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Two Paths for Digital Disability Law

By Blake Reid

Communications of the ACM, Vol. 65 No. 5, Pages 36-38
10.1145/3527201

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People with disabilities often cannot count on modern digital devices, software, and services to be accessible. Will streaming video platforms include closed captions for viewers who are deaf or hard of hearing? How will virtual assistants work for users with speech disabilities? Can websites be read aloud by text-to-speech engines for readers who are blind or visually impaired? How will smartphones be accessed by people with physical and mobility disabilities? What barriers do increasingly complex applications pose for people with cognitive and intellectual disabilities?

Some tech companies highlight accessibility in their design and marketing, but many have become the targets of lawsuits and regulatory enforcement for inaccessible products and services. Indeed, digital accessibility has its roots in a decades-long legal movement.

Digital disability law has evolved along two paths. One, using the Americans with Disabilities Act (ADA), focuses on making online "places" as accessible as offline ones. The other, using telecommunications laws such as the Twenty-First Century Communications and Video Accessibility Act (CVAA), focuses on making technologies themselves accessible. Both efforts are critical to an accessible future.

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Online Places

In 1966, disability rights pioneer Jacobus tenBroek advocated for a "right to live in the world"—"in all the places where men are, go, live, work, and play." tenBroek's "place"-focused ideal became the heart of the ADA's prohibition on discrimination against people with disabilities in "places of public accommodation."

The ADA was enacted in 1990, just prior to the dawn of the commercial Internet. Applying the ADA's mandate to the digital world raised a difficult metaphysical question: Is a website a kind of "place" under the ADA? Disability rights advocates have litigated this question for two decades, with many cases focused on the compatibility of websites with screen-reader software used by blind and visually impaired users. The answer remains unsettled.

Some courts have concluded the ADA can transcend the bounds of the physical world altogether and apply to exclusively virtual spaces. For example, in 2012, a federal district court allowed an ADA suit by the National Association of the Deaf to proceed against Netflix over its failure to add closed captions to all of its videos. The court concluded Congress had intended the ADA to adapt over time to changes in technology.

Other courts have recognized the ADA's digital role but limited it to parts of the digital world with a connection to physical locations. In 2019, a federal appellate court upheld an ADA suit by Guillermo Robles, a blind would-be diner who sued Domino's Pizza because its online ordering system was incompatible with his screen reader. Robles alleged the architecture of Domino's website prevented him from using popular screen-reader software—Job Access With Speech (JAWS)—or the VoiceOver feature on his iPhone to add toppings or complete his order for a customized pizza. The court concluded the online ordering system was inextricably tied to Domino's physical restaurants, which were clearly covered by the ADA.


An ADA suit alleged the Domino's Pizza architecture prevented a blind user from using JAWS screen-reader software or the VoiceOver feature on his iPhone to add toppings or complete his order for a customized pizza.


However, that court and others have rejected the application of the ADA to fully online websites, platforms, and applications. Internet companies such as Facebook, Google, YouTube, Netflix, eBay, and others have been able to escape the reach of the ADA in some cases on the grounds their services lack a "nexus" to physical locations.

Yet other courts have rejected the ADA's application to non-physical "places" altogether. In 2021, a federal appellate court vacated an ADA suit by Juan Carlos Gil, a blind longtime customer of Winn-Dixie, a chain of grocery stores, concerning the incompatibility of Winn-Dixie's website with screen-reader software. Like Robles, Gil alleged the architecture of Winn-Dixie's website prevented him from using his screen reader to refill his prescriptions and use online coupons. The court concluded, however, the ADA covered only "physical" places and not "intangible" places such as websites.

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Making Websites and Apps Accessible

When courts hold that the ADA applies online, questions arise as to what it requires. Some commenters have suggested compliance with the World Wide Web Consortium's Web Content Accessibility Guidelines (WCAG) could be used to assess compliance with the ADA.

The WCAG standards measure websites against various "success criteria." These criteria include accessibility considerations for people with sensory, physical, intellectual, and cognitive disabilities, including:

  • Alternative text;
  • Captions and audio description;
  • Sequencing of page elements;
  • Visual contrast;
  • Keyboard and pointer navigation;
  • Readability and predictability;
  • Compatibility with assistive technologies; and more.

In considering WCAG's role, the Robles court held the ADA did not require compliance with WCAG 2.0. However, the court also recognized WCAG 2.0 compliance could be required as an ADA remedy for an inaccessible site.

After Robles, vendors selling "overlay" technologies for ADA compliance have come under scrutiny. Overlay vendors often promise to use artificial intelligence and other techniques to automatically scan a website and provide a WCAG-compliant version to a user upon request, theoretically insulating the website's owner from ADA liability. Many overlays work by presenting "accessibility" controls that change a page's font, contrast, or other visual elements, or attempt to repair problems with HTML, JavaScript, and other structural elements.

However, overlay vendors have been criticized for overpromising and underdelivering. Overlay "accessibility" features often duplicate or conflict with the functionality of screen-reader software and other assistive technology. Moreover, automated overlay techniques often are unreliable, do not fix or even make worse structural problems, or do not remediate inaccessible PDF files, videos, or other content.

As a result, overlays often fail to deliver compliance with WCAG. Moreover, courts have begun to reject the use of overlays as a viable means for complying with the ADA. Some overlay technologies also use tracking technologies to persist user preferences across multiple sites, collecting sensitive data about users' disabilities and raising privacy concerns.

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Technology-Focused Accessibility

In contrast to the ADA's indirect approach to the accessibility of websites-as-places, telecom law focuses on regulating technology and technology vendors directly. Its role in digital accessibility started with analog technologies: CRT televisions and the circuit-switched telephone system.

Following the "talkie" movie wave of the 1930s, advocates sought to include captions of spoken dialogue and sound effects along with videos. In the 1970s, technical standards were developed to invisibly deliver "closed" captions that could be encoded in broadcast signals and "opened" by users with special caption-decoding equipment.


Digital accessibility has its roots in a decades-long legal movement.


Congress then enacted the Television Decoder Circuity Act of 1990 (the same year as the ADA), charging the Federal Communications Commission with ensuring all television screens 13 inches or larger included closed-caption decoders. The idea was simple: shifting accessibility responsibility from deaf and hearing-impaired viewers to the consumer electronics industry would decrease prices and increase availability of caption decoders, ensuring people with disabilities would be able to access captioned programming on any TV set.

As with television, the introduction of the telephone system imposed barriers to deaf and hearing-impaired users making routine phone calls because there was no efficient way to communicate with voice callers via sign languages or supplement conversations with captions. As a result, deaf and hearing-impaired users often used specialized teletypewriter (TTY) devices—modems that transmitted text messages over the phone network. But TTY users could call only other people who had TTYs or TTY operators at businesses—decades before SMS messaging made texting ubiquitous.

Again, things changed in 1990, when Congress charged the FCC with administering the telecommunications relay system (TRS). The TRS system involves communications assistants (CAs) who sit between or alongside telephone calls, transforming the hearing and speaking callers' speech into sign languages, captions, and other communication modes—and vice versa—all reimbursed by a fund overseen by the FCC.

Over the past three decades, the FCC's oversight of video and communications accessibility has expanded to a surprisingly wide range of Internet technologies. For example, closed captions are increasingly ubiquitous on online streaming services, video platforms, and social media services. Audio description—spoken explanations of a video's visuals for blind and visually-impaired users—is likewise increasing. And all IP-based voice and text communications now must be accessible, generating significant attention to accessibility in unexpected technologies ranging from multiplayer video games to autonomous vehicles.

Gaps remain, however, as technology evolves. Many user-generated videos on platforms such as YouTube and TikTok lack captions or audio descriptions altogether. Yet others are provided with captions generated by automatic speech recognition (ASR) engines, where significant concerns about quality and accuracy persist, and automatic audio description tools remain in development. Likewise, gaps in the FCC's rules have left open accessibility gaps for videoconferencing services such as Zoom, Teams, and WebEx, which can pose significant challenges for integrating TRS, captioning, and assistive technologies.

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Conclusion

Jacobus tenBroek's vision for an accessible world still holds strong, but requires stronger application to the modern digital world, including pandemic-era digital life, work, and play. The impact of gaps in the ADA and telecom law will become more consequential as work transitions to groupware and videoconferencing, socializing to social media, and navigation to augmented and virtual realities. These transitions make presence in a digital world a requisite for participation in modern society, amplifying the consequences of digital accessibility barriers. The "right to live in the world" for people with disabilities is now inescapably digital. Realizing it will require technologists, advocates, and lawmakers in equal measure to evolve technology with accessibility in mind. Technological accessibility is not only expectation, but a civil and human right.

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Author

Blake Reid ([email protected]) is Clinical Professor at the Samuelson-Glushko Technology Law and Policy Clinic, Colorado Law, University of Colorado Boulder, CO, USA.


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