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ADA Title II Supplemental Advance Notice of Rulemaking Overview and Commentary

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From: Brooks Newton
Date: May 26, 2016 11:57AM

Hi All,



As I've promised over the last few weeks, I've put together a brief overview
and commentary related to the Supplemental Advance Notice of Proposed
Rulemaking (SANPRM) for the Title II provisions in the Americans with
Disabilities Act (ADA). That's a mouthful, I realize. What is this SANPRM
for the title II provisions of the ADA? Long story short, the U.S.
Department of Justice (DoJ, also referred to as the Department) seeks public
input on proposed rules that will regulate Web accessibility for state and
local governments in the United States. To be clear to the WebAIM list
readers, I'm not a lawyer. I'm just a digital accessibility guy who is
making an attempt to understand the evolving law that will govern what and
how we regulate accessibility of Web, and quite possibly, mobile application
communications. This post is purely a reflection of my personal opinion,
and I have written it with the understanding that it is completely open to
criticism, correction and supplementation. My hope is that others on this
list will take on this topic and expand the information and ideas in this
post with their own observations, reflections and calls to action. You
don't have to be a world-class digital accessibility expert to post your
opinion on the proposed regulation. Here's a challenge to the WebAIM list
lurkers out there: Use this general topic as the impetus for making your
first post to the list and get involved!



The full text of the SANPRM is available at the following location:

https://federalregister.gov/a/2016-10464



Here are some pieces of basic information about the SANPRM. The public has
from now until August 8, 2016 to file comments on the proposed rules. The
SANPRM provides background on the regulatory history of the proposed Web
accessibility rules, including a summary of the original ADA legislation,
which was signed into law nearly 26 years ago on July 26, 1990. This SANPRM
goes on to underscore the importance of Web communications by title II
entities, citing multiple examples of how the Web has fostered enhanced
public participation in governmental programs. The Department also
describes barriers to Web accessibility that keep people who browse with
disabilities from getting full and complete use out of Web-based
communications utilized by state and local governments. The Department also
acknowledges that "compliance with voluntary technical standards has been
insufficient in providing access." WCAG 1.0 and 2.0 are examples of a
voluntary technical standards referenced by the DoJ in this document. The
SANPRM suggests standards for Web access, proposes timeframes for
compliance, attempts to define the scope of coverage under the proposed
rules, requests feedback on employing a means of measuring compliance and
considers whether or not mobile apps should be covered under the new rules,
amongst other issues. Along with these proposed rules for regulating Web
accessibility, the Department asks 123 questions that are scattered
throughout the SANPRM document. These questions are structured requests for
comments relate to various proposals contained with SANPRM document.
Thankfully, the SANPRM makes it clear that additional considerations outside
of the formal framework provided by the 123 questions are accepted and
encouraged, if they are helpful in understanding the implications of
imposing ADA regulatory requirements on U.S. state and local governments.



The DoJ announced that "the Department invites written comments from members
of the public." It isn't clear in the SANPRM whether "the public" is
limited to U.S. citizens, or if it is open to citizens of other countries.
Anybody on this list know the answer to this question? I sure hope that our
government is open to ideas generated by the world community on these
important issues of digital access. There are three ways to formally file
your comments with the DoJ on the SANPRM. You can file via Web site form,
you can file via snail mail, or you can file via an alternative physical
delivery method, such as overnight delivery or by personally delivering your
comments. Details on each of these three methods are available through the
Federal Register link I included earlier in this post. To view a list of
public comments on the SANPRM, which have already been filed, visit
https://www.regulations.gov/#!docketBrowser;rpp0;soÞSC;sb=docId;po=0;dc
t=PS;D=DOJ-CRT-2016-0009



Now, you may say to yourself, "I work in the private sector, so why should
this proposed rulemaking for state and local governments matter to me?"
Let's go through a quick review of the history of the ADA to understand the
relevance of this SANPRM to private business. In 2010 the DoJ announced
their intent to codify regulations relating to Web access under the ADA with
the announcement of an Advance Notice of Proposed Rulemaking (ANPRM). Five
years later in 2015, the DoJ announced that they were going to pursue
separate rulemakings addressing accessibility for ADA title II and title
III entities. Again, title II entities are state and local governments.
Title III entities under the ADA are defined as private companies that offer
goods or services, which are available to the general public via places of
public accommodation. In this SANPRM published to the Federal Register on
May 9, 2016, the DoJ announced that they are "moving forward with rulemaking
under title II first." Pay attention private businesses, because what gets
shaped into the law for state and local governments will likely influence
the law that you will have to follow with regard to Web accessibility. Or,
at least that's the way I interpret it.



There are way too many topics, questions, points of contention and minutiae
in the SANPRM to list separately in this email post. So to get the
discussion rolling, I thought it would be good to pick out a few critical
issues, provide my opinions on these topics, and ask others to comment on
these and other issues contained within the SANPRM. Please bring up
additional topics as they come to mind and share them with WebAIM list
readers in your own posts to this forum.



Example topic 1: Is it fair to limit the proposed ADA regulation of the Web
to Web content alone?

My response to topic 1: This is my biggest complaint with the SANPRM. The
DoJ has, in my opinion, limited coverage for the proposed rules to an
artificially narrow scope they label as "Web content." In other words, the
Department proposes to regulate the site code posted online by content
owners. They do not propose to regulate the software that makes the Web
perceivable, operable, understandable to users of all abilities. Long story
short: We need to include regulations that guide operating system, user
agent and assistive technology (OS/UA/AT) manufacturers in the development
of their wares so that standards-based compliant site code will work
accessibly for real users who need software to parse/present the page source
in a form that mere mortals can understand.



Example topic 2: Is WCAG 2.0 Level AA the best standard for governing the
Web accessibility of U.S. state and local governments sites, and if so, are
there WCAG 2.0 AA success criteria that should be excluded from the proposed
regulations?

My response to topic 2: It is never a good idea to pass laws or regulations
that, when enacted, make every covered entity a non-compliant lawbreaker.
For example, do we have free and easy access yet to a media player solution
that fully supports described video via a separately controllable audio
track? If not, we've got no business mandating, under penalty of law, a
provision that requires such. Again, let's start to put software
manufacturers on the hook for Web accessibility compliance and my guess is
that we'll start to encounter access innovations in areas that have long
seemed out of reach for all but the wealthiest and most powerful Web content
owners.



Example topic 3: Should the ADA Web site regulations provide an "equivalent
facilitation" clause the opens the door for title II entity compliance
through the use of another communications medium, product or technology?

My response to topic 3: No, it isn't OK to allow a state government Web site
to cop out of their obligations to provide accessible Web content because
they make Braille copies of the information available at their brick and
mortar headquarters. That's not cool, because it ignores the primary value
of offering information and services online, which is to make it quick, easy
and inexpensive for citizens to get what you want from the government. I
don't want to over generalize here because I'm quite sure there are
instances where equivalent facilitation is the public's best bet at getting
universal access to certain information, so please provide examples that
support and refute the principle of equivalent facilitation.



Example topic 4: Should small public entities or "special districts" be
allowed to comply with Web access standards that are less stringent than the
rules with which larger government entities must comply?

My response to topic 4: This issue makes me irritated from the get-go.
Fellow Americans, can you imagine being pulled over, cuffed and stuffed in a
squad car outside a rural small town in the U.S. by the police only to be
told that you don't have the normal rights to due process because the
arresting municipality is too small to effectively operate under the rule of
law that citizens of larger communities enjoy? Digital accessibility is
civil right, a human right. The fine folks at the United Nations have made
that clear. It should not be abridged due to the size of the agency who
happens to be posting content online. If everyone, including OS/UA/AT
manufacturers, were regulated to do their parts accessibly, it would relieve
much of the burden on smaller government agencies to custom code their way
to full Web access.



Should mobile apps be regulated under the ADA? Should archived content or
preexisting conventional electronic documents (pdf and Word files, for
example) get a pass on complying with the Web accessibility regulations?
What about educational sites that are password protected? What about the
learning management solutions that many education institutions use as
frameworks for their Web content? How should third party Web content be
regulated, if at all? Please read the SANPRM linked just after the first
paragraph of this email post. Give the document careful consideration. Talk
with your colleagues. Post your responses to the topics I have raised and
bring up topics related to issues that I haven't yet pointed out. We need
to discuss this law a lot more than what I've seen bandied about in the
normal channels of accessibility-related discussion. We are not leaves
destined to blow in the wind, without control or thought as to where we will
eventually fall. We have an opportunity to shape this landmark legislation
through the public comment process. Let's do just that.



Respectfully,



Brooks Newton