by Barbara Pierce

At 11:00 a.m. on Thursday, November 4, 1999, Marc Maurer, President of the largest consumer organization of blind people in the nation, opened a press conference at the Hyatt Harborside Hotel in Boston. He was there to announce to assembled representatives of the press that the National Federation of the Blind had that morning filed suit in Federal District Court in Boston against America Online, Inc. (AOL). By the close of the day President Maurer would say that it had been the single biggest media day for the NFB in history. The complaint was filed jointly by the National Federation of the Blind, the NFB of Massachusetts, and nine individual blind people who would have enrolled with AOL for their own personal reasons but found that they could not even sign up for the service's e-mail and other online options without the help of a sighted person.

These problems are no surprise to anyone using speech technology. For years blind people have grumbled in frustration at AOL's inaccessibility. Finally, a year ago, Curtis Chong, Director of the NFB's Technology Department, wrote a letter to AOL in an attempt to open direct discussions with the company about the problem. This is what he said:

Baltimore,   Maryland

October 26, 1998

Mr. Rob Jennings

Vice President of Programming and Development

America Online, Inc.

Dear Mr. Jennings:

My name is Curtis Chong, and I am the Director of Technology for the National Federation of the Blind, a membership organization of more than 50,000 blind men and women with affiliates in all fifty states, the District of Columbia, and Puerto Rico.

I was made aware recently of an e-mail exchange which took place between you and Sue Ruff concerning America Online (AOL) and problems that many blind people have using AOL's system and software. I hope through this letter to provide you with specific information about the problem in the hope that you and your colleagues at AOL will take steps to improve our ability to use this popular service.

People who are blind can and do use commercial off-the-shelf programs written to run under the Windows operating system. The information that is displayed on the screen by these programs is made available to the blind computer user non-visually, using a class of software referred to as screen access programs. These programs monitor what is happening on the computer screen and convert the information into synthesized speech or refreshable Braille. In order for these programs to function effectively, it is vital for the commercial applications to function in a standard way—for example, making heavy use of the insertion caret, providing keyboard access to all functions, moving the focus whenever the keyboard is used, and relying upon standard Windows controls (e.g., dialog boxes, combo boxes, list boxes, edit boxes, and push buttons) as opposed to painting custom controls on the screen.

Screen access programs can provide a way to manipulate the mouse pointer through the keyboard, but the manipulation process is generally awkward and does not always provide the blind computer user with the information that a sighted person takes for granted because it is displayed on the screen. For example, if the mouse pointer comes across an unlabeled icon, the screen access program will probably not recognize it and will therefore not alert the blind computer user to its presence, not to mention its meaning.

Although I have heard of one screen access vendor's making it possible to use the AOL software to send and receive e-mail, the overall situation is that blind people find the AOL software difficult if not impossible to use with their screen access programs. The software does not provide enough access to its functions via the keyboard, and it does not display information on the screen using standard Windows controls. Screen access programs have difficulty, therefore, determining what items are selected, not to mention influencing the application to perform the bidding of the blind computer user.

In terms of overall perception, I should tell you that America Online is not well regarded by many blind people. Those of us who want access to the Internet typically sign up with another Internet service provider which does not require us to use proprietary software. In the short-term some of our problems would be alleviated if AOL would support a standard point-to-point-protocol (PPP) connection through which we could login to the system, run our own browsers, and use our own e-mail clients. A more desirable solution in the long run would be for AOL to modify its proprietary software so as to ensure compatibility with screen access technology for the blind.

In this regard the National Federation of the Blind operates the most extensive technology center for the blind in the world. Among other things our International Braille and Technology Center for the Blind contains every English-speaking screen access program for the blind sold today. If AOL is willing to modify its software so that it is more compatible with our screen readers, we would be pleased to conduct the necessary tests to ensure that AOL is fully accessible to the blind.

Mr. Jennings, I am hopeful that this letter will prompt you and your colleagues to solve the accessibility problems I have identified. If America Online is to be a service from which everyone can profit, then it must be accessible to the blind.

I look forward to hearing from you.

Yours sincerely,

Curtis Chong

Director of Technology

National Federation of the Blind

Weeks passed with no response from AOL to the Chong letter. Then in December Rob Jennings called Mr. Chong to say that AOL was working on the problem and would certainly like to discuss things with the NFB. Curtis urged Jennings to come to visit the International Braille and Technology Center, and Jennings said that he would see about bringing a delegation early in the new year. (AOL's headquarters are in the Virginia suburbs of Washington, D.C., so visiting the IBTC did not represent a great sacrifice of time or money for AOL.)

But nothing more was heard from Jennings. Then in March Curtis Chong read a notice from the AOL president's office assuring the world that they were working hard on text-to-voice and voice-to-text technology. Mr. Chong decided that the announcement was a pretty good indication that AOL still didn't get it. Some people undoubtedly have an interest in being able to speak their messages and commands to the computer and listen to received messages on the telephone, but what blind people need and what he had been talking about in his earlier letter was effective access to the AOL software that the rest of the world takes for granted. So he wrote yet another letter to AOL, this time to Steve Case, who had sent the e-mail message about AOL's commitment to voice-to-text and text-to-voice interfaces. In it he described yet again what the problem is, what blind people need, and what AOL would have to do to make access to its service possible. For good measure he enclosed the October 26 letter to Rob Jennings.

Still no word came from AOL. By July NFB officials were beginning to plan for the Fourth U.S./Canada Technology Conference on Technology, which was scheduled for late October. In August Dr. Maurer asked Mr. Chong to explore the possibility of inviting senior AOL officials to the conference to discuss problems and possible solutions to the accessibility difficulty. An e-mail inquiry to Rob Jennings bounced back to Mr. Chong because Jennings had left AOL, but by calling Jennings's phone number at AOL, he located someone else with whom to exchange inconclusive e-mail messages. Then several weeks passed with no comment from AOL. When Mr. Chong wrote again, he was told that he would hear within the week. He didn't. Then a consultant from a public relations firm called to say that she, the head of AOL's Communications Department, and representatives from the National Center for Accessible Media (NCAM) would be willing to come to the conference and listen but she needed details of precisely when the AOL talk would occur so that they could come in and leave quickly.

The entire purpose of these technology conferences and in large part the reason for their importance has been the dual principles that in every instance only true decision-makers are invited and may attend the conference, and conferees commit to stay for the entire event. Mr. Chong wrote back regretting that, because AOL was not willing to meet these requirements, there would be no point in anyone from AOL's bothering to drive to Baltimore to wave the flag for the provider.

It is interesting to note that the day before the conference was scheduled to open, AOL undertook a flurry of activity to pressure the NFB into letting its PR types make their presentation, but by then the effort was much too little and much too late.

NFB attorneys were preparing to file a complaint in Federal District Court, and Dr. Maurer decided to file it early on the morning of November 4 in Boston's federal courthouse. By 11:00 a.m. on that Thursday Dr. Maurer, Mr. Chong, the attorneys, and a number of the individual plaintiffs were gathered in an area hotel to talk with members of the press and demonstrate just what difficulties blind computer users have in trying to access AOL. Here is the text of the press release that was part of the press packet handed out to reporters:

FOR IMMEDIATE RELEASE

NATIONAL FEDERATION OF THE BLIND SUES AMERICA ONLINE, INC.

Charges America Online Internet Service Is Inaccessible to the Blind, Violates ADA.

BOSTON (11/4/99)--The National Federation of the Blind (NFB) today filed suit in U.S. District Court for the District of Massachusetts against America Online, Inc. (AOL). The suit by NFB, the National Federation of the Blind of Massachusetts, and nine individuals, all of whom are blind, charges that America Online's Internet service (AOL service) is inaccessible to the blind, violating the Americans with Disabilities Act (ADA).

In designing its proprietary software to be incompatible with screen access programs, AOL service "has failed to remove communications barriers—thus denying the blind independent access to this service in violation of Title III of the ADA," the suit charges.

"Blind people can and do make extensive use of computer programs, including commercial applications, by using screen access software," says NFB President Dr. Marc Maurer. For screen access to work effectively, however, the commercial software:

Must provide text labels for all graphics;

Must permit keyboard access to all functions;

Must move the focus whenever the keyboard is used; and Must rely upon standard Windows controls, such as dialog boxes, list boxes, edit boxes, etc.

In contrast, AOL service users are required to run proprietary AOL software that employs unlabeled graphics, commands that can be activated only by using a mouse, and custom controls painted on the computer screen.

"Screen access programs cannot read an unlabeled graphic, cannot provide an effective way to manipulate a mouse pointer, and cannot read or activate non-standard custom controls that are painted on the screen," explains Maurer. "As a result, blind people are effectively precluded from using the America Online Internet service."

Curtis Chong, NFB's Director of Technology, notes that the technology to redesign the AOL Internet service in order to permit accessibility by the blind already exists.

service nor cause any undue financial burden to AOL," says Chong. "Despite our best efforts, though, AOL has steadfastly refused to modify its software in order to ensure compatibility with screen access technology for the blind."

As a result of AOL's failure to redesign its Internet service, the suit charges the Internet provider with violating the ADA's auxiliary aids and services mandate.

The NFB suit also charges the AOL service with violating the ADA's "reasonable modification" and "full and equal enjoyment" mandates for the company's failure to make its services fully accessible and independently usable by individuals who are blind. NFB has long been actively involved in promoting adaptive technologies for the blind so that blind people can live and work independently in today's technology-dependent world.

The organization runs the International Braille and Technology Center for the Blind at its headquarters in Baltimore, Maryland. The Center, which houses more than $2 million worth of hardware and software designed specifically for the blind, is the world's most extensive demonstration and evaluation center for computer-related technology serving the needs of blind people.

The AOL suit proved to be a very interesting story for reporters. President Maurer and Mr. Chong did interviews with the Wall Street Journal, the New York Times, the Washington Post, both Boston papers, several TV stations, CNN, Associated Press, and lots of other media. Typical of the coverage was the Washington Post story of November 5:

The National Federation of the Blind yesterday filed a lawsuit against America Online, Inc., contending that the Internet service provider discriminates against the blind because its system is incompatible with software that helps the visually impaired use computers.

The suit, filed in U.S. District Court in Boston, says AOL is violating the Americans With Disabilities Act by refusing to modify its programming despite several requests over the past year. Most aids that translate computer graphics and text into Braille or sounds do not work with AOL's current software.

"They say that ‘we would really like to help you,'" said Curtis Chong, technology director for the Federation. But, "in the end, they have not fixed the problem."

AOL spokesman Rich D'Amato said company programmers are working on a new version of its software, due out next year, that will be accessible to the visually impaired. "We are disappointed that they have filed their lawsuit," he said.

The screen-access scanners the blind use to read graphics depend on them to be tagged with words that describe the pictures. Many other Internet service providers, including MindSpring and AT&T Corp., use such labels, Chong said. But AOL's ubiquitous "You've got mail!" thumbnails, advertisements, and other icons do not, making it difficult for the blind to maneuver through the system and find the information they want. The service provider's software also presents a problem because it requires customers to use a mouse click, instead of a keystroke, to perform some functions.

Chong said his office has fielded about ten complaints a week for the past two years from blind consumers frustrated at not being able to hook up to AOL.

Cathy Schroeder, a computer programmer from Reston, attempted to sign up with AOL but was thwarted by pop-up boxes of advertisements. The boxes commanded her to click on them to continue. Schroeder, who is blind, remembers spending several minutes sweeping her mouse around and randomly clicking to try to get rid of them: "That's as far as I got until I threw up my hands and said, ‘I can't use this.' I couldn't even sign on."

Daniel Goldstein, a Baltimore lawyer representing the Federation, said the suit is the first to demand that an Internet service accommodate blind users. He said the advocacy group singled out AOL because it is the world's dominant provider, with nineteen million subscribers.

"It's so pervasive," he said, "that the blind feel particularly hurt by being shut out by AOL."

The immediate coverage of the story looked pretty much like the Post story. But on Monday, November 15, the National Law Journal, a prestigious publication catering to attorneys, printed a story that explored the underlying issues. All the lawyers the reporter reached for comment were specialists in business law of various kinds. The fact that several of them found merit in the NFB position demonstrates that this case is already having an impact in disability and technology law. Here is the story:

Net Rights for the Disabled?

by Ritchenya A. Shepherd

A suit against America Online, filed by the National Federation for the Blind, could have widespread ramifications in the online industry and for a variety of other service-based businesses, lawyers say.

The suit puts squarely before a federal court the question of whether an Internet-based service is a public accommodation and therefore, under the Americans With Disabilities Act (ADA) of 1990, is required to provide access to people with disabilities.

"It's a 500-pound gorilla that party-goers can't ignore," said Robert A. Naeve, a labor and employment partner at San Francisco's Morrison & Foerster L.L.P. "If the court rules that AOL is a public accommodation, it could require anyone engaging in e-commerce to make their Web site...accessible to people with disabilities."

The Baltimore-based Federation brought suit on November 4 in U.S. District Court in Boston, claiming that AOL is in violation of the ADA because its proprietary software is not compatible with the screen-access software used by blind people.

"We get hundreds of complaints about AOL every year," said Dr. Marc Maurer, the group's president. Members call, he said, "asking how they can make their machines work with AOL, and the answer is: You can't."

Blind people use software to monitor their computer screens and convert text into synthesized speech or Braille. But such programs cannot read many of AOL's unlabeled graphics of custom controls and can't process functions requiring use of a mouse rather than keystrokes, the complaint says.

There are about 700,000 blind people in the United States, Dr. Maurer said. A recent poll says that 60% to 70% of the Federation's 50,000 members use computers. "We have called AOL many times and written a few times. They have said they're all for access, but they never do anything about it," he said.

The law on whether online providers are public accommodations isn't clear. "There's nothing that addresses it squarely in the statute," said Gary D. Friedman, a New York labor and employment partner at Chicago's Mayer Brown & Platt.

JUSTICE DEPARTMENT VIEW

A 1996 opinion by the Department of Justice concluded that the ADA does apply to companies and government agencies offering products and services over the Internet, but that opinion never has been judicially interpreted, said Jonathan S. Quinn, a partner at Chicago's Sachnoff & Weaver Ltd.

And a DOJ [Department of Justice] regulation requiring public accommodations to ensure access to their goods indicates that they are not required to alter the nature or mix of those goods, Mr. Naeve said. He cited the example of a bookstore, which must make its facility physically accessible but does not have to stock Braille or large-print books.

The federal circuit courts are split over whether the ADA-which enumerates places of accommodation such as concert halls, parks, and restaurants—can be stretched to cover other types of service businesses. The U.S. Courts of Appeal for the Third and Sixth Circuits "flat out say that a public accommodation is a physical place," Mr. Naeve said. "If you follow that, then the Internet is not a public accommodation."

However, the First Circuit—where the NFB sued—has held otherwise. In a 1994 case, Car Parts Distribution Center v. Automotive Wholesalers Association, 37 F.3d 12, the court held that being a public accommodation doesn't demand a physical structure for people to enter. "What the plaintiffs in the AOL case are arguing represents a rather expansive interpretation of the ADA," said Edward S. Mazurek, a labor and employment partner at Morgan, Lewis & Bockius L.L.P. in Philadelphia. In addition to affecting on-line businesses, such a reading of the statute could affect other service providers, such as telecommunications companies and insurance companies, which could be forced to alter access to their services to accommodate people with disabilities.

Given the stakes, it appears to be in AOL's interest to settle, Mr. Friedman said: "They have a lot to lose....They don't want to create any adverse law."

AOL would not comment on the possibility of a settlement. But the company already is well on its way to making its service more accessible to the blind, said company spokesman Nicholas J. Graham.

Next year AOL plans to release an updated version of its software that can interface with screen readers, as well as a feature to allow AOL members to have their e-mail read to them over the telephone.

There you have what happened on the fourth of November and what people have been saying about it. Now comes the period of waiting. Blind people who want to sign up with AOL are no better off than they were a month ago, but it's safe to say that we have finally gotten AOL's attention.