American Action Fund for Blind Children and Adults
Future Reflections
       Fall 2023      ADVOCACY

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A Roller Coaster of Emotion: The Highs and Lows of Federal Regulations on Website Accessibility (or the Lack Thereof)

by Kyle Walls

Reprinted from Braille Monitor, Volume 66, Number 10, November 2023

Kyle WallsFrom the Editor: Kyle Walls serves as a research and regulatory specialist in the NFB’s Advocacy and Policy Department. He and his colleagues have worked tirelessly to review and comment on long-overdue regulations meant to clarify and implement the Americans with Disabilities Act. In this article he describes some of the most promising gains and troubling setbacks.

On a sunny summer day in Washington, DC, long before most people had even begun to imagine, let alone understand, an idea as conceptually huge as the internet, the Americans with Disabilities Act (ADA) was signed into law by President George W. Bush. The date was July 26, 1990, and the location was the South Lawn of the White House. President Bush remarked that, with the signing of this landmark legislation, "Every man, woman, and child with a disability can now pass through once-closed doors into a bright new era of equality, independence, and freedom."

Then, just a few short years later, as the twentieth century was drawing to a close and the twenty-first century was dawning, concepts such as the website, email, and "surfing the net" started to become household ideas all across the country. In the waning years of the last century and the early years of this century, many American children and teenagers became familiar with having a computer that was connected to the World Wide Web in their school libraries or in a home office that their parents used.

I was one of those teenagers. For all of the younger readers, yes, the dial-up noise that we heard every single time we wanted to connect to the internet was just as bad and annoying as you've been told. It was also a sort of chime, marking our passage through the doorway to a whole new online world.

Unfortunately, that digital world, much like the physical world the ADA was initially passed to reshape just a decade earlier, was not fully accessible to people with disabilities. It would take another ten years before any meaningful action was taken to rectify the problem of inaccessibility in the digital space. On July 26, 2010, on that same South Lawn of the White House where President Bush stood exactly twenty years earlier to sign the ADA, President Barack Obama held a ceremony to announce the publication of an Advance Notice of Proposed Rulemaking (ANPRM) to address the shortcomings in the accessibility of the websites of public entities (ADA Title II) and private companies (ADA Title III).

To be clear, under the Americans with Disabilities Act, websites are required to be accessible to people with disabilities, but frequently companies and state and local governments argue that the law does not provide a clear definition of what it actually means to be accessible. This is where a federal regulation that explicitly defines digital accessibility would be exceedingly useful, both for people with disabilities who need to access the websites and for the entities and companies that are legally required to provide that access. This is why the 2010 announcement of an ANPRM to address that very issue was met with such fanfare, enthusiasm, and anticipation for the rule that was sure to be published in the next few years. Right?

Not exactly. Nearly six years later a supplementary Advance Notice of Proposed Rulemaking (SANPRM), seeking a response to more than 120 questions about digital accessibility, was published on May 9, 2016. Critically, this SANPRM also separated the Title II and Title III regulations, choosing to focus exclusively on Title II. Of course the Federation, along with forty-nine other organizations, submitted formal comments answering many of the questions posed by the Department of Justice (DOJ). It wasn't exactly what we were hoping for, and it was a significant hurdle to jump over, but finally, twenty-six years after the passage of the ADA, and six years after the announcement of forthcoming digital accessibility regulations, there was real movement toward making the online world accessible to people with disabilities.

Unfortunately, that small glimmer of hope would be short-lived. Just eighteen months after the publication of the Supplementary Advance Notice, the Department of Justice announced that it was withdrawing the website ANPRM altogether on December 26, 2017. The Grinch himself, with his heart three sizes too small, couldn't have stolen more holiday cheer than the DOJ did that day for all.

So, for years that's where we were. Shopping, reading, blogging, vlogging, and a host of other things that people do online became commonplace. Constantly connected smartphones had long since become the norm in American society. The 2010s gave way to the new roaring twenties, where an unprecedented pandemic made digital connectivity and accessibility more important than ever. Yet there was still no federally defined standard for accessibility when it came to the online arena. It was outrageous. So the Federation intensified our campaign to get the regulations released.

At the 2021 Washington Seminar, we unveiled the Twenty-First Century Mobile Apps and Website Accessibility Act, which was a priority once again for our 2022 Washington Seminar. On February 28, 2022, we (along with 180 other disability advocacy organizations) sent a letter to the assistant US attorney general for civil rights regarding the promulgation of website regulations. At the 2022 National Convention in New Orleans, we passed Resolution 2022-01: Regarding Need for Federal Legislation Requiring All Websites and Applications to be Accessible. On September 29, 2022, Senator Tammy Duckworth of Illinois and Representative John Sarbanes of Maryland introduced our Websites and Software Applications Accessibility Act, a more focused version of our Washington Seminar legislation, in both the Senate and the House. At the 2023 NFB Convention in Houston, we passed Resolution 2023-01, demanding the promulgation of Americans with Disabilities Act website accessibility regulations.

Though a long time in coming, finally, it seemed that someone was paying attention. On August 4, 2023, more than three decades after the signing of the ADA, and more than a decade after the publication of the Advance Notice of Proposed Rulemaking, the Department of Justice published the ADA Title II Notice of Proposed Rulemaking (NPRM). After thirteen years of waiting and thousands of hours of advocating, the federal government had finally taken the next step in the promise made during those two White House South Lawn celebrations. This was the moment we had been anticipating for years. This was cause for another celebration, a date that would live on in memory for decades to come as the day we finally got the regulations we had been demanding for so long. We were beside ourselves with excitement.
 
And then we started to read the NPRM. The proposed rule established WCAG 2.1 AA as the accessibility standard. We liked that.

The proposed rule defined large public entities as having fifty thousand or more residents and gave those entities two years to meet the WCAG 2.1 AA standard. Small public entities were defined as those having less than fifty thousand residents and they were given three years to meet the standard. We felt the deadlines were a little long, but we were willing to accept them.

The proposed rule maintained the defenses of undue burden and fundamental alteration that were established in the original ADA. We had no quarrel with that.

The proposed rule created seven new exceptions that entities could use to weasel out of their obligation to make aspects of their websites accessible. Wait ... what?

This was shocking and unacceptable. At no point could we have imagined that something so concerning would have been released by the DOJ. The seven proposed gateways descending into inaccessibility were:

As you can tell, these seven exceptions would allow for a tremendous amount of content to be exempt from the accessibility requirements set forth in the rule. Particularly egregious are the two exceptions regarding password-protected course content at elementary, secondary, and postsecondary schools. If the rule were to move forward as is, it would allow password-protected content on a school's learning management system (a.k.a. most of the content used to teach children and college students in our increasingly digital world) to be inaccessible. This ridiculous exception would erect a major barrier for blind students, blind parents, and blind educators.

The exception for pre-existing conventional electronic documents is just as outrageous. The NPRM gave examples of formats that would fall under this category. They include word processor files, spreadsheet files, presentation files, and PDF files. Every file type listed is easily made accessible, usually with only a few extra minutes of effort, making this exception wholly unnecessary. It is abundantly clear that the Department of Justice did not consult with blind Americans during the creation of this proposed regulation; otherwise it likely would not have created such broad and unwarranted categories of exceptions. For that reason, we wanted to ensure that our comments regarding this rule were precise, thoughtful, and well-reasoned. We studied the NPRM for several weeks, held numerous brainstorming sessions, and passed around multiple drafts. We took the time and did the research to provide the best possible answers to all questions we thought were relevant, while making our position clear that we absolutely opposed all seven exceptions created by the proposed rule. In the end, we created a powerful set of comments, answering all relevant questions posed in the NPRM and letting the DOJ know, in no uncertain terms, exactly how we felt about the proposed rule. NFB President Mark Riccobono officially submitted our comments to the DOJ on September 19, and we posted them to the Policy Statements page of our website the next day. I sincerely encourage you to go read the entire document. It's not a short read, so you might want to grab a snack and get comfortable before you begin, but I can honestly say it is perhaps the most important set of federal comments that I've had the privilege to be a part of during my tenure with the Federation.

We aren't the only ones who had something to say. At the time of this writing, the submission deadline for comments to the NPRM has just closed. Checking in with regulations.gov, the website where the vast majority of federal agencies accept comments and responses to proposed regulations, I see that 346 individual comments were submitted. Many of those comments are from Federation members. Even though the Department of Justice didn't consult with us before releasing their proposed rule, they are certainly going to hear from us now. I just hope they're paying attention, for real this time.

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