On January 10, 2011, Lainey Feingold testified at the San Francisco Public Hearing on the Advance Notices of Proposed Rulemaking to Revise the ADA Implementing Regulations. The hearing was the last of three held in conjunction with proposed rules on web accessibility and other issues. In her comments, posted here, Lainey urged the Department not to re-invent the wheel, and not to make any rule that would be a “Do Not Enter” sign on the information highway.
In addition to testifying at the hearing, and with co-counsel Linda Dardarian, the Law Office of Lainey Feingold has prepared extensive written comments to all 19 questions asked in the DOJ web accessibility ANPRM. The comments are available to advocates interested in filing their own comments. Please use the Contact Form on this website to request a copy. The last day to file written comments is January 24. You can also follow the Law office of Lainey Feingold on Twitter to receive updates about the ANPRMs.
You can read Linda Dardarian’s testimony about electronic kiosks on her law firm’s website.
In this post you can read:
- Lainey Feingold’s testimony about web accessibility at the DOJ public hearing
- Other posts on LFLegal about the ANPRMs
- Information about how to file comments with the Department of Justice
You can also read a short Simplified Summary of this Post, a feature of LFLegal designed to satisfy AAA Success Criteria 3.1.5 of WCAG 2.0.
Public Hearing Testimony
My name is Lainey Feingold and I have worked on issues of web accessibility with the blind community since the late 1990’s. Along with co-counsel and blind organizations, including the American Council of the Blind, the American Foundation for the Blind and the California Council of the Blind, and blind individuals, I have negotiated web accessibility agreements with some of the largest commercial entities in the United States. I also maintain a website for my own small law firm, the Law Office of Lainey Feingold with the URL LFLegal.com.
I am here today to comment on the ANPRM regarding website accessibility. I congratulate the Department for issuing the ANPRM and thank you for providing this opportunity for public comment.
I’d like to use my 5 minutes to speak about two principles I hope will guide the Department as it drafts regulations on this critical issue.
The first principle is: Do not reinvent the wheel.
The second principle is: Remember that every limitation, every month of delay, every exception that you build into the regulations is a do not enter sign perched on the side of the information highway.
Do Not Re-invent the Wheel
What do I mean when I say “Please don’t re-invent the wheel?”
First: Robust, internationally recognized technical standards already exist to ensure that websites work for a people with disabilities. I urge the Department to adopt these standards — WCAG 2.0, Level AA — as the technical standard for Title II and III web accessibility.
Second: The Department already has already shown that a performance standard and technical standards can work together. I urge the Department to adopt a generalized performance standard in addition to WCAG 2.0 AA. This 2 pronged approach has a proven track record in the built environment for new construction, and it will work in the virtual environment as well.
Another recreate the wheel issue? WCAG has already has been used by Title II and III entities large and small for many years. Examples from my own work and that of my co-counsel Linda Dardarian include:
- In 2000 Bank of America signed the first agreement in the country referencing WCAG. Many other banks followed suit.
- In 2008 the 3 largest credit reporting agencies in the U.S. used WCAG to guarantee accessibility of free on-line credit reports. On-line financial information involvea issues of heightened security and privacy, including CAPTCHAS. WCAG has worked well as the technical standard in this environment.
- In 2010 Major League Baseball signed an agreement to use WCAG 2.0 not just for mlb.com, but for the websites of all 30 teams in the major league.
WCAG is already rooted in the public and private sector in the United States– and abroad — the Department does not need to recreate the wheel and develop a new technical standard.
FINALLY – The Department already has detailed “undue burden regulations” that takes into account an entity’s size, financial resources, number of its employees and other factors. The Department does not need to develop a new standard or carve out exceptions based on website or entity size or type.
Undue Burden is a proven defense for Title II or III entities. It will work with web pages that are live prior to the new regulations and not substantially refreshed thereafter. Aside from a narrowly tailored definition of “legacy pages”, and no other defense – no other limitation on access — is needed.
No “Do Not Enter” Signs on the Information Highway
That brings me to the second principle that should guide the Department’s effort: As you are drafting these critical new regulations, please remember that all limitations on full accessible work as a do not enter sign” for people with disabilities.
Do not exempt small businesses: Business size is not a predictor of the ability to build an accessible website. I encourage you to visit my site – LFLegal.com — that was included in the WCAG 2.0 implementation report as a site meeting AAA success criteria.
Do not have any blanket exemptions –not for social networking sites or on-line marketplaces: or for any category of website.
Uncle Joe may want to sell his old fishing rod on Ebay, but Title III entities also use the site to conduct business and even set up entire stores.
Aunt Mary may use Facebook to share recipes, but universities and colleges that are already Title II and III entities also use Facebook to conduct classes. Starbucks has over 19 million friends on Facebook, and the New York Times reported yesterday that students who use twitter as a sanctioned part of class have higher grade point averages.
Please don’t forget that people with disabilities may well be the occasional seller or the private individual who wants to share photos or recipes talked about in the ANPRM. Aunt Mary may be blind. Uncle Joe may have a dexterity disability. You are writing these regulations in part for them.
Even narrowly tailored exemptions are “do not enter” signs for someone who need access. Any exemptions for on-line conduct of private individuals in a private setting must be exceedingly limited and very carefully and narrowly drawn.
Finally, one of the biggest potential “do not enter signs” is delay in implementing these much needed regulations.
The DOJ has said for more than 10 years that accessible websites are part of Title II and III obligations. A two year implementation delay as suggested in the ANPRM rewards entities that have ignored the Department’s position on this issue and unfairly penalizes people with disabilities.
Implementation should be swift and immediate.
In 1997 Tim Berners Lee, widely considered the inventor of the Internet, announced the launch of the WAI with these words:
The power of the Web is in its universality. Access by everyone regardless of disability is an essential aspect. — Tim Berners-Lee
Every single day since that iconic statement was made, Title II and III entities have provided increasing amounts of services, programs and information on line in every context imaginable: health care, finances, retail, education, government service.
1997 was 14 years ago, and in many ways the department is playing catch-up.
Today, in 2011, the Department has an historic opportunity to make the promise of the Internet a living, breathing reality.
How to file comments on the DOJ ANPRM
Individuals and organizations can submit comments about the DOJ web accessibility rule making on line at the Federal Web page for filing comments on web access.
Comments must be submitted by midnight Eastern time on or before January 24, 2011.
The DOJ is also asking for comments on three other Advanced Notices of Proposed Rulemaking (ANPRMs): the accessibility of movies for people with hearing and visual impairments, the accessibility of various types of furniture and equipment, including electronic kiosks, medical and exercise equipment, and the accessibility of next generation 911 services. Information on how to comment on these issues is available on the Department of Justice website.
Note that comments on each of the four different ANPRMs should be submitted separately.