyers who negotiated the travel site and bank settlements are also good resources.
While there is no centralized location where all information about successful web access efforts is stored, as with most fields, 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. Persons wanting to use available disability rights laws for web accessibility advocacy are strongly encouraged to find these contacts early.
(4) What is an accessible website? In negotiating with web designers and business staff over website accessibility, advocates are likely to encounter certain nuts and bolts issues that go beyond simple statements that a site will or will not be made accessible. Some of these issues are the following (while details of these issues are beyond the scope of this paper, advocates should be aware of them and be prepared to address them): (i) Third party content on websites: who is responsible? If a company will not commit to making third party content accessible, will it add accessibility as a criteria to vendor contracts, or test third party content, or use their purchasing power in any other manner? (ii) Pending Revisions to the W3C Web Content Accessibility Guidelines: There is currently a Working Draft of WCAG 2.0. Will agreements to comply with Version 1.0 be binding when Version 2.0 becomes an official Recommendation of W3C? What should advocates tell web designers about the effects of 2.0? ; (iii) Section 508 Web Standards vs. W3C Web Content Accessibility Guidelines . independent standards: Some designers may want to develop their own accessibility guidelines, while others may want to pick and chose among various standards, and advocates may be asked to accept one standard or another. Both the New York Attorney General settlements and the bank settlements try to use the W3C Web Content Accessibility Guidelines as the basic framework for website accessibility. While Section 508 offers an alternative (yet similar) set of requirements, advocates are urged to use the W3C standards except when Section 508 is the legal basis for the advocacy effort. Use of the W3C standards will ensure consistency across the web, and will help bolster standards that are the result of industry, community and professional collaboration. Of course, companies may want to legitimately modify given aspects of particular aspects of any standard. Advocates need to be vigilant in determining the scope and availability of any requested modifications and exceptions.
(5) 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 that 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.
(6) Monitoring and Compliance of Accessibility Commitments: Advocacy does not end with a promise by a public or private entity to provide an accessible website - even if that promise is legally binding or negotiated by the government. In some ways, the most important parts of advocacy around technology issues begin after the "ink is dry" and the agreements are finalized. Implementation of any agreement must be monitored carefully. A method for community feedback should be established and form a part of any outreach effort, and experts and/or experienced users should be called in to resolve good faith disputes that are bound to arise. With websites constantly changing, vigilance is required to ensure that today's accessibility commitments become tomorrow's accessible web pages.
Footnote 1:
Some of these agreements, all of which are public, are available on the web, and the remaining ones are available from the author of this paper. (Fleet, Sovereign and Citizens are posted on the website of the Disability Law Center in Boston at www.dlc-ma.org; the Bank of America agreement is available in the website of the International Center for Disability Resources on the Internet at www.icdri.org.
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