NFB Sues AOL

NFB Sues AOL

NFB Sues AOL

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.

Quite a few Windows-based applications are widely used in the

blind community today. These include (but are by no means limited to) Microsoft Word,

Internet Explorer, the Windows 95 and 98 operating systems themselves, Note Pad, Word Pad,

a variety of e-mail clients (including Microsoft Outlook Express and Quallcom Eudora) and

other software which, so to speak, play by the rules. We have been able to use the

applications we do either because they behave in a standard way or because the developer

of a particular screen access program has gone to great lengths to ensure that a specific

suite of application software works with the screen reading system.With all of this as

background, let me tell you about AOL and the difficulty blind people have using it. As

matters stand today, I as a blind person cannot use AOL without running proprietary

software.

Curtis Chong

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).

The lawsuit specifically states that, unlike other Internet

service providers, AOL "has designed its AOL service so that it is incompatible with

screen access software programs for the blind." As a result, blind people do not have

access to the country's largest Internet service provider and its nearly nineteen million

subscribers worldwide.The suit seeks to enjoin AOL from continued violation of the ADA.

It also asks the court to order AOL to redesign its AOL service in order to allow blind

people to have independent access through screen access software.

Blind people commonly use screen access software to monitor the computer screen and

convert text into synthesized speech or Braille on a device known as a refreshable Braille

display.

Marc Maurer

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.