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The ADA and its application to World Wide Web sites

Walter Olson
Senior Fellow, Manhattan Institute
House Judiciary Committee, Subcommittee on Courts and the Constitution
February 9, 2000

Walter Olson
Wilton, CT 06897

Thank you, Mr. Chairman and committee members, for the chance to address this panel.  The exposure of website publishers to potential liability under the Americans with Disabilities Act is a subject of peculiar interest to me, for two reasons.  First, I’ve written regularly over the years about the often surprising and unanticipated consequences of the ADA, in several chapters of my 1997 book The Excuse Factory, as well as in articles published in numerous newspapers and magazines.  Second, I have myself been devoting much of my effort for more than half a year to web publishing, in the form of a website whose name is -- with all due apologies to the attorneys with which this room is filled -- www.overlawyered.com.  Unlike many writers who start up websites, I handle all of the technical side myself, which means that I encounter every day issues of design and content of the sort that could raise issues of legal liability under widely accepted interpretations of the ADA.

Today I will briefly explain why I view the ADA’s application as a serious threat to the freedom, spontaneity and continued growth of the Web.  Indeed, it would be hard to find a better way to curb the currently explosive upsurge of this new publishing and commercial medium than to menace private actors with liability if they publish pages that fail to live up to some expert body’s idea of accessibility in site design.  Equally disturbing is the idea that private publishers may someday feel pressure to use only web authoring tools approved by official bodies, perceiving a risk of liability if they continue to use the earlier programs and homemade HTML fixes that are the current lingua franca of the web self-publishing world.   We would rightly recoil at the idea of letting government certify and approve the typewriters, tape recorders and cameras that news reporters use in their work.  We should be equally skeptical about official moves to certify as obligatory some authoring tools for HTML content.

You will undoubtedly hear today about how some publicized initiatives on web accessibility carry legal force only for sites constructed under federal sponsorship, as opposed to private sites.  However that may be, it is beyond dispute that the ADA applies to a very wide range of private and nonprofit entities, and that, as the U.S. Justice Department has pointed out, the online publishing efforts of these entities are already subject to the law.  That’s not a proposed expansion of the ADA in the future -- that’s right now.   Although we know that the ADA does apply to a wide variety of private websites, no one has a very clear idea of what compliance may entail.  It will be natural for litigants and courts, however, to look to what accessibility standards have been published with official support in deciding whether private sites are in compliance.  However much we might wish to maintain a distinction between hortatory and mandatory standards, such a distinction is not easily maintained in practice.

We have not yet seen many private legal actions against websites for inaccessibility, but they are coming.  Last November’s lawsuit by the National Federation of the Blind against America Online, charging that it has not moved with sufficient vigor to make its services fully available to sightless users, is likely to be only the first of many (see "Lawsuit: AOL Ignores Blind", Reuters/Wired.com, Nov. 5, link now dead).  And although AOL is a very big business, the principles at stake here will filter all the way down to many "mom-and-pop" Internet Service Providers (ISPs), applications providers, online magazines and journals, e-commerce operations of local businesses, and so forth.  A wide assortment of these entities are already arguably open to damage suits on the grounds that their offerings are not sufficiently accessible to disabled users.  So this committee is in no way being premature or alarmist by visiting this area.

* * *

I.  What is considered “inaccessible” in web design?

Per the W3 consortium, inaccessible content includes: “images without alternative text; lack of alternative text for imagemap hot-spots; misleading use of structural elements on pages; uncaptioned audio or undescribed video; lack of alternative information for users who cannot access frames or scripts; tables that are difficult to decipher when linearized; or sites with poor color contrast.”

Many ways of structuring information visually are frowned on in the accessibility literature, such as the use of color to signify information -- for example, indicating losses on a balance sheet in red and profits in black.  Also suspect are many directional graphics such as arrows or pointing hands; many common uses of tables to organize material; and content that displays only in response to mouseovers or other mouse commands.  Among the most significant guidelines is that “equivalent alternative information” should be furnished -- for example, text translation or captioning for an audio clip, or descriptive text for a video clip.

Although we are often told that it is easy to design these features into a website, it is worth remarking that even many of the websites that you might visit in the course of educating yourself about disability rights are themselves out of compliance.  For example, as was widely publicized last summer, the White House site is out of compliance with “Bobby”, and a check this Monday morning confirms that it is still out of compliance.  The same is true of the website of the Leadership Conference on Civil Rights.  Some weeks ago the largest and most ambitious site ever was launched targeting the disabled community: WeMedia.com.  Even this site was out of compliance when it launched, although it now displays a Bobby approval button.  This is not to single out these organizations -- I could easily have offered dozens of other examples.

II.  What if everyone were to take their legal obligations seriously tomorrow?

ADA website accessibility is considered to be the law of the land right now, not at some future point after a period of phasing in.  What would happen if every technically literate American woke up tomorrow determined to publish on the Web in compliance with expert accessibility guidelines, or not at all?

* Hundreds of millions of existing pages would be torn down.  Some of these would eventually be put back up after being made compliant.  Countless others never would.
* The posting of new pages, by the tens of millions, would screech to a near-halt.  A relatively few, mostly larger organizations that have made it up the accessibility learning curve would continue to publish, but everyone else (except for entities exempt from the ADA) would put publishing plans on hold while they trooped off to remedial tutorials, or at least sent their techies there.
* Amateur publishing, as by the owner of a small business or a community group that relied on volunteers, would become more of a legal hazard.  The tendency would be for more entities to turn their web publishing function over to paid professionals.
* Within the ranks of paid professionals, there would be a tendency to winnow out the inexpensive freelancers who can currently post rough-and-ready pages at low charge in favor of those who can certify that they have taken the requisite training to “unlearn” the common (and now to be disfavored) page-construction techniques that have been standard form for years.
* Many widely used and highly useful features on websites would be compromised in functionality or simply dispensed with for reasons of cost, delay or cumbersomeness.  To take but one example, a small town newspaper or civic organization might feel itself at legal risk if it put audio or video clips of the city council meeting online without providing text translation and description.  Such text translation and description are expensive and time-consuming to provide.  The alternative of not running the audio and video clips at all remains feasible, however, and that is the alternative some will adopt.
* Parties subject to the ADA will feel pressure to use government-approved authoring tools rather than the free-form toolkit of HTML authoring methods available thus far.  These government-approved authoring tools are unlikely to escape the need for compromises in cost, functionality or flexibility.

III.  Will enforcement be “reasonable”?

Many disabled-rights advocates see their own legal efforts as pressing only reasonable applications of the law, and not as taking a “mechanical” or extreme approach to enforcement.  With all due respect, however, they can at best speak only for themselves: their enforcement strategy may emphasize working cooperatively with regulated entities and suing only as a last resort, but they cannot prevent others from taking a different approach, and the ADA allows -- encourages, really -- self-generated and entrepreneurial filing of complaints.

For example, in a developing situation that Rep. Mark Foley (R-Fla.) has recently helped call to the attention of the ADA-watching community, an entrepreneurial culture of filing ADA complaints has lately sprung up in South Florida, centered on the activities of a few nonprofits and law firms which have filed more than 600 complaints against businesses large and small including funeral home and motel operators and retailers.  No less than 323 of the cases name as the plaintiff the same 72-year-old plaintiff who happens to be the uncle of one of the lawyers, and that lawyer expects his $275/hour fees to be paid by defendants each time he settles a charge.  See Dan Christiansen, “Besieged by Suits”, Miami Daily Business Review, Dec. 21, 1999, and “Florida ADA complaint binge”, Overlawyered.com, Jan. 26.  Other mass filing operations have been reported in Texas as well.

If it is easy pickings to walk down a town’s main shopping street and find stores that you can hit with an ADA suit over their physical facilities, then it is even easier to browse the web and find websites that are arguably out of ADA compliance.  In fact you could undoubtedly set up a robot to visit the sites for you and report back on their noncompliant status.  Assuming you could find a court with proper jurisdiction over them, you could then proceed to file web-accessibility complaints by the bushel basket.  I am not trying to give law firms any ideas on this, merely pointing out that it is an obvious temptation for someone to start doing this kind of thing once the idea of lawsuits over web accessibility becomes a little more familiar.

IV.  Regulation of speech and content.

I will close by urging us to keep in mind that what we are regulating here is speech and expression.  No one can guarantee that the club of ADA complaints will not be applied as selective leverage by pressure groups or even some day by the government to discipline media sites or other organizations for unfavorable or controversial coverage or opinion pieces.  When we chill the spontaneous publishing of web pages, we chill not only commerce but also the way in which ordinary citizens increasingly broadcast their views to the world.  When we tell people that one particular set of web authoring tools should satisfy their creative needs and that they are wrong to want to retain a full diverse grammar of graphic and design features, we are telling them that an officially approved manner of expression has come to displace the older ideal of free expression.

Finally, a word on “universality”.  Proponents of web accessibility guidelines invariably assert that their systems help advance the web toward this presumably virtuous state of affairs, in which everyone has access to the same content as everyone else.  But the actual effect of their guidelines is to move away from universality on the publishing side, by discouraging and in some cases actually banning users from selecting the verbal, audio and visual syntax and grammar in which they wish to speak.  We would never (I hope) wish the government to address the problem of “language inaccessibility” by requiring that all domestic websites include a full English translation of everything they publish in a foreign language, even though this would be certain to add to their accessibility to American readers.  We rightly sense that such a rule would be an unacceptable infringement on those sites’ freedom of expression.  Why is it so hard to see the same point when it comes to handicap translation?

Thank you for your time and attention.


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