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DOJ's official statement on applicability of ADA for websites

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From: Pratik Patel
Date: Apr 22, 2010 9:00PM

Below please find a statement from Samuel R. Bagenstose given at a
Congressional hearing which looked at ADA and digital issues.

Regards,

Pratik

STATEMENT
OF
SAMUEL R. BAGENSTOS
PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL FOR CIVIL RIGHTS
DEPARTMENT OF JUSTICE
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
COMMITTEE ON THE JUDICIARY
UNITED STATES HOUSE OF REPRESENTATIVES
CONCERNING
EMERGING TECHNOLOGIES AND THE RIGHTS OF INDIVIDUALS WITH
DISABILITIES
PRESENTED ON
APRIL 22, 2010

Chairman Nadler, Ranking Member Sensenbrenner, and Members of the
Subcommittee,
it is an honor to appear before you today to discuss the rights of
individuals with disabilities to
have access to emerging technologies. The Civil Rights Division enforces the
Americans with
Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act, and we
have a substantial
role in implementing Section 508 of the Rehabilitation Act. Pursuant to
these statutes, access to
the internet and emerging technologies is not simply a technical matter, but
a fundamental issue
of civil rights. As more and more of our social infrastructure is made
available on the internet B
in some cases, exclusively online B access to information and electronic
technologies is
increasingly becoming the gateway civil rights issue for individuals with
disabilities.
Congress adopted the Americans with Disabilities Act in 1990. The statute is
a
comprehensive, broad-reaching mandate to eliminate discrimination on the
basis of disability in
all of the areas of American civic and economic life. The Department of
Justice is responsible
for enforcement and implementation of Titles II and III of the ADA, which
cover State and local
government entities and private businesses, respectively. We also enforce
Title I of the ADA,
which prohibits disability discrimination in employment, in cases involving
State and local
government employees. Most of the nondiscrimination requirements of Title
III apply to private
businesses that fall within one of the categories of Apublic accommodation@
established in the
statute and the Attorney General=s implementing regulations. The Department
also enforces the
statute on which the ADA is based, Section 504 of the Rehabilitation Act of
1973, 29 U.S.C.
794, which prohibits discrimination in federally assisted and federally
conducted programs and
activities.
When Congress enacted the ADA and Section 504, the internet as we know it
today B the
ubiquitous venue for information, commerce, services, and activities B did
not exist. For that
reason, although the ADA and Section 504 guarantee the protection of the
rights of individuals
with disabilities in a broad array of activities, neither law expressly
mentions the internet or
contains requirements regarding developing technologies. When Congress
amended the
Rehabilitation Act in 1998, it added section 508. That provision
specifically requires Federal
government agencies to ensure that their electronic and information
technologies, including their
websites, are accessible to individuals with disabilities. 29 U.S.C. 794(d).
Within the Civil
Rights Division the Disability Rights Section is responsible for enforcement
of the civil rights
statutes relating to the accessibility of information technologies to
individuals with disabilities.
In this testimony, I will first discuss the importance of accessible
technology to people
with disabilities. I will then talk about the significant barriers that keep
people with disabilities
from having full and equal access to emerging technologies. I will then
discuss the actions the
Department of Justice is taking to ensure that emerging technologies do not
leave people with
disabilities behind.
Disability Rights and Developing Technologies
Information technologies play a significant and ever expanding role in
everyday life in
America. The most developed and entrenched of these technologies, the
internet, has become a
gateway to the full range of activities, goods, and services available
offline. Constituents of
State and local government use the internet to renew library books and
driver=s licenses, to file
tax forms, and even to correspond with elected officials. Increasingly,
businesses B even those
with substantial physical sales facilities B use websites to sell goods and
services to their
customers. So-called e-commerce is a rapidly expanding segment of the
American economy.
Ensuring nondiscriminatory access to the goods and services offered through
the internet is
therefore essential to full societal participation by individuals with
disabilities.
It is not simply e-commerce that is affected, however. Electronic and
information
technologies are swiftly becoming a gateway to employment and education.
Employment
recruiting and hiring systems are often web based. In many cases, the only
way to apply for a
job or to sign up for an interview is on the internet. Job applicants
research employment
opportunities online, and they use the internet to most efficiently learn
about potential
employers= needs and policies. And schools at all levels are increasingly
offering programs and
classroom instruction through the internet. Many colleges and universities
offer degree
programs online; some universities exist exclusively on the internet. Even
if they do not offer
degree programs online, most colleges and universities today rely upon the
internet and other
electronic and information technologies in course assignments and discussion
groups, and for a
wide variety of administrative and logistical functions in which students
and staff must
participate.
For many individuals with disabilities who are limited in their ability to
travel or who are
confined to their homes, the internet is one of the few available means of
access to the goods and
services of our society. The broad mandate of the ADA to provide an equal
opportunity for
individuals with disabilities to participate in and benefit from all aspects
of American civic and
economic life will be served in today=s technologically advanced society
only if it is clear to
businesses, employers, and educators, among others, that their web sites
must be accessible.
But the internet is not the only information or electronic technology that
is altering the
way in which we do business and provide education in this country. Facing an
exponential rise
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in the cost of standard print text books, colleges and universities are
beginning to use electronic
books and electronic book readers instead. Electronic book readers are
typically lightweight,
hand-held devices with screens and operating controls. Texts in an
electronic form appear on the
screens of these devices to simulate the experience of reading a book. The
texts that appear on
screen are formatted to look just like they would in a print version.
Colleges and universities are
likely to use digital and electronic text books more and more. Some experts
predict that
traditional print texts will be replaced by electronic or digital texts
within three to five years.
As public servants entrusted with the welfare of our citizens, we in the
Federal
government must provide the leadership to make certain that individuals with
disabilities are not
excluded from the virtual world in the same way that they were historically
excluded from Abrick
and mortar@ facilities. Emerging technology promises to open up
opportunities for people with
disabilities throughout our society. But a digital divide is growing between
individuals with and
without disabilities. If we are not careful, as technology becomes more
sophisticated the gap
will grow wider, and people with disabilities will have less access to our
public life.
These problems-and the corresponding opportunities-are likely to become more
acute
in the years to come. As the population ages, more and more Americans will
need access to
emerging technologies to continue working and to access the healthcare
system. The 2006
National Health Interview Survey (NHIS), revealed that 13.6 percent of
Americans 65 to 74
years of age reported having a vision loss and 21.7 percent of Americans 75
years of age and
older reported having a vision loss. Advances in the availability of
accessible technologies will
increase-and are already increasing-the long-term employability of
individuals with
progressive blindness and other vision disabilities.
Technological Barriers to Accessibility
Millions of people have disabilities that affect their use of the web -
including people
with visual, auditory, physical, speech, cognitive, and neurological
disabilities. People who are
blind or have low vision are often the most affected by inaccessible
information and electronic
technology.1 Many individuals with visual impairments use an assistive
technology known as a
screen reader that enables them to access the information on computers or
internet sites. Screen
readers read text aloud as it appears on the computer screen. Individuals
who are blind may also
use refreshable Braille displays, which convert the text of websites to
Braille. Sometimes, those
individuals will use keyboards in lieu of a mouse to move up and down on a
screen or sort
through a list and select an item.
1People who have difficulty using a computer mouse because of mobility
impairments,
for example, may use an assistive technology that allows them to control
software with verbal
commands. But websites and other technologies are not always compatible with
those assistive
technologies. Captioning of streaming videos may also be necessary in order
to make them
accessible to individuals who are deaf or hard of hearing. And individuals
with difficult memory
or cognitive impairments may be affected by complex websites.
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The most common barriers on websites are posed by images or photographs that
do not
provide identifying text. A screen reader or similar assistive technology
cannot Aread@ an image.
When images appear on websites without identifying text, therefore, there is
no way for the
individual who is blind or who has low vision to know what is on the screen.
The simple
addition of a tag or other description of the image or picture will keep an
individual using a
screen reader oriented and allow him or her to gain access to the
information the image depicts.
Similarly, complex websites often lack navigational headings or links that
would make them
easy to navigate using a screen reader. Web designers can easily add those
headings. They may
also add cues to ensure the proper functioning of keyboard commands. They
can also set up
their programs to respond to voice interface technology. Making websites
accessible is neither
difficult nor especially costly, and in most cases providing accessibility
will not result in changes
to the format or appearance of a site.
Accessibility issues arise outside of the internet as well. Most
significantly, as schools
increasingly use electronic texts, the inaccessibility of many electronic
book readers has become
more and more salient. At the same time, however, the use of electronic
texts holds great
promise for people with disabilities. Students who are blind or have low
vision have long used a
form of electronic text as an accommodation that enables them to access the
course materials
their classmates use. These electronic texts, which are converted from
standard print texts, are
read on a computer, using a screen reader or a refreshable Braille display.
In order for these
electronic texts to be truly usable by someone who is blind or who has low
vision, however, the
texts must be coded with structural data so that the assistive technology
can properly identify
where to begin reading or where a sentence or paragraph begins and ends.
This system disadvantages blind students in colleges and universities as
compared with
sighted students, because it can take considerable time for a university to
locate texts from
publishers, and convert the text to a format usable by a screen reader or
similar assistive
technology. As a result, all too often course materials are not available to
blind students until
well after classes have begun.2 If you ask just about any disability student
services center at a
major university, you will learn how significant this problem really is.
Imagine as a student
being unable B on a routine basis B to obtain your course materials for the
first four months of the
semester. As an alternative to obtaining converted texts from the publisher,
universities may
scan printed texts in order to provide them in electronic form. But this
method can result in a
Atext dump,@ which lacks structural data to ensure proper reading by
assistive technologies.
Conversion errors, too, are common. So, the choice available to blind
students prior to use of the
new, electronic book readers, was to receive accurate materials months into
the semester or
inaccurate materials in a more timely manner.
2As the Disability Resource Center ("Center") at Arizona State University,
one of the
universities involved in the Kindle matter that I will discuss in a moment,
informs blind students
in its handbook, for example, Atextbook/print conversion is a time intensive
process, especially
for technical subject matter, and can require up to four months to
complete.@
See
www.asu.edu/studentaffairs/ed/drc/services_alternative_format_procedure.htm.
(emphasis
added).
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The emergence of dedicated electronic book readers thus holds great
potential to place
students with disabilities on equal footing with other students. But that
happy result will occur
only if the electronic book reader is equipped with text-to-speech
capabilities, so that it may read
the electronic text aloud. In a few moments, I will discuss the Department
of Justice=s
settlements in investigations of colleges and universities that used the
Kindle DX, an inaccessible
electronic book reader, as part of a pilot project. At the time the Kindle
DX was used in this
pilot project, it contained text-to-speech capabilities B meaning that it
could read the electronic
text aloud, rendering the text audible and therefore accessible to blind
persons. Unfortunately,
the device did not include a similar audio option for the menus or
navigational controls. Without
text-to-speech for the menu or navigational controls, blind students could
not operate the
electronic book reader independently, because they had no way of knowing
which book they
selected or how to access the search, note taking, or bookmark functions of
the device.
Electronic book readers developed by companies other than Amazon also pose
barriers to use by
individuals who are blind or have low vision, typically because they
entirely lack a text-tospeech
function.
But a dedicated electronic book reader can be made accessible. From the user

perspective, an accessible electronic book reader might speak each option on
a menu aloud, as
the cursor moves over it, and then speak the selected choice aloud once made
by the user.
Special key strokes might be programmed specifically for blind users. For
example, the user
would press the alt-A key any time something related to accessibility is
needed, at which point a
menu with additional choices would come up allowing the user to scroll over
the menu as
described above. Appropriate coding would mean that the text, even
mathematical formulas, or
poetry in which line lengths vary, would be read aloud coherently. In this
way, the user with the
disability would gain access to all the information on the printed page.
The Department of Justice Positions Regarding Website Accessibility.
Ensuring that people with disabilities have a full and equal opportunity to
access the
benefits of emerging technologies is an essential part of our disability
rights enforcement at the
Department of Justice. Because the internet was not in general public use
when Congress
enacted the ADA and the Attorney General promulgated regulations to
implement it, neither the
statute nor the regulations expressly mention it. But the statute and
regulations create general
rules designed to guarantee people with disabilities equal access to all of
the important areas of
American civic and economic life. And the Department made clear, in the
preamble to the
original 1992 ADA regulations, that the regulations should be interpreted to
keep pace with
developing technologies. 28 C.F.R. pt. 36, App. B.
The Department of Justice has long taken the position that both State and
local
government websites and the websites of private entities that are public
accommodations are
covered by the ADA. In other words, the websites of entities covered by both
Title II and Title
III of the statute are required by law to ensure that their sites are fully
accessible to individuals
with disabilities. The Department is considering issuing guidance on the
range of issues that arise
with regard to the internet sites of private businesses that are public
accommodations covered by
- 5 -
Title III of the ADA. In so doing, the Department will solicit public
comment from the broad
range of parties interested in this issue.
There is no doubt that the internet sites of State and local government
entities are covered
by Title II of the ADA. Similarly, there is no doubt that the websites of
recipients of Federal
financial assistance are covered by Section 504 of the Rehabilitation Act.
The Department of
Justice has affirmed the application of these statutes to internet sites in
a technical assistance
publication, Accessibility of State and Local Government Websites to People
with Disabilities
(http://www.usdoj.gov/crt/ada/websites2.htm),
and in numerous agreements with State and local
governments and recipients of Federal financial assistance. Our technical
assistance publication
also provides guidance with simple steps to ensure that government websites
have accessible
features for individuals with disabilities.
As to private places of public accommodation, only two cases B both in
Federal district
courts B have specifically addressed the application of ADA Title III to
their websites, and those
cases have reached different conclusions. But the position of the Department
of Justice has been
clear: Title III applies to the internet sites and services of private
entities that meet the definition
of Apublic accommodations@ set forth in the statute and implementing
regulations. The
Department first made this position public in a 1996 letter from Assistant
Attorney General
Deval Patrick responding to an inquiry by Senator Harkin regarding the
accessibility of websites
to individuals with visual impairments. The letter has been widely cited as
illustration of the
Department=s position. The letter does not state whether entities doing
business exclusively on
the internet are covered by the ADA. In 2000, however, the Department filed
an amicus brief in
the Fifth Circuit in Hooks v. OKbridge, which involved a web-only business;
the Department=s
brief explained that a business providing services solely over the internet
is subject to the ADA=s
prohibitions on discrimination on the basis of disability.3 And in a 2002
amicus brief in the
Eleventh Circuit in Rendon v. Valleycrest Productions, the Department argued
against a
requirement, imposed outside of the internet context by some Federal courts
of appeals, that
there be a nexus between the challenged activity and a private entity=s
brick-and-mortar facility
to obtain coverage under Title III. Although Rendon did not involve the
internet, our brief
argued that Title III applies to any activity or service offered by a public
accommodation either
on or off the premises.4
The Disability Rights Section of the Department of Justice=s Civil Rights
Division began
to provide technical assistance to a host of public and private entities
that were in the process of
assisting Federal agencies with Section 508 compliance, and much of its
guidance on making
internet sites accessible developed from there. There are several sets of
standards describing
how to make websites accessible to individuals with disabilities. Government
standards for
3Department of Justice Brief as Amicus Curiae at p. 7, Case No.
SA-99-CV-214-EP,
Aug. 1, 2000 (on appeal from the United States District Court for the
Western District of Texas.)
The unpublished, per curiam opinion can be found at 232 F.3d 208 (5th Cir.
2000).
4Department of Justice Brief as Amicus Curiae, Case No. 01-11197, June 18,
2002 (on
appeal from the United States District Court of the Southern District of
Florida). 294 F.3d 1279 (11th
Cir. 2002).
- 6 -
website accessibility were developed pursuant to Section 508. Many entities
elect to use the
standards that were developed and are maintained by the Web Accessibility
Initiative, a
subgroup of the World Wide Web Consortium ("W3C7").
The Department of Justice Positions Regarding Other Emerging Technologies
In June of last year, the Department of Justice received several complaints
from the
National Federation of the Blind ("NFB"), the American Council of the Blind
("ACB"), and a
coalition of disability rights groups collectively known as the Reading
Rights Coalition B each
alleging that colleges or universities were violating their obligations
under the ADA and Section
504 by having their students use electronic book readers that were
inaccessible to individuals
who are blind for course materials. Case Western Reserve University,
Princeton University,
Pace University, Reed College, and Arizona State University, among others,
had formed a pilot
project with Amazon.com, Inc., to evaluate the viability of using the Kindle
DX in a classroom
setting. The NFB and the ACB, along with an individual blind plaintiff, also
filed suit in Federal
district court against Arizona State University; they argued that the pilot
project violated Title II
and Section 504. Nat=l Fed. of the Blind , et al. v. Arizona Bd. of Regents,
et al., Case No. CV
09-1359 GMS (D. Az. 2009).
The Department of Justice investigated each complaint and, on January 13,
2010, the
Department issued a press release announcing that it had reached separate
settlement agreements
with Case Western Reserve University, Reed College, and Pace University.5
The Department of
Justice and the NFB and the ACB also jointly settled the litigation against
Arizona State
University in an agreement signed on January 11, 2010. Since that time, on
March 29, 2010, the
Department entered into a final settlement agreement with Princeton
University.
These settlement agreements provide that the universities will not purchase,
require, or in
any way incorporate into the curriculum the Kindle DX or any other dedicated
electronic book
reader that is not fully accessible to individuals who are blind or have low
vision. The
agreements become effective at the end of the pilot projects. The agreements
also contain a
functional definition of accessibility when applied to dedicated electronic
book readers B the
universities must ensure that students who are blind or have low vision are
able to access and
acquire the same information, engage in the same interactions, and enjoy the
same services as
sighted students with substantially equivalent ease of use. The purpose
behind these agreements
is to underscore that requiring use of an emerging technology in the
classroom that is
inaccessible to an entire population of individuals with
disabilitiesBindividuals with visual
disabilitiesBis discrimination that is prohibited by the Americans with
Disabilities Act of 1990
("ADA") and Section 504 of the Rehabilitation Act of 1973 ("Section 504").
During the course of its investigations and negotiations with the colleges
and universities,
Amazon.com, Inc., which is not covered by the ADA or Section 504 in its
capacity as the
5Agreement between United States and Case Western Reserve University, Jan.
13, 2010;
Agreement between United States and Pace University, Jan. 13, 2010;
Agreement between
United States and Reed College, Jan. 13, 2010.
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manufacturer of the Kindle DX, posted a notice on its website indicating its
intention to make the
menu and navigational controls of the Kindle DX fully accessible to
individuals who are blind or
have low vision by extending the text-to-speech feature to these functions
by the end of the year
2010.
The accessibility of electronic text readers stands to improve dramatically
the experience
of students with visual disabilities. The instantaneous downloading of texts
is obviously a Anight
and day@ difference for blind students who are used to waiting for their
materials until well into
the semester or to receiving inferior materials that are difficult to
follow. Moreover, if accessible
electronic book readers are used in the classrooms of the future, students
with and without
disabilities will be able to use the same devices, albeit in different ways,
resulting in an
integrated experience for students with disabilities who will not have to
rely on separate
accommodations to gain access to course materials. Such integration is the
core goal of the
ADA and Section 504.
As we come to realize anew each day, the pace of technological change is
amazing; what
appeared impossible just months or years ago is now commonplace. Advancing
technology can
open doors for people with disabilities and provide the means for them to
have full, equal, and
integrated access to American life. But technological advances will leave
people with
disabilities behind if technology developers and manufacturers do not make
their new products
accessible. In carrying out its responsibilities under the ADA and the
Rehabilitation Act, the
Federal government must make sure that the legal protections for the rights
of individuals with
disabilities are clear and sufficiently strong to ensure that innovation
increases opportunities for
everyone. We must avoid the travesty that would occur if the doors that are
opening to
Americans from advancing technologies were closed for individuals with
disabilities because we
were not vigilant.
I look forward to answering any questions that Members of the Subcommittee
may have.