The State of the Law on Technology and the Blind: What It Is, and What It Ought to Be

by James Gashel

From the Editor: Jim Gashel is the Director of Governmental Affairs for the National Federation of the Blind.

There ought to be a law! This is what we're taught to say in my line of work. I am the Director of Governmental Affairs for the National Federation of the Blind. Having laws made, rather than having machines made, is our way of fixing things and solving problems. This is what many people say is wrong with our country. Perhaps that is so, but I still say, "There ought to be a law!"

For those of us who are blind, the advent of modern and evolving communications technology virtually forces this response--"There ought to be a law." I can remember only a few years ago when a single computer workstation was nothing more than that--a stand-alone computer with a monitor and a printer connected to it. You could use it to process words, keep lists, or perform computations, but that was just about it. If you wanted to find information that did not reside within that system, you would have to go somewhere else to look it up. If you wanted to communicate with another person about the information, you could use the computer to write that person a letter, then print the letter out, drop it in the mail, and hope. That's the way it was, even in the early part of the decade now ending.

I realize that many--perhaps most of you in this group--may not have the same perspective on technology that I do because working in this field is your life. For most people in the world, however, contact with sophisticated computer and communications technology has not been a common, daily experience. Besides, someone else with the ability and skill required could usually be called upon to operate the equipment when needed. If you were blind, unless computers were directly within your line of work--such as programming them--you could avoid interacting with them pretty much altogether. At least that's what I did.

Now the world is changing. That is obvious. And the way we communicate with one another is changing every day. On Monday of this week, for example, I received my first spoken-word e-mail message. I have no idea why the person sent the message as a wave file, using a service called "shout-mail," but, if the message itself was not interesting (which, like most of my e-mail, it was not) the technology used to deliver the message certainly was.

More than being just interesting, of course, the technology which is now at our fingertips has become a regular part of daily life. Access to electronic information technology is absolutely essential. The communications infrastructure now being built will make skilled use of this technology even more essential for anyone, blind or sighted, in the years ahead. Simply put, we are all being forced to become technology-literate, or watch from the sidelines while those who are technology-literate pass us by.

The pace of implementing new ways to communicate and acquire information is frightening to some, but the failure to include a means of nonvisual access is most frightening for blind people. I say that this is most frightening because barriers to communication are intolerable roadblocks to success in the knowledge-based economy of today and beyond. Barriers to the acquisition of information are not the kind of nuisance-level annoyance that the blind can overcome with good training. The barriers in the cyber-world are real. Unless we respond effectively, these barriers now being built will impose a competitive disadvantage upon blind people as a class.

This is obviously a serious matter. Therefore I submit that, among the things which must be done, we need more laws. I know there are laws on the books already to deal with technology access, but we really do need more of them. The Americans with Disabilities Act declares that discrimination on the basis of disability is illegal in public services and in public accommodations provided by private entities. This prohibition is echoed and applied to governmental entities--federal, state, and local--by Section 504 of the Rehabilitation Act of 1973, as amended. Isn't this enough law? I don't think so.

Laws against discrimination are fine as a general proposition, and we usually support them. However, using the law of nondiscrimination to address technology access has not worked, or at least not worked very well. I think this is so because enforcement of laws against discrimination occurs more or less as a case-by-case event. Also enforcement usually occurs to correct wrongdoing after the fact.

With nonvisual access to information technology, we need to correct wrongdoing before the fact--before the technology is built and particularly before it is installed. If that does not occur, the claim of hardship, which will be presented as a defense against a charge of discrimination, may be overpowering. After all, most judges can see, and they generally don't believe that a failure to make a device one way, as opposed to another, would constitute discrimination.

This is why our approach to access has focused on the law of procurement and not solely on nondiscrimination law. I think that most of you are aware of Section 508 of the Rehabilitation Act of 1973, as amended, which was completely revised as a part of the latest series of amendments to the Rehabilitation Act, enacted in 1998.

Section 508 speaks forcefully for access requirements in the development, purchasing, and use of electronic and information technology by agencies of the federal government. Later in this conference Pat Cannon, who serves as one of the public members on the Access Board, will discuss the new standards being developed under this law. These standards are expected to be in effect for all of the federal government next August.

This is certainly part of what is needed, but it is still not enough. About two and a half years ago the National Federation of the Blind published a model bill for states to use in promoting nonvisual access to information technology. To date, five states--Arkansas, Maryland, Minnesota, Texas, and Virginia--have enacted laws patterned on this model.

The provisions of these laws differ somewhat from one state to another, but the general thrust is the same--to require all procurement contracts for information technology to include a nonvisual access clause. In Maryland and most of the other states as well, the content of this clause is specified in the law, requiring (1) that the technology must provide equivalent access for effective use by both visual and nonvisual means; (2) that the technology will present information, including prompts used for interactive communications, in formats intended for both visual and nonvisual use; (3) that the technology can be integrated into networks for obtaining, retrieving, and disseminating information used by individuals who are not blind or visually impaired; and (4) that technology which is designed to be compatible with nonvisual access devices and software will be obtained whenever such technology, not requiring modification, is available.

The bottom-line, fundamental point of this legislation is that systems and technology which are purchased and used by the state must be designed with compatibility for nonvisual use built in from the very beginning. In case you hadn't noticed, the federal government is not the only entity involved in the procurement of information technology. When we placed this bill before the Maryland General Assembly two years ago, the state was expecting to spend close to half a billion dollars on information technology in that year alone. The same is happening everywhere. Cities and counties too are purchasing information technology in order to be part of the new infrastructure being used to communicate and disseminate information.

In the view of the National Federation of the Blind, and I suspect that this is a generally held view within this group as well, any public entity must include criteria for nonvisual access in contracts for the purchase of information technology. The same is true of private entities that provide services to the public. We must see to it that they do it.

Therefore consistent enactment of the model access legislation in as many political jurisdictions as possible, and applying to as many entities as possible--states, counties, cities, school districts, the private sector, etc.--must be placed at the top of our priority list. The technology of the future will certainly have a new look. Our responsibility is to insist upon a new sound and a new feel to the technology as well. The times require it, and the law must demand it.