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The ADA, Cyberspace, and the Future

Bill Erbes
Assistant Director, Bensenville Community Public Library

Back in 1990 when the Americans with Disabilities Act was passed, access to cyberspace was not a big issue. There were plenty of other big issues for libraries to resolve in order to attain compliance with the law. Title III of the Act did, however, specify that persons with disabilities must have reasonable access to all “public accommodations.” Six years later, in 1996, the United States Justice Department ruled that Web sites ARE public accommodations. Once that ruling was made, ADA standards should have kicked in. Web sites not accessible to the disabled are, it would seem, in violation of the law.

Since passage of the ADA, tremendous progress has been made in adapting physical structures to the needs of the disabled. But in a recent survey done by PC World of more than 30 major shopping, search, auction, news, and financial Web sites, only a handful admitted any interest in remodeling their sites for accessibility. PC World reported that many Web retailers declined to answer questions about accessibility, and others simply did not return phone calls.

A typical response came from Gap spokesperson Anna Lonergan: “We’re aware of the technologies but have no plans to implement them.” When asked why not, she replied, “That touches in the realm of strategy, and we don’t discuss strategy.” Mike Paciello, a Web accessibility consultant and technical director for WebAble, a resource for accessible Web design, explains this attitude: “They don’t see the market. The moment you tell a company how important it is to their business to make their Web site accessible, they come back with statistics that the market isn’t big enough for them to spend the money.”

On November 4, 1999, nine individuals in concert with the American Federation of the Blind, brought suit in the United States District Court for the District of Massachusetts against America Online, Inc., accusing AOL of being in violation of the ADA because their browser did not support voice output software, a staple for many blind computer users.

This lawsuit was of great interest to the major players in the online world because it signaled the start of serious reinterpretation of the Americans with Disabilities Act and its applications to cyberspace. As with so many things technological, there could be no simple resolution. If a court were to mandate Web accessibility under the ADA, provision would have to be made for the rapid changes in technology. Standards would have to be specific enough to be enforceable, but malleable enough to facilitate rapid change. Assuming a set of standards could be agreed upon by the courts, it would still seem unreasonable to impose them uniformly on every industry, every commercial Web site. And then there is the issue of compliance. With billions of pages already extant, and with growth calculated in terms of pages per second, is there any realistic hope of enforcing compliance regulations uniformly?

William Graczyk, from the Wisconsin Regional Library for the Blind and Physically Handicapped: “Unfortunately, laws and court decrees are by nature formal and inflexible, and the world of computers and the Internet is fluid and quickly changing – a bad fit, indeed.”

As it turned out, the National Federation for the Blind dropped the lawsuit on July 26, 2000, the tenth anniversary of the passage of the Americans With Disabilities Act. At the same time, America Online announced that working together with the NFB had resulted in “real progress in achieving their mutual goal of making the AOL service accessible to the blind.” AOL said that its next version, 6.0, would indeed be accessible to screen-reading software. Further, AOL said that it would insure that all future AOL releases would also be largely accessible to the blind. (AOL has just released version 8.0.)

At about the same time that AOL and the NFB were reaching an agreement, the NFB and the Attorney General of Connecticut were developing an agreement with HDVest, Intuit, H&R Block, and Gilman and Ciocia, four on-line tax preparation services recognized by the Internal Revenue Service, to insure accessibility for those sites by the 2000 tax season. In March of 2001, the California Council of the Blind reached an agreement with Bank of America to insure that their Web site, and the sites of related financial institutions, were accessible.

Each time that conflicts between online merchants and accessibility advocates reached the boiling point, a resolution was effected, and a legal decision was avoided. That is until June of 2002, when the group Access Now filed suit against Southwest Airlines because their Web site was inaccessible to blind users. This conflict did go all the way, and in October of this year, the United States District Court Southern District of Florida ruling granted the defendant’s motion to dismiss the case, and Web masters around the world breathed a collective sigh of relief. Of particular interest was the legal clarification that a “place of public accommodation” is a “physical concrete structure” and as such Title III of the ADA cannot be applied to Web sites.

If the judge, Patricia Seitz, had ruled that ADA applies to the Internet as well as to physical space, every company with a Web site would have become vulnerable to accessibility lawsuits. Judge Seitz not only took twelve pages to spell out her decision, but she also added a footnote in which she expressed her surprise that customer-oriented companies like Southwest did not “employ all available technologies to expand accessibility to its Web site for visually impaired customers who would be an added source of revenue.”

The complete text of the decision is available.

We have not heard the end of this, not by any means.

As library workers, we are charged with providing equal access to information for ALL, regardless of ability to maneuver through the stacks or operate a computer. At least for now, the law is not going to force commercial Web site owners to guarantee accessibility. Therefore, we in the library business must find ways to circumvent the limitations imposed by “traditional” Web construction.

If this seems like a daunting proposition, well, that’s because it IS a daunting proposition. But it is far from impossible. Back in 1990 when ADA was first passed, there was great moaning from libraries and other not-for-profits that the Act was essentially an unfunded mandate. While commercial concerns could adapt and pass the costs on to their customers, non-for-profits did not necessarily have that same option. ADA, we said, would severely limit our ability to fulfill our primary mission.

In fact, that did not happen. ADA made things better. Physical structures all over the United States are now accessible to the handicapped not from efforts of altruistic entrepreneurs (if such an animal even exists), but because ADA said that’s the way it’s going to be, or else. At the moment, ADA has backed away from cyberspace, and that shows, believe it or not, a bit of governmental common sense. Technology is not prepared to meet the standards of ADA, and ADA is not prepared to impose uniform standards on technology.

Libraries are more concerned with and devoted to access than any other agency, and it now falls to us – as it should – to figure out how to make all of that information floating around in cyberspace available to Jim with cerebral palsy, Marybeth, who is confined to a wheelchair, Kara with dyslexia, Lois with severe arthritis, Mark, who lost an arm last year, and everyone else, everyone else who is not a perfect fit with a computer.

The November 15 Soaring to Excellence demonstrated some practical ways to get where we need to be. Things as simple as getting a large print keyboard or enlarging a pointer can be tremendously helpful. But librarians, again more than other groups, recognize technology for what it is, not an end in itself, but a means to getting to some other place. It is right, then, that we look to technology to help solve the problems posed by technology.

It is time that we become more familiar with the Internet2 Consortium and with the Next Generation Internet Program. If you thought you could rest easy because you can do an effective Google search, well, think again. The more we look at net accessibility, the more we realize how much we need massive improvements in bandwidth and improved protocols.

Internet2 exists. More than 200 universities are connected to Abilene, the backbone network operated by the Internet2 consortium of research universities. This nonprofit consortium is working with industry and government to develop and deploy advanced network applications and technologies to boost the performance of what is being thought of as the “next generation” Internet. The Abilene network operations center is located at Indiana University in Indianapolis, and, for the technogeeks among us, Abilene is a Qwest OC-48 (2.4G bit/sec) fiberoptic network. The network was developed through a collaboration of Cisco, Juniper Networks, Nortel and Qwest. Abilene connects regional network aggregation points, called gigaPoPs, which are managed by regional organizations such as NYSERNet. Internet2 is particularly useful for video applications.

Read more, much more, about Internet2 at: www.internet2.org.

At the Fall 2002 (October 27-30) Internet2 Member Meeting in Los Angeles, much time was devoted to the presentation of applications unique to Internet2. One of them, especially created for the meeting to demonstrate the extraordinary capabilities of the system, was presented on the evening of October 29. It was called “Cultivating Communities: Dance in the Digital Age.” Through the use of interactive audio and video transmitted via Internet2, live dancers onstage at the Bing Theatre at the University of Southern California were able to interact with live performers at remote locations around the country, before a live, real-time audience.

The performance used six two-way channels of uncompressed audio and video data, streaming at the rate of 250 million bits per second across the Internet2 network. Dancers in Cleveland were shown on screens on the Bing Theatre stage, and the Los Angeles dancers performed alongside them. Screens in Cleveland allowed the dancers there to see their West Coast counterparts.

With all of that in mind, essentially the prospect of unlimited bandwidth, start to think of the possibilities for handicapped access. From real-time closed-captions to a lower-right-hand box displaying a signer; from instant conversion to Braille, to interactive speech recognition… the possibilities are extraordinary. All we need now are clear, bright minds to implement the impossible.

Bibliography

Heim, Judy. "Locking Out the Disabled." PCWORLD.COM. 2000, September. PCWORLD. 8 November, 2002. <www.pcworld.com/howto/article/0,aid,17690,00.asp>.

McCullagh, Declan. "Spinindustry Systems: web, internet, interactive database, ebusiness." Spinindustry systems. 2002, October 23. 8 November, 2002. <www.spinindustry.com/about_us/asp/news_more.asp?ArticleID=99>.

McCullagh, Declan. "Why Americans with Disabilities Act should not apply to web." Politechbot.com. 2002, October 27. 8 November, 2002.
<www.politechbot.com/p-04100.html>.

Mears, Jennier. "Internet2 Gaining Sponsored Users." Network World July 22 (2002): 29.

"New York's Natural History Museum Pioneers Use of Internet2." The Chronicle of Higher Education May 3 (2002): 34.

Olsen, Florence. "Bandwidth Leap Lets Dancers and Musicians in 2 Cities Give a Joint Performance." The Chronicle of Higher Education September 20 (2002): A34.

Rapoze, Jim. "It’s Time for Next Internet; Next-generation Net Technologies Are Ready and Must Be Used." eWeek July 15 (2002): 58.

Singer, Paul. "Cleveland Campus Gets Totally Wired." Chicago Tribune 22 Jul. 2002: 14.

Thibodeau, Patrick. "Do Disability Laws Apply to the Web." PCWORLD.COM. 2002, November 6. PCWORLD. 8 November, 2002. <www.pcworld.com/news/article/0,aid,106742,00.asp>.

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