INFORMATION AND INFORMATION TECHNOLOGY ACCESS
RIGHTS OF PEOPLE WITH DISABILITIES

By: Steven Mendelsohn and Edward L. Myers III.
Bridges to Better Advocacy Conference
Austin, Texas
April 21-22, 2005

I. Introduction

(a) ANALYTICAL FRAMEWORK

Analysis of the issues faced in connection with information technology (IT) accessibility law should always be informed by the following considerations:

(b) MEANING OF THE RIGHT

A careful distinction must be maintained between the right to information and the right to accessible information. In our society, many legal issues can be foreseen concerning the right of citizens to information from and about the government, from their own confidential employment or health files, or from myriad other sources. By and large, these are not the issues that concern us in discussing IT accessibility, although they do intersect at the point where the inaccessibility of information becomes tantamount to its unavailability, and at the point where the importance or sensitivity of the information explains why it needs to be made accessible.

With information accessibility, we always begin with the question: Does a similarly situated employee, citizen, consumer, patient, customer, etc. have the right to and an expectation as to how to receive given information, personal or general? If so, then the issue of accessibility is joined if people with disabilities cannot access the information or data, or if they cannot access it on equal terms with other people.

There is no broad legal definition of what equal access to information or comparability of access means. The best attempt so far dates back to the late 1980's and early 1990's, and was articulated in a series of complaint resolution letter issued by the US Department of Education's Region 9 (California) Office of Civil Rights (OCR). These cases, involving accessibility of college libraries, curricular materials and computers, postulated three elements: accuracy of the information; timeliness of the information; and appropriateness of the manner of conveyance.

For example, if the information in question were the results of sensitive medical tests, making it available via oral communication by a responsible staff member might or might not suffice, depending on whether the staff member could read the report accurately, when the meeting was scheduled, and whether privacy was accorded. Reading the report over the hospital public address system, while potentially accurate and timely, would hardly be appropriate.

There are few cases in law where the right to information is absolute. Every state FOIA, and of course the federal version, contain numerous exceptions and defenses, some going to the nature of the information itself, some going to the circumstances, reasons and parties involved in the request. Indeed, in the current legal environment, the right both to information about the government and even about oneself from the government is shrinking.

If the right to public or personal information from the government is qualified, then the right to information from private entities (notwithstanding the apparent willingness of many large-scale information businesses to sell data to anyone and everyone) is even murkier. There is no common law right to information from private parties. As between private individuals and entities, except where the law creates such a right (as in the case of a copy of one's credit report if denied a loan) or where contract creates such a right, or where one can invoke the power of the courts to subpoena information, there is no general right to information. Indeed, to the degree that concerns for privacy have grown in importance in recent years, these have created presumptions against disclosure in many instances and settings.

Our major source of the right to accessible information arises from custom. Nothing forces the government to make forms and regulations available on web sites for public access and use, but once it does so, it is now recognized, as discussed in detail below, to be obliged to do so in a way that does not discriminate. One would like to believe that the same is true with private organizations that make their information or their transactions available electronically, but the law is far from recognizing a general right to equality in those settings yet.

Thus, claims for accessible information derive from two sources: either from specific laws requiring that certain information be available and accessible; or from voluntary practices by business and government that render accessibility an equality or a civil rights issue.

Just as there is no absolute right to any particular information, there is no absolute right to accessibility of even legally-required information. This is so because all accessibility rights that derive from disability civil rights laws include defenses and exceptions, including some that would not be admissible in other settings. For example, no one would countenance the interposition of the defense of undue financial burden by a civil rights defendant against a claim of racial discrimination. No court would give credence to a claim by a corporation that training its managers not to discriminate should not be required of it because too costly. Yet, all disability rights laws, including those bearing directly or by implication on information accessibility rights, define discrimination in such a way that excessive accommodation or other compliance costs are a defense against a finding that discrimination has occurred.

The opportunity to make such claims, together with the lack of broad understanding of methods or standards for achieving information accessibility in various settings, contribute to a measure of fragmentation and uncertainty that is likely to persist for some time. At the same time, IT accessibility, from a technical and feasibility standpoint, remains a moving target, in view of the rapid evolution in what is achievable and at what cost.

(c) INFORMATION ACCESS v. INFORMATION TECHNOLOGY ACCESS

It is critical to keep another distinction in mind as well. Sometimes the law requires, or the citizen seeks, access to specific information technology, such as the local area network used in one's office or the fare machine in one's mass transit system. Other times, the goal or the issue is simply access to the information that is processed, maintained and retrieved through that LAN, or for knowledge of how much is left on one's fare card.

The facts will determine which or both is at issue in any given case, but the distinction is important because it will determine what laws apply and what options are available. Section 508 of the Federal Rehabilitation Act has been interpreted and applied to require access to covered electronic and information technology (E&IT). Of course, the underlying assumption is that access to the technology will result in access to the information the technology produces or uses in its functioning, but that more fundamental purpose of the law is not reflected in any of the regulations or guidelines it has produced. This separation of information from IT is why web sites can be accessible within the meaning of the law but nonetheless be so poorly designed as to be all but unusable by people with disabilities or almost anyone else. Section 508 requires federal agencies to formulate plans for making information accessible when the IT cannot be, but inquiries of Federal IT and HR personnel in various agencies have failed to turn-up any examples of such plans or any indication that any agency has ever been asked for one.

To further illustrate how changes in technology are constantly moving the bar for what constitutes accessibility and how to achieve it, we note that in 1996 the US Department of Justice (DOJ) issued its famous Harkin letter stating that entities which make information available to the public by electronic means must find ways to make that information available to members of the public with disabilities. In the technological context of even so recently as 1996, this allowed some flexibility, and while nobody much noticed or complied, anybody who might have wanted to could have employed a variety of media and techniques, ranging from telephone, tapes, diskettes, Braille, etc. to meet this ADA requirement.

Today, because so much information is dynamically provided instantly on the Worldwide Web, and because most websites are updated frequently, accessibility of the web represents the only practical means of making information available on anything approaching a transparent, real-time or comparable basis. Fortunately, both technology and widely-accepted guidelines exist for doing this, including design guidelines developed by the Federal government for its own websites.

(d) THE LEGAL CONTEXT

An individual's rights, and a defendant/respondent entity's responsibilities, will depend on the context: (e.g., education, employment, healthcare, independent living), in which the information or IT is used or the request is made. These rights and responsibilities, not to mention the procedures for defining and vindicating them, will also depend on the status of the information-provider (e.g., public or private school, private business firm engaged in interstate commerce, federal agency).

These variations in expectations and procedures arise from the fact that different settings and different entities are governed by different laws. The obligations of a cell phone manufacturer to make its products accessible to users with disabilities are governed by Sec. 255 of the Telecommunications Act of 1996. Except there is a carve-out for the manufacturer's obligations to make its phones hearing-aid compatible. That is governed by the Hearing Aid Compatibility Act (HAC Act) of 1988. Both statutes are administered exclusively by the Federal Communications Commission (FCC), but the philosophy and regulations underlying this one agency's administration of the two statutes couldn't be more dissimilar.

(e) TECHNOLOGICAL CHANGE

In any area of concern, ranging from education to health or transportation, new technologies are constantly emerging that alter expectations and rights. The recent rise of claims for stair-climbing powered-mobility devices under Medicaid or of complaints regarding the sufficiency of web-based sign-language interpretation demonstrates this fact. But in no area is the impact of technological change more immediate than that of information-technology.

Before a new medical device or procedure can become generally available or insurance-compensable, it must be accepted, licensed, approved, adopted by various third-party payers and standards-setting bodies. In IT, this is not typically the case. As soon as it comes on the market, new technology is fair game for use by or on behalf of accessibility, or to become a barrier to accessibility, as the case may be. Time may be inadequate for determining prior to its introduction whether and how it can be made accessible. Issues of retrofitting, and of due diligence will often complicate the accessibility cost equation as a result.

But what happens when the approval requirements of a system collide with the free-wheeling nature of the IT world? How do accessibility features or add-ons to educational computers get validated as sound evidence-based practices? Or how do large-print readouts for glucometers used by persons with diabetes obtain the imprimatur of insurance systems, and have their safety and efficacy demonstrated? What knowledge-base gives confidence that CMS can intelligently determine what communications capabilities computer-based augmentative communications systems can and cannot include?

(f) POTENTIAL FOR ADVOCACY

The field of accessible information rights is replete with enormous and important advocacy opportunities for citizens, working with P&A's or with the private bar. These will be highlighted as we discuss the various laws and the key open or emerging informational-access issues posed by each. As an overarching example of such issues we note the emerging issue of confidentiality. Whenever inaccessibility requires that a person with a disability surrender their confidentiality rights in order to access personal information about themselves, an issue of great consequence is presented. That issue is likely to be analyzed and resolved very differently under different laws governing various settings where a legitimate expectation of privacy exists.

At the same time, there are situations, such as those involving the need for a sign-language interpreter, where unduly literal adherence to the principles of confidentiality would prevent people from obtaining necessary information or communicating key decisions about their own lives. Indeed, prior to the major federal civil service reform law of 1978, many federal agencies refused to permit blind employees to utilize the services of readers, even readers from within the agency in some circumstances, because of confidentiality requirements relating to the dissemination and security of the data.

II. IT ACCESS AND THE LIFE CYCLE

(a) EARLY CHILDHOOD

In the context of early childhood, rights of access to information technology do not often arise as an issue. Infants and preschool children do not ordinarily have occasion to use information technology or to access information. On the other hand, access to information about the services and resources available from public programs such as early intervention programs under IDEA may be of great value to their parents and to professionals working with them who may happen to have disabilities.

In identifying the nature and sources of information-accessibility rights, the starting point should always be the statute or other programmatic authority under which the inaccessible information is being provided. To the degree that information about EI programs is provided under the auspices of IDEA, the first port-of-call in looking for legal guidance is the IDEA itself. Pending review of the IDE Improvement Act adopted in December, 2004, we cannot say whether clear or explicit statutory authority exists within IDEA for the proposition of a mandatory right to accessible versions of information that is made available with federal funds to similarly situated families seeking eligibility information, assistance in applying or post-acceptance services under early intervention.

Apart from IDEA, there is little doubt that where the information is provided with federal funds Section 504 of the Rehabilitation Act would apply, and where the information, however funded, is provided by a state or municipal government agency, Title II of the ADA would come into play.

But to say that 504, Title II or conceivably both would apply is not to say how they would apply or what specifically they would require. Because these issues of what specific actions Section 504 of the Rehabilitation Act or Title II of the ADA would require are recurrent ones, applicable alike to people at every stage of the lifespan, we will reserve them for later discussion in Chapter ;child on civil rights. Only where they have specific requirements, as in the case of 504's application to higher education or the ADA's application to nursing home placements, will we discuss them in the lifespan section.

(b) ELEMENTARY AND SECONDARY EDUCATION

In elementary and secondary education, the issues typically confronted are these: Must instructional material normally provided in print, or audio-visual instructional materials, be made accessible to students with disabilities; should mainstream classroom procedures be modified to ensure accessibility for students with disabilities; can individual students' IEP's or 504 plans compel accessibility modifications, such as the purchase of accessible computer systems, by the school system that would have an impact going far beyond the individual student's particular needs; and should the costs of accessibility be borne by special education or general funds?

The US Department of Education (ED) has recently promulgated guidelines for use by textbook publishers and school-system procurement officials in defining what accessibility measures textbooks should meet. These requirements were not mandatory under IDEA prior to its recent amendment. Their purpose was to create uniformity and to help publishers deal with a welter of state textbook accessibility laws that, while intended to ensure accessibility, had in the view of some created far more confusion than clarity.

State textbook accessibility laws are an important antecedent to this movement. Now the status of and need for these state laws, at least at the K-12 level, is called into question. The new Individuals with Disabilities Education Improvement Act (IDEIA) establishes the National Instructional Materials Accessibility Standard (NIMAS), and establishes requirements based on the existence of this standard. Thus, it should now be possible to say with relative confidence that, at least so far as textbooks, audio-visual media and other instructional materials used in public schools in states receiving funds under IDEA (which all states do), accessibility is a clearly articulated right.

But new questions are raised by the law, and time and case law will be required for their answer. Clearly, electronic versions of textbooks, capable of being formatted for Braille output or for a variety of other formats, will be required to be provided. Recognized standards for this encoding exist. But what will the law require or what exceptions will it permit for those rapidly evolving new forms of instructional materials and media for which NIMAS and technology have not yet developed accessibility strategies? And to the extent that the new law to quires the provision of various educational services for students in religious or other private school settings, what if any means will be developed for ensuring that individualized services are complemented by accessibility? What remedies will be available if school districts fail to implement the NIMAS standards, and who will have standing to complain, only students who find themselves education disenfranchised after the fact, or students or others in time to prevent nonconforming procurements and deployments from taking place? These and innumerable other questions remain for vigilance and advocacy to pursue and address.

There came a point, with the passage of Section 504 and later of the ADA, at which physical accessibility of school buildings and facilities became a legal necessity, independent of and precedent to the demand for access by any particular student or teacher. Up until now, information and to some degree program accessibility, as distinguished from physical accessibility, have been dealt with largely as an individual issue, dealt with through the IEP or the 504 plan process. It is to be hoped that with NIMAS the critical line between individually-enforceable (or unenforceable) right and pre-existing duty may finally have been crossed.

As the involvement of Section 504 suggests, school districts are not limited to special education-denominated funding in meeting media-accessibility requirements. In fact, where a claim is upheld under 504, they would presumably be required, assuming their defense of financial burden had been rejected, to find funds from whatever source might be available. Advocates can and should also look to statewide school-funding resources, such as low-incidence funds or intergovernmental loans, to find resources for meeting such needs.

The question of when or whether an undue burden defense would succeed under 504 in allowing a school district to escape from any particular accessibility requirement depends in large part on how the hearing officer or reviewing court defines the resources available to the district for the purpose. A school district could not argue that its obligation to make its facilities accessible is limited to what can be done with the sums it has budgeted for construction, or with non-obligated special education funds. And certainly no school district would concede that its legal expenses incurred in defending civil rights actions should be limited to the sums it had previously budgeted for legal counsel.

While the legal lynchpins for accessibility of school IT resources are not so numerous or well-understood as those for physical access, the rules governing and the sources of funding should be no different once the obligation for accessibility attaches. This similarity may not be fully recognized or acknowledged by school officials until information access requirements are supported by the same infrastructure of state and local laws as the building codes which require physical accessibility.

In addition, IDEAIA adopts the concept of "Universal Design" as defined under the Assistive Technology Reauthorization Act of 2004. Schools are required to adopt technology, including technology with universal design principles and AT devices to "maximize accessibility" to the general education curriculum. What this new provision means will be more flushed out by rulemaking and court interpretation.

(c) HIGHER EDUCATION

IDEA plays no direct role in higher education. On the federal level, Sec. 504 and the ADA (Title II in the case of students at public institutions, Title III in the case of private) apply. A few states have textbook accessibility laws or other provisions extending to some or all of their higher educational institutions. Broadly speaking, the net of these requirements is understood to include accessibility of school computer systems and of centrally-generated materials and information including web sites. A number of major university systems, such as the Cal State University, have in-house resources for creating accessible formats of various materials.

Where the conventional understanding appears to break down is at the door of the individual classroom, in the design of distance education programs, and in the division of financial responsibility for institutional and individually-based accessibility.

With respect to distance learning courses of private colleges and universities, it is not at all clear that any law can mandate accessibility as currently construed. Title III of the ADA, which in the absence of federal funding or a federal contract is the most likely source of such a requirement, has not, as we will discuss later, not been generally construed to cover commercial websites. Under current law, one can be confident of its applicability only if a nexus between the web site and a "place" of public accommodation exists. In instances where the online activities of the course were a prerequisite to other coursework occurring on campus, such a nexus could probably be shown, but in the absence of an in-person, on-campus course component the prospects are considerably more remote.

(d) EMPLOYMENT

Depending on the identity of the employer, anyone of a number of statutes can be invoked to protest discrimination against job applicants or employees with disabilities. State anti-discrimination and civil service laws; Title I of the ADA; Secs. 501 and 504 of the Federal Rehabilitation Act; and potentially a host of other statutes may apply, depending upon the context.

Although most laws identify particular activities as discriminatory (such as refusing to offer the same fringe benefits as all other employees receive, asking intrusive medical questions at interview, or other familiar atrocities), no law purports to set forth an exclusive list of the range of activities that could be discriminatory. As such, while no civil rights law explicitly lists refusal to provide necessary access to job-related IT as proscribed behavior, it is clear that, all else being equal, failure or refusal to afford someone the means of doing their job, or refusal to hire on the ground of a person's need for assistive technology (AT) peripherals or devices to do the job, would ordinarily constitute prima facie evidence of discrimination.

But it is with this all-else-being-equal qualification that we must cope here. If, for example, as demonstrated in a number of cases, an employer offers a job modification or restructuring that eliminates the need for access to or use of the IT, then the claim of discrimination will not prevail. Likewise, if, as according to anecdotal reports is frequently the case, technology simply cannot be identified to make a particular function or system accessible, the law will not require the employer to do what cannot be done in the current state of knowledge. Similarly, to the degree that the right to IT accessibility in the workplace is triggered by individual need or complaint, various individual defenses unrelated to the merits of the claim are always available to the employer, including the jurisdictional defense under the ADA that the employee or applicant does not meet the definition of a person with a disability under the law and hence is entitled to no protection from it. Finally, the undue hardship defense noted above, including either cost-based contentions or claims of fundamental alteration of the nature of the employer's business or of the kind of technology in question, can also be brought to bear.

In the public employment sector, other laws may apply. While the ADA applies to state and local government employment, Supreme Court decisions deny enforceability by private right of action for money damages to aggrieved state employees. The ADA does not apply to federal employment, but a number of other laws do, including Sections. 501 and 508 of the Federal Rehabilitation Act.

Sec. 501 differs in detail from Title I of the ADA, but is a recognizable and fairly standard type of employment antidiscrimination statute. Sec. 508 is unique in its approach, and its role therefore warrants particular attention.

Sec. 508 is not a civil rights statute in any ordinary or traditional sense. It is a procurement statute, requiring Federal agencies, in their acquisition of E&IT for their own use to obtain accessible devices and systems. Guidelines developed by the Architectural and Transportation Barriers Compliance Board (the Access Board) and thereafter adopted by the Department of Justice specify the technical, functional and design requirements that embody this requirement. Additional guidelines set forth by the General Services Administration (GSA) and other federal oversight agencies provide federal executive branch agencies with procedural and documentation guidelines for use in applying the law.

What makes Sec. 508 a potential employment civil rights law is its grant of a right to complain, and potentially to sue, for violation of the law, when that violation results in the federal employee's inability to perform her job. The procedures for such complaints are the same as those developed by each agency for complaints under Sec. 504.

What is missing from 508, from the standpoint of the rights it confers on employees as well as on members of the public, is any means for challenging a procurement before it takes place. Other provisions of federal public contracts and procurement law give aggrieved competitors and potentially other parties the right to challenge procurements on various grounds (e.g., irregularities in the bidding, inside information provided to a favored bidder), but it is not clear that this option is available for anticipated violation of Sec. 508 or that if it is, aggrieved federal employees or information-recipients in the public have standing to raise the challenge.

This matters for a number of reasons, not least because of how it changes the cost equation. Retroactive repair or reconfiguration of inaccessible hardware or software inevitably costs far more than initially accessible design. Nonetheless, the undue burden standard would be in play in the evaluation of proposed repairs, and it is not clear to what extent the government can or cannot avoid as "undue" the costs of retrofitting that resulted from its own prior negligence.

It is in the area of web sites used by government employees in their work, including those generated by federal agencies themselves and those created and maintained under grant or contract, that 508 has had its most dramatic and palpable effects.

A number of states have what we may call Little 508 laws as well. These vary enormously in their definitions, coverage, administration and remedies. In at least one instance such a law in Arkansas has been used to require the state to make its IT system accessible to employees who are blind.

Another aspect of the employment-technology relationship relates to the nation's career development system. The Workforce Improvement Act of 1998 (WIA), which now includes the Rehabilitation Act as its Title 4 (and which may be reauthorized between the writing of this paper and its presentation) creates a national network of one-stop centers. These centers, operating with elements of local and national control, consolidate a variety of job-search, career-development and related ta activities in one place.

Sec. 188 of the WIA bars discrimination against individuals with disabilities, and, as indicated by the Accessibility Checklist published for one-stops by the DOJ, as well as by other sources, this nondiscrimination requirement includes program access as well as physical access. Program access in turn incorporates the ability to use the research tools, databases, training materials and other resources offered by and through the one-stops.

It is widely believed that the one-stops have fallen far short in regard to the information-accessibility component of these requirements. It is not clear that the Federal government, whether through enforcement of contractual requirements, withholding of funds or other means, has taken steps to ensure fulfillment of these requirements. In any event, Sec. 188 represents one example among many of program-specific antidiscrimination provisions that must be read to incorporate the right to accessible information and IT.

(e) HEALTH CARE

From the standpoint of the law, it is Title II and Title III of the ADA, depending on the nature of the entity in question, that broadly apply to access to health care information. Sections 404 and 508 of the Rehabilitation Act may also apply, as discussed below. Specific statutes, particular to the settings or programs in question, may also apply, as do state laws.

In no area have issues of access to information on the one hand, and confidentiality of information on the other, received so much attention as in the provision of health care and the use of health care records. More and more, issues ranging from informed consent to treatment, release of information (as governed by HIPAA), discriminatory use of health information including genetic information are of growing importance, and increasingly involve information technology.

Information access rights have come up under the ADA, mostly in connection with the adequate availability of sign-language interpreter services in hospitals, and in connection with the accessibility to persons with disabilities of reading (and persons with intellectual disabilities) of informed consent forms, package inserts and drug usage instructions. The Medicare Modernization Act of 2003 included a study of the feasibility of making drug label information more accessible, and a "talking medicine bottle" is now on the market.

There is little dispute that the right to information in the healthcare setting includes the right to accessible information, but there is little evidence that that right is understood, respected or implemented. As computerized communication between patients and practitioners, telemedicine, and electronic medical record-keeping under the auspices of the National Health Information Infrastructure (NHII) initiative come into ever-greater use, the issues surrounding health information and health IT access will grow more complex.

The Medicare Part D program (prescription drugs) makes extensive use of consumer information as a tool to help Medicare recipients choose among competing insurance plans. Much of this information is available, either exclusively or optionally (but certainly most conveniently) on the web, some of it generated by the competing insurance carriers, some by the federal oversight Centers for Medicare and Medicaid Services (CMS) itself. Leaving aside the coherence, accuracy and intelligibility of this information, serious questions surround its accessibility.

A key issue in this regard is whether CMS and private insurers are governed by Sec. 508 in their formatting and dissemination of this information. Sec. 508 clearly exempts federal contractors and grantees from its coverage, but this exemption is not blanket. The statute seems clearly to require that information prepared on behalf of the federal government for use by the public must be accessible. Logic suggests this outcome too, for otherwise, the federal government could evade many of 508's requirements by outsourcing (not an unknown strategy, to be sure).

Depending on the legal status of Part D managed care provider organizations, a strong argument can be made that, since they are disseminating information required by the federal government and on behalf of the government, as specified by CMS, the insurers are subject to compliance with the accessibility requirements of 508. This would mean accessible web sites, accessible telephone systems (including TTY's of course but also the requirements of Part 1194) and methods for effectively communicating information to the public when applicable E&IT cannot be made accessible.

Similar issues could be raised with Medicaid, where the ADA has already been widely used, in conjunction with Sec. 1983, to seek redress, albeit mostly in connection with the denial of services. If Sec. 508 (and 504) were brought to bear in the Medicaid program in order to force contractual service providers, practitioners or managed care organizations, to make required information accessible, the situation would differ from that applicable under Medicare in at least one key respect. State human rights and IT laws could also be brought to bear, whereas such laws would presumably have no place in challenging the practices of Medicare providers.

In any attempt to assert information-access or other civil rights against quasi-governmental entities in a privatized environment, major new procedural hurdles must be confronted. It is beyond the scope of this paper to suggest a detailed strategy for bridging the increasingly artificial distinctions between public and private entities administering public programs. Our purpose is to suggest to consumers and advocates alike that major issues are emerging, worthy of attention and response.

III. SPECIFIC SITUATIONS AND SETTINGS

(a) TRANSPORTATION

Everyone is well aware of the long struggle to make public and commercial mass transit accessible in this country. A new dimension of that struggle involves information, ranging from schedules and routes, to station announcements, to independent ability to operate fare machines.

The ADA is clear in requiring public mass transit fare-collection equipment to be accessible, meaning within reach of people who use wheelchairs and usable, through appropriate tactile or verbal output and cues, to persons with visual disabilities. Indeed, the most unambiguous court decision in the annals of web accessibility law is that in Martin v. MARTA, decided under Title II of the ADA in 2003, requiring the Atlanta transit system to make its website containing route and schedule information accessible.

The ADA is also clear in defining and requiring physical accessibility of intercity trains and buses. Regrettably, though general requirements regarding the announcing of stops do exist, enforcement of these, as well as awareness of any other dimensions of system information-accessibility is widely thought to be extremely lacking. Nor is it clear that the ADA would cover web sites of private sector carriers, such as long-distance bus operators or Amtrak.

When it comes to air transportation, the situation is even more uncertain owing to the concurrent jurisdiction with the ADA of the Air Carrier Access Act of 1986 (ACAA). In late 2004 the US Court of Appeals for the Eleventh Circuit upheld a district court decision holding that the ADA did not apply to an air line website. But in upholding the lower court judgment the Court of Appeals pointedly did not affirm the judgment. Instead it dismissed the appeal, explicitly declining, because of the inadequacy of the record before it, to reach the substantive issues in the case, and indeed expressing regret over its inability to do so.

One key issue in the case, never analyzed by the trial court and of course not addressed by the appellate court, was whether the ADA applied at all, or whether the air line web site was governed by the ACAA. In an almost simultaneous action, the US Department of Transportation, which is the agency charged with enforcing ACAA, expressed the position that ACAA does apply. It did this by issuing can notice of proposed rulemaking (NPRM) that purports to require commercial air line web sites that sell tickets and provide other services to comply with the accessibility requirements established under Sec. 508. Whether DOT regards ACAA's jurisdiction as being exclusive or concurrent with that of the ADA, the NPRM does not indicate. What the Department of Justice thinks is unknown.

In July 2004 the New York State Attorney-general's office negotiated a settlement with two travel-related companies, Priceline.com and Ramada, under which these firms agreed to make their web sites accessible. The AG took the view that both the ADA and the New York State human rights law supported the right of access to these informational resources. Whether this is a harbinger of the application of state IT access or civil rights laws to such interstate websites, and if so whether such application will withstand the inevitable court challenge, it is too early to say.

(b) BANKING

As an element of the ADA, point of sale (POS) and information terminal machines (ITM) that are available to the public are generally required to be accessible. But the ADA Accessibility Guidelines (ADAAG) promulgated to implement the ADA's requirements specified scoping requirements for such accessibility only in relation to persons with physical disabilities. These included machine height, path of travel, reach range, turning radius and similar design issues.

Although the ADA made pointed reference to people who are blind in relation to ATM accessibility, no guidance was offered as to how this requirement should be achieved. Many banks immediately posted Braille instructions on their machines. According to anecdotal reports, these led many people to believe that the machines were accessible, but of course, even if the majority of people with visual impairments read Braille, the labels would provide none of the dynamic, interactive information necessary to successfully use the machine.

Lengthy negotiations, discussed by presenters at this conference last year, resulted in the implementation of synthetic-speech screen-output and tactually-accessible input.

What the process makes clear is that in cases where the requirement of accessibility exists but the means or meaning are not established by guidelines, opportunities must be found for engaging consumers and operators in joint efforts to test and implement various approaches.

As interactive machines come into increasing use for a variety of once face-to-face transactions, the question of their accessibility will also become more and more important. For example, debit card readers used at supermarket checkout counters and requiring customer PIN entry, electronic entry systems requiring entry were an access code on a keypad, biometric identification systems and other similar interactive technologies pose a host of accessibility issues for persons with various disabilities.

When the use of such machines is an integral element of, or a condition for, access to the facilities, goods and services of a public accommodation, (a state or local government entity, or of an organization receiving federal financial assistance, strong grounds exist for believing that accessibility is required. But defining precise meaning of accessibility in each of these settings and identifying or developing the means for achieving it pose many challenges.

(c) VOTING

The background to voting accessibility rights, including accessible polling places and independently usable voting machines can be found in the Voting Rights For the Elderly and Handicapped Act of 1984 and the ADA. A couple of recent cases brought under the ADA have indicated that it does extend to voting accessibility, and therefore to the technology needed to make it possible to vote. But it is the Help America Vote Act of 2002 (HAVA) that provides the principal authority for voting access and the related technology.

Once again, HAVA demonstrates the interplay between law and technology. Whether the existence of the technology prompted the law, or whether the prospect of the law galvanized the manufacturers, we now have both direct recording equipment (DRE) voting machines that allow voters with various disabilities of mobility, reading and vision to finally cast secret ballots, and we have a law requiring these machines to be deployed.

Contrary to the general pattern found in disability rights laws, the DOJ has made clear that defenses going to difficulty or cost will not be acceptable. Partly this is a result of the fact that federal funds are appropriated under HAVA for the very purpose of assisting states in implementation of voting accessibility, but partly too it is a response to the fact that inasmuch as states and localities are spending considerable sums to upgrade their voting equipment, it would be inherently unreasonable for them to argue that any added costs for one accessible machine per district or precinct would be burdensome.

(d) TELECOMMUNICATIONS

Most IT accessibility questions are context-dependent, as we have seen. But there are a few instances in which the nature of the technology, irrespective of the context in which used, determines what the law requires. Such a case is telecommunications, including telecommunications services (your local and long-distance phone companies) and customer premises equipment (your cell phone or fax machine). These categories of equipment and services are supervised by the Federal Communications Commission (FCC) and are required by Sec. 255 of the Telecommunications Act of 1996 to be accessible to and usable by individuals with disabilities, to the extent readily achievable. Section 255 confers exclusive jurisdiction over enforcement on the FCC, meaning that no private right of action exists. The commission has established a complaint procedure under which stand is not limited to individuals with disabilities but is available to anyone. One formal complaint is known to have been filed, which resulted in a negotiated settlement between the parties. Since the FCC has neither specified nor imposed any penalties for violation of Sec. 255, it is not clear what remedies are available.

One interesting wrinkle under Section 255 is that it applies only to "telecommunications services" and not to "information services." As the FCC has created and Congress ratified this distinction, it essentially means that only voice communication and some non-vocal telephone communication are protected by the law, whereas data transmission and the equipment or parts of equipment used to facilitate it are not covered. As even voice communication migrates to Internet-based transmission protocols, most notably VOIP, real risk exists that voice calls made and carried out with this technology will likewise be exempted from protection because they are processed on the same lines and in the same way as as data, graphics or music are transmitted.

As indicated above, telephone equipment and services are covered by the law to the extent they support voice communication. Certain systems, like interactive voice response (IVR) (the systems whereby you are prompted by a recorded voice to make your selection by pressing this or that button on your telephone keypad) are covered by the law, even if the systems never allow you to get to an actual live human being. Issues of user-definability arise with respect to these systems, (eg, the allowable response time before the system "times out," the repeatability of strings were numbers and the speed at which options or menus are recited). These are variously governed by the 508 guidelines, and should be recommended for use, whether 508 literally applies or not, where they exist.

One of the leading cases cited in the internet access debate involved such a system. Would-be contestants competing to appear on the Who Wants to be a Millionaire television show were asked to answer a series of qualifying questions via touchtone phone. Persons with hearing impairments (who needed to interact with the system via relay operator) and persons with motor impairments (who simply lacked the necessary finger dexterity) complained that this system was discriminatory, because even though they knew the answers they could not press the buttons quickly enough to win. The lower court ruled in favor of the program producers, on the ground that the alleged discrimination did not occur at a place of public accommodation. The Eleventh Circuit reversed, however, holding that because the phone system was a prerequisite to admittance as a contestant to the TV studio where the program took place, the nexus created between the phone system and the studio location was sufficient to trigger the applicability of the ADA.

e) TV and MOVIES

Another area where the nature of the technology, rather than the context of its use, is of predominant importance is that of television and film. Since 1993 virtually all TV's sold in the United States have been required to contain closed-caption decoder chips. More recently, the Telecommunications Act of 1996 required progressive implementation of mandatory captioning requirements for over-the-air and cable TV broadcasters. By January 1, 2006, most new programming created or carried on larger stations will have to be captioned. No comparable legal requirement applies to the captioning of films in commercial distribution, but various technologies and widespread expectations have made this very common.

What captioning does for people who are deaf audio-description or descriptive video or video description (it goes under various names) does for people who are blind. With this technology, spoken narration describing the visual elements of the programming is inserted into the soundtrack. Pursuant to a study authorized by the 1996 legislation, the FCC established minimum requirements for this access feature, but the rule was struck down by the DC Circuit on the ground that only the study was authorized by the law. A number of television programmers and an increasing number of film exhibitors make some use of this technology, but no current legal requirements compel anyone to do so.

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