New Accessibility Rules For E-Readers Coming in ‘Months,’ Justice Says

Congress two years ago removed impediments to compliance from court decisions that interpreted disability too narrowly, through an ADA amendments bill, said Subcommittee Chairman Jerrold Nadler, D-N.Y. But Justice’s lag in revising guidelines risks court confusion, said Nadler, who said he’s worked with a “brilliant” blind attorney on the subcommittee. Ranking Member James Sensenbrenner, R-Wis., whose wife is active in disability rights’ causes, said technology was making it easier for companies to make accessible products and avoid lawsuits. “'How we do it?’ should give way to, ‘Let’s do it,'” he said.

Accessibility to the Web and devices is the “gateway civil rights issue” for disabled people, said Samuel Bagenstos, principal deputy assistant attorney general in the Civil Rights Division. Not only e-commerce sites but also state and local government sites that don’t work with screen reader technology violate the law, he said. But only two cases have dealt with the portion of the law dealing with “public accommodations” and they reached opposite conclusions, requiring new guidance from Justice, Bagenstos said. The department “aggressively” pursued complaints against universities for requiring use of the Amazon Kindle DX reader, which didn’t have text-to-speech functionality, securing settlements, he said. “The happy result” was Amazon agreed to add that functionality sometime this year.

Nadler couldn’t get Bagenstos to set even a vague date range for pushing out new guidance. “We intend to make an announcement on something like this in the months ahead,” Bagenstos said. The law allows businesses that can’t reasonably make themselves accessible to provide the “exact equivalent” of the service in an offline manner, but the Web is a “unique experience” that’s hard to translate, he said. For e-readers, “it may be difficult to have anything else that’s equivalent to it.” The law is clear but the case law is sparse, which is why Justice believes its “technical assistance” will clarify to courts how to apply the law, Bagenstos told Nadler.

Disability rights’ cases generally turn on “failure to think of the market of people with disabilities as a market” at all, not cost hurdles, Bagenstos said. He agreed with Rep. Bobby Scott, D-Va., that in the vast majority of cases an entity would have to spend less than $500 to comply. Virginia’s pre-ADA state law set that dollar figure as an “undue hardship” threshold for compliance. Justice will “communicate with schools in a general and prospective way” in coordination with the Department of Education on compliance, Bagenstos told Rep. Judy Chu, D-Calif. Making online courses accessible is “relatively simple,” he said.

The best way to honor the ADA’s 20th anniversary is passing the 21st Century Communications and Video Accessibility Act (HR-3101) by Rep. Ed Markey, D-Mass., said Mark Richert, director of public policy for the American Foundation for the Blind. Surveys suggest less than one in three disabled people have access to broadband, but the foundation’s work with companies such as CVS and RadioShack gives evidence that reaching the disabled market is good business, he said. If banks can provide services to visually impaired customers at branches, surely they can design websites so those users can read them, Richert said, relating one “heartwrenching” case.

Web accessibility can be “feasible for simple mom-and-pop websites” as well as much larger sites, using guidelines and standards devised by the World Wide Web Consortium, said Judy Brewer, director of its Web Accessibility Initiative. Disabled groups have been “present at the design table” from the start of the group’s work, and the main hurdle now is convincing countries that developed their own standards to use the W3C’s, she said. The inclusion of screen readers and accessibility applications for Android devices and the iPhone shows the technology is “technically possible and economically feasible and profitable,” said Steve Jacobs, president of the Ideal Group, whose Apps4Android makes disabled-focused applications.

"We are not even halfway there on making the Internet accessible” to disabled groups, said lawyer Daniel Goldstein, who asked for Justice investigations into colleges using the Kindle DX last year. Schools are “particularly severe,” with 97 percent of university homepages problematic and course-management technologies “gratuitously inaccessible,” he said. But because early cases against AOL and Target for inaccessible sites were settled, there’s no judicial precedent to wield and compel compliance, Goldstein said. One of the nagging disputes is whether the law covers websites with no physical counterpart, such as a retail store. The Target settlement said it was liable for “overlap” products -- those available in both its retail stores and website. But after that settlement, Web compliance rose by a third among major retail stores, Goldstein said.

Software developers could be the linchpin of ADA compliance online, Goldstein said. But because they want to win Web design bids for major companies, developers often include accessibility options as a separate “line item” in proposals that their clients opt not to purchase, he said. “They're misleading their clients,” Nadler said, asking if that’s an ADA violation. “They're certainly leaving the client high and dry,” at risk of getting sued, Goldstein said. Mentioning developers in Justice guidance “would be a huge help."

Businesses often call W3C asking if their sites are covered by the ADA, Brewer said. “Lack of sufficient awareness and training,” not intentional evasion, is the problem. Those who make purchasing decisions in companies didn’t go through courses that explained the benefits of accessible design, Jacobs said -- ergonomics majors did. Universities and accrediting agencies should ensure “the right people are learning the right things.” One glaring embarrassment is even many federal agencies aren’t buying accessible technology, Richert said, blaming “bureaucratic inertia.” Bagenstos had already left the hearing when Richert said Justice hadn’t fulfilled its statutory obligation to monitor ADA compliance by agencies.

Other federal agencies will have a role in accessibility online and for e-readers, Goldstein said. Besides Education, Health and Human Services will “have a lot to say” about accessibility for electronic health records and the FCC for the National Broadband Plan, he said. Rep. Sheila Jackson Lee, D-Texas, said she would soon introduce what’s dubbed the WONDER Act, written with the help of Stevie Wonder, to help visually impaired students, and asked for help in writing technology sections. Jacobs encouraged lawmakers to consider legislation to require organizations to first look for open-source versions of accessibility technology before buying commercial versions, as his company is doing with an Education grant.