Access to Electronic and Information Technology: Evolving Federal Standards for Nonvisual Use

by Pat Cannon

From the Editor: Pat Cannon is a member of the U.S. Architectural and Transportation Barriers Compliance Board and Director of the Michigan Commission for the Blind.

I am pleased to be here. Dr. Maurer introduced me as a member of the Access Board and also as the Director of Michigan's Blind Rehabilitation Agency. Both are accurate, but I'd also like to be wearing a consumer hat today as well, and along with that would be the advocate's hat. Richard was talking about the challenge of being the first speaker after lunch. I can relate to that a little differently. I think I am the eighth or ninth speaker today. I sort of feel like Zsa Zsa Gabor's eighth or ninth husband. My challenge will be to do something interesting or different.

I'd like to start with a confession that I too have committed illegal operations. My computer talks to me and has told me so. It's interesting the things that computers will do to you. It's what Mr. Kurzweil was talking about this morning: taking on a life of their own and being sensitive and so forth. Not long after I had that admonishment, I was composing a memo, and the computer said to me without solicitation, "It looks like you are trying to write a letter." I didn't ask for that.

My impulse was to say, "Who asked you?" or "What's it to ya?"

I'd like to talk about what the U.S. Access Board is. The full name is the United States Architectural and Transportation Barriers Compliance Board. It is an independent federal regulatory agency, and the only agency in federal government that has more letters in its name than it has federal employees, which tells you that it is a small office, located in Washington, D.C. The Access Board was originally established under the Rehabilitation Act to enforce what's called the ABA, the Architectural Barriers Act, which covers access of federal facilities like post offices and so forth. That was the original role of the Access Board. Beyond that, though, it took on a major role when the Americans with Disabilities Act (ADA) was enacted in 1990. The role of the Access Board at that time was to draft and have the Department of Justice adopt what were called the ADA Accessibility Guidelines (affectionately referred to as ADAAG).

The Accessibility Guidelines for the ADA really set out the standards for providing accessibility in the built environment consistent with requirements of the ADA. This includes scoping requirements and technical requirements and so forth. On the subject of ATM's (automatic teller machines, banking machines) or otherwise interactive-transaction machines, those are covered under the ADA. We believe that the ADA Accessibility Guidelines are under revision right now, and when the new guidelines come out, we believe that you all who were concerned about access for blind people at ATM's will be encouraged by the new requirements that will be embodied in the new ADA.

That's been the role of the Access Board with ABA and the ADA, and about three years ago we had another responsibility, which took us into a new arena, one that was very satisfying, particularly to a lot of people with sensory disabilities. In 1996 Congress enacted and the President signed into law the Telecommunications Act, and the Access Board then took on the responsibility of drafting the rules to implement the Telecommunications Act. Our job was to write the accessibility guidelines for telecommunications equipment and customer premises equipment--things like answering machines, caller ID's, pagers, and all the things that come under the umbrella of telecommunications. Earlier this year the Federal Communications Commission (FCC) adopted our guidelines as regulations and gave them the force of law.

I want to talk about the process we've used for the Telecommunications Act Guidelines, as well as for the revisions of the ADA Accessibility Guidelines. It's called an advisory-committee process. It's important because it follows a mandate by President Clinton to negotiate, not dictate. The composition of the Access Board, by the way, is thirteen public members appointed by the President, and twelve federal agency members, so it's a twenty-five member board. But the Administration's mandate was not to make rules in a vacuum in an office or a meeting room in Washington but rather to get out of Washington, get into the communities, and get input from the stakeholders into the rules being made. That's really what the advisory-committee process is all about.

When we were going through the revisions to the ADA Accessibility Guidelines and the Telecommunications Act, we used the advisory-committee process. In this process members of the Advisory Committee included relevant stakeholders. For example, in telecommunications, representatives from the telecommunications industry were there; the technology industry was represented; (a lot of folks here in this room served on that Advisory Committee), as well as people with disabilities and advocacy organizations.

That advisory-committee process is really the first step in rule-promulgation. They effectively make a recommendation to the Board of what the guidelines should look like. The Board then considers them, maybe tweaks them, and ultimately publishes them in what's called a notice of proposed rule-making.

That's very similar to the process we used with Section 508. You heard earlier today from Dr. Schroeder and also Mr. Gashel a little bit about Section 508. As you heard, Section 508 was originally put into the Rehabilitation Act in 1986 to require the federal government to procure and use only accessible electronic and information technology. The problem with Section 508 at that time was that the guidelines set forth were really not binding, and there were, to be blunt, no teeth in that language. Section 508, I think, is now much stronger.

As you heard earlier, on August 7, 1998, when Congress passed the Workforce Investment Act, the Rehabilitation Act Amendments became part of that, and as such Section 508 was rewritten and now has some strength in it. That's what I'd like to comment on briefly. The process again used an advisory committee. Curtis Chong was on that committee, and maybe some others in this room. As a starting point I think we used some of the same language and processes we used with the Telecommunications Act because to some extent we are talking about similar kinds of technology.

Out of that came the recommendations from what's called the EIAAC (Electronic and Information Access Advisory Committee). The EIAAC set forth its recommendations to the Access Board, and we are in process right now; in fact, as we speak, in Washington they are putting the last pages to bed, and within three weeks we will see the proposed rules for Section 508 published as a notice of proposed rule-making. We expect that to happen somewhere between the middle and end of November. That's the process that has gotten us to this point. You now have a little background in what the Access Board is and, perhaps, what it is not, as well.

Electronic and information technology really is all of those things that come into play in transporting information, whether it's computer hardware or software--any kind of information conveyance is covered under information technology. As a starting point we used the definition of information technology which was included in another federal statute called the Clinger-Cohen Act. The federal government is the entity covered under Section 508. Any federal agency or department is covered under 508 and, as such, they may not develop, procure, use, or in any other way put in place electronic information technology that is not accessible to people with disabilities.

Section 508 does not cover the private sector. When we first published the committee report, there was some misunderstanding in some parts of the country. People thought that it applied to private industry or to private Web pages and so forth. It does not; it applies to the federal government or to any item that is contracted for with the federal government. That's who it applies to. The requirement of the federal government is pretty clear. The technology that is in place must be accessible to and usable by people with disabilities.

The exceptions to that are quite limited, similar to what's in the ADA. There is a defense of undue burden, which is significant difficulty and expense. Even if the federal agency could make the case of significant difficulty or expense or undue burden, that does not take them off the hook for having to provide the information or data in another way that is accessible to and usable by a person with a disability. There is also a narrow exception for national security interests, combat, arsenals, and so forth that those kinds of systems are exempt from the Section 508 requirements.

I talked about having more teeth in it. The enforcement mechanism in Section 508 is going to be what is to be called the Federal Acquisition Regulations (FAR). These guidelines are what federal government is guided by in procuring all of the things that it requires. They are pretty stringent requirements. The accessibility provisions of Section 508 will become part of the FAR regulations or the FAR Manual. The enforcement power is that, if people--federal employees or citizens--believe they have not been granted the accessibility they need by an agency because information was not available to them because of disability, they could file a complaint. The complaint process is very similar to the process in place for Section 504 of the Rehabilitation Act. People can be given injunctive relief and compensation for attorney fees and so forth. Section 508 does not provide for compensatory or punitive damages.

We expect that the rules will be published, as I said, by the end of November. There will be a sixty-day comment period, and after that the federal-acquisition-regulation people will have to adopt that in their regulations, and, beginning August 7, 2000, all equipment must be accessible. Any equipment or electronic information technology acquired after that date that is not consistent with regulation would be in violation of the law.

That's the long and the short of where the Access Board is with electronic and information technology. I just want to make one personal comment as a consumer and advocate. There are a lot of brilliant minds in this room who have created magnificent technology, and you have done so because of your talent. You have also taken risks. As a consumer I just want to say thank you. Thank you very much because you have really helped a great deal to level the playing field.