June 21, 2001

National Council on Disability
1331 F Street, NW, Suite 1050
Washington, DC 20004-1107

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This report is also available in alternative formats and on NCD's award-winning Web site (www.ncd.gov).

The views contained in the report do not necessarily represent those of the administration, as this document has not been subjected to the A-19 executive branch review process.

Letter of Transmittal

June 21, 2001

The President
The White House
Washington, DC 20500

Dear Mr. President:

On behalf of the National Council on Disability (NCD), I am pleased to submit a report entitled The Accessible Future. The report was developed with the advice of NCD's Tech Watch federal advisory committee, a group of experts in technology and disability from around the country.

The rapid advances in our nation's electronic information and technological capability are inspiring. In this successor era to the Industrial Age, information is more and more the principal commodity of commerce, and technology, ranging from the computer to the information kiosk, from the electronic message board to the DSL line, is more and more the medium for transmission, storage, and manipulation of that information. Access to information technology is increasingly the arbiter of success and the source of opportunity in education and employment.

For America's 54 million people with disabilities, however, access to such information and technology developments is a double-edged sword that can release opportunities or sever essential connections. On the one hand, such developments can be revolutionary in their ability to empower people with seeing, hearing, manual, or cognitive impairments through alternative means of input to and interaction with the World Wide Web, information transaction machines, and kiosks. On the other hand, electronic information and technological developments can present serious and sometimes insurmountable obstacles when, for example, basic principles of accessibility or universal design are not practiced in their deployment.

By and large, federal enforcement of key laws (i.e., the Americans with Disabilities Act, Section 255 of the Telecommunications Act of 1996, and Section 508 of the Rehabilitation Act of 1973, as amended) as it relates to electronic and information technology (E&IT) is in its earliest stages. In this report, E&IT specifically involves the Internet, the World Wide Web, and select information/transaction machines.

To ensure that the new Information Age includes all Americans in the bounty of opportunities that are being created, NCD has taken a prospective look at the laws related to accessible electronic and information technology as an emerging civil rights concept. In this respect, NCD has examined the status of those federal entities responsible for implementing laws that protect the rights of persons with disabilities that relate to accessible electronic and information technology. Included in this report are public policy interventions that we recommend as part of an overall strategy to make the electronic bridge to the 21st century available to all Americans.

Our recommendations are in line with the focus of your New Freedom Initiative's emphasis on expanding the use and application of technology by people with disabilities at home, at work, and throughout the course of their daily lives. NCD stands ready to work with you and stakeholders outside the government to see that the agenda set out in the attached report is implemented.

Sincerely,

Marca Bristo Chairperson

(The same letter of transmittal was sent to the President Pro Tempore of the U.S. Senate and the Speaker of the U.S. House of Representatives.)

National Council on Disability Members and Staff

Members

Marca Bristo, Chairperson
Hughey Walker, First Vice Chairperson
Kate Pew Wolters, Second Vice Chairperson
Yerker Andersson, Ph.D.
Dave N. Brown
Edward Correia
John D. Kemp
Audrey McCrimon
Gina McDonald
Bonnie O'Day, Ph.D.
Lilliam Rangel-Diaz
Debra Robinson
Gerald S. Segal
Ela Yazzie-King

Staff

Ethel D. Briggs, Executive Director
Jeffrey T. Rosen, General Counsel and Director of Policy
Mark S. Quigley, Director of Communications
Kathleen A. Blank, Attorney/Advisor
Gerrie Drake Hawkins, Ph.D., Program Specialist
Martin Gould, Ed.D., Research Specialist
Pamela O'Leary, Interpreter
Allan W. Holland, Accountant Officer
Brenda Bratton, Executive Secretary
Stacey S. Brown, Staff Assistant
Carla Nelson, Office Assistant
Edward J. Heaton, Fellow

Acknowledgments

This report is the product of a team effort and incorporates the work of many people. First and foremost, the research and interviews were conducted, and a report to the National Council on Disability (NCD) prepared, through a contract with Stephen Mendelsohn. Stephen Mendelsohn is a lawyer, a policy researcher, and a creative writer about information technology.

Second, the task of assisting NCD in reviewing and commenting on the analysis, conclusions, and recommendations in the final report was handled by members of Tech Watch. NCD wishes to express its appreciation to the following Tech Watch members who participated in the development of this report: Bonnie O'Day (chair), Debbie Cook, Kelly Pierce, and Paul Schroeder.

While the views contained in this report do not necessarily represent those of the Administration, NCD would also like to thank the people who gave of their time and agreed to participate in the development of this report. Special acknowledgment goes to the staff of the Equal Employment Opportunity Commission, the Department of Education, the Federal Communications Commission, the Architectural and Transportation Barriers Compliance Board (Access Board), the Department of Justice, the General Services Administration, and the other federal agencies that not only answered many questions but gathered documents and shared data with the research team. In addition, they reviewed preliminary drafts of the contents of this document for technical accuracy.

Contents

Executive Summary
     Key Findings
     Recommendations
Chapter I -- Introduction and Overview
Chapter II -- A Brief History of Information and Technology Accessibility
Chapter III -- The Legal Framework of Information Technology Access Rights
Chapter IV -- Current Status of Accessibility Implementation and Enforcement
Chapter V -- Findings
Chapter VI -- Recommendations
Endnotes
Appendix -- Mission of the National Council on Disability

This report is the fourth in a series of civil rights monitoring studies designed to evaluate the effectiveness of major civil rights laws bearing on the lives of Americans with disabilities. Previous reports in the series have examined the implementation of the Americans with Disabilities Act, the Individuals with Disabilities Education Act, and the Air Carrier Access Act.

In the currency of daily life, what is more important yet more taken for granted than access to information? But for many people with disabilities, the information access and exchange that most of us take for granted is difficult or impossible, or can be achieved only with the intervention of third parties or through the use of Electronic and Information Technology (E&IT).^* The reasons people with disabilities lack access to information in our society are perhaps more significant and certainly more within our control than the lack itself. The explanation increasingly lies not in disability, but in the design of the technology that mediates our access to and use of all types of information.

For Americans generally, the expectation of access to information is taken for granted, almost to the point of being considered a right. Who would question that in America we advertise job openings so the broadest range of qualified people may have the opportunity to compete for them? We attach such importance to timely notice from government regarding its decisions about our lives--denial of a disability claim, demand for additional taxes, granting of a driver's license--that our rights to such information are enshrined in law, even reaching the status of constitutional due process. And we recognize that information from and about government is essential to the functioning of our democracy and to the individual's exercise of the responsibilities of citizenship. How outraged would we be if the opportunity to compete for the promotion were not posted, if the grant or denial of our driver's license were never made known, or if the text of official pronouncements were not published?

No one would dispute that people with disabilities have the same right and need for information everyone else has. Paradoxically, at the very time when many people comfortably assume that technology is steadily bringing people with disabilities more opportunities for access than they have ever known before, this same technology (coupled with the attitudes and expectations of those who use it) may in many cases be reinforcing patterns of exclusion and isolation.

This report looks at federal enforcement of key laws (i.e., the Americans with Disabilities Act [ADA], Section 255 of the Telecommunications Act of 1996, Section 508 of the Rehabilitation Act, as amended) and how such enforcement relates to electronic and information technology. As used in this report, E&IT particularly involves the Internet, the World Wide Web, and select information/transaction machines.

It is clear from our documentary and empirical research that individual leadership and commitment on the part of officials and staff, particularly federal agencies, largely accounts for the relative success, particularly internally, in implementing pro-accessibility measures. A corollary finding is that institutionalization of these practices and policies remains tenuous but is both necessary for and aided by the emergence of new leadership.

• The report documents some of the steps agencies have taken to enhance E&IT accessibility that are worthy of emulation.
  
  
• The adverse and predictable results of E&IT inaccessibility on the lives of people with disabilities constitute discrimination, albeit unintentional, where technology that could substantially reduce the disparity exists but is not used.
  
  
• Existing civil rights laws appropriately take costs into account in determining whether particular E&IT-oriented accommodations or accessibility strategies are too costly. But they do so in ways that accentuate the size and visibility of such costs while concealing the costs of access denial.
  
  
• The current legal framework for E&IT accessibility is actually a patchwork of laws covering certain categories of technology in some settings, other categories in other settings, but nowhere reflecting an overview or comprehensive assessment of either the issues or the solutions.
  
  
• Without partnership with government and consumers, the marketplace is not well suited to redressing the E&IT access gap on its own. Normal competitive pressures do not operate to encourage fully accessible design of mainstream E&IT products, though the latent demand for such devices is considerable.
  
  
• Changes in technology and in the interpretation of all civil rights laws emanating from the courts will require the rethinking of both our definition of E&IT and our approach to advocacy on behalf of its heightened accessibility.

Nature of the Problem

Recent and frequent discussions of the "digital divide" problem have demonstrated the existence and consequences of major disparities in our society between information haves and have-nots. The harm attributable to the information gap is severe, both for those denied opportunity and participation as a result of it and for society as a whole. While Americans with disabilities can all too often be counted on the have-not side of the information and information access equation, the reasons and remedies for this exclusion are not so well or widely understood.

A few examples drawn from our everyday technology and experience illustrate this point. The cellular telephone which has brought so much convenience to so many has also created new barriers to telecommunications access for people who are deaf or hard of hearing because such phones have largely lacked hearing aid compatibility. Banks that once employed tellers to serve their customers now rely on ATM machines, telephone service lines, and the Internet. Each of these information technologies poses severe access barriers for people with various disabilities. People who cannot see the information and prompts on the screen are effectively barred from using automated teller machines (ATMs). People who cannot enter long strings of account or card numbers before voice response systems "time out" are prevented from using all kinds of automated customer service lines. And people who cannot use a mouse may be precluded from accessing many online applications and opportunities in the commercial sector.

As isolating as these limitations are, their impact is all the more frustrating because they are largely needless. If design principles and technological capabilities did not exist for making our E&IT accessible to persons with disabilities, regrets might be in order. However, such techniques for the most part do exist and can usually be implemented at little cost, with minimal disruption to industry, commerce, and other technology users. Questions thus arise about why such enhancements are not more widely utilized and what can be done to bring about their use.

One part of the answer to these questions can be found in law. The civil rights provisions discussed in this report are among the methods chosen by society to help minimize the information access gap between people with disabilities and people without disabilities. In the end, though, laws cannot do what people resist.

Access to Electronic and Information Technology as a Civil Rights Concept

This civil rights concept of access to E&IT forms part of the requirements of three major federal laws: ADA, the Rehabilitation Act of 1973, as amended, and the Federal Rehabilitation Act. In this study, E&IT refers to such technology. The term E&IT, used in Section 508, derives from the Clinger Cohen Act of 1996, the major statute dealing with Federal Government information resources and information management practices.

Although E&IT is a relatively new and perhaps unfamiliar term to some, we believe it will become the predominant term used in discussions of information technology access rights. The range of devices falling within the definition of E&IT is inclusive, encompassing all equipment, software, and Web sites used for creation, storage, transmission, or manipulation of information and data. Our major focus here will be on computers (including software and peripherals), telecommunications equipment, ATM machines, and information kiosks (including Web-based kiosks), and other Internet Web sites and resources.

The concepts and issues dealt with in this report are likely to move to the center of our attention and concern as technology becomes an increasingly fundamental tool in our daily lives and as information itself increasingly becomes the medium and commodity of exchange in our society.

Roadmap of the Report

The research was conducted to answer three basic questions:

1. Is access to E&IT by Americans with disabilities sufficiently fundamental to rise to the level of a civil right?
   
   
2. Which laws establish civil rights protections around E&IT access and how are those laws being applied and enforced?
   
   
3. What changes in law or practice would be most effective in fulfilling the goals of E&IT access equality for all Americans?

Chapter I sets out a framework for understanding the issues surrounding E&IT access and for understanding why these issues are important. It explores the demographic, economic, and equity issues associated with information inaccessibility for people with disabilities; explains that the constituency for E&IT accessibility is not limited to people with sensory disabilities; and discusses the implications of this subject for society as a whole, as technology changes and our population ages.

Chapter II presents a historical overview of the development of accessibility concepts and laws. It examines the origins and development of the concept of accessibility in connection with the built environment and traces the application of this concept to information. It then describes evolutionary changes in communications and information technology that have brought about the elaboration of new legal models for advancing the E&IT accessibility concept. This chapter carries through to the present, where access to information technology ranging from computers to kiosks, Web pages to electronic building directories, is tantamount to access to information itself.

Chapter III explains the major current legal provisions bearing on this subject. These include the "reasonable accommodations," "effective communications," and "auxiliary aids and services" provisions of the ADA; the telecommunications equipment, customer premises equipment, and telecommunications services accessibility/compatibility requirements of Section 255 of the Communications Act; and the accessible E&IT procurement and use by federal agencies requirements of Section 508 of the Rehabilitation Act.

The chapter examines the ways in which each statute bears on E&IT accessibility and draws on statutory, regulatory, and case law sources to assess the role of each law.

Chapter IV analyzes and documents the administration and implementation of these laws by the responsible federal agencies. It begins by discussing the accessibility of information sources about the law. It then reviews the extent and quality of documentation generated by the enforcement agencies concerning the E&IT accessibility potential under each law, including important new forms of documentation such as the Department of Justice's Section 508 federal agency self-evaluation reporting system.

Next the chapter analyzes nondocumentary aspects of enforcement including elements of agency culture relating to case finding, issue prioritizing, complaint handling, and other matters.

This is followed by discussion of the agency strategic planning process as a vehicle for implementing long-term and accountable E&IT accessibility policies and practices. The chapter concludes with a discussion of the current and potential role of federal grants and contracts for providing goods, services, and information to the public (including programs ranging from Medicare and Medicaid to one-stop employment services) as sources of authority for extending E&IT accessibility requirements beyond federal agencies.

Chapter V sets forth the major findings of the report. It sets forth observations and conclusions based on interviews and conversations with agency officials, technology users, and advocates concerning how and why some federal agencies have been more successful than others in implementing information technology access rights.

The last section of this report, Chapter VI, offers detailed recommendations for implementing and enhancing current laws and practices to improve the accessibility of the nation's information infrastructure, and the implementation of the relevant civil rights laws. The recommendations are as follows:

1. Incorporate E&IT Accessibility into the Agency Planning and Government-Wide Planning Processes at All Levels

1.1 By presidential executive order, promulgate and implement a national E&IT accessibility policy.

1.2 GPRA

Utilizing the opportunities afforded by the planning process engaged in by federal agencies under the Government Performance and Results Act (GPRA), all agencies with responsibility in the civil rights area should be required to incorporate goals, objectives, methods, and outcome criteria for development and use of accessible E&IT in their GPRA plans.

1.3 Information Policy and Information Management

All information planning and E&IT policy development should include and document due attention to the ways accessibility considerations will be integrated into agency policies, practices, and decisions. Appropriate guidance should be provided by the Office of Management and Budget (OMB) concerning the means for documenting this integration.

1.4 Government-Wide Information Planning

To the degree the Federal Government develops and implements government-wide policies concerning the use of E&IT, such policies and requirements must likewise provide for integration of accessibility goals and standards into all activities and decision making.

1.5 Federal Employee Training

All federal initiatives aimed at upgrading the skills of the federal workforce should include provision for supplementary training and resources in those cases where the use of assistive technology or other factors alters or individualizes the training process for employees with disabilities.

1.6 Alternative Measures When E&IT Access Is Not Possible

Agency strategic and operational plans should include provisions for how information access will be facilitated and assured in those cases where accessible E&IT is not available.

2. Review the Federal Contracting Process to Encourage Diffusion of Accessibility

2.1 Grants and Contracts

With appropriate guidance from the General Services Administration (GSA), OMB, or other pertinent authorities, each agency should review the entire range of contracts and grants under which it administers and distributes federal funds to ensure that all possibilities that the law allows for encouraging or requiring E&IT accessibility practices on the part of contractors or grantees are fully utilized.

2.2 Model Contract Language

The Federal Government should develop model contract language for use in holding federal funds recipients to the highest possible standards of accessibility in their nonincidental use of E&IT.

2.3 Contractor and Grantee Technical Assistance

The government should ensure that all contracts subject to accessibility requirements include provisions for availability of appropriate technical assistance to those called upon to meet accessibility expectations.

3. Establish Federal Web Site Quality Control

3.1 Auditing Federal Web Sites

Individual agencies and the Department of Justice (DOJ) should develop a system for random periodic audit of Web sites to ensure that standards of accessibility are being maintained.

3.2 Automate the Review Process

The government should seek to validate and deploy techniques for minimizing labor intensity of Web site maintenance.

4. Systematically Address the Question of Cost-Effectiveness

4.1 Presidential Commission

The President should appoint a national commission, including representatives of industry, government, and the disability community as well as economists and demographers, to comprehensively study and report on the nature of all costs and benefits associated with both accessibility and inaccessibility of E&IT.

4.2 White House Conference

As a kickoff to the work of the national commission, a White House summit on accessibility should be convened. This high-level summit should bring together representatives of all the key sectors--business, the disability community, government, and researchers--to identify opportunities for effective and innovative partnerships in accessibility policy, planning, research, and implementation throughout our economy and society.

5. Involve Consumers in the Accessibility Process

5.1 Consumer Advisory Panels

Agencies should be encouraged to appoint consumer advisory panels to advise and assist them in their efforts to achieve E&IT accessibility for themselves and for their constituencies.

5.2 Consumer Support to Industry

The Federal Government, in partnership with the E&IT industry, should investigate means for training, positioning, and appropriately remunerating end-users with disabilities to assist industry to develop effective accessibility strategies, to anticipate access issues associated with new technologies or designs, and to test and evaluate prototype devices and systems.

6. Enrich the Available Resources for Implementation of Section 508

6.1 Additional Guidance

GSA, the Access Board, OMB, and the Federal Acquisition Regulations Council need to undertake urgent collaboration to identify the key unresolved implementation issues and provide meaningful guidance so far as the law and their discretion permit.

6.2 Undue Burden Auditing

A system for periodic auditing of agency undue burden filings should be developed.

6.3 Verification of Agency Self-Evaluation Questionnaires

DOJ should develop a procedure for verifying agency self-reports concerning their levels of and progress toward E&IT accessibility.

6.4 Compulsory Technical Assistance

Procedures should be developed for compelling agencies with prolonged and serious 508 compliance problems to accept technical assistance targeted to their areas of weakness.

6.5 Litigation Posture

DOJ should indicate how it will proceed in situations where it is called upon to defend a federal agency in court against a suit brought under 508 where DOJ possesses knowledge that the agency is out of compliance with Section 508.

6.6 Reduce the 508 Exemptions Granted for Intra-Federal-Agency Contracts

DOJ should clarify that when the Government Printing Office (GPO) enters into contractual relationships with executive branch agencies that would subject it to the requirements of Section 508 if GPO were not an exempt congressional agency, GPO is required to comply with the requirements of Section 508 in its fulfillment of tasks under such contracts.

7. Record-Keeping and Data Collection

Efforts should be immediately instituted to develop, field test, disseminate, and analyze appropriate data collection and reporting instruments.

8. Statutory Review

In conjunction with or as an element of the work of the commission proposed under Recommendation 4.1, the President and Congress should establish a joint blue-ribbon commission (or should designate an existing entity, such as the National Council on Disability [NCD]) to examine barriers to effective implementation of E&IT accessibility that may exist in current federal laws, and to recommend changes in law that will foster E&IT accessibility in the public and private sectors.

9. Reinvigorate the Quality and Focus of ADA Enforcement

9.1 E-Commerce, Public Terminals, and the Internet

Through suitable regulations, interpretive guidance, or case initiation, DOJ should take immediate and meaningful steps to set forth its views concerning the applicability of Title III to the Internet.

DOJ should also promulgate standards and requirements for the accessibility of public terminals including electronic building directories, point-of-sale card readers, library terminals, and similar devices.

9.2 EEOC

The Equal Employment Opportunity Commission (EEOC) should update its technical assistance and advisory materials for private sector employers covered by Title I of the ADA to reflect the placing of a high priority on E&IT accessibility, to explain the meaning and importance of this concept in ways that clarify how it differs from and affects the reasonable accommodation model, and to expand lists provided to employers of organizational and technical assistance resources to include entities and programs that specialize in E&IT accessibility.

The EEOC should also issue a guidance on the interaction between Section 508 and Section 501.

10. Intensify Monitoring and Enforcement Under Section 255

10.1 FCC Enforcement

The Federal Communications Commission (FCC) should indicate what features and functions of the forthcoming new generation of wireless telecommunications/customer premises equipment it regards as capable of being made fully accessible under current conditions.

10.2 Remedies for Violation of Section 255

The FCC should issue a legal opinion concerning how it would react and what position it would take if a consumer attempted to bypass the Section 255 complaint process by bringing suit in federal court for discrimination under the "common carrier" provisions of the Federal Communications Act.

10.3 Market Monitoring Reports

In conjunction with the Access Board, the FCC should institutionalize regular, periodic preparation and publication of the telecommunications Market Monitoring Report.

10.4 Definition of Covered Telecommunications Services

The FCC should formally indicate the results of its inquiries and deliberations into the permissible scope of Section 255's coverage of telecommunications services. If the Commission determines that it has the legal authority to include so-called "information service" under the scope of Section 255's coverage of telecommunications services, it should immediately proceed to institute the rulemaking process needed to accomplish this clarification. If the FCC determines it lacks legal authority to do this, it should join with others to support remedial legislation.

Conclusion

We live in what is called "the information society." In this successor era to the Industrial Age, information is more and more the principal commodity of commerce. Access to E&IT is more and more the arbiter of success and the source of opportunity in education and employment. Under these circumstances, it should not be surprising that access to information and to the technology generating, transmitting, and storing it has become a civil rights issue for many people with disabilities and for our society. As the importance of electronic and information technology access grows in the way we conduct our lives, in the choices we make, and in the decisions others make about us, the importance of this issue can only grow. We must ensure that all Americans can participate in the information society of the 21st century. This report represents the best effort from NCD and E&IT consumers with disabilities in providing a coherent set of recommendations, strategies, and activities that, if implemented, will advance a better quality of life for all Americans who use E&IT.

Introduction and Overview

A. Context for This Report

This report is the fourth in a series of civil rights monitoring studies designed to evaluate the implementation and enforcement of major civil rights laws bearing on the lives of Americans with disabilities. Previous reports in the series have examined the implementation of the Americans with Disabilities Act (ADA), the Individuals with Disabilities Education Act, and the Air Carrier Access Act.¹ Future reports will focus on the Fair Housing Amendments Act and Section 504 of the Rehabilitation Act.

This report is submitted to the President and Congress by the National Council on Disability (NCD). NCD is an independent federal agency with 15 members appointed by the President of the United States and confirmed by the Senate. The overall purpose of NCD is to promote policies, programs, practices, and procedures that guarantee equal opportunity for all individuals with disabilities, regardless of the nature or severity of the disability, and to empower individuals with disabilities to achieve economic self-sufficiency, independent living, and inclusion and integration into all aspects of society. NCD was initially established in 1978 as an advisory board within the Department of Education (Public Law 95-602). The Rehabilitation Act Amendments of 1984 (Public Law 98-221) transformed NCD into an independent agency.

NCD plays a major role in developing disability policy in America. In fact, NCD originally proposed what eventually became the ADA. NCD's present list of key issues includes improving personal assistance services, promoting health care reform, including students with disabilities in high-quality programs in typical neighborhood schools, promoting equal employment and community housing opportunities, monitoring the implementation of ADA, improving Information technology (IT) and telecommunication, improving assistive technology (AT), and ensuring that persons with disabilities who are members of diverse groups fully participate in society.

As part of its technology research agenda, NCD established a community-based, cross-disability consumer task force on technology in January 1995. Known as Technology Watch (Tech Watch), the 11-member federal advisory committee provides information to NCD on issues relating to emerging legislation on AT and electronic and information technology (E&IT) and helps monitor compliance with civil rights legislation, such as Section 508 of the Rehabilitation Act of 1973, as amended.

This study differs from the previous reports in the civil rights monitoring series in that instead of examining a single statute, it focuses on an overarching concept embracing several statutes. This civil rights concept of access to E&IT forms part of the requirements of three major Federal laws: the ADA, the Federal Communications Act, and Section 508 of the Rehabilitation Act of 1973, as amended.

More specifically, this report looks at federal enforcement of key laws (i.e., the ADA, Section 255 of the Telecommunications Act of 1996, Section 508 of the Rehabilitation Act, as amended) and how such enforcement relates to E&IT. E&IT specifically involves the Internet, the World Wide Web, and select information/transaction machines.

This report addresses the extent to which, under these and other laws, information access may be considered a civil right and how such a right can be implemented and enforced. The concepts and issues dealt with in this report may initially be unfamiliar to some readers, but they are likely to move to the center of our attention and concern as E&IT becomes an increasingly fundamental tool in our daily lives and as information itself becomes the medium of exchange in our society. The research was conducted to answer three basic questions:

1. Is access to E&IT by Americans with disabilities sufficiently fundamental to rise to the level of a civil right?
   
   
2. Which laws establish civil rights protections around E&IT access and how are those laws being applied and enforced?
   
   
3. What changes in law or practice would be most effective in fulfilling the goals of E&IT access equality for all Americans?

The methodology adopted for this research involved analyses of all relevant statutes, regulations, and case law bearing on the scope and enforcement of disability civil rights laws; interviews with key federal officials involved in the process of making E&IT accessible; review of federal documentation of accessibility policies and practices; and analysis of nongovernmental reports and studies of E&IT accessibility.

B. Roadmap to This Report

The remainder of this chapter sets out a framework for understanding the issues surrounding E&IT access and why they are important. Chapter II presents a historical review of the development of civil rights laws and concepts dealing with information and information technology access. Chapter III explains the major current legal provisions bearing on this subject. Chapter IV analyzes and documents the administration and implementation of these laws by the responsible federal agencies and as interpreted by the courts. Chapter V sets forth the findings of the report. It is divided into two parts. The first section sets forth observations and conclusions based on interviews and conversations with agency officials, technology users, and advocates concerning how and why some federal agencies have been more successful than others in implementing information technology access rights. The remainder of the chapter sets forth other major findings based on our documentary and empirical research. Chapter VI offers detailed recommendations for implementing and enhancing current laws and practices to improve the accessibility of the nation's information infrastructure.

C. The Importance of Information Technology

IT is known by various names in its application to the lives of people with disabilities. Such terms as "adaptive equipment," "assistive technology," and "electronic and information technology" all have their place as subsets or extensions of what we commonly think of as IT. Adaptive equipment, a general term with no specific statutory definition, describes any sort of modification to technology, including design changes or add-ons, that make it more accessible to or usable by people with disabilities. AT, a statutory term deriving from the Technology-Related Assistance for Individuals with Disabilities Act of 1988, includes both AT devices and services. An AT device is any item or system "that is used to increase, maintain, or improve functional capabilities of individuals with disabilities."² E&IT as defined in the implementing regulations for Section 508 of the Rehabilitation Act is specific to the communications and information environment and refers to the broad range of hardware, software, and other components making up this environment.³

In the currency of daily life, what is more important, yet more taken for granted, than access to information? But for many people with disabilities, the information access and exchange that most of us take for granted is difficult or impossible, or can be achieved only with the intervention of third parties or through the use of AT. The reasons people with disabilities lack access to information in our society are perhaps more significant and certainly more within our control than the lack itself. The explanation increasingly lies not in disability itself, but in the design of the technology that mediates our access to and use of all types of information.

For Americans generally, the expectation of access to information is taken for granted, almost to the point of being considered a right. Who would question that in America we advertise job openings so the broadest range of qualified people may have the opportunity to compete for them? We attach such importance to timely notice from government regarding its decisions about our lives--denial of a disability claim, demand for additional taxes, granting of a driver's license--that our rights to such information are enshrined in law, even reaching the status of constitutional due process. And we recognize that information from and about government is essential to the functioning of our democracy and to the individual's exercise of the responsibilities of citizenship. How outraged would we be if the opportunity to compete for the promotion were not posted, if the grant or denial of our driver's license were never made known, or if the text of official pronouncements were not published?

No one would dispute that people with disabilities have the same need for information everyone else has. Nevertheless, for many of these citizens, the information gap (both a cause and a consequence of various forms of economic and social disadvantage) is not narrowing. Paradoxically, at the very time when many people comfortably assume that technology is steadily bringing people with disabilities more opportunities for access than they have ever known before, this same technology (coupled with the attitudes and expectations of those who use it) may in many cases be reinforcing patterns of exclusion and isolation.

Recent discussion of the "digital divide" problem has demonstrated the existence and consequences of major disparities in our society between information "haves" and "have-nots." The harm attributable to the information gap is severe, both for those denied opportunity and participation as a result of it and for society as a whole. While Americans with disabilities can all too often be counted on the "have-not" side of the information and information access equation, the reasons and remedies for this exclusion are not so well or widely understood.

Leaving aside broader questions of poverty, education, or health care, the problem is that much information the rest of our society takes for granted is not provided or disseminated in ways accessible or usable by people with sensory, physical, and cognitive disabilities. Imagine trying to conduct your life in a world where most key communications were made only in an unknown foreign language. Imagine life in a world where a person may not even know the information exists.

We live in what is frequently called "the information society." In this successor era to the Industrial Age, information is more and more the principal commodity of commerce, and technology, ranging from the computer to the information kiosk, from the electronic message board to DSL, is more and more the medium for transmission, storage, and manipulation of that information. Thus access to information technology is increasingly the arbiter of success and the source of opportunity in education and employment. Under these circumstances, it should not be surprising that access to information and to the technology that creates and provides it would become a civil rights issue for people with disabilities and for our society. As the role of information access grows in the way we conduct our lives, in the choices we make, and in the decisions others make about us, the importance of information technology can only expand.

D. Nature of the Problem

Even as they create new opportunities for some, information technology advances erect access barriers to others. Where such barriers could be avoided, their needless occurrence is all the more tragic and wasteful.

Among the kinds of technology that have irrevocably changed life for all of us, modern information technology, the technology of the computer era, has dramatically empowered many people. But any assumption that all or most information technology is routinely available to or usable by people with disabilities would be a grave mistake. Incorporation of what we call accessibility into America's information technology infrastructure is not and has not been automatic or certain. When any new mainstream technology creates opportunities for some but excludes others because of design features that do not take users with disabilities into account, part of its impact is to engender frustration, create divisions, and reduce the opportunity for independence available to significant subgroups of our fellow citizens. Conversely, employers who may want to reach employees with disabilities by cell phone are unable to do so because the cell phone has no amplification capabilities.

A few examples drawn from our everyday technology and experience illustrate this point. The cellular telephone which has brought so much convenience to so many has also created new barriers to telecommunications access for people with hearing impairments because most such phones have lacked hearing aid compatibility. Banks that once employed tellers to serve their customers now rely on automated teller machines (ATMs), telephone service lines, and the Internet. Each of these information technologies poses severe access barriers for people with various disabilities. People who cannot see the information and prompts on the screen are effectively barred from using ATMs. People who cannot enter long strings of account or card numbers before voice response systems "time out" are prevented from using all kinds of automated customer service lines. And people who cannot use a mouse may be precluded from accessing many online applications and opportunities in the commercial sector.

As isolating as these limitations are, their impact is all the more frustrating because they are largely needless. If design principles and technological capabilities did not exist for making our E&IT accessible to persons with disabilities, regrets might be in order. However, such techniques for the most part do exist and can usually be implemented at little cost, with minimal disruption to industry, commerce, and other technology users. Questions thus arise about why such enhancements are not more widely utilized and what can be done to bring about their use.

One part of the answer to these questions can be found in law. The civil rights provisions discussed in this report are among the methods chosen by society to help minimize the information access gap between people with disabilities and those without disabilities. In the end, though, while laws can legislate behavior, laws do not touch people's hearts and minds so that they do what is right. This report is intended to promote better understanding of what can be done and why it is right and vitally important for all of us to join in doing it.

E. Scope of the Problem

Today an estimated 54 million Americans have a disability, a number due to grow rapidly as our population ages. As an outgrowth of these demographics and the changes associated with advancing age, the line between who is and who is not a person with a disability will steadily erode.

Whether we have disabilities, do not have them, or are on the cusp of having them, inaccessible technology affects all of us. These effects can be grouped under three major headings: demographics, economics, and justice.

1. Demographics

Fully understood, E&IT inaccessibility affects far more people than is commonly thought. E&IT access is a major issue not only for people with sensory disabilities of hearing or vision, but also for persons with communications, cognitive, mobility, and other disabilities. An elevator button panel too high to be reached by a person using a wheelchair is an inaccessible information appliance. A computer that requires unusual force or dexterity to turn on is likewise inaccessible to people with limitations of strength or reach. To the degree they restrict or prevent people with disabilities (or people who are just getting weaker and stiffer with age) from using E&IT, such features of the technological environment constitute barriers to access and participation in all spheres of daily life.

The Census Bureau estimates that one in five people have disabilities (www.census.gov/hhes/www/disable/sipp/disable97.html). Despite these numbers, some may still ask why access is an issue for society as a whole. As President Bush's New Freedom Initiative points out, "Disability is not the experience of a minority of Americans. Rather, it is an experience that will touch most Americans at some point during their lives." Put another way, if we can just manage to live long enough, all of us will eventually have a disability, or we will have a functional limitation close enough to be worthy of the name.

2. Economics

In the face of the highest levels of employment since World War II, unemployment rates among Americans with disabilities remained stubbornly high throughout the late 1990s. The Census Bureau has recently estimated this rate among adults age 21 to 64 at two thirds (www.census.gov/hhes/www/disable/sipp/disable97.html).

At the same time, survey research data indicates a strong desire for employment among people with disabilities and a 44 percent unemployment rate among those who describe themselves as able and available to work.⁴

The emotional and personal toll these numbers suggest cannot be measured, but the economic consequences are all too plain. At a time when national policy is focused on the creation of a skilled and highly trained workforce, capable of competing in the world economy, when skilled workers in many specialties remain in short supply, and when computerization has both reduced the physical demands associated with many jobs and placed a premium on computer and related skills, the persistence of high levels of unemployment among Americans with disabilities is economically insupportable and unacceptable in light of disability policy and civil rights.

No one can say exactly how many of those now consigned to unproductivity and unemployment would be enabled to enter and remain in the economic mainstream if information technology were generally accessible and usable for all. Suffice it to say, in an era when computers and other forms of E&IT are used in a growing proportion of businesses and fields, even in traditional manual-labor occupations such as manufacturing or agriculture, there is strong reason to believe that investment in accessibility will be rewarded with increased opportunity and higher levels of employment among people with disabilities.

A number of proposals and actions by the Bush Administration suggest the administration's recognition of the importance and potential of technology-oriented jobs. The New Freedom Initiative, for example, proposes the creation of tax and other incentives for the provision of computers to persons with disabilities for work at home. Other administration actions supportive of a highly skilled workforce in our nation include the short-term delay of the expiration date of the President's Information Technology Advisory Committee, and the creation of a number of high-tech task forces and projects.⁵ The presidential proposals also include significant new investment in AT predicated on similar logic.

The issue of accessibility is vital to address in their presidential proposals formulation and implementation. Undoubtedly, the incorporation of accessibility requirements into the design of these programs will result in some added cost, in both money and time, but as a function of the overall costs of these initiatives, and in light of their intended benefits, such costs may prove far smaller than the costs of inattention.

Such proposals to direct resources toward enhanced E&IT access are subject to economic and cost/benefit analysis. A variety of disability policies and even disability rights laws have been analyzed in this way. For example, economic impact studies of the two most important E&IT access statutes (Section 508 of the Rehabilitation Act and Section 255 of the Communications Act) have been conducted by the U.S. Architectural and Transportation Barriers Compliance Board (Access Board) as part of the rulemaking process for their implementation. The most recent of these studies, conducted in 2000 in connection with Section 508, found that this new law is a "significant" economic regulation (meaning that it is expected to cost more than $100 million).⁶ Nonetheless, the Board's finding (subsequently adopted by the executive branch in the Federal Acquisition Regulation implementing the Section 508 standards) was that Section 508 would not unduly burden the economy.

Efforts to extend the analysis of economic impact to future or broader accessibility initiatives are necessarily conjectural. But certain hypotheses do seem warranted. We will discuss the economic implications of a national E&IT access policy in further detail in Chapter VI. For the moment, we must remember that the costs of doing nothing may be greater than the costs of any reasonably foreseeable measures. For as information and E&IT come more and more to define our lives, the implications of lack of access to such technology can only grow commensurately greater with each passing day.

3. Justice

Any civil rights concept of access to E&IT forms part of the requirements of three major Federal laws: the ADA, the Telecommunications Act of 1996, and the Rehabilitation Act of 1973, as amended. As mentioned previously, this report looks specifically at federal enforcement of key laws (i.e., the ADA, Section 255 of the Telecommunications Act of 1996, and Section 508 of the Rehabilitation Act, as amended) and how such enforcement relates to E&IT.

Despite the lack of a traditional notion of E&IT as a civil rights concept, the experience and consequences of inequity are real, whether they are intentional or are simply the unanticipated byproducts of unrelated decisions.

Beyond a certain point, the line between accidental and deliberate exclusion may be hard to draw. But where means exist to mitigate palpable injustice and are not taken, the suspicion at some point becomes unavoidable that this line has been crossed. If we fail to take the measures technology puts in our power to equalize the information-access playing field, our society will surely be answerable for more than ignorance or indifference.

F. Electronic and Information Technology As an Element of Diversity

Considering the estimated 54 million Americans with disabilities (along with persons who do not qualify as having disabilities under law or whose self-images preclude any identification with disability), the constituency and the need for accessible E&IT may be far greater than has traditionally been supposed. If the varying communications styles of people from diverse cultures and the use in this country of many languages are taken into account, the constituency for accessible information becomes still larger.

Government and business have already done a great deal to make information available and communication possible in multiple languages and through a variety of media and formats. Partly, this proliferation of languages and dissemination strategies reflects a growing appreciation of the diverse cultural makeup of our society. Partly, it derives from commercial motives and economic considerations. But to a large extent, too, it derives from our sense of equity and fairness, and increasingly from the enshrinement of those values in law.

How is it, then, that against this backdrop, access to key public, business, and personal information for people with disabilities remains a serious problem and a controversial issue? How is it that the aspiration of people with disabilities for timely, accurate, and contextually sensitive access to information comes as a surprise to some, a fringe special-interest demand to others, and a perceived threat to not a few?

Today, technology plays a central role in almost all information creation and dissemination. From the blockbuster film playing in thousands of movie theaters to the quick note sent by e-mail to a friend, from the order telephoned into the nearby pizza store to the new software instructing your computer how to perform various operations, technology mediates the creation and dissemination of all our public and much of our personal and private information. The problem is that most of these technologies were developed and deployed without regard to users with disabilities. The question of how or whether to make them accessible has almost always been an afterthought, requiring a convergence of demand, technology, and willingness in order for that goal to be met.

If so many millions of people with disabilities make up the constituency for accessibility, why aren't mainstream business or personal-use communications and E&IT designed accessibly? Why does accessibility remain a point of departure rather than simply another point on the continuum of better, more user-friendly design? After all, don't the creators and purveyors of information already seek (for economic and other reasons) to make their data as widely available and their equipment as broadly usable as possible? Isn't accessibility just an extension of the principles to which many designers, developers, and marketers already claim to subscribe?

These questions have no single or simple answers. A cluster of technological, economic, attitudinal, and legal factors have combined to play a role. These variables will be discussed throughout this report through the prism of the civil rights laws that have been adopted to enhance information access and create information equality. Accordingly we turn next to a review of the development of information and information technology access laws over the past generation.

A Brief History of Information Technology Accessibility

The notion that equal access to electronic and information technology (E&IT) is a civil right of people with disabilities has emerged over the course of a generation. In many ways, the emergence and development of the right to E&IT access parallels the development of the right to physical access. In other ways, the history and implementation of the two concepts have taken very different pathways. Because the concept of E&IT access may be less well known and less generally understood than that of physical access to buildings and facilities, this chapter, wherever possible, will draw on analogies to physical accessibility and architectural barrier removal, and will describe some of the ways in which information-technology access advocacy has been influenced by advocacy for access to the built environment.

A. The First Accessibility Law

In 1968, Congress adopted the Architectural Barriers Act,⁷ which mandated the removal and avoidance of a variety of physical barriers to access in the design and construction of federally funded buildings and facilities. This watershed statute brought about new opportunities and expanded options for many people, but it also epitomized and inaugurated a new era of social policy regarding disability. The Act put into law the recognition that barriers in the built environment, as much as or even more than any inherent consequences of a physical impairment, account to a large degree for how disabled a person really is in society. If these barriers could be eliminated, the level of disability could be substantially reduced.

In this proactive statute, Congress for the first time "connected the dots" between the decisions made in the design and construction phases of a building and the opportunity for individuals, perhaps many years later, to access the goods or services available in that building. Before a new building ever went up, when it would be cheaper and easier to make accommodations, the law sought to vindicate the access rights of all who might one day seek to enter it.

The Architectural Barriers Act was a major point-of-departure in another way as well. Although its scope and requirements were modest, the Act represented the first significant instance (outside of wartime) when private sector entities were required to take or forgo certain actions solely because of their impact on the rights and lives of people with disabilities. Before this, no federal mandate other than paying taxes compelled the private sector to concern itself with these citizens, so the notion that the government could require them to modify any of their business practices or decisions on behalf of this population was a novel one.

From its modest beginnings in application only to federally funded construction, the notion that the government can tell people anything about how to build their buildings has been extended by subsequent statutes to the point where today the Americans with Disabilities Act (ADA) requires barrier-removal and accessible design requirements on all state and local governments and on all private entities and commercial facilities that meet the law's definition of "public accommodations."

By creating and broadening the use of accessibility requirements for the built environment, society paved the way for creating and expanding parallel requirements to E&IT access in the information environment of today. While the scope of accessibility rights in the information sector remains considerably narrower than its counterpart in the physical realm, this difference (as we shall discuss later in this chapter) is not so much the result of a lesser philosophical commitment or of lesser moral justification. Rather, it is a consequence of the more complex interdependence between technology and law in the information arena and the fact that rapid changes in E&IT dramatically alter the economics of accessibility.

B. The First Disability Civil Rights Law

During the 1960s, our nation was transformed as Congress enacted landmark civil rights protections for racial and ethnic minorities and women. In 1973, similar civil rights protections were extended to Americans with disabilities.⁸

The Rehabilitation Act of 1973 included the historic Section 504 which barred discrimination on the basis of disability in programs operating with federal financial assistance, and which required provision of reasonable accommodations to avoid such discrimination.⁹

Section 504 not only was the first statute applying civil rights protections to people with disabilities, it also furnished the model for major subsequent enactments, including the ADA. From the outset, coverage under Section 504 included anti-discrimination and reasonable accommodation requirements in connection with access to information.¹⁰ The terms of reference for these communications and information access rights were of course very different in 1973 from those of today. The emphasis then was on reasonable accommodations such as readers for people who are blind, or interpreters for people who were deaf. Unlike the case with physical access, the notion that civil rights could or should include modification of mainstream communications technology was essentially absent from the thinking of that day.

This is not to say that E&IT had no place under the Rehabilitation Act. The law addressed communications and information primarily in the context of the vocational rehabilitation services that could be provided to clients with sensory disabilities. Sensory aids and communications equipment were included among these services.

When we consider the state of technology at the time the Rehabilitation Act was passed, the approach the law took should come as no surprise. Various devices ranging from braille writers to hearing aids existed for facilitating written or oral communication by persons who were blind or deaf, but apart from teletypewriters (TTYs or text telephones), none of these devices were interactive in the sense that they could or needed to be interconnected with mainstream communications or telephone systems. Because no occasion existed for connecting to the communications grid, the notion of accessibility or compatibility had no meaning.

C. The Evolution of Access Rights

The scope of coverage of civil rights laws has grown steadily since 1973. Today private and public entities are subject to the requirements of the law, whether or not they receive federal funds. Likewise, our definition of discrimination has expanded to include unequal treatment or denial of access resulting from the inaccessibility of mainstream E&IT. In addition, design requirements have been successively broadened to include manufacturers of televisions, manufacturers and sellers of telecommunications equipment and services, and soon (by virtue of the recent amendments to Section 508 of the Rehabilitation Act) all manufacturers or vendors who wish to sell "electronic and information technology" to the Federal Government.

How is it that we have come in a generation from a fairly meager right to information to the E&IT access requirements and rights of the early 21st century? Before reviewing some of the legal milestones, three important nonlegal developments must be noted: cross-disability elaboration of the meaning of access; emergence of accessible design; and developments in communications technology.

1. The Meaning of Access

Beginning as the right to enter a building, the concept of access has evolved to incorporate qualitative measures. Today we talk not just of access but of "meaningful" access. As embodied in the ADA, this means the right to fully participate in enjoyment of whatever opportunities, benefits, programs, or services an organization covered by the law offers.

The right of meaningful access necessarily and prominently includes the right to content, which in turn presupposes access to relevant information. Thus, it would be unthinkable today to argue that an individual with a hearing impairment has meaningful access to a city council meeting if no interpreter services or assistive listening systems are provided. Similarly, no one would seriously contend that an individual who is blind has equal access to a business training conference unless the handouts are made available in an accessible nonprint format.

The evolution in our concept of access cannot be understood without reference to the steady shift in society toward technology-mediated methods for conveying and receiving information. The transactions that once took place over the phone between customers and clerks are now highly automated. Airlines encourage people to buy tickets via the Web by providing discounts. Banks are phasing out tellers and charging fees for teller service in order to direct customers toward automated teller machines (ATMs).

As with any group of citizens, people with disabilities will naturally differ in their preferences for human- or technology-mediated interactions. Increasingly, though, they have little choice; you cannot ask a ticket agent for the time of the next train if the ticket agent has been replaced by a machine. Whether you can ask the machine depends on its accessibility.

2. The Principle of Accessible Design

Our ideas about the nature and meaning of access could not have developed without simultaneous advances in the design philosophy of information and other technologies. Broadly speaking, the concept of accessible design (or universal design, or inclusive design as this concept is sometimes called) proceeds from the assumption that by building our environment so that alternative means for conveying and receiving information exist, E&IT can be made more usable to the broadest range of people including people with disabilities and people with differing communications preferences or styles. As it relates to civil rights, technology design that takes into account the needs of as many potential users as possible also reduces the number of occasions requiring individual accommodations and fundamentally alters the economics of accessibility.

Our law has increasingly made use of these principles as developments in technology have made doing so feasible. The philosophy of universal design received perhaps its purest legal expression in The Television Decoder Circuitry Act of 1990.¹¹ The Decoder Act may be regarded as our nation's first universal design law, since it applied to all televisions with 13-inch or larger screens. The Act mandated inclusion in all such TVs of closed-caption decoder chips. Technology had made possible a law that freed people who used captions from purchasing decoders costing one hundred dollars or more for attachment to their televisions.

Instead technology and law had in combination made it possible to take steps at the design and manufacturing stages that spread the cost of decoders across the entire base of television purchasers at a negligible per set added cost. Moreover, because the requirement applied to all TVs of the requisite size, and because the law came into effect only after a nearly three-year gearing-up period, no competitive distortion or imbalance was introduced into the commercial marketplace.

3. Developments in Communication Technology

Neither the Decoder Act nor a number of other statutes of the late 1980s that imposed specific technology requirements on the manufacturers of telephones would have been possible if the technology of communications had not evolved as rapidly or in the ways it did. Accordingly, a key question for information access advocacy has long been that of how the course of mainstream technology development could be influenced to place more emphasis on accessibly or universally designed products. Several approaches have been tried to influence the design philosophy and even the research and development (R&D) priorities of the telecommunications, computing, and other E&IT industries of our nation. But none of these efforts would have been possible without broad changes in the information environment which transformed isolated devices into coordinated, interoperable "networked" information systems.

The advent of the personal or home computer marks the point at which this trend gained widespread recognition. Gone were the dedicated, stand-alone devices of even the recent past such as electric typewriters/word processors, and in their place were computers cabled to external drives hooked to printers and in due course, connected to the telephone system and to a variety of office equipment that the computer user might never even go near.

Again, changes in the notion of information accessibility followed. In the blindness community for example, research and development efforts emphasized the creation of software and peripherals to facilitate synthetic speech, braille, or large print output from standard computers. As access to information became increasingly a function of the ability of our devices to work interconnectedly, the premium on access technology that would work in such an environment naturally grew apace. But what kind of laws would reflect the new reality of communications?

D. A New Barrier

Part of the problem created by the interconnected communications environment was that stand-alone or assistive technology (AT) solutions could no longer suffice. The complexity of the new information systems required that manufacturers and developers of mainstream commercial off-the-shelf hardware and software implement design features that would enable specialized equipment to work. In the telecommunications sector, for example, the term "specialized customer premises equipment" was used among others to distinguish between the off-the-shelf equipment that most people used and the AT peripherals (such as text telephones or TTYs) that people with disabilities needed.

This need for peripheral or add-on devices and software that could be incorporated into the interconnected system in turn gave rise to the notion of "compatibility" as a fallback requirement when accessibility of the mainstream devices and systems was not possible. The hope in the disability community was that if mainstream developers could not make their equipment and services fully accessible, they would at least make them "compatible" with AT.

Though mainstream developers certainly seemed in a position to pursue accessibility and compatibility, no law clearly obliged them to. Indeed, as sometimes happens in technology, some of the most highly touted advances in computer software and operating systems have actually set back the cause of computer access for people who were blind.

The move from text-oriented DOS-based to graphical Windows-based computer operating systems resulted in precipitous losses in access (and, according to reports at the time, losses in jobs) for persons using speech or braille for their computer output. Largely unaided by mainstream developers, it took the AT industry several years to develop viable Windows-access strategies, and some say the ground lost has never been fully regained.

E. The Convergence of Technology and Law

A law passed in 1986 pointed the way to a new method of encouraging industry to devote additional resources to accessibility and compatibility.

1. The Leverage Model

In 1986 Congress passed the first of the three versions of Section 508 that have existed. The law was amended in 1992 and again in 1998 to give us the statute we now have.¹²

As enacted in 1986, Section 508 required government agencies, in their purchases of electronic office equipment for their own use, to follow principles of accessibility in their procurement of such equipment. The law included no enforcement provisions but was backed up by technical assistance through the General Services Administration's Clearinghouse on Computer Accommodations. Section 508 didn't automatically make a single operating system accessible to people who could not see the screen, or a single telephone compatible with TTYs. But what 508 could do was give those marketing to the federal sector new incentives to make their products accessible and to work toward universal design. The theory was simple: If the E&IT industry's largest customer wanted products of a particular kind, industry would allocate the necessary R&D resources to satisfy that customer's needs.

Devoid as it was of enforcement mechanisms, the original version of Section 508 was doomed to fail. Despite this fundamental flaw in the original statute, the model it pioneered has remained in use and become more sophisticated. Today the grandchild of that original Section 508 creates what should prove to be powerful incentives to accessible or universal design, since it does include mandates with which federal agencies must comply, technical assistance to aid them in compliance, and clear standards of what constitutes compliance with respect to all major categories of E&IT.

2. The Technical Assistance Model

Technical assistance has played a major role in the attempts over the past 15 years to enhance the accessibility of the information environment. In both voluntary and mandatory settings, awareness has grown that success depends on the availability of technical assistance and on effective coordination and sharing of the scarce expertise in the field.

The clearest expression of the technical assistance model and philosophy came in the Technology-Related Assistance for Individuals with Disabilities Act of 1988 (Tech Act). Amended and revised once since then, and now known as the Assistive Technology Act of 1998, this legislation provided resources to state-level assistive technology projects to engage in a variety of activities to further the cause of AT use, including various forms of technical assistance to state and local government and to the private sector.

Although the emphasis has shifted, one of the major goals of the Tech Act was to bring about institutionalization of pro-technology access changes in the operations of various public and private institutions. The method chosen for this was distinctly noncoercive. Later, civil rights statutes, such as the three we will study in this report, have continued to place heavy emphasis on technical assistance, even though all three operate under what we call an enforcement model. The important role technical assistance continues to play under voluntary compliance and enforced-compliance models alike serves to underscore the complexity and difficulty of fully implementing accessibility design and practice in the E&IT industry.

3. The Enforcement Model

No disability civil rights law is absolute in its requirements. Where excessive cost or other factors make a proposed action or remedy an "undue burden" or render it "not readily achievable," the laws will not insist that it be done. In such cases alternatives need to be found, but each of these is subject to the same tests. Accordingly, any suggestion that enforcement is now a primary tool on which we rely for accessibility must be qualified from the outset.

Within this framework, the ADA, Section 255, and Section 508--the three principal civil rights statutes enlisted in the struggle for information-technology access during the 1990s--all create definite and measurable expectations of what the private sector business must do in its multiple roles of employers, public-accommodations providers, and product developers or suppliers. Coming from government, from the disability community, and from other segments of society, these expectations combine to create what may fairly be termed a climate of enforcement. Whether this model in all its various formulations will work, only time, together with further developments in technology, will tell.

Each of the models discussed in this chapter finds echoes in the three seminal civil rights statutes introduced and examined in the next chapter. But whatever model or combination of models we rely on, the question of whether E&IT access should be regarded as a civil right ultimately depends on more than law. If at the dawn of the 21st century we say access to E&IT is a civil right, we do so not merely because of the expectations surrounding such access, nor because of the undergirding of laws that weigh in on the subject. Rather, we say it because E&IT is the overwhelming means by which people receive, process, and disseminate information today. If we lived in that era when conversation, the pen, and the pencil were the main modalities for conveying and receiving information, we would say that access to those technologies and their products constituted the measure of basic information equality. Today, when sophisticated E&IT is the primary medium of exchange, it is equally true that access to its modalities is for all practical purposes the measure of access to information itself. To say that people have no right of access to these technologies is to say nothing less than that they have no right to earn a living, get an education, withdraw $20 from their own bank accounts, buy a public transit ticket, or communicate with their families across the country.

The Legal Framework of Information Technology Access Rights

In a democracy, the right of the citizenry to information is a subject of constant concern and debate. When people speak of the right to information, they are generally concerned with such matters as governmental secrecy, personal privacy, or institutional accountability. The information technology (IT) access issues discussed in this report are of a different order. Our concern is with accessibility and usability of information that in law and custom is routinely available to and expected by all.

The laws that concern us here are those providing access to electronic and information technology (E&IT) to persons with disabilities. These laws take as their fundamental assumption that where technology or other means exist for making data available on equal terms to people with and without disabilities, these means should be utilized whenever possible. Accordingly, in analyzing E&IT access rights, our focus is on the three federal statutes that have the greatest impact on the subject: the Americans with Disabilities Act (ADA)¹³; Section 255 of the Federal Communications Act of 1996¹⁴; and Section 508 of the Rehabilitation Act as amended in 1998.¹⁵

Before we examine these statutes, a word about terminology: Different statutes use different terms to describe the kinds of technology with which they and we are concerned. In this study, unless the context indicates otherwise, we will use the term "E&IT" to describe such technology. This term, used in Section 508, derives from the Clinger Cohen Act of 1996, the major statute dealing with Federal Government information resources and information management practices. Although the term is relatively new and perhaps unfamiliar to some, we believe that E&IT will become the predominant term used in discussions of information technology access rights.

As discussed further in Section C below, the range of devices falling within the definition of E&IT is inclusive, encompassing all equipment, software, and Web sites used for creation, storage, transmission, or manipulation of information and data. Our major focus here will be on computers (including software and peripherals), telecommunications equipment, automated teller machines (ATMs) and information kiosks (including Web-based kiosks), and other Internet Web sites and resources.

A. The Americans with Disabilities Act of 1990 (ADA)

The ADA bans discrimination on the basis of disability in employment (Title I); in provision of public services by state and local government (Title II); and in provision of or access to goods, services, and facilities of public accommodations and commercial facilities (Title III). In addition, Title IV requires provision of telephone relay services. Our discussion focuses on Titles I, II, and III. Each of the ADA's three major civil rights titles has different implications for E&IT access rights.

1. Employment

Title I of the ADA is broadly concerned with access and equality of opportunity in the workplace. It is applicable to all issues that might give rise to discrimination, unequal opportunity, or disparity in the terms, conditions, or benefits of employment.

Situations involving arguable discrimination based on inaccessibility of E&IT are readily foreseeable. Imagine, for example, the case of an otherwise "qualified individual with a disability" denied employment on the ground that her disability prevents her from using the computers required for job performance. From the standpoint of Title I, denial of employment on this basis is no different from denial on any other disability-related grounds. Here, as in any other alleged employment discrimination context, if investigation determined that access to the computer was difficult or impossible, consideration of reasonable accommodations would be triggered.

Title I requires employers to make reasonable accommodations when doing so would not constitute an "undue hardship" or fundamentally alter the nature of the employer's business.¹⁶ Thus, if an appropriate technological solution exists, the employer would ordinarily be required to implement this solution.

But application of Title I in the E&IT context presents two distinct legal problems. First, although Title I contemplates an interactive process whereby the employer and employee jointly arrive at an appropriate individualized accommodations solution, and although the law accords preference to the accommodation preferred by the worker, case law makes clear that in the end, the employer makes the final decision. Typical are two cases, one involving a modified computer keyboard¹⁷ and the other involving a request for a teletypewriter (text telephone),¹⁸ in which the employers were allowed to restructure the jobs to eliminate the E&IT-oriented functions rather than provide the equipment. Only in a case where E&IT accessibility represented the sole reasonable accommodation possible would the law require an employer to make it accessible.

The second problem associated with application of Title I to E&IT is the high potential for disagreement over the adequacy, cost, and feasibility of E&IT accessibility modifications. Even experienced professionals within corporate IT departments are likely to have little or no knowledge of the costs or possibilities of E&IT accessibility. While employers do have an obligation to research possible solutions in reasonable accommodations situations, the ability on the part of employees to identify both appropriate technology and sources of information is likely as a practical matter to prove crucial to the success of many accessibility-oriented accommodation requests.

The Equal Employment Opportunity Commission (the agency charged with primary responsibility for implementing Title I) favors mediation as a means for resolving employment discrimination complaints without litigation. But mediation will not resolve factual disputes surrounding the feasibility or cost of E&IT accessibility solutions. Mediators may be able to persuade the parties to agree to seek the assistance of independent outside experts, but even this requires that someone--the mediator, the employer or the employee--know or suspect that qualified technical assistance and expertise are available.

2. Public Services

With Title II, the requirements of the law are likewise broad. State and local government agencies are prohibited from discriminating on the basis of disability in providing services or conducting activities. These entities are obliged to implement reasonable modifications in "policies, practices, and procedures" where necessary to prevent discrimination or to afford equal access and participation. From the standpoint of Title II, once again it does not matter that the arguable discrimination results from the use or inaccessibility of E&IT.

One obligation of governmental entities under Title II is ensuring "effective communication" with members of the public seeking information or services or to participate in activities. Means for achieving effective communication include providing auxiliary aids and services, among which technology-oriented solutions are included.

"Auxiliary aids and services includes--

(1) Qualified interpreters, notetakers, transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed-caption decoders, open and closed captioning, telecommunications devices for deaf persons, videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments;

(2) Qualified readers, taped texts, audio recordings, brailled materials, large print materials, or other effective methods of making visually delivered materials available to individuals with visual impairments."¹⁹

"Acquisition or modification of equipment and devices" is also mentioned among the examples of auxiliary aids and services listed in the regulations, but in a nonspecific and general way. Interestingly, though certainly appropriate in many cases, use of electronic media, including computers for people who are blind, was not included in the list of examples, despite indications that commenters on the proposed regulations urged the Department of Justice to include them on the list.

Let us suppose that a municipal government decided to use information kiosks to provide forms for personal use by citizens (such as in applying for various permits) or for the dissemination of brochures and information of general interest to the public. If the information transaction machines (ITMs) were inaccessible to people with disabilities, the normal processes of the law would once again need to unfold. But in the case of Title II the question of whether the ITMs could be made accessible without imposing an "undue burden" on the local government might have to be deferred until a preliminary jurisdictional question was answered.

Because Title II covers "programs" and "activities" of local and state government, some public officials have expressed the opinion that ITMs, public terminals, and other public access computers do not constitute programs or activities within the meaning of the law or within any widely recognized definition of what governments do. On this basis, a municipality might interpose a jurisdictional defense, claiming that Title II does not apply. No court is known to have endorsed this position, but the likelihood of such arguments being raised should be anticipated in any Title II public E&IT accessibility setting.

Returning to the normal ADA process, the first question would concern the potential cost and difficulty of making the ITMs accessible. Here the law presents a problem. In determining whether a proposed modification is reasonable, the law looks at the actual costs and difficulty such modification would entail. Modification of the ITMs after they have been designed or after deployment has begun involves retrofitting which is almost always more expensive and more difficult than accessible design from the outset. The law does not provide clear guidance on how the unnecessary but nevertheless very real costs of retrofitting are to be handled. While courts have not been sympathetic to undue burden claims arising from costs that respondents should have foreseen and could readily have avoided, and although courts have not treated such costs as barrier removal costs (which are subject to the more lenient "readily achievable" test rather than to the undue burden standard), the political consequences of heightened costs may all too easily overwhelm the legal solution.

Title II also poses another problem in application to public sector E&IT. The municipality may have the option to decline making the ITM accessible, even without pleading undue burden, if it can prove that under the facts and circumstances of the case, some other strategy for providing the information meets the requirements for "program accessibility." If the local government had made alternative arrangements by way of auxiliary aids or services for people to obtain the forms or information (say from an information desk at a nearby accessible public building), then the legal question would become whether program accessibility had been achieved. Is the communication "effective"? This is a question of fact, its answer depending on such factors as convenience, completeness, timeliness, and other variables.

Few cases involving inaccessibility of E&IT under Title II have arisen. In one interesting case, accessibility advocates sought injunctive relief to stop the state of Washington from going ahead with installation of an inaccessible kiosk system.²⁰ The case never went to trial, and the state abandoned its plans to implement the system, but persons familiar with the case consider it likely that the state's decision to pull back the system resulted from the threatened lawsuit.

Case law at the administrative level has pointed the way toward the solution of one major problem surrounding the application of Title II to E&IT. The problem, which actually occurs under all three civil rights titles of the ADA, relates to the fact that so many of the obligations of covered entities are triggered by requests from individuals with disabilities. In the case of E&IT access, such requests may often come too late, since by the time an individual is confronted by an inaccessibility problem, the underlying E&IT infrastructure of the school or company or government agency may not allow for implementing the necessary changes. For this reason, the ADA needs some mechanism for moving the discussion from individual requests for accommodations, modifications, or auxiliary aids and services to accessibility measures proactively implemented by covered entities.

Title II provides such a mechanism in the form of its provisions bearing on ADA self-evaluation studies that covered entities are asked to conduct.²¹ A half dozen cases involving information access complaints against public postsecondary institutions in California during 1992-1999 deal with the role of self-evaluation and advanced planning in connection with auxiliary aides and services under Title II.

In these cases (all but one arising under the dual jurisdiction of Title II and Section 504 of the Rehabilitation Act), the U.S. Department of Education's Region IX Office of Civil Rights (OCR) entered into voluntary settlements with several individual community colleges, with the entire state community college system, with branches of the California State University (CSU) system, and with one private university. These complaints all involved claims of information or IT inacces