Setting the Standard: Section 508 Could Have an Impact on Private Sector Web Sites Through the Americans With Disabilities Act

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 19 No. 4

Setting the Standard: Section 508 Could Have an Impact on Private Sector Web Sites Through the Americans With Disabilities Act

Leah Poynter

INTRODUCTION

A. Section 508 of the Rehabilitation Act

Federal regulations now require that federal government Web sites be accessible to people with disabilities.[1] In 1998, former President Bill Clinton signed the Workforce Investment Act, which strengthened Section 508 of the Rehabilitation Act[2] by requiring that electronic and information technology provided and used by federal agencies be accessible according to federal standards.[3] The Architectural and Transportation Barriers Compliance Board (the Access Board) subsequently developed the Electronic and Information Technology Accessibility Standards (the Standards), which apply to federal agency Web pages and other forms of electronic and information technology used by federal agencies.[4] The Standards require federal agencies that "develop, procure, maintain, or use electronic and information technology" to ensure that federal employees with disabilities "have access to and use of information" comparable to that of non-disabled federal employees.[5] Section 508 also requires that disabled persons who seek information or services from a federal agency "have access to and use of information" comparable to that of non-disabled members of the public.[6] The Access Board published these accessibility standards on December 21, 2000, and they became effective on June 25, 2001.[7]

B. Relationship to the Americans with Disabilities Act

The Standards apply only to Federal Internet sites, not to Web pages created in the private sector.[8] However, federal government standards for Web site accessibility may become relevant to the private sector as courts begin to test the applicability of the Americans with Disabilities Act (ADA) to private Internet sites.[9] In fact, the language of these federal regulations indicates a relationship with the ADA, borrowing terminology directly from the ADA and from ADA Regulations, including the "undue burden" defense.[10] Forty-five states "have either passed legislation similar to Section 508, or are considering doing so."[11] One expert testifying before a subcommittee of the U.S. House of Representatives explained: "[m]any state and local governments are transitioning to the Internet to process a variety of administrative services such as license renewals . . . . If we are making these transitions using taxpayer money, we must make sure that those who are paying for the transition can participate."[12] With federal and state government leading the way, these accessibility guidelines are also likely to have a significant impact on commercial Web sites.[13]

C. Accessibility

"For [F]ederal Web page designers, 'accessibility' means government [W]eb pages must be usable by people who have vision or hearing disabilities, have limited use of their hands or suffer from a variety of other disabilities" such as colorblindness or epilepsy.[14] People with disabilities can access an information technology system "if it can be used in a variety of ways and [does] not depend on a single sense or ability."[15] For example, those who have visual impairments can access the Internet by using "screen-reader software programs that convert visual information into synthesized speech or Braille."[16] However, screen-reader technology reads text and not graphics, therefore text labels must accompany online graphics for screen-reader programs to work.[17] "While accessibility in the physical world generally means providing access to wheelchairs, access in the virtual world often means creating keyboard controls in addition to the mouse, and providing text labels for graphics."[18] Testifying before a Subcommittee of the U.S. House of Representatives, a blind computer programmer described a simple problem that created significant barriers to the visually impaired:

One of our biggest difficulties comes when we try to shop on-line using pages where the creator of the [W]eb site has failed to label the pictures . . . . [W]e must rely on the creator of the page we're viewing to add a line of text [that] says, for example, 'Swiss Army Knife' or 'Queen Size Electric Blanket.' These explanations are easily added and are of tremendous benefit not only to the blind but also to people who see.[19]

Part I of this Note examines the purpose of Section 508 by looking at access problems faced by individuals with disabilities, and considering how the Standards address those issues. Part II explores the connection between Section 508 requirements and ongoing debates about whether similar standards should apply to private Internet sites under the ADA. Part III outlines the case law and the circuit split over whether the definition of a "place of public accommodation" within the meaning of Title III of the ADA reaches a business that offers its goods or services through a non-physical structure such as the Internet. This section looks at National Federation of the Blind v. America Online,[20] which raised the question of whether the Internet was a place of public accommodation but settled before the issue was decided. Part III also examines the more recent case Access Now v. Southwest Airlines,[21] in which a federal district court held that an airline's Web site was not a place of public accommodation. Part IV explores whether people with disabilities have a civil right to Internet access and describes the costs and benefits of this expansive view of the ADA. Part V concludes that, in light of the ADA's purpose, the statute should be interpreted broadly to encompass the Internet under Title III.

I. PURPOSE AND OVERVIEW OF SECTION 508

A. Accessibility Problems Facing the Disabled

People with disabilities face increasing barriers when using online technology.[22] The Internet was primarily a text-based environment in its early years.[23] Text-recognition software allows access to blind users and enables the deaf to navigate the Web without running into sound barriers.[24] Increasingly, however, Web pages are rich in graphics and media displays but lacking in programming that allows disabled users to interpret Web sites with assistive devices.[25] "Consequently, an increasing percentage of information contained on [W]eb pages is inaccessible to the disabled . . . . Many disabled individuals experienced a unique sense of freedom on the early Net only to have it taken away by 'advances' in [W]eb page content and 'progress' in [W]eb page construction."[26] Accessibility barriers on the Web challenge many Americans, including those who are blind or are visually impaired, the deaf, people with epilepsy, those who have learning disabilities, and the elderly.[27]

B. The Accessibility Standards

The Rehabilitation Act Amendments of 1998 directed the Access Board to develop accessibility standards for the federal government in the area of electronic and information technology.[28] These standards "are part of a congressional effort to improve the accessibility of digital information, online services and other electronic information to the fifty-four million people with disabilities living in the United States."[29] The Access Board created the Electronic and Information Technology Access Advisory Committee (EITAAC), which included representatives from the information technology industry and from disability organizations, among others.[30] In March 2000, the Access Board made its proposed standards available, and more than 100 individuals and organizations submitted comments, including federal agencies, members of the information technology industry, disability groups, and persons with disabilities.[31] The Access Board finalized the Standards and published them in the Federal Register in December 2000.[32]

The Standards address more than Web sites.[33] "[They] cover the full range of electronic and information technologies in the [f]ederal sector, including those used for communication, duplication, computing, storage, presentation, control, transport and production."[34] The Standards provide technical criteria "that spell out what makes these products accessible to people with disabilities," and they are specific to various technologies such as software applications, operating systems, video products, and Web-based information.[35] The Standards also provide performance requirements, which focus on overall functionality.[36]

1. World Wide Web Consortium[37]

The Access Board based Section 508's criteria for Web-based technology on guidelines developed by the Web Accessibility Initiative (WAI) of the World Wide Web Consortium (W3C).[38] One of the W3C's primary goals is universal access: "[t]o make the Web accessible to all by promoting technologies that take into account the vast differences in culture, languages, education, ability, material resources, access devices and physical limitations of users on all continents."[39] The WAI is committed to removing barriers on the Web for people with disabilities.[40]

WAI guidelines provide direction for Web-content developers (page authors and site designers) and for developers of authoring tools on "how to make Web-content accessible to people with disabilities."[41] Although the primary goal of the guidelines is to promote accessibility, they also make Web content more available to all users.[42] The WAI did not intend for the guidelines to discourage content developers from using images, video, and animation but instead wanted to explain how to make Web-content more accessible.[43] Many of the Web-based criteria outlined in the Standards and modeled on the WAI guidelines ensure access to visually impaired people who rely on screen readers and other assistive devices.[44]

2. Overview of the Accessibility Standards[45]

The Section 508 Standards define "[e]lectronic and information technology" as "includ[ing] information technology and any equipment or interconnected system or subsystem of...