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http://www.bizjournals.com/sacramento/stories/2000/05/08/focus2.html

 From the Sacramento Business Journal

Internet could spin a web of disability-access violations
Barbara Marquand   Correspondent
Since the Americans With Disabilities Act took effect in 1992,
businesspeople have grown accustomed to the idea of making their buildings
accessible to people with disabilities

A new accessibility issue is emerging, however, and no one is sure of the
legal ramifications for businesses large and small. The question is: How
does the law apply to cyberspace?

"This is a cutting-edge area of law," says Treaver Hodson, an attorney with
Littler Mendelson in Sacramento, which represents employers in ADA cases.
"You're dealing with a law that was really focused on physical locations
and you're now trying to apply it to this virtual world."

Generally new communications devices have improved the lives of people with
disabilities by offering them easier access to a host of services and
information. But as the Internet has gotten more sophisticated and Web
sites more complex, barriers to people with disabilities -- particularly
impairments of sight or hearing -- have grown more common.

"Even though technology is a friend to us, it has become a double-edged
sword," says Cynthia Waddell, a leading expert on accessibility of
technology to people with disabilities. As disability access coordinator
for the city of San Jose, Waddell investigates accessibility complaints
from residents and employees and helps work out resolutions.

Waddell first confronted the Internet accessibility issue when she received
a complaint from a blind city commissioner who tried in vain to get access
to City Council information online. It turned out that the council
information was posted in a format that was incompatible with the
commissioner's screen reader, which kept the commissioner from getting the
material. Screen-reader technology translates text on the computer screen
to synthesized speech or to Braille on paper.

Waddell says the city responded by making some simple coding changes --
what she terms "electronic curb cuts" -- to make the files readable to
screen-reader software.

But that wasn't the end of it.

"I thought, I bet there are more issues out there," Waddell says. She was
right. Waddell, who wears two hearing aids, says with the growing
prevalence of streaming video on Web sites, she realized she also could be
shut out of some Internet content. Unless the video and audio are
accompanied by text, people with hearing or visual impairments miss out on
the content.

In the Internet's infancy, the barriers were fewer because early Web sites
tended to be heavy on text and light on graphics and special features.

"When it was clunkier, it was almost easier," says Linda Kilb, an attorney
with the Disability Rights Education and Defense Fund in Berkeley. "As the
Internet became more sophisticated people began putting more bells and
whistles on Web sites."

The unintended consequences of those new features were access barriers.
Animation and pictures on sites are troublesome to blind people unless
alternative text is available, for instance, and sites that require a mouse
for navigation post barriers to people with limited mobility.

The accessibility problem for people with disabilities has grown more
significant not only because there are more barriers, but because more
businesses and government agencies than ever are relying on the Internet to
disperse information and services.

Into the courthouse: Debate is heating up over whether the Internet fits
the definition of a "public accommodation" and is subject to the Americans
With Disabilities Act. The law states that no one can be discriminated
against on the basis of disability in the "full and equal enjoyment of the
goods, services, facilities, privileges, advantages or accommodations of
any place of public accommodation by anyone who owns, leases or operates a
place of public accommodation."

Although the act was enacted before e-commerce was a household word, its
language is very broad, Littler Mendelson's Hodson says. "It's very likely
a court would find that yes, there's going to be access that needs to be
granted."

But questions abound, Hodson noted. Does the law apply to the provider
hosting the site or the business creating the site? And would making the
site accessible be an undue burden on small businesses, thereby exempting
them from the requirements?

Court decisions and possibly legislative action will provide direction,
Hodson says.

The most-watched case now is one involving America On-Line. The National
Federation of the Blind filed a lawsuit against the Internet provider in
November. According to the federation's complaint, AOL violated the
Americans With Disabilities Act because it denied visually impaired people
independent access to the service by not removing communications barriers.
It states that AOL uses unlabeled graphics, commands that require
activation by a mouse and custom controls incompatible with screen readers.

The question the court will decide is whether America On-Line is indeed a
public accommodation and whether it in fact discriminated against people
with disabilities.

"The impact of any decisions could be huge," says John Adkisson, a
Sacramento attorney with Schachter Kristoff Orenstein & Berkowitz, which
provides training on public accommodation.

Kilb says her group, the Disability Rights Education and Defense Fund, has
yet to get involved in a lawsuit involving the Internet, but it has
received complaints about accessibility of Web sites. Kilb says the defense
fund thinks that AOL does meet the public accommodation definition, but
that that doesn't mean AOL has to do everything people with disabilities
demand. The law strikes a balance between accommodating people and
preserving businesses. Changes that would fundamentally alter a business'
service or be an undue burden, for instance, are not required.

Meeting of minds and of machines: Some companies already are addressing the
accessibility issue.

Four companies that provide online federal income tax filing services --
HDVest, Intuit, H&R Block, and Gilman & Ciocia -- agreed to make their
Internet sites accessible to the blind for the 2000 tax season.

Each company's Web site was listed on the Internal Revenue Service's
official site as an online partner for electronically filing federal income
tax returns. But testing showed that each was inaccessible to the blind.
The companies agreed to make their sites accessible after Connecticut
Attorney General Richard Blumenthal and the National Federation of the
Blind alerted them that their sites violated the Americans With
Disabilities Act.

Following discussions with the California Council of the Blind, Bank of
America agreed to make its Web site and online banking services accessible
to blind people. This agreement coincided with the bank's announcement that
it would install 2,500 talking ATMs in California and Florida, its largest
retail markets. The talking ATMs will provide audible instructions to
people who can't see the screens.

Lainey Feingold, a Berkeley disability rights lawyer who represented the
California Council of the Blind in the negotiations, says the group first
approached Bank of America in 1996 about improving accessibility of its
ATMs to blind people, and then discussions progressed to include online
banking. So far the California Council of the Blind, which has focused on
the financial industry, has yet to file any lawsuits concerning
accessibility and the Internet.

"We've been fortunate that the institutions we've approached have
negotiated a resolution," Feingold says.

Making a Web site accessible to people with disabilities can also widen
accessibility to others, such as users who access the Internet using
personal digital assistants or cell phones, says Kynn Bartlett, chief
technologist of Idyll Mountain Internet in Fullerton, which designs
accessible Web sites. He is also director of accessibility for Edapta, a
company that's creating technology to allow development of sites that adapt
to the person accessing it, and director of the Accessible Web Authoring
Resources and Education Center. Having alternative text could help a user
accessing a site from a personal digital assistant, for instance, who may
not be able to view complicated graphics.

Early action in Santa Clara: Back in 1996, after Waddell of the city of San
Jose encountered the accessibility problem on San Jose's Web site, she
became aware of accessibility complaints to other governmental agencies,
such as community college libraries. She then wrote Web design standards
for the city, which included such requirements as photo captioning, text
transcripts for audio and video clips, and alternate formats for online
forms. San Jose was among the first governmental agencies to adopt such
standards, and Santa Clara County followed. Then the World Wide Web
Consortium adopted the National World Wide Web Initiative, which is
developing accessibility standards for Web authoring tools.

Although awareness of the issue is growing, Waddell says many people remain
in the dark. "I don't think businesses realize this is coming," she says.

Bartlett of Idyll Mountain Internet advises businesses to make sure their
Web designers are aware of the accessibility issue. Some are not, he says.
"A lot of Web designers don't understand the need. They tend to think very
narrowly because it's outside of their experience."

This issue hasn't come up among the clients of Web designer Jennifer
Martin, but accessibility matters in general aren't foreign to her.

"I have multiple sclerosis, so I know what it's like not being able to see
with my blurred vision," says Martin, owner of Webcast D-zines in
Roseville, a Web development firm.

Martin says she uses easy-to-read large fonts in designs and alternative
text to go with images. Alternative text also helps people with older
computer systems that can't download graphics, and it enables search
engines to pick up on the information, she says.


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