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Media, Reason Magazine: Access Excess

From: Kelly Ford <kford@teleport.com>
Date: Mon, 01 May 2000 08:38:08 -0700
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To: w3c-wai-ig@w3.org
From the web page:


  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 it."

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 up." 

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 texts. 

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 not.

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 charge. 

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 Monday, 1 May 2000 11:36:19 UTC

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