A statue of the blindfolded lady justice in front of the United States Supreme Court building.
This May the U.S. Department of Justice’s Civil Rights Division will kickstart a rulemaking procedure some 13 years in the making aimed at codifying technical standards to assist public entities in complying with obligations to make their websites accessible to individuals with disabilities.
The original rulemaking process began under the Obama administration back in 2010 but was then abandoned before being withdrawn in 2017. Within this legal vacuum, akin to not having building codes for accessibility in the physical world – inaccessible online public services and inconsistent judicial rulings on how the Americans with Disabilities Act should be applied to the internet have led to confusion and exclusion alike.
For the time being, the DOJ’s upcoming rulemaking will only apply to bodies covered by Title II of the ADA i.e., state and local government entities such as schools, public transit facilities, the DMV and welfare and benefits agencies.
However, though a timescale for this is difficult to estimate, it can reasonably be expected that the websites and apps of private businesses as places of public accommodation, will also be similarly regulated in due course.
In acknowledgment of this potentially pivotal moment in the relatively short but rapidly evolving history of the digital realm – the US Technology Policy Committee of the Association for Computing Machinery hosted a webinar earlier this month examining both the short to medium-term implications of the upcoming regulations as well as future trends in web accessibility.
The panelists included Stephanie Enyart Chief Public Policy and Research Officer at the American Foundation for the Blind, Jonathan Lazar a Professor at the University of Maryland’s College of Information Studies and Tim Elder an experienced civil rights litigator specializing in disability discrimination cases and founder of the TRE Legal Practice.
Identifying priorities
The panel agreed that, in the short-term, the rulemaking represents a unique and long overdue opportunity to marry computer science principles with a codified legal framework – enabling web and app developers to proceed with increased confidence and surety around compliance.
Another point of unequivocal unanimity was how the Covid-19 pandemic has supercharged a pivot towards a greater reliance on online services than ever before be this for participation in education, booking and undertaking medical appointments and manifold public and commercial services.
Amongst the most pressing legal imperatives under discussion was the possibility of setting up an independent website testing and accreditation body using a significant cadre of manual testers with lived experience of disability.
In addition to this, an opportunity now exists to pinpoint and elaborate on the precise responsibility of third-party software vendors and contractors as opposed to the traditional model of digital accessibility being the sole liability of the website owner.
This may be achieved through liquidated damages and indemnity clauses in procurement contracts. The Websites and Software Applications Accessibility Act introduced during the last session of Congress may yet bring additional clarity to this somewhat murky legal landscape.
“In many cases, the vendors are the key player in all of this,” said AFB’s Stephanie Enyart during the webinar.
“I want us to collectively think about this and continue to have conversations around how we get to a spot where vendors really understand their responsibility and for there to be a focus on the whole supply chain related to content development,” she added.
Future trends
Moving away from the legalities and onto the technology itself, Tim Elder expressed the view that it’s time to start thinking more broadly, rather than solely focusing on just the websites and apps themselves.
“There’s space for innovation here, not just on the web developer side but on the screen reader assistive technology side too,” said Elder.
“In the past, there’s been screen reader technology invented to verbalize the text on the screen in a synthesized voice. So, we have to wonder what further advances might come out in the next decade to have more robust screen readers or voice control and activation as well as hybrid systems that allow for alternative forms of access.”
He continued, “For the computer scientists and problem solvers in the room, there's a lot of opportunities to look at this, not just from the technology design perspective, but also from the user experience side and user tools side of things.”
These days, one of the positive arguments made for designing accessible websites is the boost in SEO performance but Elder feels that the technologies of the future will also look favorably upon accessible digital products.
Elder explained, “If you build an accessible website, you’re building something that’s very likely to have search engine optimization. If you build an accessible website today, you're also likely getting it ready for whatever artificial intelligence-powered user interface is coming next. If a screen reader can control the website, a voice-controlled assistant can probably do the same.
“By having an accessible website, in many ways, you're future-proofing and building flexibility into your user interface which will allow it to keep up with new forms of interaction.”
Jonathan Lazar, however, believes that for a brave new accessible digital future to arrive and thrive – there remains plenty of work to do at the computer science grassroots.
“Something really important for us to consider as computing educators, is that accessibility concepts need to be included throughout the curriculum, not just as an add-on at the end,” said Lazar during the panel discussion.
“So, in a lot of the undergraduate and graduate curriculum, you learn all of the different aspects of computing, then in your final course, you learn ‘oh, by the way, there's accessibility too and here's what you do.' This sets up in the minds of students and later alumni, this idea that you build technology, and then you retrofit it for accessibility. We know from lots of research that that's the wrong way to do it. That's the more expensive way to do it. If you use a “born accessible” approach, accessibility costs are minimal.
“People need to see accessibility as kind of just a part of normal coding standards and a part of normal software development and hardware development,” Lazar concluded.
If it is indeed at the university and college level that the grassroots of digital accessibility best practices are pushing through and burgeoning – it will be hoped that the upcoming DOJ ruling will provide some much-needed watering, nutrients and growth factors to ensure these important developments remain on track.
