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Re: Why was software (user agents and authoring tools) left out of the recent SANPRM for the ADA by the DOJ?

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From: Brooks Newton
Date: May 16, 2016 1:18PM

Hi Mike,

Thanks for your breakdown of Title I, Title II and Title III of the ADA.

Obligatory disclaimer: I'm not a lawyer. Please hire a licensed attorney if you plan on taking action in the Web accessibility sphere that requires legal counsel.

Upon reflection, here's my opinion based on your post.

If the ADA has no "teeth," when it comes to enforcing the accessibility of software integral to the accessibility of the Web browsing experience, then we should loudly reject a change in the ADA, which would obligate site content owners to bear the full weight and responsibility of ensuring the accessibility of Web content. As I've mentioned in my previous posts, it is impossible for content owners and their production teams to make their Web content accessible without careful coordination with operating systems, user agents and assistive technology. It is dangerous and fool hearted exercise to pass federal civil rights law that unfairly targets online digital content owners who have not in any way shape or form been given the requisite support they need to post their content online accessibly.

I happen to be well-versed in the finer points of the Communications and Video Accessibility Act (CVAA), a set of landmark regulations, which unlike the ADA SANPRM, actually serves as the law of the land for qualifying content and services at the present time.

Granted, parts the CVAA strengthen the idea that software manufacturers should not hinder or block the "pass through" of accessible accommodations, such as the requirements for qualifying closed caption content video content. However, the Advanced Communication Services (ACS) provisions of the Act also makes the same mistake that ADA Title II SANPRM seems to be making in its preliminary form by largely excluding software manufacturers from culpability when accessibility is not achieved in online communications. Setting the enormous burden for digital accessibility squarely onto the backs of Web content owners, when mostly unregulated software fails to do its part in delivering an accessible experience, is beyond unfair - it is just plain bad public policy .

Let me provide a purely hypothetical CVAA case in point to underscore the shaky state of how the U.S. currently regulates online accessibility under the Act:

Company XX&Y, a telecommunications company, hosts an online real-time chat support forum for mobile handsets on its public Web servers. Because of the nature of this chat service (Web-based real-time or near real-time electronic messaging services), it falls under the obligations established by the ACS provision in the CVAA. The thoughtful owners of Company XX&Y have mandated that the chat forum developers build-out the near real-time text communication tool so that it works in conjunction with a couple of major browsers and an industry leading screen reader program to provide access to visually impaired users. The chat developers do their jobs coding the chat site well, they dutifully test their code with key browsers and the leading screen reader program and achieve accessible results.

Company XX&Y launches the chat service and everything is A-OK, for a while. Through no fault of their own, Company XX&Y receives a complaint from a member of the public, who is blind, stating that the support chat forum isn't accessible using a browser and the assistive technology XX&Y originally developed for and tested with. Upon further research, Company XX&Y learns that the screen reader software manufacturer, who operates under no CVAA regulations or obligations, released a new version of their software which has bug that fails to make accessible the features and functions that have been carefully coded by accessibility-friendly developers in the online support chat tool. Much like the ADA Title II SANPRM, the CVAA provides no safe harbor for ACS Web site owners who have exercised due diligence in developing and testing accessible content before launch. ACS site owners are required to know when something in the accessible software chain (OS/UA/AT) breaks, and are under the obligation to make their site work natively, without the help of assistive technology software. Failure to do so can burden the ACS Web site owner with FCC fines that may total $100,000 per day, up to a million dollars per violation. Again, all of the burden in this scenario is carried by the content owner / ACS owner, without any culpability built into the law for other necessary participants in the ACS Web experience game, third party software manufactures. Seem fair? Not by a longshot. The stakes are very high folks. And the rules are very biased in favor of software manufacturers.

Note: The CVAA mandates that in order for chat forum, an ACS by definition of the CVAA, to be compliant with the law, it must achieve a performance objective of actually being accessible to members of defined disabilities groups, including blind users. Technical compliance with a published standard, such as WCAG 2.0, is specifically prohibited as a "safe harbor" for ACS manufactures. In other words, saying you are compliant because you coded your chat forum software according to WCAG 2.0 AA specs, won't cut it alone, in terms of proving compliance with the law.

Mike and others on this list: You will be hard pressed to find another individual who believes more fervently in the concept of codifying accessibility responsibilities into law than I do. We've tried the voluntary scheme, and it has failed over the past 20 years to deliver equal access in the realm of online communications. I want a law in place that will protect folks who live with disabilities, providing them with a fighting chance to make full and complete use of the Web. However, I am not in favor of passing a new set of regulations that are not up to the challenge of fairly defining, balancing and enforcing obligations on the part of all the active players in the online accessible experience loop. I'm not a lawyer, so I'm not capable on my own of agreeing with your statement that operating systems, user agents, assistive technology, or authoring tools, frameworks and content management systems fall outside the scope of the ADA. If these entities do in fact fall outside of the scope of the ADA, then let's all agree find a better legal framework to ensure the accessibility of online content. And let's make sure that the Department of Justice gets the word that we, the experts, think the SANPRM fails to capture the entire list of culpable participants in the online accessibility sphere.

If you have not read the ADA Title II SANPRM recently announced by the U.S. Department of Justice, please take some time to peruse the document. It is approximately 40 pages of printed material, more if you expand the type to something readable! Here's the link, which was first published to this list by Sarah Bourne (thanks Sarah!): https://www.federalregister.gov/articles/2016/05/09/2016-10464/nondiscrimination-on-the-basis-of-disability-accessibility-of-web-information-and-services-of-state

This week I'll be posting my thoughts of parts of the SANPRM I can add value to as a participant in this forum. Thank you WebAIM for making this type of enlightened discourse possible.

Thanks,

Brooks Newton