Although I’m not a lawyer, I do pay some attention to the nature of legal issues surrounding web accessibility. They’re murky, but this article attempts to shed some light on how the law covers accessibility issues on the internet.

Hope you’re able to get some value out of the article!

New Column at Practical eCommerce: Accessibility and the Law
Copyright 2004 – 2010 Joseph C Dolson, Accessible Web Design

President Barack Obama’s approach to information transparency is admirable. His connection to the public through the major media channels of the digital age: the White House web site, Facebook, Twitter, YouTube, and other social media methods is impressive. It’s a great way for the public to keep up to date on the activities of their government.

Unfortunately, the accessibility level of these web resources is — all in all — not really up to the levels one would hope for.

Obviously, the government has no control over the accessibility of the external resources they’re using to help promote their agenda and communicate with the public. These social media sharing sites are what they are, and regardless of their independent accessibility levels, I agree with the administrations choice to use them — to connect with their strong user bases — rather than attempt to build an expensive and potentially abandoned project to imitate the functionality.

However, the government does have direct and complete control over their own web presences, and would truly have wished to see a more thorough approach to web accessibility from the extensive network of new information-bearing web sites created by the Obama administration.

Obama’s network of web sites includes The White House and Recovery.gov as of May 2009. These sites exhibit a common set of problems; indicating a fairly straightforward set of issues which have been overlooked by the development team.

What’s Right?

In many respects, the accessibility of the Obama web resources is actually quite strong — the basics are well covered:

• Headings use appropriate HTML markup, providing strong navigation cues for visual and screen reader navigation.
• Most images provide appropriate and useful alternate text.
• Videos are captioned and transcribed.
• Parts of the web site are available in Spanish. (Only a very small part, however — this is definitely not equivalency.)

In other respects, however, the site is wretched.

What’s Wrong?

The principle offender — hands down — is keyboard accessibility. (Yes, that was an intentional pun. Sorry.)

According to Section 508 of the Rehabilitation Act, which covers the accessibility of government web properties, keyboard accessibility is a requirement, and one which neither of these web sites actually pass successfully.

In my accessibility consulting business, I rarely address Section 508, since these rules are relatively feeble compared to their more modern standards covered in the Web Content Accessibility Guidelines, but in the case of a government entity, Section 508 of the Rehabilitation Act applies specifically and is legally binding, unlike other accessibility standards. As such, it’s critical to address the specific points of Section 508 when considering government web sites.

Subpart B — Technical Standards

§ 1194.21 Software applications and operating systems.

(a) When software is designed to run on a system that has a keyboard, product functions shall be executable from a keyboard where the function itself or the result of performing a function can be discerned textually.

(c) A well-defined on-screen indication of the current focus shall be provided that moves among interactive interface elements as the input focus changes. The focus shall be programmatically exposed so that assistive technology can track focus and focus changes.

Official Section 508 web site (emphasis added)

The White House and Recovery web sites are particularly offending in the area of keyboard focus. When navigating either of these sites, there is no indication outside of the browser default available at any point; and in some areas, not even this indicator is present.

In addition, the drop down navigation menus throughout both sites are unavailable to a keyboard operator. Although these navigation elements have been duplicated in an area in the footer, that footer is not readily available to a keyboard navigator — a skip link has been provided to skip from the top of the page to the main content, but not to jump to the navigation, requiring keyboard users to manually tab all the way through the main content.

With no keyboard focus, this is a very difficult task, requiring you to observe very, very carefully to attempt to identify where you are on the page — let alone distinguish which link you’re activating when you finally do reach this footer area.

On the home page of WhiteHouse.gov, there is a set of featured items; usually in a video format. Using a keyboard, it is only possible to trigger the initially featured video, since the links to trigger other features are completely inaccessible to a keyboard user.

Once a video has actually been reached, the keyboard user will be unable to play the video without downloading it (although these options are available, fortunately.) The video player used has a very common accessibility problem: although the player itself can be navigated using a keyboard, this is only true if you can successfully navigate focus into the player, which is not actually possible using standard keyboard navigation — it requires mouse activation to move focus to the video player.

All in all, a disappointing experience for the keyboard-only internet visitor.

Other Problems

Although I haven’t conducted a complete accessibility survey of these sites, there are a few other issues which stand out immediately. I’m just going to mention these in passing, but this doesn’t make them any less important:

• Links in some contexts are not highlighted (no differentiation by color or by decoration.) ^Figure 1
• Because some links aren’t highlighted, anything placed in a position which seems like a link might be; this causes some difficulty with breadcrumbs, since there is an area towards the top of each document which looks like breadcrumbs ^{Figure 2}, although the actual breadcrumbs are found below the content area. ^Figure 3
• Footer links have insufficient contrast (2.73 according to the WCAG 2 luminosity contrast ratio.) These links include key references not represented elsewhere, including the link to the Spanish language version of the site and, ironically, the link to accessibility information. ^Figure 4
• Comment forms are woefully inadequate — there are no label, legend, or fieldset elements. Although some fields are required, the only indication of this requirement is shown using a background image, and that information is therefore not available to anybody except a normal visual user. ^Figure 5
• With images disabled, some additional color contrast problems are shown. The contrast level in some text-bearing images (including the header graphic) is well below acceptable accessibility levels.

How much work is this to solve?

None of these problems are really challenging to solve; there are web video players which offer much stronger accessibility than the default YouTube player currently in use (Easy YouTube by Christiann Heilmann or Accessible JW Player for self-hosted video, for example.)

Solving the keyboard accessibility issue is easy, as well. Including some basic CSS to provide a strong indicator for keyboard focus will immediately render keyboard navigation significantly easier. Something like the following will provide all that’s really needed:

<code>
a:focus {
outline: 2px solid #58b; 
background: #9cf!important;
color: #000!important;
}
</code>

Though the drop down navigation isn’t keyboard accessible, the web sites have already included all the links within the drop down set up at the bottom of the page. Adding a simple skip link which links to the bottom of the page (“Skip to keyboard-accessible navigation,” or something to that effect,) would quickly remove the bulk of that challenge.

This is the core of the accessibility problem on both web sites: a few very simple changes could eliminate a significant array of accessibility problems. Taking into consideration the change process in a government entity, it’s probably not a one hour solution; but it’s certainly not something that will cost taxpayers a significant sum.

Supplementary Figures

Obama’s Web Transparency: not for everybody.
Copyright 2004 – 2010 Joseph C Dolson, Accessible Web Design

Read more at the WebAIM blog: “Target Lawsuit Settled.”

No legal definitions established today, I’m afraid to say. Although this is a victory on behalf of the claimants, who were awarded substantive damages on their claim, there was no establishment of any kind of legal precedent.

This is primarily due to one singular item in the settlement:

2. No Admission of Liability. By agreeing to and voluntarily entering into this Agreement, there is no admission or concession by Target, direct or indirect, express or implied, that Target.com is in any way inaccessible or that Target has violated the Unruh Civil Rights Act, California Civil Code §§ 51 et seq., the Disabled Persons Act, California Civil Code §§ 54 et seq., the Americans with Disabilities Act, 42 U.S.C. §§ 12181 et seq., or any other federal, state, or local law, regulation, order, or rule.

National Federation of the Blind vs. Target Corporation, Final Settlement

This statement clearly delineates a complete denial that there were any contradictions of law involved in the Target.com suit.

Ah, well. It is still a victory!

Target Lawsuit: Settlement Reached
Copyright 2004 – 2010 Joseph C Dolson, Accessible Web Design

In fact, I found it difficult to find anything about it at all, at first — I only became aware of it because I was talking to a web development manager from Target. (Articles are now easy to find via Google News.)

At any rate, the major news is that the lawsuit has been granted federal class-action status.

Granting class-action status allows blind people throughout the country who have tried to access Target.com to become plaintiffs in the suit, which alleges violations of the Americans With Disabilities Act. Associated Press

Further, the Judge (Marilyn Patel) ruled that changes in Target’s web site since the date of filing do not provide grounds for dismissal of the suit.

Judge Patel’s order Friday noted that Target has modified its Web site some since the suit’s filing to make the site more accessible to the blind. Target claimed the suit should therefore be dismissed, but Judge Patel ruled against that argument. Associated Press

Turning the suit into a class action may place additional pressure on businesses to start considering web accessibility a priority. One can hope, at any rate!

See also: Update: Target ruling may force retailers to adjust Web sites (Computer World)

More News on the Target Accessibility Lawsuit
Copyright 2004 – 2010 Joseph C Dolson, Accessible Web Design

The post talks about the issues raised in the article “Computer-based exam discriminated against blind candidate” at Out-Law.com.

Accessibility and International Law
Copyright 2004 – 2010 Joseph C Dolson, Accessible Web Design

Although it’s interesting to see another lawsuit on the inaccessibility of a software product, this suit is fundamentally different from the Target lawsuit currently in process. That lawsuit, dealing with a commercial website’s accessibility level to the general public, has the potential to set a landmark precedent for website accessibility. No United States law currently explicitly states that a commercial website must provide any level of accessibility. This lawsuit could potentially provide a precedent which would interpret existing law as having this requirement.

This Oracle lawsuit, however, involves software which is a) not a website and b) was purchased by the state of Texas for use in their state human resources department. The fact that the lawsuit is associated with a government entity makes this a very different case. Texas state law as well as Federal law clearly address the issue of accessibility of government technology: the state of Texas has extensive guidelines concerning accessibility which should be referred to when constructing web sites or other electronic or information resources:

House Bill 2819, 79th Regular Legislative Session

State agencies must ensure that state employees and members of the public with disabilities have the same access to electronic and information resources as state employees and members of the public without disabilities, unless providing that access would impose a significant difficulty or expense on the agency.

The provision of a necessary piece of work software which does not meet these standards is a direct contradiction of Texas state law. This lawsuit will not have the same impact, legally, that the Target case has.

That’s not to say that it’s insignificant, however. It will help bring issues of accessibility to a greater awareness, as well as encouraging a large software company to make accessibility a greater consideration for their own products. It may not result in a major new interpretation of law, but should certainly result in better software for the human resources department of the state of Texas.

Oracle being sued for inaccessible software package
Copyright 2004 – 2010 Joseph C Dolson, Accessible Web Design

A big deal is frequently made of Section 508, the United States accessibility guidelines, WCAG 1.0, and the accessibility rules set by the UK: The Disability Discrimination Act. But what if your primary audience is in Belgium?

Even though very, very few countries currently provide laws requiring accessibility for privately owned commercial sites, it’s always a possibility that this could happen: it’s a good idea to keep your eyes on the regulations currently applicable in any given country.

Better, of course, is to just make your site as accessible as you reasonably can and figure that whatever legal changes occur you should be in the clear &mdash at the worst, you’ll fail their stringent requirements but have clearly demonstrated your efforts!

International Accessibility Legislation
Copyright 2004 – 2010 Joseph C Dolson, Accessible Web Design

The problem is, to a degree, in the fact that in order to enforceable, the law would have to be very precise about what constitutes "web accessibility". Since experienced web developers can hardly even bring themselves to agree on the subtler details of the subject, it seems possible (and even probable) that a government prepared definition of accessibility would be severely lacking.

Imagine, if you will, that the government criteria for accessibility required the use of the accesskey attribute. (They don’t, but just imagine it.) This would mean that any site I created, in order to be considered legally accessible, would have to incorporate a technology which I firmly believe is detrimental to usability and accessibility.

It would be very unfortunate if any legal guidelines made use of specific technological guidelines, rules, or code functions to define the law. This kind of law making can only stymie continuing technological development and prevent newer or better assistive technologies from being adopted. It’s very unlikely that a viable law would be passed which exclusively relied on this kind of specificity.

However, it’s completely feasible to imagine that a law created to legislate web services could contain some degree of specificity which could get in the way of practical development.

You might say that WCAG 2.0 was actually written like a legal document: devoid of specific technological references and muddled with its own custom language, it obfuscates the specifics in favor of retaining long-term validity. May be of great benefit in law, where constant interpretation is the rule of the game — but less valuable in day to day development activities.

And yet, WCAG 2.0 is missing a lot of crucial pieces of the accessibility pie. All this legal abstraction does not actually create a complete documentation of web accessibility, missing elements such as consideration for cognitive disabilities, for example.

Is it possible to address accessibility with 100% success? Would it be beneficial to create accessibility laws which forced developers to adhere to obsolete or irrelevant guidelines? Perhaps a potential accessibility law would have to err on the side of inaccessibility – only cover those elements which are incontrovertibly significant, such as the use of alternative text for images.

Just something I was wondering today…

Is Legally Mandated Accessibility a Benefit?
Copyright 2004 – 2010 Joseph C Dolson, Accessible Web Design

The official press release states:

Many Europeans still get too little benefit from information and communication technologies, and millions are at risk of being left behind. Enabling all Europeans to participate on equal terms in the information society is not only a social necessity – it is a huge economic opportunity for industry.

They also intend to increase the availability of broadband coverage to at least 90% in Europe by 2010. This doesn’t require any change to the current urban infrastructure, but would require the expansion of the rural infrastructure from its current 60% coverage.

This is a powerful commitment, and certainly raises hopes for the future of web accessibility.

European Union to Mandate Web Accessibility?
Copyright 2004 – 2010 Joseph C Dolson, Accessible Web Design

The editorial quotes an unnamed Supreme Court decision:

The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press.

Although the editorial does not name the decision, it is a particular citation which has appeared frequently in the news lately in relation to the prophet Muhammad cartoon riots. The case, Miami Publishing Company v. Tornillo (1974), is concerned with a Florida law "which provides that if a candidate for nomination or election is assailed regarding his personal character or official record by any newspaper, the candidate has the right to demand that the newspaper print, free of cost to the candidate, any reply the candidate may make to the newspaper’s charges."

The law was ruled unconstitutional on the grounds that no law may either require the publication of material or deny the right to publish it, as either action is an infringement on the editorial right of the publication to choose what it will say.

The majority opinion of the court discusses changes in publication media extensively. The statement is too lengthy to quote here, but I will attempt to summarize. Justice Burger discusses the culture of ideas as a free-market which had existed through the variety of news publishing which existed at the compilation of the Bill of Rights. He noticed that the consolidation of media which had occurred by 1974 has had a singular effect on this culture, creating a homogeneity which has created a culture prone to bias and manipulation by those few individuals at the controls.

From this premise it is reasoned that the only effective way to insure fairness and accuracy and to provide for some accountability is for government to take affirmative action. The First Amendment interest of the public in being informed is said to be in peril because the "marketplace of ideas" is today a monopoly controlled by the owners of the market….

The opinion continues to condemn any governmental action which would control the media since press responsibility is not a part of the constitution and can not be legislated.

Does this opinion exhibit evidence that it stands as a barrier to any potential accessibility law? Yes, absolutely. It is quite clear that this opinion has considered relevant issues. The opinion explicitly states that the government has no right to legislate access to information.

Nonetheless, the world has changed, and continues to change. It all comes down to constitutional interpretation. This 1974 decision does not address issues of accessibility as it regards the disabled. This issue may be of significance. Can the disabled be denied equal rights to physically abled people? No, of course not. But the failure to grant them legislated rights is not equivalent to a denial of equal rights. Under the Ninth Amendment, the enumeration of rights may not be construed to represent the denial of other rights.

As it stands, there are valid arguments that the First Amendment could abrogate any obligation of web site owners to provide accessibility. The US constitution could be interpreted to allow owners to make the decision that their information will not be accessible to disabled users.

It’ll be interesting to see what happens.

First Amendment Rights and Accessibility
Copyright 2004 – 2010 Joseph C Dolson, Accessible Web Design