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Comments of the American Foundation for the Blind on Nondiscrimination on the Basis of Disability: Accessibility of Web Information and Services of State and Local Government Entities Public Accommodations

Comments of the American Foundation for the Blind

In the Matter of
CRT Docket No. 110
Department of Justice
Civil Rights Division

Advance Notice of Proposed Rulemaking

Nondiscrimination on the Basis of Disability: Accessibility of Web Information and Services of State and Local Government Entities Public Accommodations

Prepared by: Mark D. Richert, Esq.
Director, Public Policy
American Foundation for the Blind
1660 L Street, NW, Suite 513
Washington, DC 20036
Ph: 202-469-6833
Email: mrichert@afb.net

January 24, 2011

The American Foundation for the Blind (AFB) commends the U.S. Department of Justice (DOJ) for initiating an important dialog with the disability community concerning the most effective regulatory means for ensuring that the Americans with Disabilities Act (ADA) is as relevant as it can be in the digital age. When the ADA was first implemented through regulations and technical assistance in the early 1990s, AFB was honored to be the lead technical assistance author under contract through a DOJ grant in providing guidance to covered entities and the public concerning the rights and obligations created by the new law as they specifically relate to individuals living with vision loss. Over the past twenty years, AFB has continued to promote the ADA's effectiveness and proper implementation through the public policy and advocacy processes, and we are pleased to offer these comments in response to DOJ's stated intent to clarify ADA responsibilities in connection with Internet accessibility. While we will address some of the specific questions posed in the above-captioned advanced notice of proposed rulemaking (ANPRM), our comments first elucidate an overall policy framework and posture which we urge the DOJ to assume in any rulemaking that DOJ ultimately undertakes. We are persuaded that this policy framework faithfully reflects the letter and spirit of the ADA, and that its use in the development of regulations will best position such proposed rules to both survive the rulemaking process and meet the needs of people with disabilities. It is therefore to that policy framework that we first turn.

The Policy Objective

The overarching policy objective of any proposed rulemaking concerning application of the ADA to covered entities' Internet activity should be to ensure that ADA covered entities have no doubt that the ADA reaches into every aspect of a covered entity's interaction with people with disabilities, regardless of the nature or modality of that interaction. Particularly with respect to individuals with vision loss, a disability that has a direct impact on information acquisition, covered entities must understand that the mere fact that they conduct business via the Internet has no bearing on their civil rights obligations under the ADA. Technology can be a tremendous liberator for people with disabilities, but it can also be a significant obstacle to full participation. Such obstacles can arise anywhere when information accessibility has been neglected or when certain equipment or technologies are seen as beyond the reach of the ADA.

If there is one overall criticism that can be lodged against the posture that DOJ is seeming to assume in each of the ANPRMs related to this docket, it is that there seems to be a piecemeal approach being taken. In other words, DOJ is singling out specific types of equipment for coverage by the ADA and seemingly applying categories of analysis to various forms of technology to make distinctions that need not, and should not, be made. At the end of the rulemaking process being considered, covered entities should not be thinking that they are now required to ensure some sort of accessibility to a specific number of devices, technologies, or modes of delivering their information or benefits which they have hitherto not needed to address. Rather, covered entities should be reminded that the obligations that they have always had to ensure full participation by people with disabilities are not somehow limited or inapplicable to this or that specific modality which they expect customers and others to use.

Scope and Extent of Rulemaking

We would therefore expect that any regulations to be proposed, by necessity and with prudent recognition of the overall access obligations that covered entities have always had, should require minimal drafting and leave as many specifics as possible and advisable to technical assistance. We believe that a general but unequivocal regulatory statement that reaffirms the ADA's applicability to covered entities' Internet activity, as part of section 36.303 of the DOJ rules concerning auxiliary aids and services to be provided by public accommodations for instance, would be a strong and sufficient means for reminding covered entities of their responsibilities. It will then be imperative to develop the kind of excellent case-by-case analysis and contextual treatment that the Title II and Title III Technical Assistance Manuals have offered in the past. Clearly, given the DOJ's most recent refresh of the regulations implementing both Titles, revisions to the Technical Assistance Manuals are in order anyhow. We therefore strongly urge DOJ to include a general regulatory statement affirming that effective communication and the provision of auxiliary aids and services applies to covered entities' Internet activity, regardless of whether a given covered entity also happens to operate physical facilities.

Such a general provision could be accompanied in the text of the final rule by a nonexhaustive list of the kind of practical examples we discuss below. However, we urge DOJ to leave extensive detail for treatment through technical assistance.

We also urge DOJ to not silo covered entities' Internet-related responsibilities from their responsibilities to afford access to equipment generally, as is implied by the DOJ's separate treatment of Internet information and equipment access in distinct ANPRMs. Indeed, we believe that the convergence of technologies that we are already seeing today demands a holistic approach to rulemaking. To make this point clear, let us pose a scenario that is not entirely hypothetical.

If a company called MyPersonalMovieTheatre.com offers a wireless device for sale, rent or loan that displays on-demand movies currently running in conventional theatres across the country, such a company is a virtual movie theatre, a public accommodation, and has ADA obligations to ensure that patrons with disabilities can both use MyPersonalMovieTheatre.com and the wireless device. If we take the hypothetical a step farther and say that a wireless device per se is not involved but merely an app that the patron can download from MyPersonalMovieTheatre.com and use on his or her smart phone, the company nevertheless has an ADA obligation to ensure that the patron with disabilities can use the app. It is also worth noting here that MyPersonalMovieTheatre.com will also have ADA obligations to offer captioning and description for its movies.

To take this matter out of the hypothetical realm, let us turn to an example that has garnered considerable concern among advocates, namely the posture Amazon.com is in vis-à-vis the ADA. Clearly, Amazon.com is a Title III covered entity inasmuch as it is a massive book store and online marketplace. The DOJ's Internet rules should make it crystal clear that a covered entity is a covered entity, regardless of whether that covered entity conducts its business and/or activities exclusively online. However, the DOJ Internet rules must not be siloed from the DOJ's treatment of equipment. Therefore, once the DOJ's new complement of ADA rules is in place, Amazon.com should have no doubt that a product that it offers to customers so that such customers can enjoy other products that Amazon.com offers, i.e., the Kindle Reader to read Amazon.com's extensive e-book collection, is within the reach of the ADA's nondiscrimination requirements. This means that, as a covered entity, Amazon.com has an obligation to ensure effective communication with its customers with disabilities. Such customers must be able to independently access Amazon.com's e-books through use of the Kindle unless Amazon.com can demonstrate that providing an accessible Kindle product or modifying such product would result in an undue burden.

In summary, the DOJ should take an integrated and holistic approach to articulating the ADA's relevance in a world where such convergence of technology and modalities is only expected to increase exponentially. The DOJ cannot possibly anticipate every scenario in place today or in the future wherein equipment, software and/or Internet modalities may be used alone or in concert by covered entities. Any regulations should therefore state broad requirements in general terms but point to the application of such provisions through examples that recognize both the breadth of technological options and their possible convergence.

Effective Communication and Undue Burden

In spite of the oft propounded notion that Congress did not adequately foresee the impact that technology would have on all of our lives and, therefore, the ADA's relevance to such a changing environment, the Congress did in fact anticipate that the ADA would increase in its relevance in a technological age and that the appropriate lens through which to measure covered entities' responsibilities is the undue burden standard. As the legislative history provides:

"The Committee wishes to make it clear that technological advances can be expected to further enhance options for making meaningful and effective opportunities available to individuals with disabilities. Such advances may require public accommodations to provide auxiliary aids and services in the future which today would not be required because they would be held to impose undue burdens on such entities. Indeed, the Committee intends that the types of accommodations and services provided to individuals with disabilities, under all of the titles of this bill, should keep pace with the rapidly changing technology of the times." H.R. Rep. 101-485(II), at 108 (1990).

In the DOJ's preamble to its 1991 regulations, the DOJ declared that:

"[g]iven that § 36.304's focus is on the removal of physical barriers, the DOJ believes that the obligation to provide communications equipment and devices...is more appropriately determined by the requirements for auxiliary aids and services under § 36.303." 56 FR 35544, 35568.

In spite of the traditional position taken by the DOJ that communications equipment and devices are most properly dealt with by the auxiliary aids and services and effective communication regulations, the DOJ's Internet ANPRM nevertheless raises issues and asks questions that seem to view the ADA's applicability in the Internet context through a built environment lens. We urge the DOJ to fundamentally reject any modeling of Internet-related regulations on the approaches that are used to address accessibility of physical facilities, i.e., the rigid application of design standards, scoping, and distinctions between new and existing facilities.

Indeed, the DOJ already has in place a sufficient and strong framework into which covered entities' Internet-related responsibilities fits well. With the recent refresh of the ADA Title II and Title III regulations, the DOJ has articulated a very useful overall performance standard for evaluating whether a covered entity has met its responsibilities. As the new auxiliary aids and services rule provides:

"The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. A public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication, but the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective communication. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability." 28 C.F.R. 36.303(c) (1) (ii).

One of the principle benefits today of, for instance, commercial web sites is the ability of covered entities not to have to use in-person staff and to construct a physical place of business. Similarly, customers need not deal with in-person staff, potential long lines and wait times, and even the need to travel to the place of business. In effect, technology is being widely used to replace human interaction, for better or worse.

Fundamentally, however, sites on the Internet are nothing more and nothing less than a centralized source of information and communication maintained by a covered entity to offer certain programs or benefits. At bottom, a commercial web site is nothing if not pure communication for some commercial purpose. Likewise, state and local governmental entities use the Internet to facilitate communication both to and from the citizenry. Noncommercial public accommodations, such as libraries or places of public display, offer the public a pure form of information access without the inconveniences attendant to in-person interaction or travel to a specific location. In short, the maintenance of presence on the Internet is all about communication on the covered entity's behalf, and the ADA requires communication with people with disabilities to be effective with or without the use of auxiliary aids and services.

The Proper Role of Technical Standards

If effective communication is the ADA-relevant performance standard for determining whether a covered entity is doing right by people with disabilities, what then is the value and proper use of specific technical standards, such as the extensive body of ongoing standards development being undertaken by the Web Accessibility Initiative (WAI) of the World Wide Web Consortium (W3C). Throughout the DOJ's Internet ANPRM, reference is made to the role and usefulness of the W3C's Web Content Accessibility Guidelines (WCAG or WAI guidelines), and the DOJ is asking for guidance as to how best to incorporate or make use of them to ensure accessibility of Internet content offered by covered entities. We have long been proponents of the WAI guidelines, and AFB is proud of our status in the vision loss community as the leading source of technical assistance to web developers. The WAI guidelines do offer a wealth of guidance in ensuring that accessibility has been accounted for. However, in the ADA context, the question is not whether a given web site may have been designed to comply strictly with the WAI guidelines. Rather, the ADA analysis must be whether the individual with a disability in question can interact with the web site as effectively as others. A web site's purported adherence to the WAI guidelines may be evidence of a covered entity's efforts to meet their ADA responsibilities, but ultimately the obligation to ensure effective communication remains the covered entity's responsibility apart from mere technical compliance with web design standards.

This is a critical distinction to make for two reasons. First, it is quite possible, and some people with disabilities argue all too common, for a web site to be designed in full compliance with the WAI guidelines but yet remain extremely difficult to use. This is because, though components of the web site may be coded properly to allow screen reader software, for example, to find content and read it aloud properly, the overall layout and "busy-ness" of the site may itself be a barrier. Secondly, as the DOJ itself recognizes in the Internet ANPRM, the WAI guidelines are something of a moving target and offer a gradation of accessibility completeness to account for the diversity of web site features and functions that are even now still emerging. We dare not allow the ADA's clear nondiscrimination mandates to devolve into a debate among computer programming experts before the courts as to the extent to which a given web site does or does not comply with the WAI guidelines or whether use of one grade level of access would have been more appropriate to adhere to than another. At heart, the relevant ADA analysis has little to do with the technical coding of a given web site and has everything to do with the conduct of the ADA covered entity's achievement of effective communication. If effective communication can be practically achieved by a covered entity that disregards the WAI guidelines in whole or in part, access by the individual with vision loss to the covered entity's web site may not be very elegant, but the individual can nevertheless take advantage of the covered entity's benefits.

The only possible value in setting up adherence to the WAI guidelines as the benchmark for measuring a covered entity's compliance with the ADA, other than as part of an analysis of a covered entity's good faith efforts, would be to establish a safe harbor for covered entities. We categorically reject such a concept. We cannot abide a regulatory framework that essentially says that a covered entity would be shielded per se from any ADA claim simply by certifying that it has technically met the WAI guidelines. Rather, the DOJ should simply reassert in its new regulations that covered entities must ensure effective communication in all of their interactions with people with disabilities, including via the Internet, and the auxiliary aids and services and effective communication rules should be directly incorporated into such regulations. The WAI guidelines are rubrics to which the DOJ can point covered entities as they work to satisfy the ADA's nondiscrimination mandates, but those mandates must not be equated with mere technical compliance with the WAI guidelines

In summary, a covered entity has met its ADA obligations when it provides timely access that allows the individual with a disability to benefit from the covered entity's offerings as discreetly and as independently as individuals without disabilities. Accomplishing these objectives may be made much more efficient through compliance with specific technical standards, but ultimately the test is not whether such technical standards have been followed to the letter. The test for ADA purposes is whether the covered entity's communication is effective, i.e., provided timely and with protection of the user's privacy and independence.

Responses to Selected Questions

Question 1: DOJ Adoption of WCAG 2.0 Level AA Success Criteria

In principle, we believe the DOJ should affirm the value of the Level AA Success Criteria as a set of rubrics against which a covered entity can measure its web site accessibility. However, as we have tried to explain above, the DOJ's new regulations should simply but unequivocally apply the auxiliary aids and services and effective communication requirements, as those requirements have been most recently refreshed by the DOJ, to covered entities' Internet activity. The DOJ should then point to adherence to the WAI guidelines as a measure of web site accessibility, but new regulations should not equate rigid adherence with the WAI guidelines or any other technical standards with fulfillment of a covered entity's ADA obligations to ensure effective communication.

Indeed, WCAG explains what is needed to allow people with disabilities to use the web, but does not mandate particular solutions tied to particular technologies. Techniques for meeting criteria are offered, but the criteria themselves were specifically drafted to be forward looking—to explain what must be done, but not how to do it. There is therefore no reason to substitute the ADA's clear call for effective communication with yet another set of performance or technical criteria.

Nevertheless, the WCAG 2.0 Level AA success criteria focus on how people with disabilities actually use and interact with web sites, and allow for flexibility by web designers and developers. Designed to place emphasis on outcomes and on design strategies that will ensure accessibility, the WCAG 2.0 guidelines are not tied to or dependent on any particular technology. They are as valid and usable in the cloud computing environment as in the dedicated server world, as appropriate on social networking sites as on e-commerce ones, and they are useful for people using any of the many varieties of assistive technologies that people with disabilities utilize to access and participate in the online world.

Question 2: Use of Section 508 Standards as Possible Alternative

Section 508 is a critically important standard for the federal government, but it was drafted to be just that: a tool for federal agencies and not directly for Title II or III entities or the web developers they employ. As DOJ knows, Section 508 is currently under active revision, in large part to assure conformance with WCAG 2.0. When TEITAC, the industry–consumer advisory committee assisting the Access Board with the Section 508 refresh, turned in its report on revision of the 508 standards, it made its recommendation as identical to WCAG 2.0 as possible given that WCAG 2.0 was not completed as of the report date. (See April 2008 TEITAC Report to Access Board at www.access-board.gov/sec508/refresh/report, stating "The Committee worked to harmonize its recommendations with the W3C Web Content Accessibility Guidelines 2.0 (WCAG 2.0) Working Group."

Moreover, all of the commenters, both industry and consumer, that added supplemental comments to the final report addressing the web portions urged the access board to either adopt WCAG 2.0 for the Web portion of the new 508 standards or make the new standards as identical as possible to WCAG 2.0. Given the importance of international harmonization, and the extensive support materials available for WCAG 2.0, the Title II and III web regulations should refer directly to WCAG, and not adopt Section 508, a U.S.-specific regulation that is not yet stable. Again, however, such reference should be characterized as best practice for covered entities and should not be equated with covered entities' effective communication obligations.

Question 3: Accounting for Updates to Web Access Standards

The fact that the DOJ asks this question means that the DOJ recognizes the ever-evolving nature of technology. While, on one level, it would be convenient to simply declare in regulations that, after a date certain, covered entities must adhere to this or that set of guidelines or standards, the law will always lag behind the evolution of technology. We are well aware that the WAI guidelines have been explicitly designed to be extensible, which is to say that each successor level of accessibility standards merely builds on previous work. The advantage of such a structure is, of course, that new developments in access standards do not require retrofitting. However, as we have said repeatedly, the one constant for ADA purposes is whether an individual with disability has been afforded effective communication via a covered entity's web site. The DOJ regulations should simply require covered entities to afford effective communication, and reference can then be made to best practices to which covered entities can turn for guidance. In 2011, such best practices are embodied in the Level AA Success Criteria. However, compliance with such guidelines cannot be substituted for, or equated with, fulfillment of covered entities' ADA obligations to afford effective communication.

Question 4: Performance Standards

The DOJ's refreshed regulations already articulate the precise performance standard against which web sites and any other modality used by a covered entity should be judged. The performance standard, embodied in the DOJ's auxiliary aids and services regulations, requires that the timeliness of information exchanged and the conditions under which it is exchanged, namely with protection of the user's privacy and independence, afford the user effective communication.

We categorically reject any calls for the establishment of alternative performance standards, including calls for some sort of substantially equivalent ease of use standard. Such inferior performance standards have no basis in current law and contribute no additional concrete measures against which web site accessibility can be judged. By contrast, a web site that allows an individual with a disability to make use of it in a timely, private and independent manner can be evaluated much more objectively. The DOJ should not credit the establishment of the substantially equivalent ease of use performance standard that has been incorporated into a number of settlements with covered entities; by definition, such settlements are significant compromises and should not be allowed to constrain the DOJ's authority to properly implement the ADA.

Question 5: Certain Exceptions, Exclusions, and Limitations

First, as we have tried to explain above, we believe that any new regulations proposed by the DOJ should be extremely limited in language and minimally drafted. We do not accept the premise of this question that a range of specific exemptions and carve-outs is at all necessary to ensure the legitimacy or effectiveness of the DOJ's enforcement of ADA obligations in the Internet context. If a covered entity is a covered entity, such covered entity has ADA obligations regardless of whether they conduct activities online. We believe it is a Pandora's box to begin to articulate in regulations all of the conceivable hypotheticals wherein a given actor might not be a covered entity for ADA purposes. We believe that the DOJ should not open up the question of whether this or that actor is in fact a covered entity. We are persuaded that the twelve exemplary categories of public accommodations, for instance, provide sufficient guidance both to the DOJ and to the courts as to whether a given target of a complaint or law suit is or is not a public accommodation. Once the DOJ makes it clear in its regulations that covered entities continue to have ADA obligations even when they conduct activities exclusively online, the analysis of whether a given actor is or is not a covered entity becomes much clearer. Nevertheless, the extent to which ambiguities may persist in an exclusively online context is not a reason to establish specific regulatory provisions that "define out" certain actors per se. We believe that, if the DOJ feels strongly that ambiguities in the exclusively online context demand additional attention, such ambiguities should be addressed through affirmative examples of when the ADA does in fact apply rather than enshrining carve-outs in the rules. Obviously such examples should be nonexhaustive, but they should give additional meaning to the concept of covered entity and should not excuse certain actors per se. Any such negative illustrations should be left to the extensive technical assistance we have been advocating.

For example, both Yahoo and AOL are operating exclusively online, but both services may arguably be places of public exhibition or even recreation. As we have said, it is simply not possible for any of us to anticipate all the ways in which the Internet is continuing to transform our lives. The mere fact that Yahoo or AOL may operate exclusively online does not, and should not, bar a complainant from being able to lodge an ADA claim. So, for instance, if Yahoo or AOL offer users online gaming, clearly Yahoo and AOL would be recreational entities. There is nothing that limits the ADA's applicability to physical places of recreation. Naturally, as we will discuss below, an entity such as Yahoo or AOL that might merely allow a user to "pass through" their services to access another entity's gaming offerings may not be held responsible for the accessibility of such third party offerings. However, as we discuss below, if Yahoo or AOL exercise any kind of control over, or rely on such third parties for their operation in some way, a complainant may be able to sufficiently demonstrate that such relationship does in fact mean that Yahoo or AOL has ADA access responsibilities with regard to such third parties. Again, these are matters that are best left to individual cases and should not be dealt with in a piecemeal fashion in regulations. The DOJ should let the definitions of Title II and Title III covered entities stand as they are, make it clear that covered entities continue to have ADA responsibilities even when operating exclusively online, and only offer affirmative nonexhaustive examples in the regulations illustrating when ADA obligations do exist. Negative examples should be left, if they must be offered at all, for technical assistance that the DOJ might offer thereafter.

In spite of the foregoing, if the DOJ decides to specifically limit by regulatory provisions coverage on any of the issues contemplated in question 5, it is critical that any exemption be very narrowly tailored. An accessible website allows people with disabilities to obtain information and participate in core programs and services provided by covered entities.

Any exemption creates the possibility that people with disabilities will be locked out of an aspect of those programs, services and information. Each exemption must therefore be both fully justified and extremely limited.

Links to external pages: The ANPRM recognizes that a covered entity must be responsible for a linked website it does not operate or control "to the extent an entity requires users of its website to utilize another website in order to take part in its goods and services (e.g., payment for items on one website must be processed through another website)." If the DOJ creates an exemption for linked sites that a covered entity does not operate or control, it is crucial that a clear exception be made for external linked sites that are needed to participate in the goods and services offered by the covered entity. (In other words, any ‘exemption' for linked sites must have an ‘exception' for certain types of linked sites.)

The interrelationship between sites is often hard to discern, and a member of the public with (or without) a disability may not even know they are leaving one site and going to another. For example, a bank may contract with a third party to provide online banking services: the bank may not own, operate or control the online banking site but online banking is obviously an important service the bank offers to the public. In such a situation, existing ADA regulations governing "contractual, licensing, or other arrangements" would mandate that the bank (the covered entity) would be responsible for ensuring that the online banking platform conforms to the DOJ's new web accessibility regulations. In other words, the planned web accessibility regulations must not in any way undermine Section 36.202 of the current Title III regulations which prevent a Title III entity from discriminating "directly or through contractual, licensing or other arrangements."

Informal and occasional trading by private individuals: We appreciate the DOJ's concern about distinguishing between business entities (ranging from sole proprietorships to large corporations) and private individuals. An exemption from the web accessibility regulations that would address "informal or occasional trading, selling, or bartering of goods or services by private individuals" may be appropriate but only if certain (interrelated) key principles are incorporated into the exemption.

First, each page owned or controlled by a covered entity and used by private individuals for occasional trading, selling or bartering must not be exempt from the ADA's access requirements. In other words, if the format for the content supplied by the private individual is dictated, managed or created by a covered entity, then that formatting must be, and must support, accessibility.

Second, the tools and content that the Title II or III entity provide to the public to enable private individuals (non-covered entities) to post and review content must not defeat the ADA's access requirements. In other words, a covered entity's provision of such tools needs to be reckoned as just another aspect of such covered entity's program, service or benefit which must ensure effective communication.

Third, the regulations must be cognizant that private individuals may be posting content with the very same tools on the very same covered website that other Title II or III entities are using. For example, a private individual may use eBay to sell one item, while a Title II or III entity may also use eBay. A regulatory exemption on this issue must be very narrowly tailored so as not to exclude content posted on a site by a Title II or III entity that is also used by private individuals. Just as occasionally selling one item may not transform an individual into a Title III entity, so too will using a general site to post content not shield a Title III entity from its obligations.

An exemption that includes these principles will ensure that people with disabilities will be able, themselves, to be the "informal and occasional seller, trader or barterer." A narrowly tailored exemption will also ensure that people with disabilities will have access to all content that otherwise covered entities post in a marketplace setting, and that individual occasional sellers, etc. choose to make accessible.

Personal, noncommercial use: The DOJ must be very wary of creating an exemption that would exclude vast swaths of the Internet made available by covered entities from much needed accessibility requirements. An exemption for personal, noncommercial use must recognize both who is creating content, the context in which it is delivered, and the purpose for which the content is intended. For example, colleges and universities using Facebook to communicate with students, or holding classes through Facebook, cannot be exempt from accessibility requirements. They remain Title II or III entities regardless of where they are conducting their educational programs and providing educational services. Content shared by fellow students in an online class in response to a class assignment or teacher request must be subject to the ADA's access requirements, even though there may not be a "commercial" purpose for the content. This is crucial as more educational institutions use the Internet to stream online lectures, post readings, and host student chat forums.

In today's web environment, the DOJ must carefully delineate what is meant by "noncommercial." There is significant content available without charge on major commercial sites that is posted by covered Title II and III entities. A covered entity (large or small) that posts content for free on a site such as YouTube or iTunes must not be exempt from providing that content in conformance with the ADA's access requirements. A Title II or III entity retains that characteristic regardless of where their activities take place.

Therefore, any exemption the DOJ attempts to craft concerning personal, noncommercial use must include several indispensable limitations. First, if the format for the content supplied by the private individual is dictated, managed or created by a covered entity, then that formatting must be, and must support, accessibility. Second, the tools and content provided by the Title II or III entity to private individuals enabling them to post and review the exempted content must nevertheless afford effective communication. Third, it must be possible for a private individual to create and share accessible content on the page owned or operated by the covered entity if they choose to. Finally, any exemption must be narrowly tailored to private individuals communicating with private individuals for private purposes. For example, a school that is otherwise a Title II or III entity that uses a website to facilitate the exchange of information with or between its students must ensure that all content on that website – even content posted by an individual student -- is accessible.

Question 7: Exceptionally Difficult Access Challenges

This question presumes that there are some barriers to web site accessibility that are impossible to overcome or that may be too costly or involved to overcome. However, the DOJ should not embark on the slippery slope of carving out site features to be exempt from coverage. This is particularly so given the rapidly evolving nature of the web. A feature that may require some extra effort to make accessible today may be either readily accessible or obsolete tomorrow.

Moreover, if the DOJ will start any new Internet-related regulations from the effective communication premise, the undue burden defense will be available as it always has been available. There is no reason, and no empirical or statutory justification, for the Department to create new exceptions to a well-developed and effective legal framework. Additional defenses and exceptions in the web context are not needed.

When faced with accessibility challenges, covered entities have shown creativity. For some time, for example, it was believed that the very nature of a visual CAPTCHA rendered the security measure inaccessible to blind computer users. Entities committed to web access, however, have developed and instituted alternative audio CAPTCHAs that, when properly designed and implemented, eliminate what was once, and all too often continues to be, an absolute barrier to online access for individuals with visual impairments. Logic CAPTCHAs, which render the security feature accessible to individuals with both visual and hearing impairments, are also now available.

Question 8: Alternatives to Web Site Accessibility

There are no "viable accessible alternatives" to the particular manner in which information, programs and services are offered on a covered entity's web site. Even the most simple, non-dynamic websites have unique online characteristics that cannot be replicated in a different format. The Internet is not just a format that is instantly available 24 hours a day, 7 days a week. It is a method of service and information delivery that allows a user to find content that the user may not know he or she was looking for. Well-designed, accessible sites allow all users to privately interact with information in a way that is unique to the online world.

A staffed 24/7 phone service might be able to answer some questions, or even provide some services, but a phone staff could never, for example, read aloud all information on a site to a person with a visual impairment in the order in which the person wants to read it. A phone service can never provide a fully equivalent alternative for the ability to independently engage one's curiosity in the pursuit of information, programs and services that a website offers.

Similarly, other alternatives such as Large Print, Braille, electronic or audio formats of web content can never be equally accessible to a website. Even the simplest web information can be updated and changed on a moment's notice. The same cannot be said of information mailed (or emailed) to a person's house.

Even assuming a simple, one-page static website operated by a Title II or III entity with a staffed 24-7 phone service, regulations would be unable to meaningfully define "simple" or account for the fact that a site can become dynamic overnight. The ground-breaking regulations under consideration give the Department an opportunity to provide site owners and operators with clear direction on web accessibility. The Department's regulations should not allow Title II and III entities to avoid accessibility with the claim that accessible alternatives are provided.

Question 9: Compliance Time Tables

Our somewhat rhetorical query in response to this question is whether the ADA's effective communication requirements are in effect currently or not. Admittedly, the DOJ has strengthened the effective communication mandate a bit by affirming that effective communication cannot be afforded when such communication is not timely and does not honor the privacy and independence of the individual with a disability. These vital clarifications to the auxiliary aids and services regulations will take effect in the Spring of 2011, but as has always been the case, covered entities may be able to demonstrate that compliance would result in an undue burden. We urge the DOJ to continue to use this regulatory framework. The analysis for ADA purposes should not be whether a given web site is old or new, or whether certain pages of the site have or have not been updated in a while. The question is whether providing effective communication to the individual with a disability who is seeking it would or would not result in an undue burden. The simple truth is that given the attention that web site accessibility has received in the media over the last decade, and certainly given the attention that has been paid to it in the business community, it is simply unreasonable for a covered entity to argue that doing something about web site accessibility now comes as a surprise. The only relevant question for ADA purposes moving forward, however, is whether compliance six months from now or six years from now would result in an undue burden. A given sizable covered entity may be able to argue that, since it has done virtually nothing hitherto to account for web access, compliance with clarified DOJ rules within even a couple years would be unduly burdensome. However, we cannot base public policy on the past deliberate indifference of covered entities to try and meet the needs of people with disabilities.

The rules DOJ is crafting must be characterized as mere clarifications to requirements that have always been part of the ADA's expectations. That having been said, we recognize that an effective date for new regulations is a practical reality that must be dealt with. We would urge the DOJ to therefore issue rules which reaffirm the long-standing requirement that covered entities must provide effective communication and which categorically provide that doing so includes covered entities' Internet activity. The DOJ should accompany such regulations with a date certain, perhaps one year from the date of their publication, which would serve as the cut-off point after which it will not be allowable for a covered entity to rely on alternatives to web site accessibility, such as a telephone customer service option. A covered entity could of course continue to offer such telephone customer service option after the cut-off point, but the new DOJ rules should make it clear that the availability of such alternatives will not, after such cut-off point, relieve a covered entity of their Internet access obligations.

Questions 10-11: Safe Harbors; Incremental Regulation

No safe harbors or phase-ins are needed. The effective communication regulations already afford covered entities an undue burden defense that is more than sufficient to protect them from incurring exorbitant costs or other dangerous impact on their operations. The factors for determining whether an undue burden would result already take into account the kinds of considerations the DOJ is enquiring about in question 11.

Question 12: Number of Covered Entities Affected by New Rules

The DOJ has long held that its regulations have always been applicable to covered entities' conduct online. We agree. Therefore, the number of covered entities that will both be affected by any new rules and that have not heretofore had any ADA-related Internet access obligations is zero. If the DOJ adopts the approach we have urged above in establishing a clear cut-off point after which covered entities cannot use the availability of an alternative method to excuse web site inaccessibility, all covered entities that rely on such alternatives will be affected. However, in calculating the economic impact of such rules, the DOJ should be careful to account for the savings we expect covered entities to accrue when it will no longer be necessary for them to maintain duplicative and specialized alternative methods for serving people with disabilities.

Question 13: Costs

Many entities keep answers to these types of questions confidential for proprietary reasons. Some of the factors involved in building accessibility into a website are discussed in a document entitled "Financial Factors in Developing a Web Accessibility Business Case for Your Organization," available on the Web Accessibility Initiative Website at www.w3.org/WAI/bcase/fin.html. The Law Office of Lainey Feingold wrote about its costs in developing a WCAG 2.0 Level AAA compliant website at lflegal.com/2010/10/lflegal-doj-anprm/. It is widely recognized that costs of accessibility enhancements comprise a very small percentage of the overall cost of maintaining a web presence.

While there are certainly initial accessibility-related start-up costs for entities that have not yet undertaken any accessibility work and minimal on-going costs for maintaining access, these costs must be seen as an investment in full equality in the 21st century to millions of people with disabilities. The undue burden defense will be available to covered entities in the future as it has always been available.

Question 14: Benefits

The benefits from long-overdue Title II and III web accessibility regulations are incalculable. Benefits will flow to people with disabilities and the non-disabled public. Web accessibility regulations will be good for private sector businesses, for consumer health and healthcare generally, for the market economy as a whole, for the education system in the United States, for public sector services, and more.

The DOJ's introduction to the Internet ANPRM recognizes the significant and diverse ways in which Americans in the 21st century spend time online. Bringing accessibility to each of these arenas benefits people with disabilities and society as a whole.

Indeed, a question as to the benefits of web accessibility is the same as a question about the benefits of the Internet to society overall. Given the rapid migration of government services, commerce, education and healthcare resources to the web, it is manifest that many if not most public and private institutions believe greater utilization of the web to be in their best interests. Their actions must also represent a belief that greater use of the Internet benefits the public as well. That being so, it should hardly be necessary to make a separate argument regarding the benefits of Internet accessibility for persons with disabilities. Society has already answered that question for everyone. Nonetheless, we briefly address the Department's question here.

State and Local government web accessibility ensures civic engagement by the widest possible range of citizenry. As more and more government entities, large and small, migrate information and services to the web, citizens with disabilities who use computers are either denied access to those services or have to obtain them in a more expensive manner (from public employees) if government websites are not accessible. As our population ages, it will be able to stay civically engaged if state and local government websites comply with government-mandated web accessibility requirements. In addition, accessible online services, information and goods allow people to stay in their communities (including rural communities) when otherwise they would be required to move to urban and institutional settings because of lack of transportation, physical access, and other factors.

Benefits to the private retail sector are readily apparent. The more individuals who can use a website that sells products or services, the more products and services those individuals can purchase. The sooner and more completely Title III entities open their virtual doors to the disabled public, the sooner that segment of the public can become customers. And in the future, the elderly, who also benefit from web accessibility, will comprise an increasing percentage of consumers with resources.

Purchases made online have already come to predominate over purchases made in brick-and-mortar stores for many types of products, and there are several reasons that people with disabilities would be particularly likely to shop online if accessible websites enabled them to do so. Physical barriers in the built environment, as well as a lack of accessible transportation, make it difficult for many people with disabilities to travel to retail establishments. People with visual impairments cannot independently navigate the array of products available at a store and the information conveyed on the labels of those products as is possible when those same products are displayed on an accessible website in an accessible manner. People with hearing or speech impairments may similarly find it difficult to obtain information from store personnel about merchandise when they can easily find that same information online. And of course, people with disabilities want to shop on line for the same reasons that their non-disabled peers do, including convenience, privacy, and cost savings. The Internet actually holds enormous potential to level the playing field of commerce for people with disabilities in a way never experienced before, and robust regulations from the Department of Justice on web accessibility will ensure that this potential is realized.

Benefits resulting from accessible online healthcare and medical information will also be significant. In August 2010, a Harris poll found that "The Internet is now a very important source of health information, education and perhaps reassurance for a majority of Americans." The poll found that "more than half of the searchers have discussed information they found online with their doctors or have searched online because of a discussion with their doctors." See report on Harris Poll at http://bit.ly/aOdXF4.

Potentially increased employment of people with disabilities is also a likely benefit of web accessibility regulations. Many jobs are now done on line, and certainly many jobs are advertised on line. Many Title II and III entities have a section on their websites for career seekers to gather information and often fill out job applications. Access to this employment source by people with disabilities is a benefit to those individuals, and to society at large.

Accessibility of online travel information will benefit both travelers with disabilities and the sellers of the travel-related goods and services they are purchasing. The web is now widely used for researching hotels and airfares, making reservations, booking services at travel destinations, and more. The travel industry will benefit from more individuals being able to use their online services.

The ability to participate in online entertainment and communities will be a significant benefit to people with disabilities from the proposed regulations. In 2010, Major League Baseball demonstrated the possibility of this benefit in upgrading its websites, including online video and audio players to ensure their accessibility to persons with visual impairments. See lflegal.com/2010/02/mlb-press/

Significant statistical resources are available demonstrating both the numbers of people with disabilities in the United States today and the number of Americans online. The intersection of these resources bolster the Department's efforts to regulate in this area and underscore the importance of web accessibility regulations to a wide swath of the American public. (Various 2010 Disability statistics are available on line at www.disabilitycompendium.org/. See also dsc.ucsf.edu/main.php) General statistics related to Internet use in the United States is available from the Advisory Committee to the Congressional Internet Caucus at www.netcaucus.org/statistics/.

Questions 15-18: Unintended Consequences, Alternatives, Small Business Impact

It is widely recognized and understood that accessible web pages are easier to use on mobile devices (where significant amounts of online time is spent), assist in the sought-after "search engine optimization", and are friendlier for other automated access techniques. Accessibility also makes a site easier to use with next-generation intelligent agent browsers. Commenters are not aware of any negative consequences, either likely or potential.

With regard to the DOJ's question about reduced availability of certain content, such as captioned videos, offered by covered entities as a result of any new rules, if it is an undue burden for a covered entity to caption some or all of its video content, that defense will continue to protect them.

As we have explained above, when viewed through the DOJ's effective communication regulations that demand that people with disabilities are afforded timely information exchange honoring their privacy and independence, no alternatives that a covered entity may devise offer the degree of independence afforded by web site accessibility. Nearly every conceivable alternative involves a covered entity providing some sort of specialized assistance to the individual with a disability. Such assistance, by definition, limits independence and impinges upon privacy.

With respect to small businesses, the factors comprising the undue burden analysis already ensure that the ADA is sensitive to the unique circumstances that small businesses face. The application of the effective communication and undue burden regulations, with clarification of their relationship to Internet activity, will continue the long tradition of flexibility and case-by-case treatment that is the genius of the ADA.

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