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FW: Access Excess: The ADA Goes Online

From: Jim Allan <allan_jm@tsb1.tsbvi.edu>
Date: Thu, 04 May 2000 14:15:57 -0500
To: WAI-EO <w3c-wai-eo@w3.org>
Message-id: <NBBBIBAJLBJPFGFFMBMEKECODPAA.allan_jm@tsb1.tsbvi.edu>
-----Original Message-----
From: owner-dpolicy@franklin.tripil.com
[mailto:owner-dpolicy@franklin.tripil.com]On Behalf Of Kelly Pierce
Sent: Saturday, April 29, 2000 8:34 PM
To: Disability Policy List
Subject: Access Excess: The ADA Goes Online

Links to the author's e-mail address and his web site can be found at the
url below.


URL: http://www.reason.com/0005/co.wo.access.html

   Reason magazine

                                                        REASON * May 2000

   Access Excess
   The Americans with Disabilities Act goes online

   By Walter Olson

   As we filed out of a Capitol Hill hearing room on February 9, Web
   accessibility expert Judy Brewer stopped me and said she was sure I
   wouldn't want to spread misconceptions about our subject. I'd just
   warned members of the House Judiciary Committee that requiring Web
   publishers to make their sites "accessible" to blind, deaf, and other
   handicapped users under the Americans with Disabilities Act was a
   nearly perfect way to stifle creative freedom and slam the brakes on
   the Internet's expansion. That sort of talk misrepresented the aims of
   the Web accessibility community, Brewer advised me. It was
   particularly irresponsible for me to suggest that if Web site owners
   suddenly decided to take seriously the prospect of being legally
   liable for content not accessible to impaired users, they might pull
   down millions of existing Web pages. I should be aware, Brewer sternly
   told me, that the accessibility community did not want existing pages
   to be torn down. It just expected them to be improved.

   So was I guilty of "fear-mongering," alarmism, or worse, as disabled
   activists later charged in an online discussion? As readers of this
   space know, I've written a lot about the ADA's often surprising
   effects in areas such as employment and schooling. And on a personal
   level, I put out a Web site, Overlawyered.com, for which I do the HTML
   coding and other techie stuff myself, so I constantly run into the
   sorts of design issues that might trigger liability under an expansive
   reading of the law. Has this led me to overreact to a distant and
   rather unlikely threat? Read on, and decide for yourself.

   The British national anthem has been described as a series of curt
   demands on Jehovah, but it has nothing on the list of demands placed
   on Web developers by the "Web Content Accessibility Guidelines,"
   published by the private but quasi-official W3 Consortium's Web
   Accessibility Initiative (which Brewer directs). "Don't rely on color
   alone" to convey information. Don't use navigation methods that
   require a mouse; some users have motor impairments. "Until user agents
   allow users to freeze moving content, avoid movement in pages." Same
   with blinking or, worse yet, flickering text (which may cause seizures
   in persons with photosensitive epilepsy). Don't use tables for layout
   unless you're really trying to render tabular data, and watch out even
   then (text readers for the blind have trouble with tables). Don't use
   block quotations as a shortcut when all you're trying to do is indent.
   (For the full text of the guidelines, see

   That's just a sampling. Other sins include "poor color contrast,"
   "lack of alternative text for imagemap hot-spots...lack of alternative
   information for users who cannot access frames or scripts." Don't use
   auto-redirect or auto-refresh, or cause links to open in a new window.
   "Use style sheets to control layout and presentation"--and if you
   haven't gotten around to learning style sheets or you use older page
   authoring software that doesn't provide for them, that's your problem.
   Don't use audio clips on your site unless you caption them for the
   deaf, or video clips unless you attach descriptions of what's going on
   for the blind.

   The guidelines, Brewer said in her House testimony, represent "a
   consensus...among leaders in Web industry, user representatives, and
   accessibility researchers." If so, it's all the more curious that
   scarcely anyone on the Web actually lives up to them. According to the
   tech-news service CNet, 98 percent of current Web sites are considered
   inaccessible to the disabled; indeed, an August 1999 survey found that
   65 percent of 200 sites geared to disability issues weren't accessible
   (www.whitehouse.gov isn't, either).

   As an aspirational and advisory matter--as distinct from something I
   might be forced to do by law--I actually appreciate the W3 guidelines,
   which have helped improve my own coding style. But I was startled when
   Brewer described the guidelines to the House panel as "generally
   inexpensive and easy to implement." Sean Lindsay, editor of Disability
   Times, is more on the mark when he writes that for commercial Web
   sites, "compliance might mean a total overhaul of their design and
   publishing process."

   Consider, for example, the implications of a phrase frequently
   repeated in the Web access literature: "at least one mode." It's a
   mistake, say advocates, to see their recommendations as barring the
   creative use of graphics, audio, color, or mouse navigation. Thus, an
   advisory panel report on accessibility for federal Web sites last
   summer found such staples of current Web design as Javascript and
   pull-down menus to be acceptable so long as sites also provided "at
   least one mode that does not require fine motor control or
   simultaneous actions." Images? No problem, so long as you put in
   "alternative text" describing their content. Color to convey
   information--say, red lettering for losses and black for profits on a
   financial table--is OK so long as you also provide a second way of
   conveying the information. Ditto for at least one mode that does not
   involve use of touchscreens; "at least one mode that does not require
   a response time" from the user; "at least one mode that minimizes the
   cognitive, and memory ability required of the user."

   That adds up to a lot of modes. What happens to the Main Street
   business person who just wants to post a document originally created
   for some other medium, say a scanned-in brochure or résumé, or a video
   clip from a seminar? Alternative navigation schemes, transcripts, and
   video captioning are neither cheap nor quick. Pending FCC regulations
   requiring broadcasters to provide video descriptions for up to four
   hours of TV programming a day for the sake of blind users are
   projected to increase programming costs by $4,000 an hour.

   In her congressional testimony, Brewer looked on the sunny side: "On
   sites that have extensive multimedia, captioning of audio and
   description of video involves minimal production cost compared to
   production of the multimedia itself." That's true, I suppose, if
   you're Sony or CNN developing glossy original content. But Web
   commentator Dave Hitt, in a Usenet discussion, is more convincing:
   "Slapping up an audio or audio/video file of a long speech can be done
   simply and quickly. Providing a transcript of that speech is so time
   consuming, expensive and boring most web masters will just avoid
   putting the a/v file up in the first place. So the vast majority is
   deprived of useful information because a small minority couldn't use

   Those aren't the only costs awaiting us. Right now, the owner of a
   local motel, gym, or bodega can borrow an obsolete piece of
   page-authoring software from his teenaged offspring, learn the basics
   within a half-hour, and have up a working Web site promoting his
   business by day's end. Add to the mix potential ADA liability for
   failing to follow elaborate rules like those above, and the balance of
   prudence begins to tilt toward using professional design help if you
   venture onto the Web at all. And even among paid Webslingers, you'll
   do well to hire the veterans who can show they've attended the proper
   seminars and constructed a few certified-compliant sites.

   Big firms, perhaps, can take this sort of thing in stride. But a
   genuine (for a change) "digital divide" is apt to open up as others
   hesitate until they get around to attending a few remedial courses at
   which they can unlearn the common layout techniques of the past. "We'd
   probably lose 90% of the free web content within a week if such
   standards were enforced legally," multimedia producer D. Joseph
   Hennessy predicted in one recent Usenet discussion. "The net would dry

   What about the prospect of new soft-ware that will make it less
   onerous to construct accessible pages? That poses policy questions of
   its own. One role of Brewer's group is pressuring developers of
   authoring software to build the necessary complications into their
   programs to generate accessible code--which in practice often means
   building in ways to foil users who would otherwise grab and run with
   simple solutions that generate unaccessible code. Not all developers
   of authoring tools are willing to make such changes. Will the holdouts
   be menaced with liability for selling their authoring software, or
   will their customers merely be menaced with liability for using it?
   And that's aside from the chaos of tolerating hundreds of older
   programs (and homemade code fixes) which don't so much as nod at
   accessibility. It would be remarkable if the ADA turned out to give
   officialdom the power to pressure us all into using only certain
   approved tools for our expression--much as if journalists were issued
   special typewriters certified to be incapable of emitting improper

   It's worth throwing in a few caveats at this point. First, confusion
   has arisen because the most visible regulations to move forward during
   the past year have been aimed at setting rules for
   government-sponsored, as opposed to private, Web sites. It's not a
   wild stretch to expect that the principles adopted in the one context
   will influence what courts eventually decide with regard to the other,
   so the controversy is not exactly misplaced. And what barely seems to
   have sunk in is that the exposure of private Web site operators to the
   ADA isn't something due to be phased in four or five years from now;
   it exists right now. In November, for example, the National Federation
   of the Blind sued America Online for moving too slowly to make its
   services available to sightless users; everyone expects that other
   suits will follow, and not just against online providers that (like
   AOL) themselves provide a direct connection to the Web and thus can be
   analogized to telecommunications providers.

   It's possible, though hardly certain, that conservative court
   interpretations will eventually spare us some of the law's most
   traumatic applications. Courts might, for example, rule many
   businesses not to be "public accommodations"; or they might rule, as
   some have suggested, that a business with a nonaccessible e-commerce
   site has not violated the ADA so long as it maintains an 800-number
   telephone operation that can provide disabled customers with the same
   information and buying options. What is certain is that the disabled
   activist community, as represented at the House hearing that day,
   firmly rejects such halfway measures. As its representatives told the
   committee, its position is that nearly everything is covered by the
   law: e-commerce, large and small Internet service providers, online
   applications providers, nonprofits when not otherwise exempt, online
   magazines and journals, and so forth. Entities of all these sorts can
   therefore expect to be sued under the law in coming years, with a
   resulting crapshoot in court as to whether they wind up covered or

   When suits come, it is likely that only a minority of them will
   emanate from established or well-known disability groups. In Florida,
   a few previously obscure nonprofits with close ties to law firms have
   emerged to file more than 600 complaints against businesses large and
   small, including funeral home and motel operators and retailers, over
   inaccessible physical features of their buildings and grounds. No less
   than 323 of the cases name as the plaintiff the same 72-year-old man,
   who happens to be the uncle of one of the lawyers, and that lawyer
   expects defendants to pay his $275-an-hour fee each time he settles a

   If it's easy for entrepreneurial litigators to stroll down the main
   street of a town and find stores vulnerable to an ADA suit because
   their water fountain or pay phone is at the wrong height, it's even
   easier for them to surf the Web and find sites that flunk the most
   widely accepted disability guidelines. Assuming a court can be found
   with proper jurisdiction over them, the next logical step is the
   filing of accessibility complaints by the cartload.

   Disabled advocates talk a lot about the Web's need for "universality,"
   but what's going on here is in fact a retreat from universality on the
   vital issue of who among us gets to publish. What is the frontier of
   the fight over free expression? Whether the Brooklyn Museum gets a
   subsidy next year? Or whether users of the predominant mass medium of
   tomorrow will retain the right to select the verbal, audio, and visual
   palette and syntax in which they wish to communicate with the world?
   Imagine the outrage if the government told visual artists that they
   couldn't use low-contrast colors or eye-straining optical effects. Yet
   pro-ADA panelists at the hearing repeatedly emphasized their position
   that the Constitution's guarantee of free speech has no bearing
   whatsoever on this case; the First Amendment may prohibit officials
   from suppressing speech based on disfavored content, but in this case
   the rules are just going to control everyone's speech alike, whatever
   its content. Are you feeling reassured yet? Or are you ready to join
   me in the alarmist camp?

   Contributing Editor Walter Olson, a senior fellow at the Manhattan
   Institute, edits the new Web site Overlawyered.com.
Received on Thursday, 4 May 2000 15:16:37 UTC

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