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Re: DOJ's official statement on applicability of ADA for websites


From: Mark Magennis
Date: Apr 23, 2010 4:00AM

To save me reading through all this, could someone be kind enough to paraphrase it? Is it a Yes or a No?


On 23 Apr 2010, at 03:00, Pratik Patel wrote:

> Below please find a statement from Samuel R. Bagenstose given at a
> Congressional hearing which looked at ADA and digital issues.
> Regards,
> Pratik
> OF
> 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
> - 2 -
> 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.
> - 3 -
> 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).
> - 4 -
> 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.
> - 7 -
> 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.