ADA ANPRM Response

As many are aware, the Department of Justice requested comment on the possibility of revising the Title II and III regulations within the Americans with Disabilities Act (ADA) to explicitly include Internet accessibility of covered entities. ANPRM comments posted by others share a wide array of viewpoints, from total opposition to support for the strictest of implementations. Internal to WebAIM, there is disagreement and has been much discussion about if and how these regulations should be revised. We believe our recommendations for implementation strike a balance between impact on entities while promoting improved accessibility for individuals with disabilities.

The following were comments provided by WebAIM to the Department of Justice:

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WebAIM is a non-profit organization within the Center for Persons with Disabilities at Utah State University. WebAIM has provided comprehensive web accessibility solutions and research since 1999. These years of experience have made WebAIM a leading provider of web accessibility expertise. As a group devoted to research, development, policy formation, and service with clients, WebAIM works very closely with others who are implementing web accessibility. While the work of the Department of Justice to clarify accessibility obligations would likely put our services in higher demand, our primary goal is to increase web accessibility for individuals with disabilities.

WebAIM applauds the Department of Justice as they consider the best ways to make clear the obligations of entities for web accessibility. We believe it is important that the Department send clear and consistent messages on this issue at this time. WebAIM thinks this will happen when the Department confirms that web content provided by a governmental entity or those who fall under any of the 12 categories of “public accommodation” be accessible to all citizens. The clarification is needed now at a time when many do not believe they have an obligation under either Title II or III of the ADA to provide equal access. WebAIM echoes the Department’s Section III (i.e., Background) of this action, that while the transformative nature of the Internet in society was not widely known when the ADA was signed into law, it is surely known now. Steps must be taken to ensure we do not further disadvantage individuals with disabilities through the discriminatory act of keeping the web content of covered entities unavailable or unusable to them.

Accessibility standards to apply (Questions 1-4)

Q1: Should the Department adopt WCAG 2.0 AA standard?
Q2: Should the Department adopt Section 508 versus WCAG 2.0 standards? Is there a difference in costs and burdens?
Q3: How should the Department address ongoing changes?
Q4: Should the Department adopt performance standards instead of technical ones?

Non-discrimination in a digital age requires standards that transform across the reality of how technologies are, and will be, used. We believe this is the intent of the Department as they clarify regulations now. It is WebAIM’s view that conformance to WCAG 2.0 Level A and Level AA should be the standard that defines web accessibility under the ADA.

This set of international guidelines is already being implemented in many places. It is quickly becoming the standard benchmark of minimal accessibility in development and regulatory arenas throughout the world. Referencing WCAG 2.0 directly has the benefit of harmonization with other guidelines and the vast amount of resources available for learning, implementing, and evaluating to these guidelines.

The Department must weigh the additional impact that WCAG 2.0 Level A and Level AA requirements would have over Level A alone. Implementing some of the Level AA requirements (particularly color contrast and supporting enlarged font sizes to 200%) introduce fairly significant structural and system difficulties for many existing sites.

We ask the Department to consider a broader scope of coverage. WebAIM believes that the time is now to capitalize on regulations that would encompass more expansive components of how society is using the web. For example, if a covered entity were to run an Internet kiosk, the web site would need to be accessible under ADA regulations, but what about the computers or web browsers provided to the customers? If a covered entity were to develop a web application, this would be covered under ADA regulation, but what if it were instead written as an integrated mobile application? It is for these reasons that the question about standards (e.g., WCAG 2.0 or Section 508) is complicated and one that is not easily answered by selecting only one existing standard.

Section 508 addresses an array of existing and evolving technologies, whereas WCAG is intended primarily for “web pages”. Consider a mobile application, for example, or even a mobile device. While WCAG 2.0 can provide useful accessibility guidance for such innovative technologies, it does not directly address them. If the Department understands and addresses the need for accessibility to evolving web technologies, including software and hardware, a broader set of guidelines will likely be necessary.

WCAG 2.0 is more comprehensive regarding web content and Section 508 is more comprehensive across technologies. WebAIM hopes to see both the flexibility and more expansive application of Section 508 guidelines, while maintaining the harmonization and exhaustive set of resources and tools that are available for WCAG 2.0. This may be possible by implementation of WCAG through the current Section 508 draft guidelines, which state that those entities that conform to WCAG 2.0 Level A and Level AA will be considered to have met all the web-page specific requirements of Section 508; whereas the reverse will not be true.

This approach would, of course, be contingent upon the current proposed guidelines for Section 508 not changing significantly, particularly in regards to the ‘bridge’ it provides for compliance via WCAG 2.0 Level A/AA conformance. Of note is that the current draft Section 508 guidelines provide a better regulatory mechanism than does the non-regulatory language of WCAG 2.0. There is efficiency across market sectors when everyone is working toward a common standard. This proposal would alleviate the real burden and increase in costs caused by lack of harmonization across state, national, federal, and international sectors, but would also introduce some complexity and potential confusion for those considering the complex relationship between the WCAG 2.0 and the Section 508 guidelines. But such complexity may be necessary to adequately address the accessibility needs of web technologies.

To summarize, WCAG 2.0 Level A and Level AA is a vital component to any Department guidelines regarding web accessibility. If, as WebAIM hopes, the Department extends the scope of these guidelines to a broader set of technologies, it is possible that an adaptation across 2 standards, or even an adoption of both Section 508 and WCAG 2.0 may be necessary.

It is the thinking of WebAIM that ongoing changes to any standard be addressed as they occur with each refresh of the standard chosen. It is unlikely that either Section 508 or WCAG 2.0 will be refreshed for several years; once the work on the refresh of the current Section 508 is complete. The same process used to update ADAAG standards could be an effective way to communicate and promulgate updated standards for web accessibility as they may occur in the future. However if the Department does tie ADA regulations to the technical standards of Section 508 or WCAG 2.0 it will be important to stay ahead of any refresh of those standards as changes outside of ADA could result in confusion, push-back, and a regulatory nightmare. Another consideration in selection of a standard is the degree to which that standard is responsive to changes in the field. While WCAG 2.0 provides comprehensive guidance for web content, it is an unfortunate reality that it took nearly a decade to complete. To the extent that Section 508 provides a more responsive mechanism for updates, the Department should consider this fact.

The question of performance versus technical standards is an important one. WebAIM recommends technical standards like Section 508 or WCAG 2.0, as performance standards are simply too hard to measure and enforce. Moreover, WebAIM believes that standards need to remain as technology agnostic as can be achieved through regulatory requirements, or the result will be a set of rules that will quickly become outdated; this was the lesson of the first versions of WCAG 1.0 and the current Section 508 standards. It should be noted that WCAG 2.0 is based on principles (Perceivable, Operable, Understandable, & Robust), guidelines, and success criteria that focus on users rather than specific technologies and the current draft of the Section 508 refresh is largely tied to practices rather than technologies.

Coverage limitation (Question 5)

Q5: Should the Department adopt coverage limitations? How can the Department make distinctions between the contexts available?

It is assumed that the Department would choose to align its regulations for web content in similar ways as regulations for physical structures. WebAIM feels that contexts can be grouped so that personal websites can be differentiated from those intended for public consumption. Moreover, this logic is appropriate, and in line with, the contextual variables present in the physical accommodations required under the Act. It makes sense that if ADAAG guidelines do not apply to a private home, a private blog should not likewise apply; if occasional business transactions out of a home do not meet with ADAAG regulations, similar occasional business transactions from a private website should not either. Furthermore, WebAIM believes that it will be important that these distinctions be made by function, use, and audience, and not by technology. As an example, one would anticipate that a private Facebook wall would be exempt from regulation; however, a university class with a Facebook-driven conversation should not be exempt. WebAIM does concur with the Department, however, that when 3rd parties become involved (e.g., to process transactions, or to provide a blog space or web template), these third-party frameworks should be covered under regulation.

Compliance issues (Questions 6-8)

Q6: What resources and services are available for the public? Is there ample staff to make in-house web content accessible? What technical assistance should the Department make available?
Q7: Are there features that render compliance difficult or impossible?
Q8: Do viable accessible alternatives exist for today’s web content?

Many resources and tools are currently available to assist web developers, instructional designers, media producers, and programmers for creating accessible web content. However, these many resources (many of which are free, such as those found at WebAIM.org) should not be confused with the ability of a business entity to comply with current guidelines or standards (e.g., WCAG or 508). WebAIM’s experience has been that few web developers receive training on the concepts that would enable them to understand the principles of web accessibility. Moreover, web accessibility is seldom a component of educational engagement on the topic (e.g., in secondary or postsecondary education, or in professional development). Thus, it may take some time for the field to be scaled with the professional knowledge to make this happen. With this said, it is important to mention that creating a market need to hire technical staff with web accessibility skills should drive educational offerings and individual development to the vast array of existing resources.

Effective date (Questions 9-11)

Q9: Are the proposed timelines and effective dates for compliance reasonable?
Q10: Will the Department’s approach cause entities to remove older material rather than make it accessible?
Q 11: Should the Department use incremental timelines based on size or other characteristics of covered entities?

WebAIM does agree with the Department that new and existing content should be treated differently. However, WebAIM believes that these timelines are not reasonable. For large entities in the midst of new website creation, the period from design to execution can be up to a year. WebAIM is currently engaged with large corporate clients who have been undergoing this effort for at least a year. Since web accessibility is best determined during the design phase, the proposed 6-month timeline from the effective date could create problems for those entities that are mid-design. Moreover, allowing time for awareness of new rules alone does not address the importance of new skills that will need to be cultivated in the web workforce. With that said, WebAIM would recommend the following:

For new and existing web content. An accessible “Transition Plan” is posted within 6 months of the effective dates of the regulation on the websites of all covered entities. In it they must detail the steps they will take, along with a timeline, to make this content accessible, along with detailed plans to provide accommodations on request during the transition period. This plan, not unlike the regulatory transition plans for physical accommodations, would bind the entity to the plan. Furthermore, WebAIM believes, based on over a decade of work in this field, that requiring transition plans for existing sites, along with regulations for the accessibility of new sites, could be executed within a 2-year time period. Since most websites are currently on about a 2-3 year cycle, providing this extended period should allow providers adequate time to bring their existing content into compliance or make decisions to alter the timelines on which their web content will be refreshed. It should be mentioned that this timeframe is consistent with what WebAIM is seeing in the field; roughly 2 years from desire to execution of the entire web enterprise.

For old archival web content. WebAIM believes that old archival web content should not be included in this requirement AS LONG AS there are NO updates whatsoever in content or design. WebAIM recognizes that “updating” would need to be tightly defined so that changes to main content or structure would trigger requisite accessibility, yet changes in a copyright date displayed at the bottom of a page, for example, would be allowed. We would recommend that those web pages be required to carry a label as “archival” or other similar term, and would further recommend that regulation detail obligations to fulfill requests for an accessible alternative to this content within a reasonable period of time (e.g, 3 days from request).

It seems reasonable that web architecture be treated in a similar fashion to the transformation of physical structures (e.g., posted transition plans for all buildings, accessibility rules that spring into effect when remodeling occurs, and exemptions for historic buildings when no remodeling will ever take place as long as alternative access plans are available). If entities were required to retire all archival content unless they were made accessible, WebAIM believes this would happen with a great degree of regularity. This would have an unfortunate effect by making it ultimately inaccessible to all. One example of this can be seen in postsecondary settings where grant funding helps to develop sets of materials. While they continue to live on the web beyond the period of funding, there are no plans to update them, as no funds are available to support this work. Forcing an institution to take it down – rather than compel them to label it as archival and provide accessible versions on request – would be antithetical to accessibility.

WebAIM does not believe there is any value added in staggering the effective dates by characteristics of the covered entities. While an argument could be made that those with the most employees would have the greatest capacity to make the change, it should be acknowledged that these might also be the entities with the most complex, or large, collections of web content. Leveraging a single awareness campaign with reasonable dates and expectations for accessing alternatives is believed to be the most prudent action.

Cost and benefits of website regulations (Questions 12-16)

Q 12: What data source do you recommend to assist the Department in estimating the numbers of covered entities?
Q 13: What costs are associated with Web development and maintenance? What is needed additionally to create accessible web content?
Q 14: What benefits can be anticipated?
Q 15: What unintended consequences might occur?
Q 16: Are there reasonable alternatives?

WebAIM is not aware of data sources available to estimate the number of covered entities. However there are multiple research methods that could extract this type of information.

WebAIM is unaware of quality fiscal studies carried out to determine the true cost of creating accessible web content. To that end, we have embarked on a U.S. Department of Education FIPSE-funded grant that will, in part, solicit just such data in postsecondary education settings. WebAIM would be happy to share the results of this cost-study, conducted by an economist, with the Department of Justice. Possibly the most significant cost would be the one-time cost for individuals to learn (or receive training on) web accessibility.

While there are many benefits to web accessibility (e.g., full participation in education, employment, civic engagement), one force to consider is the benefit to U.S. businesses who wish to secure and maintain international markets. Currently 97 countries have ratified the UN Convention on the Rights of Persons with Disabilities (CRPD) and 147 total have signed their intent to ratify. The UN’s CRPD contains a stand-alone Section (#9) on Accessibility, which contains accessibility to information and communication technologies. Businesses who have paid attention to accessibility may be advantaged across international market sectors. Moreover, while not ratified, President Obama signed the U.S. intent to ratify the CRPD. This would bring the U.S. into greater international alignment. The work of DOJ on the issue of web accessibility is viewed by WebAIM to be in line with work necessary for U.S. ratification.

There may well be unintended consequences for regulations requiring accessibility. For example, it is possible that fewer media may be used (considering the effort), and that immersive environments may be used sparingly until clear solutions for access are uncovered. However, it is also possible that this tension may bring solutions to the field with greater speed. Finally, WebAIM does not believe that there is a viable alternative that provides timely and effective communication of web content in a manner that would not add discrimination (e.g., separate software or accessibility portals).

Impact on small entities (Questions 17-18)

Q 17: Department seeks advice on costs & burdens for small entities
Q 18: Alternatives that could alleviate burdens?
WebAIM does not have comments pertinent to these questions, however we believe it will be difficult to define a small entity as employee outputs do not align to impact (e.g., Twitter has a relatively small group of employees yet has an impact on millions of users every day).
Other (Question 19)
Q 19: Is there any other information or data useful to the Department?

WebAIM does not have a comment pertinent to this question.