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Re: ADA Title II Supplemental Advance Notice of Rulemaking Overview and Commentary

for

From: Brandon Keith Biggs
Date: May 26, 2016 7:20PM

Hello Brooks,
I have forwarded your email message along to many of the email lists I am a
part of and hopefully we will get some lively debate going on. This is one
piece of legislation that will not pass unnoticed!
Thanks,


Brandon Keith Biggs <http://brandonkeithbiggs.com/>;

On Thu, May 26, 2016 at 10:57 AM, Brooks Newton < <EMAIL REMOVED> >
wrote:

> 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
>
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