Does web accessibility really “place ruinous obligations on websites”? – analysis of Internet Association brief

“Applying the ADA to all Web sites may place uncertain, conflicting, burdensome, and possibly ruinous obligations on members of The Internet Association.”

This, according to ConsumerAffairs and Media Post News, is what a brief claims that was filed last week by the Internet Association, which represents Google, Amazon, Facebook, AOL and eBay, among others.

The brief is a defence from some of the Internet’s leading companies to the latest round of “does the Americans with Disabilities Act apply to websites?” to go through the American courts.

This time it’s eBay who are the focus of a disabled person’s case, in a lawsuit that a deaf Missourian, Melissa Earll, brought back in 2010, and which she recently revived through an appeal to the 9th U.S. Circuit Court of Appeals.

According to the article:

the Internet Association rushed to eBay’s defense, filing a friend-of-the-court brief saying the web is far too complicated to accommodate disabled people.

“The Internet is complicated, and its technical inner workings are regulated not by any government, but by a combination of individual technologists and an interconnected web of technically savvy multi-stakeholder bodies that have overseen the Internet’s evolution from the beginning,” the group argues in its brief.

“Neither the Justice Department nor the Federal Communications Commission has a handle on what technical standards would comply with the ADA’s requirements, in part because existing technical standards make for amorphous legal standards.”

“Applying the ADA to all Web sites may place uncertain, conflicting, burdensome, and possibly ruinous obligations on members of The Internet Association.”

I’ve not been able to find a copy of the brief, or any mention of it, on the Internet Association’s website. But, assuming the articles are correct in reporting what the brief says, what are we to make of this extraordinary statement?

‘The web is too complicated to accommodate disabled people’

Let’s start with what the The Internet Association say about themselves and their mission, from their homepage:

“The Internet Association represents America’s leading Internet companies and their global community of users. We are dedicated to advancing public policy solutions to strengthen and protect Internet freedom, foster innovation and economic growth and empower users.” (my italics)

Let’s hope that ConsumerAffairs and Media Post News‘ paraphrase of a section of the brief stating that “the web is far too complicated to accommodate disabled people” is not correctly reported. Otherwise it would seem that the Internet Association don’t believe that disabled people could be part of the “global community of users” that they represent.

I’m sure that would dismay the inventor of the world-wide-web, Tim Berners-Lee, Director of one of those ‘interconnected web of technically savvy multi-stakeholder bodies that have overseen the Internet’s evolution from the beginning’, the W3C; and whose quote “the power of the web is in its universality. Access by everyone regardless of disability is an essential aspect” is pretty clear about the possibilities of the web and his intent for it.

What sites say in public compared with what the brief says for them

Moreover, the Internet Association brief’s point of view is not consistent with public statements on the organisation’s members own websites:

“As part of Google’s mission to make the world’s information universally accessible and useful, we’re committed to making accessibility a reality for all of our users, including those with disabilities.” (http://www.google.co.uk/accessibility/)

“We’re always looking for ways to improve the Amazon experience for our customers, including those with disabilities.” (http://www.amazon.co.uk/gp/help/customer/display.html/ref=hp_left_cn?ie=UTF8&nodeId=200942050)

“Facebook is committed to creating a great experience for all people. Learn about the built-in features and technologies that help people with disabilities get the most out of Facebook.” (http://www.facebook.com/help/141636465971794)

If “the web is too complicated to accommodate disabled people” then I guess Google’s ‘mission’, Facebook’s ‘commitment’, and Amazon’s ‘search for ways to improve their experience to those with disabilities’ are all misguided and doomed to failure.

eBay themselves are ‘working hard’ on this ‘impossible task’, even detailing 5 specific things they are doing to try and achieve this on their own accessibility page:

“We work hard to make sure that everyone who wants to use eBay can do so, and have a positive experience. We do this in several ways: We make links on our site descriptive and provide alternative text for images to help people using assistive technology such as screen reader software. We consider accessibility when we design new eBay pages or update existing pages. We increase the contrast between fonts and backgrounds to make pages easier to read. We make eBay easier to navigate without using a mouse. We’ve trained our Customer Support agents to assist users with disabilities.” (http://pages.ebay.com/help/account/accessibility.html)

How do you explain this difference?

So what has got organisations that are saying one thing publicly about the accessibility of their websites to say something completely different through the association that claims to speak with “the Unified Voice of the Internet economy”?

What seems clear is that these organisations want to say they’re doing the right thing with respect to disabled people, but do not want to be legislated into having to do that thing.

That seems reasonable – all organisations would prefer self-imposed requirements to legally-imposed ones.

But it still doesn’t explain what comes over in the brief to be a statement arising from pure commercial fear:

“Applying the ADA to all Web sites may place uncertain, conflicting, burdensome, and possibly ruinous obligations on members of The Internet Association”

To explain what puts the heat in the anxiety of that statement we need to understand what they are saying here:

“Neither the Justice Department nor the Federal Communications Commission has a handle on what technical standards would comply with the ADA’s requirements, in part because existing technical standards make for amorphous legal standards.”

This to me reads that the organisations are specifically worried about how the ADA’s requirements and existing technical standards may be linked. And for ‘existing technical standards’ read WCAG 2.0, which are really the only de-facto technical accessibility standards that anyone’s looking at at the moment (as, through the process of the Section 508 refresh, WCAG 2.0 is supplanting the older technical standards in the original Section 508; and, through a proposed directive, the European Commission want to replace National web accessibility guidelines across Europe with WCAG 2.0 AA).

They’re right that the Justice Department and FCC, like the Equality and Human Rights Commission in the UK, haven’t made it clear how the requirements of the law relate to WCAG 2.0. And they’re right that the last few years of rulings in the United States have certainly provided ‘uncertain, conflicting’ advice in this area, as different courts make different rulings on whether ADA even applies to websites, let alone what the exact implications on web development and use of technical guidelines should be if it does.

This is unfortunate, but I’m guessing that organisations that do not wish to abide by ‘burdensome, and possibly ruinous obligations’ would welcome this uncertainty, as it gives them a period of time before they are potentially forced to comply with those obligations.

No, the key to the anxiety is that phrase ’burdensome, and possibly ruinous obligations’, and it’s worth looking at whether there’s any truth in it.

What accommodations are reasonable and what are ‘burdensome, and possibly ruinous’ to websites?

Well, I’ve already identified a few places where WCAG 2.0 AA’s requirements indeed go way beyond ‘burdensome and possibly ruinous’ to be infeasible for some websites (e.g. captions and descriptive video requirements on a user-generated video site like YouTube).

So, the Internet Association have a point there.

However, this is only a tiny fraction of the story, and they are seizing on these issues to try and discredit the business case for the whole of web accessibility, which includes a lot to benefit website owners and non-disabled users, as well as benefit disabled people.

It is true that the cost-benefits of accessibility are complex, depending on the accommodation being discussed and the disabled group it is designed to help. Whereas some accommodations are cheap to implement, and benefit the site owner way beyond making the site more accessible for disabled people (e.g. the correct use of Heading tags not only making a page more browsable for blind users, but helping the page’s Search-Engine Optimisation as well), other accommodations are expensive, and have no benefits beyond the potentially small audience that benefit directly (e.g. audio description of videos for blind people).

Pointing out the difference between these situations, and the possibility of bringing British Accessibility Standard BS 8878′s ideas of ‘justifiable reasoning’ to discussions around what accessibility accommodations an organisation may strategically choose to make, is something that I frequently help my clients through.

BS 8878′s approach is similar to the sensible business tactics all businesses use – a combination of SWOT analysis of the accessibility impact of the organisation’s policies and processes, and cost-benefit analysis of the implications of different levels of care and attention to the needs of different disabled user groups from the organisation’s different digital products.

The key to all of this, and to whether the Internet Association’s assertion holds any merit, is whether necessary accommodations are reasonable or not?

From what my clients tell me, ‘reasonable’ is one of the most valuable things I bring to them as a consultant.

‘Reasonable’ is the key to transforming organisations’ views on accessibility from being solely based on an analysis of the threats, to an analysis that brings in the opportunities accessibility can bring to the organisation. And that can only be a good thing.

Why the law is ‘reasonable’

So it should be a relief to organisations to find that ‘reasonable’ is also in the disability discrimination law being talked about in the brief.

Here in the UK, ‘reasonable’ is at the heart of the Equality Act 2010. While it may contribute to the law being potentially more ‘uncertain and conflicting’ due to its perceived vagueness, it proves to the Internet business community that the law includes an understanding of a reasonable balance between the costs incurred by website owners in making their websites accessible and the benefits that disabled people gain from that.

And the same phrase ‘reasonable accommodation’ is present as a general principle under the Americans with Disabilities Act, alongside ‘undue hardship’ which states:

“undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense” (http://www.eeoc.gov/policy/docs/accommodation.html#undue)

So, the ADA’s inclusion of the idea of reasonableness and undue hardship should prevent that worst case of ‘burdensome and possibly ruinous’ becoming anything other than an over-reaction, both for the larger sites the Internet Association represents and the ‘mom-and-pop sites’ on which it argues “complying with the ADA would place an onerous burden”.

For sensible debate we need to diffuse the anxiety by talking about specifics

The debate around what is reasonable for website owners and disabled users to expect from the future of web accessibility is vitally important for both parties.

So I’d suggest that we do not have the time to fall into the trap of mis-representing the issues around the feasibility and costs-benefits of accessibility by making the sort of generalisations and over-reactions that this Internet Association brief (or its reporting) does.

While it is harder to make discussion around individual accommodations as compelling a statement or article, it would really help the debate to proceed without bringing further unnecessary ‘Fear, Uncertainty and Doubt’, which we can all do without.

What do you think?

But those are just my thoughts. Please share your comments below.

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19 Comments to “ Does web accessibility really “place ruinous obligations on websites”? – analysis of Internet Association brief ”

  1. Steph says: Reply

    People with a disability should be described in words and expressions that portray them with dignity… Recognize that persons with disabilities are exactly that – people (first) who happen to have a disability.

    Describe the person, not the disability; the person is not their diagnosis or disability

    Instead of… Disabled, handicapped, crippled

    Use… Person(s) with a disability.

    Instead of… Crippled by, afflicted with, suffering from, victim of, deformed

    Use… Person who has…or, Person with…

  2. Steph says: Reply

    People with a disability should be described in words and expressions that portray them with dignity… Recognize that persons with disabilities are exactly that – people (first) who happen to have a disability.

    Instead of… Disabled, handicapped, crippled

    Use… Person(s) with a disability.

    Instead of… Crippled by, afflicted with, suffering from, victim of, deformed

    Use… Person who has…or, Person with…

    • hassellinclusion says: Reply

      Steph,

      Thanks for your comment. I hope you find that all my blogs portray people with disabilities with dignity.

      Language is important.

      Like you I believe language like “crippled by, afflicted with, suffering from, victim of, or deformed” makes implications which may not be correct. That is why I don’t use this language.

      However, I do find your objection to the term ‘disabled person’ of less merit. People are always people. And putting tall, French, male or any other word in front of the word ‘person’ doesn’t imply that their tall-ness, French-ness or male-ness is more important than their human-ness. The same should be the case for disability. From my perspective, dignity is something that is contained in the whole context in which you talk about a person or issue, not in the order you use words. And I hope you’d agree my blogs not only give people with disabilities dignity but also visibility to organisations who might overlook their needs and preferences otherwise.

  3. Paul Schantz says: Reply

    “So I’d suggest that we do not have the time to fall into the trap of mis-representing the issues around the feasibility and costs-benefits of accessibility by making the sort of generalisations and over-reactions that this Internet Association brief (or its reporting) does.”

    I really liked this point, definitely something for advocates to keep in mind. I’ve found that practical examples tend to reduce hyperbole and bring conversations back into the real world, especially with openly hostile people. Benefits that accessibility features bring to the able-bodied are not always obvious. The image alt attribute is a commonly-cited accessibility feature because it’s easy to understand and implement. While most able-bodied users may never see an image’s alt attribute, they might interact with it through a search engine or a touch / audio interface (I like to use the Xbox Kinect as an example).

    Great article!

  4. Jason says: Reply

    I won’t comment about the IA’s position, because we actually don’t know it without *reading the actual brief*. Which brings me to my point: titling this post “analysis of Internet Association brief” is misleading in that it purports that you’ve read and analyzed the brief, rather than analyzed the handful of quotes that have been reported to be in the brief.

    It’s also unfortunate that Melissa Earll’s case is being used as the test for this, since from the reading I’m able to do on her case (including the dismissal order from the prior court), Earll simply didn’t provide the proof she needed to. Period. And on top of that, her complaint has nothing to do with web accessibility — it’s specifically related to whether or not it’s discriminatory for eBay to require a phone call as part of its seller verification process, which has literally nothing to do with web accessibility.

    So in the end, considering issues of web accessibility and how the ADA informs that requirement is a good and noble cause, but using her case and the IA’s brief as the pretext for the consideration isn’t all that great.

    • hassellinclusion says: Reply

      I appreciate your comments, Jason.

      My apologies if you believe my blog’s title is misleading – this was not my intention.

      It is unfortunate that the IA haven’t publicly published their brief, so very few people can do a thorough analysis on it. However, the analysis I’ve done is based on quotes from the brief from 3 separate and reliable sources, and I’ve been careful in my blog to make this clear, and to distinguish between quotes that those sources claim are from the brief and editorial from those sources. Short of the IA making the brief available, this is currently as close as we can get to understanding its contents and intent.

      So the question is: should the media and blog community refrain from commenting on the IA brief until such time as the IA publish it publicly?
      This seems a moot point as the articles that prompted my blog have already been published by mainstream media, and my blog is response to those articles.

      I’d agree that Melissa Earll’s case has nothing to do with web accessibility – that’s why I haven’t talked about it very much in my blog. It’s the IA, if the quotes reported to come from the brief are to be believed, that are the ones that have used her case to more broadly attack the business case for web accessibility. My blog is an analysis of what motivated such an action from them, and is hopefully useful in understanding both the facts and positions taken by organisations around this issue.

    • Sveta says: Reply

      Jason – I disagree with you. The deaf woman’s issue has a lot to do with web accessibility. There are many online forms that are not accessible to us deaf and hard of hearing people because they demand us to fill out phone number fields which is a big pet peeve for us. I wrote articles about this:

      - Accessible Forms for Deaf People? http://audio-accessibility.com/news/2012/12/accessible-forms-for-deaf-people/

      - Online Forms – Please No Asterisks for Phone Numbers: http://svk-nyc.com/journal/2012/12/online-forms-please-no-asterisks-for-phone-numbers/

      Also, several phone service companies shut down IP Relay services that make us feel even more frustrated: http://audio-accessibility.com/news/2013/07/telecommunications-going-backwards/.

      So I hope that woman’s lawsuit against EBay would stop businesses force customers to fill out phone numbers. Even many hearing people hate phone. So I hope that phone is going to be a thing of the past soon as emailing, texting, and Skyping are becoming more popular now.

      • hassellinclusion says: Reply

        Thanks for this useful comment, Sveta.

        The intersection between web forms and communication preferences is something that you won’t find in many accessibility guidelines.

        In this case, I believe Melissa Earll’s compliant related to the requirement for her to use a telephone to register herself as a seller on eBay, rather than the requirement to enter a telephone number on a web-form (although that would have been involved too).

        You’re right that requiring a user to enter information (such as a telephone number) on a form, if they do not wish to enter it, is potentially a barrier to use of forms.

        The reason I think that’s not in the guidelines is that it is arguably not a web accessibility problem, as it goes beyond the interaction between the user and the website and more to the use of the information that the user is giving. A deaf or hard of hearing person is likely to be able to give a telephone number on the form – putting in any number would do – so its web accessibility is fine. But, as you say in your useful blogs, deaf people may not want to give a phone number because they, like a number of people who aren’t deaf or hard of hearing, may not wish to be communicated with by phone. As such, it’s more of a accessibility issue with the service than an accessibility issue with the website.

        Ironically, as laws are actually stated in terms of services rather than websites, this is one place where the legislation could actually be ahead of the accessibility guidelines created to help people apply the law.

        Thanks for bringing up this interesting point (although I personally hope the phone will be around for quite some time – while it may not be your or my preference for communication, it is the preference of many older people who can’t cope with more recent and complex technological alternatives).

  5. Sveta says: Reply

    Bikit – “requires a lot of resources and may only benefit a limit number of users with visual or hearing impairments is a single A requirement”?? There are almost 50 millions of deaf and hard of hearing people in USA and 642 millions of them in the world who deserve full and equal access to aural informaiton!

    Darksword – “Our societies are becoming much more visual and the programs, aps and interfaces that are being emphasized cater to a graphical approach. To an extent, I understand employers who choose not to make their sites screen reader friendly.”?? Accessibility is not just about blind – it’s about people with all disabilities, including those with hearing disabilities.

    People with disabilities make the LARGEST minority with SIGNIFICANT spending power, and if businesses ignore them, they also lose additional customers who are families and friends.

    I wrote more about my feelings about accessibility and ignorance in my article, “Accessibility and Ignorance” – http://www.svknyc.com/journal/2013/08/accessibility-and-ignorance/

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  7. Darksword says: Reply

    As much as I want to hope that the future of technology will be accessible, I think we are all fooling ourselves if we think that this will happen. Our societies are becoming much more visual and the programs, aps and interfaces that are being emphasized cater to a graphical approach. To an extent, I understand employers who choose not to make their sites screen reader friendly. After all, why care about at most a 10 percent of the world’s population (a group which largely does not have as many spendable dollars as it’s non-disabled peers) when ignoring them will cause fewer resources to be spent on retrofitting these technologies which will ultimately translate into more profits and a prettier presentation? I think our paths as disabled citizenry lie outside the realm of gadgetry and alternate programs. Too often, we let our world view be manipulated and enforced through the use of our connectivity inside our homes and businesses. We think that our voices are best represented through our publically private postings, organizational resolutions, law suits and congressional lobbying practices, all from the comfort of our couches or home offices. In future, I think the most important question we can ask ourselves is this. If technology becomes much more limiting as these newer and alienating processes get rolled out to the public at large, what can we do to find answers to inclusion which exist outside of our devices, phones, computers and tablets?

    • hassellinclusion says: Reply

      Thanks for your insights Darksword.

      I love your question regarding whether the path to inclusion lies outside gadgets. I’ve certainly talked with disabled friends who have let go of the web and gone back to pre-web ways of communicating and finding information, and have found the experience refreshing.

      However, there’s a big difference between deciding that you wish to make that choice, and feeling like the poor user-experience you get of websites is forcing you into making it.

      And it’s that ability to choose that I think is worth fighting for, not just for all disabled people (of whom only a tiny percentage are blind screen-reader users), but also for all non-disabled people.

      After all, who wants a society that thinks that the pinnacle of communicating is visual? Isn’t it possible that the ‘graphical approach’ that our apps and interfaces currently use is actually holding us back from coming up with interfaces that go beyond the visual (for example, to direct brain-machine interfaces, or tactile interfaces) and might be better for everyone?

      For me, one of the under-appreciated contributions of web accessibility is the innovation opportunities that come from the challenge of supporting the needs of different groups of disabled people. Check out my blog on how Everybody Technology is helping product creators think outside the box for more on this idea.

      I think it’s entirely possible that the next breakthroughs in interface design may come because of web accessibility concerns, not despite them.

  8. Jim Tobias says: Reply

    Thanks, Jonathan — excellent article, and as you say, the ADA contains its own limit on enforcement; no entity could possibly face ruin. And as you always emphasize, a well-organized accessibility program can do wonderful things with reasonable resources.

    A word on trade associations: they are in business to give voice to the positions their member companies cannot state publicly. Advocates often misunderstand their role as a negotiating partner; they are more Department of Defense than State Department. I’m not saying this to be dismissive at all; trade associations permit the same kind of internal consensus-building dialogues that accessibility advocates from different disability communities have to have.

    • hassellinclusion says: Reply

      Really useful response re trade associations, Jim. Thanks for the clarification to us all.

  9. Mark Palmer says: Reply

    Ebay is “too complicated” to be accessible? A combination of some images, text and a few forms?

  10. Birkir Gunnarsson says: Reply

    It is true, and sometimes a bit puzzling, that there is no apparent relationship between size of the user group who benefits, development effort needed and WCAG success criteria levels (A, AA or AAA). Just to name a random example, indicating that a link opens an external window, a file that is not HTML (such as a PDF file) is strictly speaking a AAA requirement (2.4.9) whereas requiring audio description on online videos, (1.2.3) is something that requires a lot of resources and may only benefit a limit number of users with visual or hearing impairments is a single A requirement.

    I have only once had the pleasure of an audio described performance, granted it was both informative and fun, I would not necessarily want or need that on a daily basis.

    I believe a transcript or subtitles revealing the content of the video is very helpful, and in most cases reasonable, though only for videos that are essential to the site’s image or functionality, or that of the website owner.

    But back to 2.4.9, opening a PDF file accidentally in the browser can completely freeze various assistive technologies (such as screen readers), and the standard interactive controls of assistive technology software stop working. These types of files are generally opened in an accessible PDF application such as AdobeReader, but if the user is not aware that the link leads to such a file, and has not create the necessary settings in his or her browser, this can put a significant damper on his or her experience of the site.

    Fixing this takes inserting a filetype icon with accessible alt text itothe link, something that can even be done wholesale through JavaScript and does not have to be hardcoded.

    This would also benefit everyone.

    Still this remains a AAA requirement.

    Similarly, only one success criteria, 1.4.4 is geared towards ensuring optimal experience for a very large group of users with mild visual impairments, as my good buddy and colleague Denis Boudreau has discussed on his blog recently (1).
    I believe WCAG is extremely useful, and has truly help defining web accessibility. It has helped harmonizing requirements across borders and ensure better accessibility for up to 20% of the population, but it is not without its flaws, many of which have been discussed in previous blogs on this site, as a matter of fact.

    I do hope that v3.0 is at least making its way to the drawing board, and that greater consideration be given to the perceived level of resources required, number of users who benefit when formulating and prioritizing individual success criteria and compliance levels.

    I am still, in principle, in absolute disagreement with the notion of the statement, as reported, and having worked with multiple clients, big and small, for web accessibility audits and improvement, I am convinced the vast majority of improvements needed for accessibility are not only reasonable, but also help market websites to a large potential market of users with a lot of spending power, and it needs to be considered as an investment and an opportunity, not a form of social responsibility and a burdensome enforced charity.
    -birkir
    1: http://www.denisboudreau.org/blog/2013/07/why-browser-zoom-testing-sucks-for-accessibility/

    • hassellinclusion says: Reply

      Thanks for your perspectives, Birkir.

      I agree with your points regarding the lack of an apparent relationship between the size of the user group who benefits, development effort needed, and WCAG success criteria.

      And you’re right that such a lack undermines WCAG 2.0′s credibility in discussions around the cost-benefits of accessibility.

      But I’m not holding my breath for a better v3.0 any time soon – v2.0 was such a mammoth effort that I think it’s more likely that experts in the accessibility community will spend their time advising website owners how to work around the limitations of WCAG 2.0 rather than create a new version which might have flaws of its own.

      Time will tell…

    • Ian Hamilton says: Reply

      Personally I like to use a simple set of criteria for evaluation, adapted from the BBC’s internal public service funding criteria:

      * Reach – number of people who benefit, prioritising people with disabilities but also taking into account how it benefits all users in general

      * Impact – how much of a difference it actually makes to those people, if it’s something that makes the experience slightly more frustrating or a complete blocker

      * Value – time and cost to implement

      I’ve used that adapted version for writing accessibility guidelines and it works very well.

      You have to have some mechanism like that in place. I’ve seen from plenty of bitter experience that if a developer sees a set of guidelines at the same level, and one single one of them is not appropriate or not achievable, then the whole set of guidelines risk being thrown out the window as inappropriate, even though the vast majority of them may still be cheap easy and useful.

      There’s lots of good content in WCAG, it’s a very handy reference if you’re already an experienced practitioner. But the divisions between the A/A/AAA categorisation aren’t fantastic, and the perceivable/operable etc is a total waste of space, I’ve never come across anyone in the real world who has found that categorisation useful. WHO groups (vision, cognitive etc) are far more useful and easy to understand.

      • hassellinclusion says: Reply

        Good stuff, Ian.

        I use a very similar set of criteria for helping my clients prioritise fixes to accessibility issues on their websites found through user-testing.

        Those years at the BBC did us good, eh? :-)

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