A letter led by organizations that advocate on behalf of individuals with disabilities including the American Council of the Blind, the American Foundation for the Blind, the National Disability Rights Network, and the National Federation of the Blind asks U.S. Assistant Attorney General Kristen Clarke to craft specific regulations to address digital accessibility by the end of President Joe Biden’s current term.
Enforcement of an existing requirement that websites be accessible is piecemeal, the advocates say, and what ‘accessible’ means is not clear. “This is equivalent to enforcing the Americans with Disabilities Act for the physical build environment by going door-to-door along main street,” American Council of the Blind Director of Advocacy and Government Affairs for Clark Rachfal told Engadget.
February 28, 2022
The Honorable Kristen Clarke
United States Assistant Attorney General
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Dear Assistant Attorney General Clarke:
The 181 undersigned disability organizations believe that there is an urgent need for digital accessibility regulations. We urge the Department of Justice to maintain this rulemaking process as a priority and finalize a rule by the end of the current administration.
The US Department of Justice has long held that the Americans with Disabilities Act (ADA) includes websites and other technologies that are critical to accessing a business’s or agency’s services or facilities but has failed to define when and how they should be accessible. In 2018, the Department reconfirmed its position that the ADA applies to the internet[i] but never completed rulemakings that were begun in 2010 under Titles II and III of the ADA and withdrawn in 2017.[ii] Meanwhile, courts have diverged in interpreting when and how the ADA should apply to the internet, and business groups are on the record seeking clear standards that clarify their obligations under the ADA.
In 2016, the National Council on Disability (NCD) recommended that the Department of Justice issue a notice of proposed rulemaking that reinforces that the ADA applies to the internet. NCD also recommended that multiple agencies complete existing rulemakings and initiate new rulemakings on accessibility of various types of information and communication technology (ICT), including web content, applications, hardware, and software. The absence of digital accessibility regulations in the intervening time period has resulted in persistent exclusion of people with disabilities from digital spaces covered by the ADA.
Recent research has shown the breadth of barriers that people with disabilities face. Several studies find persistent barriers in telehealth accessibility. A study of 74 Deaf participants who had recently used telehealth found that 65% of participants experienced communications accessibility barriers. Deaf patients frequently experience the inability to connect remote medical interpreters or real-time captioners through the secure telehealth platform, the inability to see the provider on video, and other technical issues, including poor audio quality.[iii] Another study found that of 285 blind and low vision participants who had used telehealth to meet with their healthcare provider, 21% reported the telehealth platform was not accessible with their assistive technology, and preliminary data from a forthcoming study suggests that the number could exceed 50% a year later.[iv] Moreover, while there are no studies directly examining the telehealth experiences of DeafBlind people, anecdotal reports suggest that the vast majority of DeafBlind people are completely unable to utilize telehealth as it currently exists.
The challenges are present in every sector of society. Nearly 60% of the educators surveyed in a Fall 2020 study reported their blind and low vision students could not access one or more of the digital learning tools they were expected to use in class.[v] A 2022 study found that about 50% of survey respondents experienced accessibility challenges when filling out electronic onboarding paperwork.[vi] Moreover, an annual automated analysis demonstrates how common inaccessibility barriers are, finding that of one million webpages reviewed in 2021, 97% had accessibility issues, and an average of 50 errors appeared on every page.[vii]
These findings are neither exhaustive of all website-related issues nor comprehensive of the entire disability community. The disability community is large and diverse, facing access issues that continue to grow and evolve with the ever-changing landscape of websites and applications. While the studies cited primarily explored the experiences of people with sensory disabilities, accessibility issues are pervasive, frequent, and harmful for people with other disabilities as well.
The scale of inaccessibility and its impact on access to nearly every type of web or application-based activity necessitates regulatory action. As the COVID-19 pandemic has made abundantly clear, we live in a society that increasingly lives and works through digital tools and online spaces. When websites and applications are inaccessible, people with disabilities cannot apply for jobs, work efficiently, attend school, access healthcare, schedule a ride, shop, find public health information, apply for public benefits, and more.
We remind you that Congress intends the ADA to cover the internet and applications. We urge you to continue the rulemaking process at a pace that ensures a rule can be finalized by the end of the current administration. Thank you for your consideration and work on behalf of people with disabilities.
American Council of the Blind, Clark Rachfal
American Foundation for the Blind, Stephanie Enyart
National Disability Rights Network, Claire Stanley
National Federation of the Blind, John Pare
Last month, Maria Town, President and CEO of the American Association of People with Disabilities and Alexandra Reeve Givens, President and CEO of the Center for Democracy and Technology and a board member of the Christopher & Dana Reeve Foundation, wrote in Tech Policy Press about the necessity of a reckoning over issues at the intersection of disability and technology. The American Association of People with Disabilities is a signatory to the above letter.
“In the current reckoning over technology’s role in society, one community is demanding a reckoning of their own after experiencing disparate harm caused by technology: people with disabilities,” they wrote. “More than one in four Americans has a disability. Policymakers, advocates, and the tech companies themselves must consider and address how technology can negatively impact disabled people in order to create an affirmative, inclusive vision of technology that truly works for everybody.”
See a full list of signatories here.
Justin Hendrix is CEO and Editor of Tech Policy Press, a new nonprofit media venture concerned with the intersection of technology and democracy. Previously, he was Executive Director of NYC Media Lab. He spent over a decade at The Economist in roles including Vice President, Business Development & Innovation. He is an associate research scientist and adjunct professor at NYU Tandon School of Engineering. Opinions expressed here are his own.