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The ADA and its application to World Wide Web sites

From: Charles F. Munat <chas@munat.com>
Date: Thu, 10 Feb 2000 04:33:29 -0800
To: <wo@walterolson.com>
Cc: "WAI Interest Group" <w3c-wai-ig@w3.org>, <Rep.Charles.Canaday@mail.house.gov>, <Asa.Hutchinson@mail.house.gov>, <John.Conyers@mail.house.gov>, <jerrold.nadler@mail.house.gov>
Message-ID: <NDBBKDNHDLCHIDEDGEICOEGECEAA.chas@munat.com>
Dear Mr. Olson:

I read with interest the transcript of your recent statement to the House Judiciary Committee, Subcommittee on Courts and the Constitution. I found your remarks cogent, and I believe that they address issues that need to be addressed. Foremost among these is the question of ADA enforcement.

While I think you overestimate the difficulty of making Web sites accessible, you make a good point when you state, "What if everyone were to take their legal obligations seriously tomorrow?" You are correct when you state that the majority of sites currently on-line do not meet even basic accessibility criteria. If the rules were suddenly and strictly enforced, a chilling effect such as you describe might actually occur.

You ask, "Will enforcement be 'reasonable'?" And again, you've brought up an important and perhaps overlooked point. How can we be sure that abuses will not occur or that if they do, that they do not do so in unmanageable numbers? What safeguards do we have?

Finally, your concern for freedom of expression, for a "full diverse grammar of graphic and design features," convinces me that your real concern here is for justice. I agree wholeheartedly that before we apply the ADA to privately owned Web sites, we should consider carefully the potential for a gross miscarriage of justice.

If there was anything disheartening about your comments, it's that the strict limitation on time prevented you from offering evidence to support your claims. Although you did mention Representative Foley's problems in South Florida and possibly similar problems in Texas, I'm sure you'll agree that such anecdotal evidence neither proves nor even suggests systemic abuse.

As a Web site developer who has struggled with the issue of accessibility for the past three years, I'd like to offer a few observations that may help you to further clarify your views and, with luck, allay many of your fears.

To begin, while the problems in Florida and Texas are certainly troubling, there is no need to fear sudden, strict, and universal enforcement of ADA regulations, either on or off the Internet. True, it is a theoretical possibility, but it is also possible that any other law could be applied similarly. Can you name even a single instance where such a sudden and universal application occurred? Of course not. That's simply not the way our system works, as I'm sure you know.

Just the opposite, in fact. Our history is one of under-enforcement, of preservation of the status quo. All gains--in civil rights, individual freedoms, human rights, etc.--have come only after long, hard struggle and against great resistance. The inertia of our society favors the powers that be. There is no reason whatsoever to expect this to change with the application of the ADA to the Internet. If that's not enough to assuage your fears, consider this: in your statement you point out that the ADA is already applicable to the Internet, yet so far enforcement has been almost nonexistent! And, of course, the ADA has been in force off-line for many years, yet no sudden enforcement has occurred. Take a walk down any city street and you will encounter numerous barriers to accessibility still, years after passage of the act.

This last point bears repeating. Every day I pass through businesses with facilities that are in clear violation of the ADA, yet the owners of those businesses show little or no concern and even less willingness to correct the problems unless and until forced to do so. It's difficult to believe that enforcement on the Internet would be any more diligent.

Of course, as you point out in section III of your statement, enforcement could be unreasonable. And although the sudden, strict application of the act to the Internet will certainly not occur, unreasonable application of the act in specific instances would still create injustice. Again, you've made a very good point, and the ramifications of such unreasonable application of the act are sobering indeed.

But once again, I think you can stop worrying. While I'm certain that an occasional injustice would occur, the same can be said for any law. For example, recent use of DNA has exonerated several death row inmates, so many, in fact, that the governor of Illinois, I believe, has announced a moratorium on execution while the problem is studied. This does not mean that we should repeal the laws against murder and rape! Heaven forbid!

All systems of justice are no better than the human beings who design them. While we would fain have our justice system perfect (and rightfully so), so long as we see through the glass darkly, our efforts shall always fall short. This is not a valid argument, however, for the abolition of the justice system. Similarly, that the ADA might occasionally be applied in an unreasonable fashion is not an argument for the abolition (or in this instance the reinterpretation) of the act.

Our system of justice, as you know, has checks and balances built in specifically to address issues such as these. That selfsame system has worked well for our nation for more than two hundred years, during which time we have become a model for the world. In fact, if our system has any flaw, it is that the balance of justice tips too often in favor of the wealthy and the powerful. The history of the ADA is that of individuals, typically disabled and often dis-empowered, taking on giant corporations, and while the story of David and Goliath is an appealing one, throughout history the ending most often has favored Goliath.

So again, your fears, while understandable, are ungrounded.

Finally, with regard to the infringement of freedom of expression, I couldn't agree more. I am so often frustrated by the limitations of the medium! I can't wait for the days of full screen, full motion video and high fidelity digital audio via the Web, let alone the sort of virtual reality imagined by people such as William Gibson. I'm so excited by the possibilities that I've returned to college part time to pursue a second degree. My goal is to combine artificial intelligence, virtual reality, and the Internet and to help create the 3-D "matrix" we all look forward to.

But as a relative newcomer to Web design, you may not have had a chance to really think this issue through. Consider an analogy to writing: Before one can truly express oneself, one must learn how to use the tools of expression. In the craft of writing, this means learning grammar, syntax, spelling, composition and much, much more. A common occurrence is the new student who wants to "express himself freely" and uses this as an excuse to avoid learning the rules. As any good teacher of writing will tell you, you must first learn the rules. Only then can you break them appropriately.

What applies to the craft of writing applies equally to the Web. The real infringement on free expression comes not from having rules, but from failing to understand and apply them. The work of the W3C and the Web Accessibility Initiative has been not to restrict freedom of expression, but to liberate it. And as any professional Web site developer will tell you, the plethora of incompatible languages, browsers, etc. on the Web has done more to harm the Web than to help it. That's why the biggest names in the business are all members of the World Wide Web Consortium and why companies such as Microsoft are spending millions and millions of dollars to make their products more compatible and more accessible. It's also the impetus behind the open source movement, which is not a movement to deregulate standards, but to unify them and open them to all.

Although your intentions are certainly admirable, the course you suggest--reliance on workarounds, poorly-implemented ideas such as frames and tables, and other "HTML fixes"--will have an effect exactly opposite to that which you intend. The success of the Web as a medium depends entirely on our ability to establish and implement compatible, well-designed standards. In the exciting early days of the Web, users were willing to tolerate significant inconvenience with regard to use of the medium. Those days are gone. To ensure the continued success of the Web, we had better address the problems of compatibility, accessibility, bandwidth, language, etc.

I could provide much more evidence to reassure you, but you will undoubtedly hear from many other knowledgeable Web site designers who will, I hope, fill in the gaps.

Before I close, however, I'd like to mention one other issue. I was greatly pleased to see that you had brought up issues which need to be addressed and laid to rest, but I was also somewhat disturbed by your statement to the subcommittee. It was not what you said that bothered me, but what you did not say.

Permit me to back up a little here. I think that you may have misunderstood the intent and the function of the ADA, and that this misapprehension has colored your interpretation of it. In your statement, you mentioned the "club of ADA complaints." A club, however, is a weapon used to kill or maim an opponent, and your view of the ADA as such may be a significant contributor to your fear of it. But the ADA is not a weapon, and most certainly not a club.

If we wish to speak of the ADA metaphorically, it is a tool. Better still, it is a multifaceted tool. To the person in a wheelchair, it is a pry bar by which she can open the door wide enough for her to pass through. To the person with a vision impairment, it is a magnifying glass that brings the world into focus. To the person with a cognitive disability, it is a flashlight that illuminates the world and helps to make it intelligible.

But the ADA is more than that. It is a tool by which those of us with disabilities exercise our right to freedom of expression, and a tool by which those of us without serious disability exercise our right to hear the expressions of all citizens of this nation, regardless of disability.

The rights of all citizens to freedom of expression are infringed when any group is needlessly excluded from the debate. Certainly, you did not mean to equate the convenience of writing sloppy code with the right of an individual to enfranchisement and participation in the most significant new medium since the invention of print? Surely you can see that unlike a private communication, a Web site is a public forum and that exclusion of a segment of the population from access effectively excludes them from participation in that forum. With your obvious concern for justice and freedom of expression, you undoubtedly favor enfranchisement for all. Is it not our credo as a nation?

That's why I was so surprised that in arguing for the exclusion of the Internet from the provisions of the ADA, you offered no alternate solution to the problem of access for the disabled. To argue in favor of freedom of expression for a group that already enjoys considerable freedom of expression while depriving a disenfranchised and excluded group of the one hope they have of gaining access seems terribly un-American and even cruel. I can only presume that time limitations precluded mentioning such an alternative.

Of course, no such limitations apply here. Because this is such an important issue, I've taken the liberty of sending a copy of this message to the Web Accessibility Initiative and to those members of the subcommittee with published email addresses. When you reply, please include the WAI Interest Group (w3c-wai-ig@w3.org) and the subcommittee members. I'm certain that they will be as interested as I am to hear what you have to say.

I'd very much like to hear what alternative means of ensuring access you propose to take the place of the ADA. I'm certain that you will offer something better than Mr. Hayes' vague "education and participation." While education and participation are vital to the growth and well-being of our society, no-one would seriously advocate replacing the Bill of Rights, liability law, or the court system with them. Why would the ADA be any different? After all, they address two different groups. Education and participation are for those who create barriers through ignorance; the ADA is for those who create barriers by design.

I look forward to your response and thank you for permitting me the freedom of expression to add my voice to this discussion.

Sincerely,
Charles F. Munat,
Seattle, Washington
Received on Thursday, 10 February 2000 07:33:50 GMT

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