AOL Accessible Web Complaint

As some of you know, on November 4, 1999, the National Federal of the Blind
(NFB) filed suit in US District Court for the District of Massachusetts
against America Online, Inc.  The suit by NFB and nine individuals, charges
that America Onlines' Internet service is inaccessible and violates the
Americans with Disabilities Act.

The AOL complaint filed by the American Federation of the Blind, as well as
the press release, is posted at http://www.nfb.org/ under the link of
"What's New."

Because the posting of the complaint on this site is not displaying properly
for those with vision, I am enclosing a copy of the complaint for your
review.  For those of you who are attorneys, the civil action number is
99cv12303-EFH.  

Warning - this is a long document.

Cynthia D. Waddell
-------------------------------------------

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

.   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .
.   
.
NATIONAL FEDERATION OF THE BLIND,	.
INC.; NATIONAL FEDERATION OF THE	.
BLIND OF MASSACHUSETTS, INC.; 		.	C.A. No.
ROBERT BARAN; STEVEN BOOTH;		.
DEBRA DELOREY; RICHARD DOWNS;	.
PRISCILLA FERRIS; THERESA JERALDI;	.	COMPLAINT AND REQUEST
MICHAEL KOSIOR; MARY ANN LAREAU;	.	FOR INJUNCTIVE RELIEF
and BRANDY ROSE,				.	
							.
		Plaintiffs,				.
							.
	v.						.
							.
AMERICA ONLINE, INC.,				.
							.
		Defendant.				.
.   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .
.   

						COMPLAINT

	Plaintiffs, the National Federation of the Blind, Inc. ("NFB"), the
National Federation of the Blind of Massachusetts, Inc. ("NFB-MA"), Robert
Baran, Steven Booth, Debra Delorey, Richard Downs, Priscilla Ferris, Michael
Kosior, Theresa Jeraldi, Mary Ann Lareau, and Brandy Rose, by their
undersigned counsel, complain against America Online, Inc. ("AOL") as
follows:

					NATURE OF THE CASE

			Plaintiffs, blind advocacy organizations and several
blind persons who wish to purchase and use Defendant's services, bring this
action for injunctive and declaratory relief to require Defendant, the
country's largest internet service provider, to bring its America Online
internet service (the "AOL service") into compliance with the Americans with
Disabilities Act ("ADA"), 42 U.S.C. §§12101, et seq.  The individual
Plaintiffs and members of the organizational Plaintiffs are blind, and
therefore can only independently use computers, including internet services,
by concurrently running screen access software programs for the blind that
convert visual information into synthesized speech or braille.  However,
Defendant AOL has particularly designed its AOL service so that it is
incompatible with screen access software programs for the blind.  Despite
its self-description as "the world's leader in interactive services, Web
brands, Internet technologies, and electronic commerce services," AOL, in
designing its AOL service, has failed to remove communications barriers
presented by its designs thus denying  the blind independent access to this
service, in violation of Title III of the ADA, 42 U.S.C. §§12181, et seq.


					JURISDICTION AND VENUE

			This action is authorized by 28 U.S.C. §§ 2201-02
and 42 U.S.C. § 12188.  This Court has jurisdiction over this action
pursuant to 28 U.S.C. § 1331.
			Venue is proper in this District pursuant to 28
U.S.C. § 1391(b), in that the Defendant, a corporation, is subject to
personal jurisdiction in this District and in that a substantial part of the
events giving rise to this action occurred and continue to occur in this
District.
					THE PARTIES

			The National Federation of the Blind, the leading
national organization of blind persons, is a not-for-profit corporation duly
organized under the laws of the District of Columbia with its principal
place of business in Baltimore, Maryland.  It has affiliates in all 50
states, including Massachusetts.  The vast majority of the Federation's
approximately 50,000 members are blind and are therefore individuals with
disabilities as defined by the ADA, 42 U.S.C. § 12102(2).  The Federation is
widely recognized by the public, the Congress, executive agencies of
government, and the courts as a collective and representative voice on
behalf of blind Americans and their families.  The purpose of the NFB is to
promote the general welfare of the blind by (1) assisting the blind in their
efforts to integrate themselves into society on terms of equality and (2)
removing barriers and changing social attitudes, stereotypes and mistaken
beliefs held by sighted and blind persons concerning the limitations created
by blindness that result in the denial of opportunity to blind persons in
virtually every sphere of life, including education, employment, family and
community life, transportation and recreation.  The NFB and many of its
members have long been actively involved in promoting adaptive technology
for the blind, so that blind persons can live and work independently in
today's technology-dependent world.  The NFB runs the International Braille
and Technology Center for the Blind in Baltimore, Maryland.  This Center is
the world's most extensive demonstration and evaluation center for
computer-related technology serving the needs of blind persons, housing more
than two million dollars worth of hardware and software designed
specifically for the blind.  Thousands of blind persons come to the Center
each year for training in the use of adaptive equipment and software. 
			Plaintiff NFB-Massachusetts, the Massachusetts state
affiliate of the NFB, is a not- for-profit corporation duly organized under
the laws of Massachusetts with its principal place of business in
Massachusetts.  The NFB-Massachusetts currently has seven local chapters and
approximately 250 members, all of whom are residents of Massachusetts and
many of whom are individuals with disabilities as defined by the ADA, 42
U.S.C. § 12102(2).
			The plaintiff, Robert Baran, a blind resident of
Chicopee, Massachusetts, is an individual with a disability as defined by
the ADA, 42 U.S.C. §12102(2).  Mr. Baran is an adaptive technology
specialist at Holyoke Community College, who works with blind and disabled
students and is also a graduate student at the University of Massachusetts
at Amherst.  Mr. Baran has  computers on which he has installed screen
access software and on which he utilizes e-mail and the internet.  He has
been repeatedly advised that the AOL service is inaccessible to blind
people.  He would like to be able to use the AOL service for its "buddy"
feature and chat rooms.
			The plaintiff, Steven Booth, a blind resident of
Salem, Massachusetts, is an individual with a disability as defined by the
ADA, 42 U.S.C. § 12102(2).   Mr. Booth is the Assistant Operations Manager
at the National Braille Press and utilizes e-mail and the internet at home
and at the office.  If the AOL service were accessible to blind people, he
would use it at home for surfing the web and for its various custom
features, such as chat rooms and the "buddy" feature.
			The plaintiff, Debra Delorey, a blind resident of
Holbrook, Massachusetts, is an individual with a disability as defined by
the ADA, 42 U.S.C. §12102(2).  A recent college graduate who is currently
applying to graduate school, Ms. Delorey received free AOL service with the
computer she purchased with her scholarship money.  Although she had
purchased a combined screen enlarger/screen access program with a voice
synthesizer, she was unable to use the AOL service because of her blindness.
Her attempts to resolve the difficulties by calling the help line for the
AOL service were unavailing and she gave it up.  Ms. Delorey would subscribe
to the AOL service if it were accessible for research over the internet and
for e-mail.
			The plaintiff, Richard Downs, a blind resident of
Stoughton, Massachusetts, is an individual with a disability as defined by
the ADA, 42 U.S.C. §12102(2).  Mr. Downs has a home computer with a screen
reader and voice synthesizer that he uses to access his computer.  Four
months ago, he was solicited by AOL to subscribe to its AOL service and
advised AOL that he would like to subscribe, but that because of his
blindness he cannot access its service.  He was urged to subscribe anyway,
because, he was told, AOL will eventually have a blind-accessible text
screen alternative.  Mr. Downs would like to subscribe to the AOL service
because he believes that it provides access to a great number of web sites,
would give him greater independence from the person whom he employs as a
reader and would allow him to surf for electronics that assist the blind and
to follow the activities of the National Federation of the Blind.
			The plaintiff, Priscilla Ferris, a blind resident of
Somerset, Massachusetts, is an individual with a disability as defined by
the ADA, 42 U.S.C. §12102(2).   She is the President of the NFB of
Massachusetts, works as a consultant, and volunteers for the Girl Scouts.
Her two daughters are AOL subscribers and two of her four grandchildren use
the AOL service.  She has a home computer with a screen access program and
would like to be able to use the "buddy" feature of the AOL service with her
family, visit chat rooms and, among other uses, employ it to get information
from the District Councils and National Office of the Girl Scouts.  She also
is interested in being able to activate child safety features to block
inappropriate content from her home computer, so that her grandchildren
could surf the web for educational purposes without being exposed to
inappropriate content.  This is particularly important to her as a blind
grandparent, as she cannot simply look over the shoulders of her
grandchildren to monitor their internet use in her home.  
			The plaintiff, Theresa Jeraldi, a blind resident of
Watertown, Massachusetts, is an individual with a disability as defined by
the ADA, 42 U.S.C. §12102(2).   She is a retired employee of the Office of
Civil Rights of the United States Department of Education and has a computer
with a voice activated screen reader, internet service and the capability of
surfing the web through Internet Explorer.  Nonetheless, she would subscribe
to AOL's service if it were accessible, because she has many sighted
relatives, including her grandchildren, who have the AOL service, and she
could then utilize AOL's "buddy" feature to chat with them when they are
on-line.
 		
	The plaintiff, Michael Kosior, a blind resident of Allston,
Massachusetts, is an individual with a disability as defined by the ADA, 42
U.S.C. §12102(2).  Mr. Kosior is a computer systems engineer for a $700
million direct marketing agency in Boston.  He has a Bachelor of Science
degree in computer information systems from Bryant College and worked as a
computer programmer for the United States Navy while he was in high school.
Mr. Kosior is an experienced user of the internet and communicates
frequently by email.  He utilizes several screen access programs for the
blind, including DECtalk Express External Synthesizer and Henter-Joyce's
Jaws for Windows Build 3.31.  Mr. Kosior has made several attempts to
utilize the AOL service without success.  With the assistance of a sighted
person he was able to label some of the graphics with the Jaws graphic
labeler, but not enough to make the AOL service accessible.  Mr. Kosior
understands that AOL is easy for sighted people to use and is interested in
evaluating whether the AOL service, once it is accessible to the blind, is
superior to other internet access platforms that he currently uses.
			The plaintiff, Mary Ann Lareau, a blind resident of
Waltham, Massachusetts, is an individual with a disability as defined by the
ADA, 42 U.S.C. §12102(2).  As the Secretary of NFB-MA, it is her
responsibility to handle all of the e-mail to the state affiliate; in
connection with the lobbying and other work that she does for the affiliate,
she has a constant need to surf the web for relevant information.  While she
currently uses another, accessible, internet service provider,  she would
like to subscribe to the AOL service, because of the additional features
that it provides.
			The plaintiff, Brandy Rose, a blind resident of
Taunton, Massachusetts, is an individual with a disability as defined by the
ADA, 42 U.S.C. §12102(2).  Ms. Rose has a home computer with screen reader
software installed.  Through another, accessible, internet service provider,
she currently has e-mail.  Ms. Rose, however, is aware that AOL advertises
that its service has many features not available from other companies
offering similar services and would, if it were accessible, subscribe to the
AOL service for use in connection with her college classes and to chat with
her sighted friends who subscribe to AOL's services, through use of the
services "buddy" feature..
			Defendant AOL is a for-profit corporation duly
organized under the laws of Delaware with its principal place of business in
Dulles, Virginia.  It describes itself as "the world's leader in interactive
services, Web brands, Internet technologies, and electronic commerce
services," having revenues in excess of  4.7 billion dollars and total
assets in excess of  5.3 billion dollars in fiscal year 1999.  
			AOL's main internet service, the AOL service, has
approximately 17.6 million customers ("members") worldwide.  AOL purposely
avails itself of, and persistently directs its commercial activities to,
residents of the Commonwealth of Massachusetts, and has many members in
Massachusetts from whom it derives substantial revenue.  
			The AOL service includes, by way of illustration and
not by way of limitation, the following:  simple access to the world wide
web with search functionality; an "online interactive community" through
electronic mail services, alerts when fellow members are on-line (the "buddy
list"), public bulletin boards, public and private interactive conversations
("chat rooms"), guest interviews at live "auditorium" events; nineteen
"channels" providing informational content and commerce and community
opportunities pertaining to news, sports, games, finance, shopping, health,
travel, kids, and the like; as well as personalization and control features
that permit AOL members to, for example, automatically update their stock
portfolios and block their children's access to inappropriate web sites.  
			On information and belief, the AOL service has
achieved over 1.14 million simultaneous users and the exchange of over 534
million electronic mail messages a day.  
			The AOL service is a public accommodation as defined
by Title III of the ADA, 42 U.S.C. § 12181(7), in that it is a place of
exhibition and entertainment, a place of public gathering, a sales and
rental establishment, a service establishment, a place of public display, a
place of education, and a place of recreation.
 
							FACTS

			People who are blind, including the individual
Plaintiffs and members of the organizational Plaintiffs, can and do use
computer programs, including commercial applications designed to run under
both the DOS operating system and the Windows operating system.  The
information that is displayed on the screen by the computer programs is made
available non-visually to blind computer users by means of a class of
software referred to as screen access programs.  Screen access programs
monitor the computer screen and convert the textual information displayed
into synthesized speech or Braille on a device known as a refreshable
Braille display.
			  For screen access programs to function effectively
in the Windows operating system environment, it is necessary for commercial
applications to function in a standard way.  Among other things, the
commercial application must provide textual labels for all graphics, permit
keyboard access to all functions, move the focus whenever the keyboard is
used, and rely upon standard Windows controls (e.g., dialog boxes,
combination boxes, list boxes, edit boxes, and push buttons).  Screen access
programs cannot read an unlabeled graphic, generally cannot provide an
effective way to manipulate a mouse pointer, and generally cannot read or
activate non-standard, custom controls that are painted on the screen.
			Unlike some other internet service providers, AOL
requires the user to run proprietary AOL software in order to access and use
the AOL internet service.  This software can operate only under the Windows
operating system or on the Macintosh platform.    
			AOL's proprietary software for the AOL internet
service does not function in the standard way required for screen access
programs to effectively monitor the computer screen and to fully convert the
information into synthesized speech or a refreshable Braille display.  Among
other things, AOL's proprietary software employs (a) unlabeled graphics, (b)
commands that cannot be activated by using the keyboard but which instead
can only be activated by using the mouse, and (c) custom controls painted on
the screen.  Indeed, what often appears to be text-such as the listing of
channels-are in fact unlabeled graphics.  As a result, by way of
illustration and not by limitation, the following features of the AOL
service are inaccessible to the blind:
		a.  To sign up for the AOL service, the user must fill out a
sign-up form containing blank fields to be filled in with name, billing
address, credit card number, and similar information.  Although text
describing each field is displayed on the computer screen, the method AOL
has used to display the text does not provide screen access programs with
sufficient information to tell the blind user which piece of data is being
requested in each blank field.  Therefore, blind users are denied the
independent ability even to sign up for the AOL internet service.
		b.  Once logged on, the user is faced with the "Welcome"
screen, a very unwelcoming place for blind users.  There is some text on the
screen that screen access programs can read; however, most of what appears
as text are actually graphics that cannot be read by a screen access program
and the icon labels on the "Welcome" screen do not use standard Windows
formatting for labels, but are themselves graphics as well.  This includes
such features as "favorites," "parental controls," and chat rooms.
		c.   Locating the space for entering a keyword search or a
web address cannot be directly accomplished by a blind user, but with trial
and error and a great deal of difficulty, a blind user can bring up the
browser and give it an instruction.  However, unlike other web browsing
software, AOL's  browser operates in such a way that screen access software
does not register that a browser is running.  Thus, when the result of the
search appears on the screen, the screen access program-and the blind
user-is unaware that anything new is on the screen to be read.  The screen
access software feature for tabbing through hypertext links, a common way
for blind users to explore a web page, can also fail to activate because the
screen access software can fail to register that the user is running a
browser.    
			Because the AOL service is not independently
accessible to the individual Plaintiffs and to members of the organizational
Plaintiffs, they have been denied the opportunity to use the AOL service's
many features, including AOL's  "online interactive community" (electronic
mail services, "buddy list" feature, public bulletin boards, public and
private "chat rooms,"and  "auditorium" events), AOL's nineteen "channels"
providing informational content and commerce and community opportunities
pertaining to news, sports, games, finance, shopping, health, travel, kids,
and other subjects, as well as AOL's personalization and control features
that permit members to automatically update their stock portfolios, for
example, or block their children's access to inappropriate web sites.
			Without injunctive relief, individual Plaintiffs and
members of the organizational Plaintiffs will continue to be unable to
independently access and use Defendant's AOL service in violation of
Plaintiffs' rights under the ADA.
			Plaintiffs have no adequate remedy at law. 

					CLAIMS FOR RELIEF

						COUNT I
			Violation of the ADA's Communication Barriers
Removal Mandate

			The allegations of fact contained in the foregoing
paragraphs are incorporated herein by reference.  
			Defendant's failure to redesign its AOL internet
service to permit the blind to use it through screen access programs
violates the communication barriers removal provision of the ADA, 42 U.S.C.
§ 12182 (b)(2)(A)(iv), because it constitutes a failure to remove existing
communication barriers from the service.
			Redesigning the AOL service to permit the blind to
use it through screen access programs is readily achievable.

						COUNT II
			Violation of the ADA's Auxiliary Aids and Services
Mandate
	
			The allegations of fact contained in the foregoing
paragraphs are incorporated herein by reference.
			Defendant's failure to redesign its AOL internet
service to permit the blind to use it through screen access programs
violates the auxiliary aids and services provision of the ADA, 42 U.S.C. §
12182(b)(2)(A)(iii), because it constitutes a failure to take steps to
ensure that individuals who are blind are not denied access to the service.
			Providing auxiliary aids and services that would
make Defendant's AOL service accessible to and independently usable by
persons who are blind would neither fundamentally alter the nature of
Defendant's service, nor unduly burden Defendant.  

						COUNT III
			Violation of ADA's Reasonable Modification Mandate


			The allegations of fact contained in the foregoing
paragraphs are incorporated herein by reference.  
			Defendant's failure to redesign its AOL internet
service to permit the blind to use it through screen access programs
violates the reasonable modifications provisions of the ADA, 42 U.S.C. §
12182(b)(2)(A)(ii), in that it constitutes a failure to make reasonable
modifications to policies, practices and procedures necessary to afford
access to the service to persons who are blind.
			Modifying its policies, practices and procedures to
afford access to its AOL service to persons who are blind by redesigning the
service to permit the blind to use it through screen access programs would
not fundamentally alter the nature of Defendant's AOL service.

						COUNT IV
			Violation of the ADA's Full and Equal Enjoyment of
Services Mandate

			The allegations of fact contained in the foregoing
paragraphs are incorporated herein by reference.
			Defendant's failure to redesign its AOL internet
service to permit the blind to use it through screen access programs
violates the full and equal enjoyment and participation provisions of the
ADA,  42 U.S.C. §§ 12182(a), 12182(b)(1)(A)(i), and 12182(b)(1)(A)(ii), in
that it constitutes a failure to make the service fully accessible and
independently usable by  individuals who are blind.

					PRAYER FOR RELIEF

	WHEREFORE, Plaintiffs pray that this Honorable Court grant the
following relief:
	(a)  	Declare that Defendant's actions and inactions with respect
to its AOL internet service violate Title III of the ADA, 42 U.S.C. § 12182;
	(b)	Enjoin Defendant from continuing to violate the ADA and
order Defendant to redesign its AOL service and take such other and further
steps as are necessary to allow independent access through screen access
programs by persons who are blind; and
	(c)	Grant Plaintiffs such other relief as the Court deems just,
equitable, and appropriate, including an award of Plaintiffs' reasonable
attorneys' fees, litigation expenses and costs under 42 U.S.C. § 12205.
						Respectfully submitted,

						THE PLAINTIFFS,
						By their attorneys,

	

						Joseph P. Davis III, BBO No.
551111
						McCABE BROWN & DAVIS
						A Professional Corporation
						151 Merrimac Street
						Post Office Box 9147
						Boston, Massachusetts 02114
						(610) 742-2700



	

						Daniel F. Goldstein
(Admission Pending)
						Lauren E. Willis
						BROWN, GOLDSTEIN & LEVY, LLP
						520 W. Fayette Street, Suite
300
						Baltimore, Maryland 21201
						(410) 962-1030

Dated:	November 4, 1999
-------------------------------------------------------------------------
Cynthia D. Waddell   
ADA Coordinator
City Manager Department
City of San Jose, CA USA
801 North First Street, Room 460
San Jose, CA  95110-1704
(408)277-4034
(408)971-0134 TTY
(408)277-3885 FAX
http://www.rit.edu/~easi/webcast/cynthia.htm
http://www.aasa.dshs.wa.gov/access/waddell.htm

Received on Tuesday, 9 November 1999 20:06:13 UTC