February 2012 Issue  Volume 13  Number 2

From the AFB Policy Center

Using Legislation and Advocacy to Respond to a Changing Technology Environment

In a September 2011 AccessWorld article, I raised concerns about a number of significant trends altering the design and use of information and communication technology. These interdependent trends include: the dramatic increase in mobile information technology and associated apps, the emergence of cloud computing, and the rapid rise of social network-driven communication. To these trends, I would also add the rise of virtual reality and gaming technologies in the classroom and workplace. On balance, these developments are leading to technologies that are decentralized, personalized, and rapidly changing, all qualities that disrupt traditional accessibility mechanisms—such as assistive technologies and adaptation strategies—for people with vision loss. On the other hand, because this new technology environment is more open to rapid innovation and targeted solutions, the potential rewards are tremendous, especially if accessibility can be built into the technology at no extra cost to the consumer, as Apple has done, by providing comprehensive, built-in accessibility in their products.

How can we work to ensure comprehensive and effective access for people with vision loss in this new environment? Can the increasing desire and expectation among consumers with vision loss for technologies with built-in accessibility be met? What role can assistive technology (AT) play in ensuring comprehensive accessibility, particularly as AT-based solutions are too often incomplete and playing catch-up to developments in mainstream technology? Most important, how do we ensure access to the technologies used at work and in school?

To ensure access in this new and emerging environment, advocates and technology developers must explore multiple and perhaps novel strategies. This month, I will focus on fostering accessibility through public policy and other targeted government action. In an upcoming article, I'll look at additional methods that address accessibility, such as cultivating corporate social responsibility, the value of doing good, leveraging critical, broad-based trends such as inter-operability and privacy, and international accessibility standards with broad stakeholder buy-in. Finally, I plan to look, in detail, at the pros and cons of built-in accessibility by major technology developers, especially Microsoft and Google. I also invite those of you attending the 2012 CSUN Technology and Persons with Disabilities Conference to attend the session entitled Fostering Built-in Accessibility, where this topic will be further discussed.

Using Legislation and Regulation to Stimulate Technology Accessibility

Over the past 20 years, advocates for people with disabilities have successfully pushed for legislation to foster accessibility in the design and development of information and communication technologies. In the United States, these policies have emphasized both direct requirements for accessibility placed on commercial developers of technology and market incentives to support accessible technology. For example, the recently enacted Communications and Video Accessibility Act (CVAA) requires developers of a range of communications and video technologies to incorporate accessibility for consumers with disabilities. The CVAA was modeled on the groundbreaking policy set forth in Section 255 of the Communications Act (discussed below), which required telecommunications technology be accessible to, and usable by, people with disabilities. Another law, Section 508 of the Rehabilitation Act, attempts to support accessibility by requiring US government agencies to purchase technologies that are accessible for people with disabilities. Finally, the Americans with Disabilities Act (ADA) established that individuals with disabilities have a right to accommodations in the workplace including accessible technology along with access to goods and services in the community including access to websites.

These and other hard-fought policies continue to evolve as advocates work to keep up with changes in technology and to strengthen enforcement. Legislation like the CVAA and Section 508 is critical, because these policies establish the expectation and framework for nondiscrimination and accessibility. However, legislation alone, as I will further explain, is not enough to ensure technology accessibility. Far too often, policies are not effectively or comprehensively enforced. Individuals must take action to assert the rights and opportunities afforded by legislation. In short, consumers with disabilities must file complaints and demand full accessibility. There are other problems inherent in the policy process. For example, legislation takes a long time to enact, and the process requires compromises that water down the clear requirements initially sought by advocates, and stretch timeframes for implementation. More compromises are made during the regulatory process as government agencies craft regulations to implement the legislation and determine how to enforce it. In sum, the experience with US policies that address accessibility shows that legislation is absolutely essential, but its effectiveness is limited by ambiguous language, broad exemptions, narrow focus, poor enforcement, and a slow implementation process that makes it difficult to keep up with changing technologies.

Stimulating Technology Access Using Section 508

We have reported on an accessibility law known as Section 508 in previous issues of AccessWorld. Section 508 refers to a provision included in the Rehabilitation Act that requires the US government to ensure that the information and communication technology purchased, developed, maintained, or used by federal agencies is accessible to individuals with disabilities, unless it would be an undue burden or require a fundamental alteration to do so. In short, the use of technology by people with disabilities, whether government employees or members of the public, should be comparable to non-disabled persons. Section 508 was first enacted in 1986, but the lack of clear requirements and enforcement meant that it languished in obscurity until the legislation was strengthened in 1998.

The idea behind Section 508 was to develop a market-based strategy to foster the design of accessible technology. Because the federal government is a huge purchaser of information and communication technology, Section 508 would, in theory, take advantage of the power of US government spending on products and services. The impact would be further magnified, because many state governments also base accessibility requirements on Section 508. Disability advocates hoped that the technology industry would compete to improve accessibility, either through innovation to gain an edge in competitions for government procurement or out of fear of losing lucrative government contracts. In addition, advocates also hoped that companies might use Section 508 to challenge the award of a government contract for a competitor's inaccessible technology.

In practice, government agencies haven't aggressively pushed accessibility by demanding proof of accessibility in technology equipment and services and because loopholes in the law make it too easy for agencies to disregard the access obligations. For example, an agency can argue that no commercially available accessible device or software meets the need, or it could find that changes that might be needed to bring about accessibility would fundamentally alter the technology's functionality.

Section 508 authorizes individuals to file administrative complaints regarding inaccessible information and communications technologies against the agency that purchased the inaccessible technology. The statute requires federal agencies to process Section 508 complaints according to the same complaint procedures used to process Section 504 program access complaints. Unfortunately, it appears that relatively few individuals have brought complaints, perhaps because employees fear retaliation. Individuals can file complaints with a federal agency's civil rights office, and federal employees can file employment-related complaints with the Equal Employment Opportunity Commission.

Although Section 508 has not necessarily resulted in significantly improved accessibility, the law has led to the development of a comprehensive set of criteria establishing detailed accessibility requirements across a variety of technology products and services. The Access Board, a small, independent US government agency, is responsible for defining accessibility for information and communication technology. The Access Board is currently in the process of rewriting the accessibility rulebook and in December, 2011, it issued a second Advance Notice of Proposed Rulemaking (ANPRM) to continue the process of updating accessibility standards for information and communication technology. Individuals are encouraged to comment on all aspects of this notice by March 7, 2012. The update is most assuredly needed as the current accessibility rules were approved in 2000. A good resource for further information about Section 508 can be found at www.section508.gov.

Using the ADA to Address Technology Accessibility

The Americans with Disabilities Act (ADA) did not directly address access to information and communication technology products or services except for the establishment of a telephone relay system for people with deafness or speech disabilities. The law generally focuses on ensuring that individuals are protected from discrimination in employment or in the access to businesses and services. Because Title III of the ADA prohibits discrimination in access by people with disabilities to the goods and services of any place of public accommodation, advocates have successfully argued that technology like automatic teller machines are required to be accessible under ADA. Although neither the statutory language of the ADA, nor the accompanying regulations, specifically addressed access to the Internet or the Web, the United States Justice Department has consistently stated that the ADA applies to websites of private entities that meet the definition of 'public accommodations. Summarizing the situation in 2010, the Justice Department stated, "inconsistent court decisions, differing standards for determining Web accessibility, and repeated calls for Department action indicate remaining uncertainty regarding the applicability of the ADA to websites of entities covered by Title III." Accordingly, the Justice Department has indicated that it plans to publish a proposed regulation providing detailed guidance on website accessibility by December 2012.

Section 255 Sets Groundbreaking Requirements for Telephone Access

The enactment of Section 255, a law requiring telephones and telephone service to be designed to be accessible to people with disabilities, was a landmark achievement in access policy. The law was added to the Communications Act in 1996, and requires manufacturers of telecommunications equipment and providers of telecommunications service to ensure that their products and services are accessible to, and usable by, people with disabilities, if it is readily achievable to do so.

Section 255 is limited to access that directly relates to communication via telephone. This means that many features now commonly found in cell phones, such as Web browsing and e-mail, are not required to be accessible, even though the telephone calling features of the same devices are. Whether or not Section 255 applies to text messaging was never fully resolved, but the new CVAA does cover text messaging along with other advanced communication features such as e-mail and Web browsing. Unfortunately, the telecommunications industry has been slow and inadequate in meeting their obligations under Section 255 by including access features into telephones (including cell phones), leaving consumers with vision loss with very few options for accessible products.

Under Section 255, consumers with disabilities can lodge a complaint against a company because of an inaccessible telephone or telephone service (either landline or mobile). If you would like to file a complaint, you can do so by contacting the Federal Communications Commission. Send details by mail to: Federal Communications Commission, Consumer and Governmental Affairs Bureau, 445 12th Street SW, Washington, DC 20554. You can also send a complaint via e-mail to the FCC at fccinfo@fcc.gov. Finally, you can also use a specific FCC web-based form to file a complaint. Although individuals have filed some complaints, action by the FCC has been relatively weak in enforcing access requirements.

What You Can Do

There are a number of policies now in place that address a variety of technologies and systems, including policies that require technology-based products and services to be designed so that they are fully accessible to individuals with disabilities. However, significant gaps remain. For example, there is no comprehensive requirement for accessibility of hardware and software commonly used in the workplace and increasingly used in educational settings. Advocates continue to work to improve policies and to strengthen their enforcement. While these policies are neither perfect nor comprehensive, consumers with vision loss or other disabilities can enhance the success of hard-won accessibility legislation by using the existing policies to file complaints about inaccessible products and services. It is critical to follow up on these complaints with demands for action by the enforcing agencies. Members of the public can file Section 508 complaints against government agencies that distribute documents or publish websites that are found to be inaccessible. Strong and decisive consumer action will, hopefully, convince the technology industry to respond by implementing, improving, and maintaining accessibility across their products and services.

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