U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

56–070 PDF 2010

ACHIEVING THE PROMISES OF THE AMERICANS 

WITH DISABILITIES ACT IN THE DIGITAL AGE— 

CURRENT ISSUES, CHALLENGES, AND OPPORTUNITIES 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS, AND CIVIL LIBERTIES 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

APRIL 22, 2010 

Serial No. 111–95 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

LUIS V. GUTIERREZ, Illinois 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

[Vacant] 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Majority Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

JERROLD NADLER, New York, Chairman 

MELVIN L. WATT, North Carolina 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

WILLIAM D. DELAHUNT, Massachusetts 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

TAMMY BALDWIN, Wisconsin 

JOHN CONYERS, JR., Michigan 

STEVE COHEN, Tennessee 

SHEILA JACKSON LEE, Texas 

JUDY CHU, California 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

TOM ROONEY, Florida 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 

(III) 

C O N T E N T S 

APRIL 22, 2010 

Page 

OPENING STATEMENTS 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Chairman, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 1 

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Ranking Member, Subcommittee on the 

Constitution, Civil Rights, and Civil Liberties .................................................. 3 

WITNESSES 

The Honorable Samuel R. Bagenstos, Principal Deputy Assistant Attorney 

General, U.S. Department of Justice 

Oral Testimony ..................................................................................................... 5 

Prepared Statement ............................................................................................. 8 

Mark D. Richert, Esq., Director, Public Policy, American Foundation for the 

Blind 

Oral Testimony ..................................................................................................... 22 

Prepared Statement ............................................................................................. 24 

Ms. Judy Brewer, Director, Web Accessibility Initiative, World Wide Web 

Consortium 

Oral Testimony ..................................................................................................... 34 

Prepared Statement ............................................................................................. 36 

Mr. Steven I. Jacobs, President, Ideal Group, Inc. 

Oral Testimony ..................................................................................................... 40 

Prepared Statement ............................................................................................. 42 

Mr. Daniel F. Goldstein, Brown, Goldstein & Levy, LLP 

Oral Testimony ..................................................................................................... 79 

Prepared Statement ............................................................................................. 82 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas, and Member, Subcommittee on the 

Constitution, Civil Rights, and Civil Liberties .................................................. 105 

Prepared Statement of the Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress from the State of Georgia, and Member, Subcommittee on the Constitution, Civil Rights, and Civil Liberties .................... 106 

(1) 

ACHIEVING THE PROMISES OF THE AMERICANS WITH DISABILITIES ACT IN THE DIGITAL AGE—CURRENT ISSUES, CHALLENGES, 

AND OPPORTUNITIES 

THURSDAY, APRIL 22, 2010 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND CIVIL LIBERTIES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 1:10 p.m., in room 

2141, Rayburn House Office Building, the Honorable Jerrold Nadler (Chairman of the Subcommittee) presiding. 

Present: Representatives Nadler, Scott, Jackson Lee, Chu, and 

Sensenbrenner. 

Staff Present: (Majority) David Lachmann, Subcommittee Chief 

of Staff; Heather Sawyer, Counsel; and Paul Taylor, Minority 

Counsel. 

Mr. NADLER. This hearing of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties will come to order please. 

Before we begin, if you want to take advantage of the sign language interpreter for today’s hearing, we have reserved some seats 

up front for that purpose. 

I would also ask those of you with cameras please refrain from 

taking flash pictures today. 

We will start by I will recognize myself for a 5-minute opening 

statement. 

Today’s hearing examines the application of the Americans with 

Disabilities Act in the digital age. This July, we will celebrate the 

20th anniversary of the Americans with Disabilities Act of 1990. 

Often described as the most sweeping civil rights legislation 

since the Civil Rights Act of 1964, the ADA embodies our promise 

that the gateways to participation in American society, avenues to 

work, public services, and public accommodations will be open to 

people with disabilities. We renewed that promise 2 years ago 

when we came together in a fully bipartisan effort to pass the ADA 

Amendments Act of 2008, which responded to court decisions interpreting the definition of disability too narrowly and in a manner 

that was completely at odds with the broad remedial purposes of 

this great law. I want to thank the Ranking Member, my colleague 

from Wisconsin, Jim Sensenbrenner, the Chairman of the full ComVerDate Aug 31 2005 13:35 Jul 15, 2010 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6601 H:\WORK\CONST\042210\56070.000 HJUD1 PsN: 56070
2 

mittee, John Conyers, and the majority leader, Steny Hoyer, for 

their particular leadership on that bill. 

Today’s oversight hearing shows that our commitment to achieving the ADA’s promise did not end 2 years ago. That commitment 

endures, and as the world around us changes and new gateways 

to participation in American life are opened, we must ensure that 

people with disabilities are included. 

When Congress passed the ADA 20 years ago, we were not communicating by e-mail, blog, or tweet; we were not filling virtual 

shopping carts with clothes, books, music, and food; we weren’t 

banking, renewing our driver’s licenses, paying taxes or registering 

for and taking classes online. 

Congress could not have foreseen these advances in technology. 

Despite Congress’ great cognitive powers, it could not have foreseen 

these advances in technology which are now an integral part of our 

daily lives. Yet Congress understood that the world around us 

would change and believed that the nondiscrimination mandate 

contained in the ADA should be broad and flexible enough to keep 

pace. 

As one Committee report explained, we quote, intend that the 

types of accommodation and services provided to individuals with 

disabilities under all of the titles of this bill should keep pace with 

the rapidly changing technology of the times, closed quote. 

Today, we have a chance to hear from the Department of Justice 

and other experts on whether Congress’ expectation is being met. 

Through informal guidance, the Department consistently has taken 

the position that public and private entities must ensure that individuals with disabilities have equal access when the goods or services are provided over the Internet or through other evolving technologies. But the Department has yet to modernize its regulations 

to make that clear, and the courts have struggled to articulate a 

consistent approach. 

This lack of clarity is harmful and places individuals with disabilities at great risk of being left behind. It also leaves public and 

private entities uncertain as to whether they are subject to and, for 

that matter, in compliance with ADA requirements. I therefore 

urge the Department to update its regulations and hope to hear 

today about its plans to issue guidance that clarifies application of 

the law and provides meaningful resources for entities seeking to 

comply. 

With this additional clarity and guidance, I am hopeful that we 

will avoid a repeat of the problems that we encountered with the 

court’s misinterpretation of the definition of the word ‘‘disability’’ in 

the ADA. In correcting the courts unduly restrictive interpretation 

of this term, we made clear that we will not tolerate a narrow reading of the ADA. 

That same message should apply with full force as the courts interpret and apply key phrases like ‘‘place of public accommodation’’ 

in Title III of the Act. The notion that Congress prohibited discrimination only when it occurs in a physical place or required 

structural changes only to physical places is not consistent with the 

spirit and the plain language of the law. 

In recognizing and seeking to remove barriers that had limited 

access and opportunity of individuals with disabilities, Congress 

3 

certainly did require changes to physical structures, but that was 

not all. Congress also required, among other things, reasonable accommodations and modifications to policies, practices, services, or 

activities, the provision of auxiliary aides, and the removal of communication barriers. None of these requirements can accurately be 

characterized as limited to physical spaces. 

I am confident that removing barriers, whether they occur in 

physical or cyberspace, and ensuring accessibility and equal opportunity when jobs, public services, and public accommodations rely 

upon access to new technologies benefits all of us. I am also confident that achieving this goal is not unduly burdensome, and it 

will not staunch innovation or creativity. 

Having been fortunate enough to work with a young attorney on 

the Subcommittee who, in addition to being brilliant and thoughtful, is also blind, I have seen and enjoyed the benefits that a few 

simple accommodations can bring. And I can assure you that we 

all have a lot to lose if and when those accommodations are not 

made. 

I am pleased to welcome our witnesses today, and I look forward 

to hearing from them on how we can continue to ensure that the 

promise of the ADA is achieved in the digital age. 

The Chair will now recognize the distinguished Ranking Member 

for 5 minutes for an opening statement. 

Mr. SENSENBRENNER. Thank you, Mr. Chairman. 

Twenty years ago, this country took a significant step forward in 

eliminating the barriers that for far too long kept disabled Americans from fully participating in the American dream. Prior to the 

ADA Act of 1990, disabled Americans faced not only physical barriers in almost all aspects of society but also attitudinal barriers 

which relegated them to a form of second-class citizenship. Moreover, because Federal and State laws were ill-equipped to protect 

disabled Americans at the time, false stereotypes and discriminatory treatment employed by others created a vicious cycle. As a result, disabled Americans experienced lower graduation and employment rates, higher poverty rates, and less personal freedom and 

independence than more able-bodied citizens. 

The ADA enacted on July 26, 1990, broke this vicious cycle by 

helping restore the full meaning of equal protection under the law. 

Like the civil rights laws that came before it, this landmark bipartisan law has worked to transform our Nation. As a result of the 

ADA, fewer citizens are judged by their physical and mental impairments and are now evaluated according to their character and 

qualifications. 

In the last Congress, I worked with Chairman Conyers and Majority Leader Hoyer to achieve the enactment of the ADA Amendments Act of 2008, which further fulfilled the promise of the ADA 

by resolving the intent of Congress to cover a broad group of individuals with disabilities under the Act. That legislation served to 

eliminate the problems of courts focusing too heavily on whether 

individuals are covered by the law rather than on whether discrimination occurred. 

My wife, Cheryl, who was then chairman of the board of the 

American Association of People with Disabilities and who is in the 

audience today, was dogged in her advocacy for that legislation. 

4 

Many members report still hurting when she hit them over the 

head with her cane. 

Still, the fight for fair and equal access continues. Through the 

ADA’s clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities, communities have visibly become more accessible and more friendly to 

disabled citizens. The ADA has encouraged conscious change to our 

infrastructures, governments, businesses, policies, and practices. 

Part of that changing infrastructure is the Internet. With the 

ever-expanding and increasingly inexpensive bandwidth, technology is now helping to solve many accessibility issues by allowing 

the disabled to interact more easily with other people, businesses, 

and government from their own homes. Just like buildings, Web 

sites can be designed to meet the needs of everyone, including the 

disabled. 

In our new digital age, an accessible online environment is part 

of what is required by the ADA’s reasonable accommodation standard, as Federal appeals courts have already recognized. Students 

are coming to expect better access to long-distance learning 

courses, consumers are reasonably expecting an easier transaction 

with businesses, and citizens are expecting better interaction with 

their government. 

While lawsuits continue to spur greater accommodations within 

the digital landscape, technology is rapidly making it easier for 

ADA-covered entities to avoid lawsuits by simply providing reasonable accommodations. That may have been the case a decade ago 

that companies wondered how they could make online interactions 

with the disabled more accommodating. But today the question is 

how do we do it and should give way to just do it as the advance 

of technology makes former excuse making incredibly untenable. 

The ADA has been one of the most effective pieces of civil rights 

laws passed by Congress. This continued effectiveness is paramount to ensuring that the transformation that our Nation has undergone continues in the future and that the guarantees and promises on which this country was established continue to be recognized on behalf of all of our citizens. 

I am happy that all of our witnesses are here today and that 

they will tell us more about how technology is helping to make 

compliance with the ADA even easier. 

I thank the Chairman for the time and yield back. 

Mr. NADLER. I thank the gentlemen. 

In the interest of proceeding to our witnesses and mindful of our 

busy schedules I ask that other Members submit their statements 

for the record. 

Without objection, all Members will have 5 legislative days to 

submit opening statements for inclusion in the record. 

Without objection, the Chair will be authorized to declare a recess of the hearing, which, since the House is not in session, we 

expect no votes, I don’t expect to have to do. 

We will now turn to our first panel. As we ask questions of our 

witnesses, the Chair will recognize Members in the order of their 

seniority in the Subcommittee, alternating between majority and 

minority, provided that the Member is present when his or her 

turn arrives. Members who are not present when their turns begin 

5 

will be recognized after the other Members have had the opportunity to ask their questions. The Chair reserves the right to accommodate a Member who is unavoidably late or only able to be 

with us for a short time. 

Our first witness and our first panel is Samuel Bagenstos, who 

is the Principal Deputy Assistant Attorney General in the Civil 

Rights Division of the Department of Justice. As Principal Deputy 

AAG, Mr. Bagenstos assists in the overall management of the Division and directly supervises the Division’s appellate and disability 

rights sections, as well as the disability rights work of the Division’s special litigation section. 

From 1994 to 1997, he worked as a career attorney in the appellate section of the Division. Prior to rejoining the Department, Mr. 

Bagenstos was a law professor, having taught at Harvard, Washington University at St. Louis, UCLA, and the University of Michigan. He is a graduate of the University of North Carolina and received his J.D. magna cum laude from Harvard law school. 

I am pleased to welcome you. Your written statement in its entirety—and I will address this to the witnesses in our second panel, 

too, so I will say it in the plural. Your written statements in their 

entirety will be made part of the record. 

I would ask each witness to summarize his or her testimony in 

5 minutes or less. To help you stay within that time, there is a timing light at the table. When 1 minute remains, the light will switch 

from green to yellow and then red when the 5 minutes are up. I 

will lightly tap the gavel when the light turns yellow and then tap 

it harder when it turns red. 

Before we begin, it is customary for the Committee to swear in 

its witnesses. If you would please raise your right hand to take the 

oath. 

[Witness sworn.] 

Mr. NADLER. Let the record reflect that the witness answered in 

the affirmative. 

I will now recognize Deputy Assistant Attorney General 

Bagenstos for 5 minutes for his opening statement. 

TESTIMONY OF THE HONORABLE SAMUEL R. BAGENSTOS, 

PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL, U.S. 

DEPARTMENT OF JUSTICE 

Mr. BAGENSTOS. Thank you, Chairman Nadler and Members of 

the Committee. It’s a great pleasure and honor to appear today to 

discuss the rights of individuals with disabilities to access emerging technologies, particularly as we come up to the 20th anniversary of the ADA this summer. 

Under the ADA, access to the Internet and emerging technologies 

is not simply a technical matter, it’s a fundamental issue of civil 

rights. And as more and more of our social infrastructure is made 

available on the Internet, and in some cases exclusively online, and 

as emerging technologies play an increasingly central role in education, employment, and other important areas of civic and economic life, access to information and electronic technologies is increasingly becoming the gateway civil rights issue for persons with 

disabilities. 

6 

The Internet and emerging technologies certainly hold enormous 

promise for people with disabilities, just as they do for everyone 

else. But a digital divide exists and threatens to grow between people with and without disabilities. When Web sites are inaccessible 

because they incorporate untagged images, for example, that can’t 

be read by a screen reader, individuals with disabilities are shut 

out of the opportunities that the Web site provides. And inaccessible Web sites that are operated by State and local governments 

or private businesses undermine the ADA’s promise that people 

with disabilities will have full and equal access to all areas of civic 

and economic life. 

Where schools use electronic text or e-book readers that are inaccessible because, for example, they lack a text-to-speech function, 

they deny people with disabilities the full and equal access to class 

materials and opportunities that the ADA demands. 

Ensuring that people with disabilities have an equal opportunity 

to access the benefits of emerging technologies is an essential part 

of our disability rights enforcement at the Department of Justice. 

We have long taken the position that both State and local government Web sites and the Web sites of private entities that are public accommodations, whether or not they operate exclusively online, 

are covered by the ADA. In other words, entities covered by both 

Title II and Title III of the statute are required by law to ensure 

that their sites are fully accessible to individuals with disabilities. 

The Department is considering issuing guidance or additional 

regulations on the range of issues that arise with regard to the 

Internet sites of private businesses that are public accommodations 

covered by Title III of the ADA, and in so doing we intend to solicit 

public comment from the broad range of parties interested in the 

issue. 

There’s no doubt that the Internet sites of State and local government entities are covered by Title II of the ADA. As to places 

of public accommodation, there are only two cases, both in Federal 

District Court, that specifically address the application of ADA 

Title III, and those cases have reached differing conclusions. 

Mr. NADLER. Don’t assume everybody knows what Title III is 

automatically. Describe that in one sentence. 

Mr. BAGENSTOS. Title III of the ADA, meaning the part that covers places of public accommodation. 

But the position of the Department of Justice has been clear. 

Title III applies to the Internet sites and services of private entities 

that meet the definition of public accommodations set forth in the 

statute, whether or not they operate exclusively online, and the implementing regulation. 

The Department first made this position public in a 1996 letter 

from Assistant Attorney General Patrick which did not specifically 

address online-only enterprises. But later the Department filed an 

amicus brief in the Fifth Circuit in a case called Hooks v. 

OKBridge, which involved a Web-only business and explained that 

businesses providing services solely over the Internet are subject to 

the ADA’s prohibitions on discrimination on the basis of disability. 

And we continue to endorse that position. 

7 

There are several sets of standards that I’m happy to talk about 

how to make Web sites accessible. But I want to talk about another 

area that we’re also working in in the emerging technology area. 

We’re also working aggressively in terms of e-book readers. In 

June of last year, we received several complaints from the National 

Federation of the Blind, the American Council of the Blind, and the 

Coalition of Disability Rights Groups that are known as the Reading Rights Coalition which allege that colleges or universities were 

violating their obligations under the ADA by having students use 

electronic book readers that were inaccessible to individuals who 

were blind for course materials. 

We investigated each complaint. In January, we announced that 

we had reached separate settlement agreements with Case Western University, Reed College and Pace University; subsequently 

also Princeton and Arizona State Universities. These settlement 

agreements provide that the universities will not purchase, require, 

or in any way incorporate into their curriculum the Kindle DX or 

any other dedicated electronic book reader to the extent it’s not 

fully accessible to individuals who are blind or have low vision. 

These agreements underscore that requiring the use of emerging 

technology in the classroom that is inaccessible to persons with disabilities is discrimination that’s prohibited by the ADA in 504. 

The happy result, during the course of our investigations and negotiations with these colleges, Amazon.com, which is not covered by 

the ADA directly, announced that it is intending to make the Kindle DX fully accessible to individuals who are blind or have low vision by extending its text-to-speech feature to these functions by 

the end of the year 2010. 

As we come to realize anew each day, the pace of technological 

change is amazing and what appeared impossible just months or 

years ago is now commonplace. Advancing technologies can open 

doors for people with disabilities and provide the means for them 

to have a full, equal, and integrated experience and access to 

American life. But technological advances will leave people with 

disabilities behind if technology developers and manufacturers do 

not make their new products accessible. We must make sure that 

the legal protections to the rights of individuals with disabilities 

are sufficiently strong to ensure opportunities for everyone, and we 

must avoid the travesty that would occur if the doors that are 

opening for Americans with advancing technologies were closed for 

individuals with disabilities simply because we are not vigilant. 

Thanks, and I look forward to answering your questions. 

[The prepared statement of Mr. Bagenstos follows:] 

8 

PREPARED STATEMENT OF THE HONORABLE SAMUEL R. BAGENSTOS


SRB-1.eps
9 


SRB-2.eps
10 


SRB-3.eps
11 


SRB-4.eps
12 


SRB-5.eps
13 


SRB-6.eps
14 


SRB-7.eps
15 

Mr. NADLER. Thank you very much, and we will begin the questioning by recognizing myself for 5 minutes. 

Sir, you testified that the Department is considering issuing 

guidance with regard to Internet sites of public accommodations. 


SRB-8.eps
16 

Can you give us a stronger commitment for the record that the Department will update its regulations? 

Mr. BAGENSTOS. It’s certainly our intention to update our regulations, absolutely. 

Mr. NADLER. Can you give us a date? 

Mr. BAGENSTOS. I can’t give you a date because, obviously, it’s 

a process within the Department. 

Mr. NADLER. An estimated ETA. 

Mr. BAGENSTOS. We intend to make an announcement on something like this in the months ahead. 

Mr. NADLER. In several months, in other words. 

Mr. BAGENSTOS. Yes. 

Mr. NADLER. Okay. Thank you. 

The Department’s consistent position has been, as you’ve stated, 

that Titles 2 and 3 reach covered entities operating in cyberspace. 

What is the legal requirement placed on them? Must they make 

Web sites themselves accessible or are there other alternatives? 

Mr. BAGENSTOS. Well, the legal requirements are the requirements that apply to any business, first of all, that’s covered by the 

public accommodations’ provision of the ADA. So they have to provide individuals with disabilities the full and equal enjoyment of 

the goods, services, facilities, privileges, advantages, and accommodations of the business. 

When a business is operating through a Web site, whether as an 

adjunct to a bricks-and-mortar operation or simply on a Web site, 

those principles imply a set of requirements, a requirement to 

make sure that everything on the Web site is fully accessible. Or 

we have said in the past that there are ways in which it’s conceivable theoretically for a business to provide the exact equivalent of 

what’s on the Web site not through the Web site to people with disabilities. That might be by having someone available 24 hours a 

day to answer questions. 

But we were very clear that, to the extent that’s what on the 

Web provides a unique experience or a unique opportunity for people who use the Web, that unique experience or opportunity has to 

be provided to people with disabilities. And I think that’s the essence of the Kindle case. 

Mr. NADLER. So you say, in effect, a Web site must be equally 

accessible or if that is not the case something else equally effective. 

Mr. BAGENSTOS. Right. It has to be equally effective in providing 

all the opportunities. 

Mr. NADLER. And it must be as convenient, I assume. 

Mr. BAGENSTOS. Yes. 

Mr. NADLER. In other words, 24 hours. 

What alternatives might qualify, given the relative ease and convenience of the Internet or other emerging technologies like the ereaders noted in your testimony? 

Mr. BAGENSTOS. I’m sorry, I didn’t hear the first part of the question. 

Mr. NADLER. What alternatives might qualify, given the relative 

ease and convenience of the Internet, like the e-readers noted in 

your testimony, for example. 

Mr. BAGENSTOS. Right. I think that in the case of the e-readers 

it’s difficult to think of the alternatives that qualify. Because what 

17 

the e-reader provides is not just access to the information that 

would be in a textbook but a way of accessing that information that 

is uniquely convenient that allows for searching in uniquely good 

ways. And so that would have to be provided to people with disabilities. In that context, because these devices are so revolutionary, it 

may be difficult to have anything else that’s equivalent to it, and 

if there is nothing else that’s equivalent to it then the e-reader or 

the Internet site or whatever must be made fully accessible. 

Mr. NADLER. Thank you. 

Assistant Attorney General Tom Perez in a recent speech at a 

disability law symposium noted a number of different technologies. 

He mentioned Web sites, cell phones, ticket kiosks, and other devices that currently are not accessible to people with disabilities. 

Will the Department be updating its guidance to address this full 

range of issues? 

Mr. BAGENSTOS. We are certainly looking into that full range of 

issues, what’s going to be exactly and what comes out. I think we 

intend to issue technical assistance about all those issues at some 

point, and we’re also looking into a regulatory solution as well. 

Mr. NADLER. You testified that the Department has provided letter advice and filed amicus briefs but that the courts still have 

reached different conclusions on the coverage of Web sites under 

Title III. What is the Department’s game plan for getting better results in consistency in cases going forward? And, specifically, also, 

is part of your game plan or might it be to ask for some legislative 

changes? 

Mr. BAGENSTOS. Well, we haven’t asked for some legislative 

changes. 

Mr. NADLER. You have not. 

Mr. BAGENSTOS. We have not. We think that the statute is clear, 

and we think there’s been just very little litigation under it and 

certainly especially litigation in which we have participated. So our 

game plan is to do a couple of things. First of all, we want to do 

more in the regulation, guidance, technical assistance area to make 

clear what our position is. 

Mr. NADLER. Make clear to the courts. 

Mr. BAGENSTOS. Make clear to the courts and to the public what 

our position is. And also to provide assistance as to how to comply. 

And then at the same time to look strategically at cases that exist 

and cases that we might bring, complaints that come to us, and 

look for opportunities to make our position clear. 

That’s something we did in the Kindle case. It’s not with respect 

to the Internet. But with respect to e-book readers, when the complaints came to us, we saw this as an exceptionally important area 

to make clear it needs to be accessible to people with disabilities 

and so decided to jump right into it. And that’s the kind of thing 

we’re doing. 

Mr. NADLER. My last question is, in the cases involving the Kindle DX, you testified that technology existed for Amazon to make 

the Kindle usable by blind students but that it hadn’t done so although is now planning to do so. Why hadn’t they and what happens when the technology does not yet exist to make a new technology accessible? Does the school or business have to hold up 

using the new technology until it can be made accessible? 

18 

Mr. BAGENSTOS. I don’t know about Amazon.com’s motives. I can 

tell you the general pattern that we’ve seen in disability rights 

through the years, and it’s true in technological areas as well as 

in all older sorts of accessibility areas, has been just a failure to 

think of the market of people with disabilities as a market that 

products are designed for, institutions are being designed for. 

The technology certainly exists. It’s in other devices. Amazon is 

going to put it into the Kindle. So the technology certainly exists. 

And as to why it wasn’t put in there, I think it’s just—— 

Mr. NADLER. They didn’t think of it. 

Mr. BAGENSTOS [continuing]. Less of people with disabilities that 

Congress adopted the ADA to combat. 

Mr. NADLER. And my second question, when the technology does 

not yet exist to make a new technology accessible, does the school 

of business have to hold up using that new technology until it can 

be made accessible? 

Mr. BAGENSTOS. I guess a couple of points about that. 

Often, in a typical case, it is quite possible to make the technology accessible. I think there are cases where, to the extent there 

is a case where for a period there is no means of making the technology accessible, what a school or an institution has to do is provide something that, to the greatest extent possible, gives people 

with disabilities the same experience in terms of convenience in 

terms of all the opportunities provided by the technology. That may 

be difficult. 

Mr. NADLER. Okay. Thank you. 

My time is expired. I will now recognize the gentleman from Virginia. 

Mr. SCOTT. Thank you. 

As I understand it, the access is both the employees and the customers. 

Mr. BAGENSTOS. Yes, that’s right. Different provisions of the 

ADA apply. Title I of the ADA applies with respect to employees. 

Title III with respect to customers. But, yes, the statute requires 

access for both. 

Mr. SCOTT. You talked about books. One of the ways you can 

make books accessible to those who are blind is to have audio tape 

recordings. Many books are published in audio tape. Could you 

comply with the ADA by having someone read the book and make 

your own copy without getting into copyright complications? 

Mr. BAGENSTOS. I think the copyright issues here I know have 

been a significant source of discussion. Mr. Goldstein, who is going 

to testify on the next panel, has engaged in some litigation around 

that and I think might have a useful discussion of the parameters 

of those issues. 

And certainly copyright issues are not issues that we deal with 

in the Civil Rights Division. There are many ways without running 

afoul of copyright to provide equal and full access to people with 

disabilities to the text that appears in books. 

Mr. SCOTT. One of the things you have to do with employees is 

make reasonable accommodations. Do we need any new laws to 

clarify what a reasonable accommodation is, and how much expense would you have to go to to stay within the realm of reasonableness? 

19 

We had an ADA equivalent in Virginia before the ADA, and one 

of the things we put in that law was a presumption that anything 

under $500 was presumptively reasonable. Do you have any guidelines on what’s reasonable and what’s not in terms of expense to 

accommodate employees’ disabilities? 

Mr. BAGENSTOS. What the statute provides is that an employer 

is required to provide a reasonable accommodation that doesn’t 

lead to undue hardship. And the statute talks about what undue 

hardship means as being especially difficult or especially expensive 

and gives a series of factors for that. As to what’s a reasonable accommodation, there is a degree to which in the case law what the 

courts look at is a rough proportionality kind of a rule. So Congress 

when it adopted the ADA originally resisted imposing any specific 

number targets because—— 

Mr. SCOTT. We found in Virginia that 80 percent—just to get 

past the legislative process, found that 80 percent of the accommodations could be done under $500, so that’s why we came up 

with that number. 

Mr. BAGENSTOS. Right. And I think that is true nationwide as 

well. In all of the studies of accommodation that I’ve seen in the 

employment sector, the overwhelming majority of accommodations 

occur at less than $500, that’s true. Many have no direct costs at 

all. And so certainly there are a lot of cases where there ought to 

be no argument about what’s a reasonable accommodation. 

Mr. SCOTT. So we do not need to clarify the law. You can work 

with the law that we have on what a reasonable accommodation is. 

Mr. BAGENSTOS. That’s certainly what we’ve been working with 

for a number of years. 

What we have seen before the ADA amendments Act was a lot 

of cases getting knocked out before they got to the point of reasonable accommodation being defined or elaborated. So I think we 

have to see what’s going to happen now that courts will be less able 

to kick cases out just on the grounds that the plaintiff doesn’t have 

a disability after Congress adopted the ADA amendment, so we will 

have to look into that. 

Mr. SCOTT. Thank you. Thank you. 

Mr. NADLER. I thank the Assistant Attorney General. 

I’m sorry. I didn’t see Ms. Chu. I now recognize the gentlelady 

from California. 

Ms. CHU. Thank you, Mr. Chair. 

I’m so pleased to welcome you here today, Mr. Bagenstos; and I 

commend your many years of service as an educator. And certainly 

I can relate my—I understand you came from UCLA. 

Mr. BAGENSTOS. I did teach at UCLA for a while, yes. 

Ms. CHU. Okay. Right. And as one who taught there as well I 

certainly am concerned about how students with disabilities are 

utilizing the digital classroom technologies. 

After hearing about your example of the Kindle projects that 

were there with the pilot project in the university classrooms, I 

wanted to ask you what the role of the DOJ is in creating and providing guidance for all universities who may want to test, buy, or 

use new classroom technologies in the future. 

Mr. BAGENSTOS. I think we have a very significant role. One of 

the reasons why we wanted to pursue these Kindle investigations 

20 

was to make clear that this is a very important technology. It’s a 

technology that can provide lots of opportunities for people but that 

it was leaving people with some disabilities behind and that we 

need to make clear to universities that their obligations of nondiscrimination and accommodation apply not just in the bricks-andmortar physical world but also in terms of these electronic devices. 

I think also something that we ought to do and we will do is, 

based on our enforcement experience, having dealt with a few of 

these cases, issue some broader, more perspective guidance to regulate institutions; and we intend to do a number of things in that 

regard in the months to come. 

Ms. CHU. Are you going to be releasing common guidelines to 

schools so that they can design their pilot projects to adequately include students with disabilities? 

Mr. BAGENSTOS. What we certainly intend to do is communicate 

with schools in a general and prospective way that there are ways 

of doing this that harness the benefit of emerging technologies and 

keep people with disabilities having full access, and so that’s something we intend to do. 

Ms. CHU. And are you working with the Department of Ed. to 

make sure that these guidelines are distributed? 

Mr. BAGENSTOS. We are working with the Department of Education to figure out exactly how and when we are going to talk to 

the universities and the schools about how they can comply with 

their obligations under the ADA and, of course, also the Rehabilitation Act, so, yeah. 

Ms. CHU. There are more online classes in the universities now, 

and currently there are over 6,500 online courses available. What 

would happen if a disabled person was mandated to take a course 

like this but the technology was not available to them? 

Mr. BAGENSTOS. Well, I think you’re defining something that 

would probably be a violation of the ADA or the Rehabilitation Act. 

To the extent that online courses exist, I mean, it’s relatively simple to make them accessible. If there’s something special and 

unique about them, and one of the things that’s unique about them 

is the convenience factor, at least in many cases, then that ought 

to be made accessible. Or an individual with a disability shouldn’t 

certainly be required to take a course where there’s an alternative 

that is inaccessible. 

Ms. CHU. There are many businesses that try to avoid ADA compliance by claiming that it’s an undue burden on business, and yet 

there is a way to make a Web site useful for a blind person or putting captions on an online video that would appear to not cost a 

lot of money. What is the Justice Department’s position on this 

issue with regard to businesses reacting to lawsuits seeking to 

make their online services available to disabled Americans? 

Mr. BAGENSTOS. Well, certainly we believe that, and it’s our experience that the kinds of changes that need to be made to make 

Web sites accessible are not especially difficult or expensive. 

There’s always, you know, some transition cost, but the things 

you’re talking about, captioning of videos, that’s something that a 

number of institutions do that is not especially costly. And that 

may be the most costly thing. I mean, if you look at tagging of images or something like that or providing a means for computers to 

21 

kind of read where keyboard controls should be used, again, not 

that difficult. I mean, these are fairly simple technological solutions. So our experience is it’s not that complicated or expensive. 

Ms. CHU. Thank you. I yield back. 

Mr. NADLER. Thank you, and I thank the witness. 

We will now proceed with our second panel, and I would ask the 

witnesses on our second panel to take their places. 

In the interest of time, I will introduce you while you are taking 

your seats. 

Mark Richert is Director of Public Policy for the American Foundation for the Blind, which I am proud to say is headquartered in 

my district. A member of the Florida bar since 1993, Mr. Richert 

served as the AFB’s primary representative to the Congress and to 

Federal agencies with responsibility for programs, services, and enforcement of rights important to individuals with vision laws. 

Additionally, Mr. Richert serves as a co-chair of the Civil Rights 

Task Force of the Consortium for Citizens with Disabilities and is 

a co-founder of the Coalition of Organizations for Accessible Technology, a cross-disability coalition advocating for the rights of all 

people with disabilities to full access to digital age telecommunications and video technologies. 

Judy Brewer directs the Web Accessibility Initiative at the World 

Wide Web Consortium. Since 1997, she has worked to ensure that 

the W3C technologies support accessibility, promoting standardization efforts for W3C awareness and implementation of Web accessibility internationally and ensuring effective dialogue among industry, the disability community, accessibility researchers, and government on development of consensus-based accessibility solutions. 

She holds a research appointment at MIT’s computer science and 

artificial intelligence laboratory and is a consultant at the European Research Consortium on Informatics and Mathematics. 

Steve Jacobs has been in the computer industry for 35 years and 

is President of IDEAL Group, whose subsidiary companies provide 

services and applications to make new technologies available to the 

disability community. Mr. Jacobs previously served as chairman of 

AT&T Global Information Solutions Project Freedom, which pioneered the use of interactive video technology in support of sign 

language communication over the Internet. Mr. Jacobs is a 1973 

graduate of Ohio State University. 

And, finally, Daniel Goldstein is an attorney with the law firm 

of Brown, Goldstein and Levy. He has been practicing disability 

rights law for nearly 25 years and through litigation has worked 

to, among other things, increase accessibility to the Internet to 

make consumer kiosks such as ATMs accessible, to make voting accessible through suits against States and counties, and to make 

mainstream digital book systems accessible through suits against 

educational institutions. Before setting up his private practice in 

1982, Mr. Goldstein was an Assistant U.S. Attorney for the District 

of Maryland for 6 years. 

I am pleased to welcome all of you. I will not repeat the 

boilerplate that we usually go into about the timing lights. I presume you’ve heard that. 

Your written statements will be made part of the record in their 

entirety. 

22 

But it is customary before we begin for the Committee to swear 

in its witnesses. Would you please raise your right hands to take 

the oath. 

[Witnesses sworn.] 

Mr. NADLER. Let the record reflect the witnesses answered in the 

affirmative. Thank you. 

We will begin by recognizing our witnesses. I will begin by recognizing Mr. Richert for 5 minutes for an opening statement. 

TESTIMONY OF MARK D. RICHERT, ESQ., DIRECTOR, PUBLIC 

POLICY, AMERICAN FOUNDATION FOR THE BLIND 

Mr. RICHERT. Thank you very much, Mr. Chairman and Members of the Committee. It’s such a pleasure to be here and to listen 

to that first panel and Mr. Bagenstos’ comments. It is a thrill to 

hear that the Department of Justice is exercising the kind of leadership that we know the Department can and indeed has for such 

a long time with respect to folks with disabilities and their needs 

for technology equity. 

For us and for folks with disabilities generally the question has 

never been does the ADA apply to the Internet. The question really 

or the issue really is that the ADA applies today, as it always has, 

to employers, to State, and local government entities, to public accommodations. And we know that the ADA and the promise of full 

inclusion that the ADA stands for cannot be avoided simply because we go online in this 21st century. 

The statement that we submitted for the record I think has a lot 

of compelling stories. We asked folks with disabilities from across 

the country to sort of weigh in and give their own personal perspective on how they deal with technology in the Internet every day 

and, quite frankly, some of the stories are heart wrenching. I’ll only 

just share one here, because I think it connects well with what Mr. 

Bagenstos was talking about. 

Pat from California tells us that her bank is very reluctant to 

provide to her the kind of information that’s available to everybody 

else online. She happens to be a woman who is visually impaired, 

and she’s alerted the bank to this challenge that indeed the site is 

inaccessible. She cannot manage her checking account the way everybody else can, she can’t check her balance, she can’t find out exactly whether or not the bank is levying annoying extra charges 

and the like and, quite frankly, she has a right—— 

Mr. NADLER. So, unlike the rest of us, she’s not annoyed? 

Mr. RICHERT. Yeah. You’re fair to draw that conclusion, I guess. 

She’s alerted them to this issue and, quite frankly, the response 

to her is we will be happy to read through your statements over 

the phone. And she’s told them in no uncertain terms, probably in 

more polite terms than I would use if I were in her situation, that, 

you know, it’s going to take forever to read through a bank statement and, quite frankly, it doesn’t provide her the same level of accuracy and independence with the use of that statement as everyone else is given. 

That’s just simply not acceptable. If a person with a disability 

showed up in person at the bank and the bank refused to provide 

services to them, I think we would all find that disgusting, let 

alone a violation of the law. And, quite clearly, we can’t tolerate 

23 

that kind of conduct in a digital age. And it’s great not only to 

know that the ADA provides a remedy but to hear it affirmed again 

today, and I look forward to the kind of guidance that we expect 

to see. 

We know that people with disabilities are not utilizing the benefits, the full benefits of the Internet as do all of the rest of us. Data, 

such as we have it, would suggest that at least 60 percent of Americans have some kind of ability to connect to the Internet. That 

data, of course, is a couple of years old, which means naturally it’s 

a light year’s time difference, so undoubtedly that number is much 

higher. The same numbers would suggest that less than 30 percent 

of people with disabilities have access to the Internet. 

And the Federal Communications Commission similarly did a 

survey in the last few months asking the question of the folks who 

don’t have access to the Internet, let’s find out more about who 

those folks are so we can address the issue and make sure that 

folks are given connection to broadband and to the Internet. And 

they found that something like 39 percent of the people who are 

not connected to the Internet are folks with disabilities. That’s 

pretty astounding. 

There are lots of reasons for why that’s the case. We know, of 

course, that affordability is a major limiter for folks access with 

and without disabilities to high-speed data and broadband. But we 

also know that inaccessibility exacerbates the problem. And what 

we need to do is to look, frankly, to the future to opportunities to 

address the inaccessibility of the Web and to make sure, frankly, 

that the technologies that are used to access to get online and to 

browse and enjoy full inclusion along with everybody else are themselves accessible. 

We know that this can be done. The American Foundation for 

the Blind has proudly worked with Marriott Corporation. Others 

with whom we partner, the American Council of the Blind and others, have worked certainly with CBS and Rite Aid and Radio 

Shack. All of these groups and companies have committed to the 

concept that Web access is a right and, frankly, is good business 

and have found success in making the Web more accessible. 

But we need to look more to the future, and I think this hearing 

talks about challenges and opportunities. Quite frankly, one of the 

major policy opportunities that this Congress has is to remember 

that Web accessibility is not and cannot be considered in isolation. 

We can’t talk about Web accessibility without talking about the 

technologies that gets you there. 

One of the best things that this Congress can do and in my mind 

one of the best ways to commemorate the 20th anniversary of the 

Americans with Disabilities Act this year would be to promptly 

pass H.R. 3101, the 21st Century Communications and Video Accessibility Act introduced by Mr. Markey. And that is, in fact, bipartisan legislation. Once passed, this legislation will ensure that 

more and more of the technologies that we use—the mobile technologies that we use that connect to the Internet—are themselves 

accessible. Most are not, and we can do better. 

With that, Mr. Chairman, thank you very much for the opportunity. I really appreciate you and indeed all Members of this Subcommittee for the attention. 

24 

[The prepared statement of Mr. Richert follows:] 

PREPARED STATEMENT OF MARK D. RICHERT


MDR-1.eps
25 


MDR-2.eps
26 


MDR-3.eps
27 


MDR-4.eps
28 


MDR-5.eps
29 


MDR-6.eps
30 


MDR-7.eps
31 


MDR-8.eps
32 


MDR-9.eps
33 


MDR-10.eps
34 

Mr. NADLER. I thank you, and I now recognize Ms. Brewer for 

5 minutes. 

TESTIMONY OF JUDY BREWER, DIRECTOR, WEB 

ACCESSIBILITY INITIATIVE, WORLD WIDE WEB CONSORTIUM 

Ms. BREWER. Mr. Chairman, Members of the Committee, thank 

you for this opportunity to talk with you again regarding accessibility of the Web. 

My name is Judy Brewer, and I direct the Web Accessibility Initiative at the World Wide Web Consortium. 

For the Web to work, computers need to be able to talk to each 

other across the Internet in the same computer languages, and 

W3C is where those languages are agreed upon. W3C has developed over 100 technical standards and guidelines ranging from 

HTML and XML to graphics, math, voice, rich media, mobile devices, Web services, linked data, security privacy, e-government, 

internationalization and more. 

Among its other work, W3C hosts the Web Accessibility Initiative. WAI develops standards, guidelines, and resources to make 

the Web accessible for people with disabilities. It ensures accessibility of all those W3C technologies that I listed a moment ago and 

develops educational resources to support Web accessibility. 

WAI is supported in part by the National Institute on Disability 

and Rehabilitation Research at the U.S. Department of Education 

and others. My comments do not necessarily represent those of 

WAI’s funders. 

Ten years ago, this Subcommittee invited me to address early 

questions about Web accessibility. A discussion that started with 

many myths and misperceptions concluded with a much clearer 

picture of the realities and promise of Web accessibility. 

In the intervening years, we’ve shown that businesses can flourish while producing accessible Web sites and services. 

We’ve shown that a multi-stakeholder process that includes industry, disability organizations, accessibility researchers, and governments can develop consensus solutions. 

We’ve developed guidelines and standards for Web content, authoring tools, browsers, media players, and rich Internet applications. 

In particular, we’ve shown that the Web Content Accessibility 

Guidelines, WCAG 2.0, are feasible for simple mom and pop Web 

sites, as well as for complex and dynamically generated millionpage Web sites; are technology neutral, meaning they can be applied to any Web technology; and are more sustainable, yet support 

innovation. 

Web developers from around the world have shown that accessible Web sites can be colorful, media rich, dynamic, interactive, 

device independent, and international. 

The Web has changed immensely in the past 10 years. Many of 

our activities have moved to the Web. We get our education, jobs, 

health care, and tax forms online, buy music, clothes, and tickets, 

get our news, and not only buy but also read our books online. We 

use our mobile phones to do our banking and our laptops to make 

phone calls. We do social networking with colleagues, family and 

friends. 

35 

In contrast to 10 years ago, many of these services exist only on 

the Web through real-time transactions yet are as vital to our social and economic life today as any bricks-and-mortar business of 

the past. 

W3C’s consensus-based standards development process, multistakeholder participation, broad public reviews, and implementation testing prior to finalization of standards have been an advantage to the development of the Web as a whole and equally to Web 

accessibility. These processes have enabled the disability community to be present at the design table for Web standards, to influence technologies that are newly moving onto the Web, and to influence accessibility of Web-based interfaces as they move beyond 

the traditional Web into environments such as household devices 

and medical equipment. 

In 2008, the standards process produced the Web Content Accessibility Guidelines 2.0. The U.S. Access Board has stated its intent 

to harmonize the Web portions of its Section 508 regulations with 

WCAG 2. WCAG has been referenced in the Department of Justice 

ADA technical assistance manual and in negotiated settlements 

within banking, retail, and sports sectors. During the past year, 

we’ve seen countries in Europe as well as Japan, Australia, New 

Zealand, and many others move from other Web accessibility 

standards to WCAG 2. This standards harmonization is immensely 

helpful because it creates a unified market and drives improvements in software, such as authoring tools, that can facilitate Web 

accessibility. 

Surveys of Web accessibility progress continue to show barriers, 

the majority of which are due to failure to apply existing solutions, 

despite the good business case for Web accessibility. Barriers include missing alternative text for images, missing captions for 

audio, forms that ‘‘time out’’ before you can submit them, images 

that flash and may cause seizures, text that moves or refreshes before you can interact with it, and Web sites that don’t work well 

with assistive technologies that some people with disabilities rely 

on. The impact on people with disabilities ranges from exclusion 

from social networks, to missed school admissions, lost jobs, and an 

inability to access lifesaving health care information. 

There are many opportunities to improve and accelerate Web accessibility. These include publishing existing data on compliance of 

Federal Web sites with Section 508 requirements and conducting 

new studies that evaluate gaps in ADA compliance across Title II 

and Title III entities; communicating the applicability of the ADA 

to the Web more clearly, with updated guidance reflecting the benefits of standards harmonization at international, Federal, and 

State levels; promoting development of improved authoring tools 

that facilitate the production of accessible Web content and that include accessible templates for Web site development; continuing research and development on accessibility techniques for new technologies, improved accessibility supports for cognitive disabilities, 

and more affordable assistive technologies. 

I would like to express my gratitude to the many hard-working 

participants and supporters around the world in the ongoing work 

on Web accessibility, and my sincere thanks to the Subcommittee 

36 

for your continued attention to accessibility of information technologies. 

[The prepared statement of Ms. Brewer follows:] 

PREPARED STATEMENT OF JUDY BREWER


JB-1.eps
37 


JB-2.eps
38 


JB-3.eps
39 

Mr. NADLER. Thank you. 

I will now recognize Mr. Jacobs for 5 minutes. 


JB-4.eps
40 

TESTIMONY OF STEVEN I. JACOBS, 

PRESIDENT, IDEAL GROUP, INC. 

Mr. JACOBS. Mr. Chairman and other Members of the Committee, thank you for this opportunity to present testimony at this 

important hearing. 

My name is Steve Jacobs. I’ve been in the computer industry for 

35 years. As president of IDEAL Group, a 2002 spin-off from 

IDEAL at NCR Corporation, I’ve been intimately involved in the 

technological issues, challenges, and opportunities being discussed 

here today. 

As part of my testimony, I am going to show by example that 

there are alternatives to certain beliefs and concerns held by those 

who feel it isn’t reasonable, technically possible, or economically 

feasible to design accessible electronic and information technology. 

Over the past 10 years, our industry has grown exponentially, 

which, on the surface, can easily appear to exacerbate technology 

accessibility issues. The number of Internet users has risen from 

361 million 10 years ago to over 1.8 billion users today. If this 

growth rate continues, half the world’s population will be using the 

Internet by the end of 2012. 

Web-based social networking applications and Web sites are now 

frequented by over half a billion people. 4.1 billion SMS messages 

are being sent on a daily basis. The number of organizations using 

Web-delivered applications, like Google apps, is tens of millions 

and increasing rapidly. 6,500 college courses are offered online. 

Shopping and making travel arrangements online is less expensive 

than brick-and-mortar alternatives. The trend in online learning is 

headed skyward, because it is a less expensive method of delivering 

course materials to wider audiences of students. 

Technology is woven into every aspect of life as we know it today. 

The ADA is about civil rights of people with disabilities. When 

technology is inaccessible to people with disabilities seeking to access the same resources as their nondisabled counterparts, it violates their civil rights. 

I manage four companies that market E&IT products and services. All of our solutions are accessible to people with disabilities. 

It is now more reasonable, technically possible, economically feasible, and profitable to develop accessible E&IT than ever before in 

history. 

For example, up until recently, individuals who are blind had to pay $300 to $400 extra just to screenreader enable a cell phone. 

And it’s separate, and separate but equal has a rather ugly history 

in this country. It’s not equal. Then along came Google with Android, which is a free, open-source operating system for cell phones. 

All Android cell phones come with a free screen reader, as well as 

other accessibility applications. The iPhone and iPad include free 

accessibility features, including screen readers. 

Google and Apple are not in business to lose money. They would 

not be integrating accessibility features into their devices for free 

were it not technically possible, economically feasible, and profitable. 

Google provides free tools and platforms that enable companies 

to develop accessible Web-based applications. For example, one of 

our companies, Apps4Android, was formed in January of 2009. 

41 

They develop accessible applications for Android cell phones. In 15 

months, our user base grew from zero to 600,000 users in 25 countries. The focus of our apps are assistive technology apps, by the 

way. 

If our small company can be successful designing and selling accessible applications, so can other companies. It used to be technically difficult and expensive to retrofit Web-based applications to 

be accessible. That’s no longer the case. Google’s AxsJAX is an environment that enables developers to create dynamically changing 

scripts that make Web applications more accessible even after the 

fact. Another of our subsidiary companies, IDEAL Conference, has 

been providing fully accessible distance learning, online conferencing, and webinar services to hundreds of thousands of users 

over the past 8 years. Approximately 40 percent of our users are 

individuals with hearing impairments, people who are deaf, consumers with vision loss, people with speech disabilities, and persons with mobility disabilities. 

It makes good business sense, is reasonable, technically possible, 

economically feasible, and profitable for us to do what we do. We 

are in business to make money. Just imagine the possibilities if 

large companies currently developing similar but inaccessible products would do the same. 

In closing, I encourage all of you not to permit the sometimes exaggerated perceptions of accessible design issues and challenges 

cloud the fact that there are now more opportunities than ever before in history to design accessible and profitable E&IT products 

and services. 

Thank you very much. 

[The prepared statement of Mr. Jacobs follows:] 

42 

PREPARED STATEMENT OF STEVEN I. JACOBS


SIJ-1.eps
43 


SIJ-2.eps
44 


SIJ-3.eps
45 


SIJ-4.eps
46 


SIJ-5.eps
47 


SIJ-6.eps
48 


SIJ-7.eps
49 


SIJ-8.eps
50 


SIJ-9.eps
51 


SIJ-10.eps
52 


SIJ-11.eps
53 


SIJ-12.eps
54 


SIJ-13.eps
55 


SIJ-14.eps
56 


SIJ-15.eps
57 


SIJ-16.eps
58 


SIJ-17.eps
59 


SIJ-18.eps
60 


SIJ-19.eps
61 


SIJ-20.eps
62 


SIJ-21.eps
63 


SIJ-22.eps
64 


SIJ-23.eps
65 


SIJ-24.eps
66 


SIJ-25.eps
67 


SIJ-26.eps
68 


SIJ-27.eps
69 


SIJ-28.eps
70 


SIJ-29.eps
71 


SIJ-30.eps
72 


SIJ-31.eps
73 


SIJ-32.eps
74 


SIJ-33.eps
75 


SIJ-34.eps
76 


SIJ-35.eps
77 


SIJ-36.eps
78 


SIJ-37.eps
79 

Mr. NADLER. Thank you. And I will now recognize Mr. Goldstein 

for 5 minutes. 

TESTIMONY OF DANIEL F. GOLDSTEIN, 

BROWN, GOLDSTEIN & LEVY, LLP 

Mr. GOLDSTEIN. Mr. Chairman, it’s a pleasure and honor to be 

here. I was extraordinarily heartened by your opening statement 

and wish you would consider a second career as a Federal judge. 

Before I go to my statement, I want to mention that, from firstVerDate Aug 31 2005 13:35 Jul 15, 2010 Jkt 000000 PO 00000 Frm 00083 Fmt 6633 Sfmt 6601 H:\WORK\CONST\042210\56070.000 HJUD1 PsN: 56070

SIJ-38.eps
80 

hand meetings with Amazon, I can answer your question if it’s still 

in your mind. 

Electronic information is woven into the fabric of our lives, from 

the Internet to cell phones to, most recently, e-books like the Kindle. Because digital information consists of zeros and ones, it is not 

inherently visual or tactile or aural but rather can be displayed in 

any one or all three of those manners. So it holds great promise 

to change the lives of those with print disabilities and those who 

are deaf. Instead of persons with those disabilities needing separate and rarely comparable accommodations, there is the potential 

for mainstream access. Unfortunately, at present, digital information is often only displayed for one sense, excluding persons with 

disabilities from participation in these innovations. 

Mainstream access to digital information could be transformative. Consider e-books. The contents of an e-book could be displayed on a refreshable Braille display or it could be read out loud. 

The number of books available on the Kindle since the Kindle was 

first introduced on the market in November, 2007, already exceeds 

all of the Braille books currently available to blind readers. 

When commercial e-books are accessible to those with print disabilities, which includes not just the blind but those with a host of 

other disabilities like dyslexia or, for that matter, severe arthritis, 

their disability will no longer exclude them from mainstream participation in reading what the rest of us read. 

The ADA has played a valuable role in helping the disability 

community move toward full integration into American society. In 

the field of technology, the ADA has been instrumental in making 

some Web sites, workplace software applications, ATMs, point of 

sale machines, cell phones, and e-book reading devices accessible to 

people with disabilities. However, as we stand here today, we are 

not even halfway there on making the Internet accessible; and we 

are even further away from equal access to technology used in the 

workplace and those offered through public accommodations like 

educational institutions. 

In the educational sector, the accessibility gap is particularly severe. A 2008 study found that 97 percent of university home pages 

contain significant accessibility barriers. Even as online education 

is steeply increasing and digital books, course management systems, and other technologies have become an integral part of postsecondary and K-12 education, most of these technologies are gratuitously inaccessible. 

The barriers to technology are not for the most part the result 

of intractable technological issues and need not slow down innovation. Where an understanding of ADA obligations and commitment 

to accessibility exist, accessibility is achieved. For example, 

Microsoft’s first release of Windows Vista and Windows 7 were accessible from day one; and the same is true of Apple’s iPad, which 

was recently released to much hoopla. Clearly, accessibility has not 

hampered these companies’ innovation. 

The ADA is a tremendous normative statement of the importance 

we attach as a Nation to equal opportunity without regard to disability. However, the need for clarity as to its application to the 

digital age is significant. 

81 

Title III of the ADA applies to public accommodations. We believe both the intent and the language of the ADA cover Web sites 

and other digital information and services provided by these covered entities, regardless of whether those accommodations also operate brick-and-mortar locations. 

On behalf of the NFB, I have filed two lawsuits in Federal Court 

against companies for violating Title III by failing to make their 

Web sites accessible to the blind, one against America Online in 

1999 and one more recently against Target. In both instances, the 

companies decided to make their Web sites accessible and settled, 

so we have not yet been able to establish judicial precedent that 

eCommerce falls within the ADA. 

Opponents of applying Title III to Web sites might point to a line 

of reasoning that a place of public accommodation must be an actual ‘‘physical place.’’ One District Court has wrongly applied such 

reasoning. This approach stands in stark contrast to the commonsense view that the phrase ‘‘public accommodation’’ encompasses 

more than just physical structures. Most circuit court cases addressing the ‘‘physical place’’ argument have been in the context of 

insurance. So we don’t currently know what conclusion the courts 

would reach on this precise question. 

In today’s increasingly online society, limiting the ADA or any 

civil rights law only to those businesses that operate in physical facilities would undermine the ADA’s essential purpose to eliminate 

discrimination against people with disabilities in the basic day-today activities that are a fundamental part of living and functioning 

in the community. 

The near future will see the further spread of digital information 

in critical sectors, including health care records, education, employment, commerce, and social life. If we do not ensure that people 

with disabilities have equal access to digital information, they face 

greater exclusion from participation in our society. If we do not ensure that application of the ADA to public accommodations Web 

sites is clear, accessible electronic resources will continue to be hit 

or miss; and covered entities will continue to take their chances. 

Thank you. 

[The prepared statement of Mr. Goldstein follows:] 

82 

PREPARED STATEMENT OF DANIEL F. GOLDSTEIN


DFG-1.eps
83 


DFG-2.eps
84 


DFG-3.eps
85 


DFG-4.eps
86 


DFG-5.eps
87 


DFG-6.eps
88 


DFG-7.eps
89 


DFG-8.eps
90 


DFG-9.eps
91 


DFG-10.eps
92 


DFG-11.eps
93 


DFG-12.eps
94 


DFG-13.eps
95 


DFG-14.eps
96 

Mr. NADLER. Well, thank you. 

I’ll begin and, apparently, end the questioning with myself. I will 

not limit it to 5 minutes. 

For Mr. Goldstein first, in the Target case, the court found that 

Target’s Web site was covered at least to the extent that there is 


DFG-15.eps
97 

overlap between products in the Web site and in Target’s brick and 

mortar stores. How did that ruling impact Target’s behavior? 

Mr. GOLDSTEIN. Well, there was also a claim brought under California’s Unruh Act, which is not a public accommodation statute 

but applies to business establishments. And Target, as a business 

establishment, made the whole Web site susceptible to the claim 

under State law. The two claims together convinced Target that it 

was time to fix their site; and that’s what they did, the entire site. 

Mr. NADLER. And did other businesses take notice of the ruling 

and increase their efforts toward accessibility? 

Mr. GOLDSTEIN. Indeed. A study that had been done of major retailing sites both before and after the lawsuit showed that there 

was a one-third increase in accessibility of major retail Web sites. 

Mr. NADLER. Thank you. 

Now, it sounds like there have been a number of voluntary 

agreements under which businesses have taken steps to make their 

Web sites accessible. What’s your sense as to why businesses appear not to be taking sufficient steps on their own without having 

to be contacted about potential litigation? 

Mr. GOLDSTEIN. There’s not a one-size-fits-all answer. Part of it 

is that something as simple as Web site developers when they compete for the bid to develop the company’s new Web site list accessibility as an option as a separate line item on the price. 

Mr. NADLER. Why is that? Why do they list it as an option? Don’t 

they know the law? 

Mr. GOLDSTEIN. Well, but the Web site developers aren’t subject, 

unfortunately, to Title III. There’s no joint and several liability 

here. So you want to compete on price. And what happens is between the procurement officer wanting to look good to the boss and 

the Web site developer wanting to offer the best price, a lot of this 

happens without—— 

Mr. NADLER. So they are misleading their clients? 

Mr. GOLDSTEIN. Well, they may be leading their client to a position where they are liable and end up with lawsuits. 

Mr. NADLER. Well, they are misleading their clients as to the 

law, no? 

Mr. GOLDSTEIN. I don’t know that they are advising the client on 

the law, but they are certainly leaving the client high and dry. 

Mr. NADLER. They are putting them in a bad legal position. 

Mr. GOLDSTEIN. Yes, in a very bad legal position. 

Mr. NADLER. Do you think that regulations from DOJ may impact on this dynamic? 

Mr. GOLDSTEIN. I think they would be a huge help. 

Mr. NADLER. And that regulations from DOJ should directly address this problem of Web site developers directing their clients 

into a vulnerable position? 

Mr. GOLDSTEIN. I think that would be extremely helpful. 

Mr. NADLER. Now you testified that we are not even halfway 

there in achieving accessibility. How do we accelerate the pace and 

get businesses and schools to do better? 

Mr. GOLDSTEIN. Well, I think the Department of Justice Civil 

Rights Division’s decision to become active in this area is going to 

accelerate things tremendously. I was very excited by what Mr. 

98 

Bagenstos said today, and the conversations we have had with the 

Civil Rights Division convince me they are for real. 

Mr. NADLER. I don’t know if Mr. Bagenstos is still here, but if 

he is not you might want to mention to him your conclusion or your 

answer to my question about DOJ regulations on Web site developers. 

Mr. GOLDSTEIN. It is an excellent idea, and I will pass it along. 

Mr. NADLER. Thank you. 

Let me just ask if anyone else want to comment on the last couple of questions. Yes, Ms. Brewer. 

Ms. BREWER. Yes, my impression is that there are a number of 

issues which sometimes cause delay in implementation, and they 

can start from a very simple level of lack of sufficient awareness 

and training for the developers, managers’ decision, competing design priorities, and so forth. 

I work for an international standards consortium. I get phone 

calls from people saying, does the ADA apply to my business? So 

my impression is that there is a lack of clarity: If it does, what 

should I use? And so I think there is a lack of clarity not just with 

regard to coverage but what standard to apply. It may be that 

those things might also help in terms of the compliance. There may 

also be other things that can accelerate implementation, such as 

improved authoring tools and so forth. 

Mr. NADLER. Again, you think the DOJ could help with regulations here? 

Ms. BREWER. It sounds as though it may address the questions 

that come in to us, yes. 

Mr. NADLER. Thank you. 

Does anyone else—Mr. Jacobs. 

Mr. JACOBS. Yes, I want to make sure I remember the question 

correctly. It was, why do you think more companies have not made 

their products and services accessible; is that correct, Mr. Chairman? 

Mr. NADLER. Well, how we accelerate the pace, yeah. 

Mr. JACOBS. Well, there, of course, needs to be more research. 

But, from my experience, if you look at who makes the purchasing 

decisions in companies, it is executive management, marketing people, business people, MIS people, computer science, financial people. If you look at their courses that they take in college, they are 

never taught about the business benefits of accessible design. The 

individuals who do learn that, major in ergonomics or other disciplines that teach them that. 

I think one of the solutions could be going back to the universities, going back to the accreditation agencies, and working with 

them and companies to ensure that the right people are learning 

the right things. 

In addition, I don’t see anything wrong with our natural market 

forces. If companies stopped purchasing inaccessible electronic and 

information technology when accessible versions of that same technology are available, that does two things. It makes the statement 

that, hey, it must be possible to develop this because we are buying 

it, and the competition isn’t getting the business. So they have to 

make a decision. Do we want their business? Do we want business 

99 

from other companies? If we do, maybe we should take a look at 

what we’re doing and change it. 

Mr. NADLER. So you’re saying that, despite the market forces 

that would operate in a positive direction here, the ignorance of 

people making decisions on these questions operates in a negative 

direction. 

Mr. JACOBS. Yes, I would say their lack of knowledge does 

work—— 

Mr. NADLER. So it is back to the old Edgar Snow question of the 

two cultures. Thank you. 

Mr. Richert. 

Mr. RICHERT. It is peer pressure. I have got to join—since the 

other three did, I have to put myself in. 

You asked these questions which are very salient, and one of the 

probably biggest things that we could do is use the buying power 

of the Federal Government to spur the kind of development and, 

frankly, awareness-raising that needs to be done on the technology 

solutions that do exist. 

Mr. NADLER. Let me stop you right there. That’s a very good 

idea, but let me ask you, is it your experience that the procurement 

officers in the Federal Government are aware of this and are acting 

accordingly? 

Mr. RICHERT. Perhaps you might have anticipated that I was 

going to go there. 

Yes, I think what we do know is that the Federal Government 

has not lived up to its responsibilities under section 508 of the Rehabilitation Act. Twelve years’ worth of that law being on the books 

has not resulted in the kind of changes that we need to see. And 

why is that? I think, such as we know it, we know that it is not 

because making Federal Web sites or buying, procuring technology 

is so hard to accomplish. It is frankly bureaucratic inertia. 

One of the things that we could be doing, and I would urge my 

colleagues from the Justice Department who have heard any of a 

number of us say this many times before, that the Justice Department itself has statutory obligations to monitor and report on what 

the Federal Government is doing; and, frankly, over the course of 

the last 10 years the Justice Department has not lived up to those 

obligations. That would be extraordinarily helpful in keeping the 

Federal Government accountable in living up to its requirements to 

make technology that it purchases and that it operates and maintains more accessible. 

Mr. NADLER. I would make the same suggestion to you. You 

might want to talk with Mr. Bagenstos about this one, too. 

Thank you. My time has expired. I now recognize for 5 minutes 

the gentlelady from Texas. 

Ms. JACKSON LEE. Let me thank the Chairman for this hearing 

and also the witnesses that have appeared as well as the Justice 

Department. 

I think that what I’ve gleaned and what I—I would not say be 

surprised but maybe somewhat disappointed because we live in a 

technological society that means that our minds should think accordingly, and we must look at the vast array of Americans that 

are distinctively different and unique. And it looks as if, wanting 

to be market savvy, I would work to have the quality product that 

100 

allows access to new technologies by the disabled and, in particular, removing barriers to Web information which clearly impacts employment, health, educational, and financial information. 

Working with a senior age mother who is in her eighties, that 

is not classified as a disability, but it is an aged person who doesn’t 

live in the world of technology. The kind of help that is needed to 

access medical records or medical information or to provide information is enormous. 

So what about the young person or the person who is in the work 

market right now? Why should they be denied opportunities because we haven’t thought forthrightly? 

So let me ask Mr. Goldstein, who spoke of what I, too, think is 

favorable, that the Justice Department will look at rule making. 

But in the course of your thoughts or your positive comments on 

that, let me ask you the question, is that going to be fast enough? 

What do we do in Congress to make sure that it moves quickly? 

And I think you mentioned the Civil Rights Division. And you’re 

right. What a breath of fresh air under the present Administration. 

But is that fast enough? Is there a sense of urgency? And I happen 

to think there is. Because as we have a population of disabled, 

there are others of an age that are in the school system, that are 

going to college. So that question and then what are the best ways 

to ensure that accessibility is considered at the front end when 

technology is being initially developed, which includes the private 

sector. 

Mr. GOLDSTEIN. Thank you, Congresswoman. 

I think regulations, by themselves, are not going to be fast 

enough. One of the things that we see with technology is that technologies that find a place in the market take off very, very fast and 

grow at a logarithmic rate. So you can’t be a near follower of technology. If you don’t get in on the ground floor, you get left out. 

Ms. JACKSON LEE. Right. 

Mr. GOLDSTEIN. I, of course, think of litigation as a tool, because 

that’s what I do for a living. But one of the things that Congress 

can do here is this isn’t all just with the Department of Justice. 

The Department of Education can play a very significant role here 

because of their responsibility with respect to Title II and with respect to 504 as far as K through 12 and postsecondary public education is concerned. Health and Human Services is going to have 

a lot to say with respect to health care records. The FCC is going 

to have a lot to say with respect to broadband plans. Anything that 

this Subcommittee or the Congress can do to heighten the awareness that a disability isn’t an afterthought in going forward, that 

it needs to be in there at the ground floor would be of extraordinary assistance. 

Ms. JACKSON LEE. Well, I like your approach, and I would just 

like to offer this before I ask the other witnesses to comment on 

the forward-thinking approach, is to make mention of the fact that 

in my State alone, the State of Texas, there are 3 million and 

counting people with disability. And the University of Texas, you 

may be familiar with, has established the Texas Center for Disability Studies, which carefully looks at different disabilities and 

finds fresh and new innovative ways to treat them and make the 

simpler things in life more accessible. Maybe institutions like that 

101 

need to really expand into the technology area and pull this from 

a perspective of the disabled people wanting to be able to help 

themselves and not be given something. 

With that in mind, I want to compliment my staff, Ms. Floyd. 

We’re going to introduce a piece of legislation called the Wonder 

Act. We have been working with Stevie Wonder, named after him, 

by the way. And the Wonder Act, which stands for ways to open 

doors through education resources, goes right to the Department of 

Education and is designed to impact the visually impaired students 

at the elementary, secondary, and postsecondary level. It addresses 

major concerns of visually impaired Americans that were brought 

to our attention through meetings with organizations representing 

those visually impaired. And we hope to put a technology component in that legislation, but we want to start early to be able to 

enhance the civil rights of the disabled. 

Might I just ask in my closing question the other witnesses to 

be able to answer the question how do we get in front of this, as 

opposed to addressing the question at this point? And maybe Mr. 

Richert could start first, and then we’ll go to the witnesses who 

have not answered the question. And any thoughts about a bill 

that deals with the impaired in the early stages, elementary and 

secondary. Mr. Richert. 

Mr. RICHERT. Sure. Thank you very much, Congresswoman. I appreciate that. Wow. Congratulations on your leadership. We need 

all the help we can get with respect to raising the awareness and 

indeed making substantial changes in our public policy along the 

lines that you’re describing. 

I think one of the things that we’ve tried to beat the drum about 

up here is that access to information is not just something particularly critical for folks who are blind or visually impaired. Indeed, 

it is something that is essential for all students with disabilities. 

Over the course of the last, gosh, 10, 15 years, or more, we’ve 

sort of latched onto this notion of people with print disabilities, the 

concept that there are certainly more than folks like myself who 

are blind or visually impaired for whom access to information is 

very critical and because of disability they may not be able to interact with a book or equipment effectively. So I guess I would certainly encourage you and your colleagues as you’re considering the 

Wonder Act and other public policy changes to remember that, indeed, access questions go well beyond folks who are blind or visually impaired. 

That having been said, it sounds cliche, but, quite frankly, hearings like this are essential to getting, quote, unquote, out in front 

of the issue. You would be amazed, or maybe you wouldn’t be, on 

how much change in technology seems to happen whenever there 

is a sense that legislation or regulation is going to be coming down 

the pike. 

It is fascinating how when hearings take place up here or there 

are public hearings that are held around the country, as there just 

recently were under the auspices of the Department of Labor, of 

the disability employment policy, among many, many others, how 

simply having a presence out and about talking about disability 

and talking about it in connection with, frankly, everyday life does 

so much to get out in front of the issue. People then start to come 

102 

to us, all four of us and plenty of others at this table, to ask us, 

my gosh, somebody’s got a crazy idea to regulate in this area. How 

can we get ahead of this? 

Regulation is not the only thing we can do, but it is certainly one 

area, and, frankly, raising awareness about this whole matter is 

something that can be done just, frankly, from drawing attention 

to it and bringing the spotlight to it, as you’re doing today. 

Ms. JACKSON LEE. Thank you. 

Mr. Chairman, will you allow Mr. Jacobs quickly just to answer 

and Ms. Brewer? 

Mr. NADLER. Without objection. 

Ms. JACKSON LEE. If you would, with the Chairman’s great indulgence, I know that we have constituent engagements in our districts, so I thank you for your courtesy. Thank you, Mr. Chairman, 

for your courtesy. 

Mr. JACOBS. The most important think I would like to say is that 

you and I have to talk. There are a lot of reasons why students K 

through 12 and college students don’t have the assistive technology 

that they need. It is because of cost. It is because of licensing limitations. Assistive technology software is among the only software 

that I’m aware of in the marketplace that has not been reduced in 

price over the past 10 years. Check it out. 

There is something called open source software like Firefox 

browser, like FileZilla. Hundreds of millions of copies of high-quality software are out there. There are open-source assistive technology applications. 

We were fortunate enough to be part of a Department of Education grant. We are in the second phase. We have taken 30 of 

these applications. They are all high quality, and they accommodate just about every type of disability you could imagine. They are 

free. The student could take them to school and use them and take 

them home to do homework. They don’t need to worry about infringing upon the IP rights of the developer, because these applications are open source. 

So my thought is why not look at legislation to have organizations purchasing AT software first look at open source software 

that is free. If they can’t find something that meets a student’s 

needs, then go buy commercial. But I could tell from you my experience there are a lot of very good applications out there. 

So that is how I would address your question and congratulations. 

Ms. JACKSON LEE. We will engage you. You have just given some 

very vital information. 

Ms. Brewer, do you have a quick response? 

Ms. BREWER. Yes, and I appreciate the Congresswoman’s question. 

A few comments with regard to the needs of older Web users, 

your initial comment. The Web Accessibility Initiative has conducted an extensive international literature research regarding the 

needs of older users who may sometimes have similar accessibility 

needs. And the accessibility needs are actually—the functional 

needs are pretty much the same as people with disabilities and are 

already addressed by existing Web accessibility guidelines which 

we have developed with the World Wide Web Consortium. Our conVerDate Aug 31 2005 13:35 Jul 15, 2010 Jkt 000000 PO 00000 Frm 00106 Fmt 6633 Sfmt 6601 H:\WORK\CONST\042210\56070.000 HJUD1 PsN: 56070
103 

cern is still that these solutions are not being applied anywhere 

near as broadly as people with disabilities and older users need. 

You asked about potential accelerators. The clarifying of applicability of the ADA we believe would help, based on the questions we 

get where people are puzzled if they are covered or not. The clarifying of the standards to use is something that I also believe would 

help quite a bit. The adoption of a multi-stakeholder consensus 

standard as exists in the area of Web accessibility can help by removing uncertainty about what standard to use. It also enables 

sharing of technical support resources, enables repurposing of 

training materials without having to redevelop those, recreate the 

wheel each time. 

Also, in the IT industry it is very important to know what your 

development target is when product managers are making decisions about what features to implement. And if they see a range 

of different standards in every State or in different parts of the 

Federal Government, there is much less incentive. It is also very 

hard to decide which ones to support. And so these are things that 

may indeed help accelerate this. 

One other thing would be studies on adoption or implementation 

of Web accessibility across different sectors that relate to Title III, 

for instance, so that people who work in the field could more easily 

address the gaps that seem to be there. We develop extensive 

amounts of technical guidance, and we could target that if we knew 

where the worst gaps were. 

Ms. JACKSON LEE. Thank you. Thank you, Mr. Chairman. 

Mr. NADLER. Thank you, and I thank the witnesses. 

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses 

which we will forward. And I ask the witnesses to respond as 

promptly as they can so that their answers may be made part of 

the record. 

Without objection, all Members will have 5 legislative days to 

submit any additional materials for inclusion in the record. 

With that, we thank the witnesses; and the hearing is adjourned. 

[Whereupon, at 2:32 p.m., the Subcommittee was adjourned.] 

(105) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS, AND MEMBER, SUBCOMMITTEE ON THE

CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

First and foremost, I would like to extend my gratitude to Chairman Nadler for 

holding this important Subcommittee Hearing addressing the applicability of the 

Americans with Disabilities Act as we navigate through this digital age, and technologies change day to day. Secondly, I would like to recognize the Honorable Samuel Bagenstos, the Principal Deputy Assistant Attorney General of the U.S. Department of Justice. Your participation in today’s hearing is appreciated and I look forward to hearing more about what the Department of Justice is doing and plans to 

do to address this issue. 

I would like to thank our distinguished witness on the second panel: Mr. Mark 

Richert, the Director of Public Policy for the American Foundation for the Blind; Ms. 

Judy Brewer, Director of the Web Accessibility Initiative of the World Wide Web 

Consortium; Mr. Steve Jacobs, President of the IDEAL Group; and Mr. Daniel F. 

Goldstein, of Brown, Goldstein, and Levy, LLP. 

As we all know, we live in a technological age. Many of the tasks that used to 

require a physical process are now paperless, virtual, and can be done online. We 

shop online, apply for jobs online, and pay our bills online, just to name a few 

things. Many schools and universities hold classes online, supplement their curriculums online, and use electronic versions of textbooks. Many retailers have an online 

component, offering exclusive merchandise and internet discounts, while some conduct all operations online and have given up ‘‘brick and mortar’’ establishments entirely. 

We are a digital culture by definition. Ten years ago, only 46% of adults even used 

the internet, and of that 46%, only 5% had a broadband connection and almost none 

used wireless connections. The present day portrait of American society is very different. Over 75% of adults use the internet, and the percentage is even higher for 

children. Of those 75%, 62% have a broadband connection in their home and 53% 

use a wireless connection. Many people even use mobile broadband to communicate 

for both business and entertainment purposes. 

These advancements in technology, especially with respect to public services, have 

made life much more convenient for many Americans in many ways. In some ways, 

it has improved accessibility by eliminating required physical presence and arduous 

paper processes. While technology has done a lot of good, it has also created some 

barriers that limit accessibility, and in some cases completely alienate, those Americans who are handicapped or disabled. 

The Americans with Disabilities Act of 1990 was implemented to ensure inclusion 

and opportunity for those considered handicapped or disabled. Congress was aware 

that technology would continue to evolve and expressed it belief that the non-discrimination mandate contained in the ADA would be broad and flexible enough to 

keep pace. Thus, ensuring that, as technology evolved, people with disabilities are 

not excluded when jobs, public services, or public accommodations that require access to new technology. However, in 1990, one could not have imagined that extent 

of the role which technological innovation plays in our lives. 

Today, just about every business, retailer, government and public service has a 

website which is intended to increase accessibility and make certain processes easier. For those with handicaps and disabilities, especially those who are blind or hearing-impaired or cannot manipulate a mouse, there are software programs and make 

use of these websites available to those with handicaps—programs read websites 

and images. 

106 

However, there are simple features that need to be incorporated into websites in 

order for these programs to be effective, and many web designers are likely unaware. Something as simple as adding a caption to a picture or a photo would make 

a website more easily translatable. We need to figure out a way to ensure that these 

simple facts are known and implanted, especially on local, state, and federal government websites, and site that deal with other public services or accommodations. 

In my home state of Texas, over 3 million people have a disability. The University 

of Texas has established the Texas Center for Disabilities Studies which carefully 

looks at different disabilities and finds new and innovative ways to treat them and 

make the simple things in life more accessible to those with such disabilities. They 

have also established the Texas Technology Access Program which leads the state’s 

efforts to carry out Federal initiatives associated with the ADA. The programs mission is to increase access for people with disabilities to assistive technology that provides them more control over their immediate environments and an enhanced ability to function independently. 

Furthermore, given the subject matter of this hearing, I find it apropos to mention 

my plan to soon introduce a piece of legislation called the ‘‘WONDER Act,’’ named 

after the legendary singer and humanitarian, Stevie Wonder. The WONDER Act, 

which stands for ‘‘Ways to Open Doors through Educational Resources,’’ is designed 

to impact visually impaired students at the elementary, secondary, and post-secondary levels. It addresses major concerns of visually impaired Americans that were 

brought to my attention through meetings with organizations representing those 

who are visually impaired. 

Today, we are hoping to figure out what the Department of Justice can do, and 

we, as Congress can do to make sure that the ADA continues to fulfill its goal of 

inclusion. Thank you Mr. Chairman, and I yield back the remainder of my time. 

f 

PREPARED STATEMENT OF THE HONORABLE HENRY C. ‘‘HANK’’ JOHNSON, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA, AND MEMBER, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

Thank you, Mr. Chairman, for holding this very important hearing on the Americans with Disabilities Act, commonly referred to as the ADA. 

Congress passed the ADA in 1990. The ADA was recently amendment in 2008 to 

revise the definition of ‘‘disability’’ to more broadly encompass impairments that 

substantially limit a major life activity. The ADA is extremely vital as it aims to 

prohibit discrimination against individuals with disabilities in American civic and 

economic life. 

This hearing is important because it will give us the opportunity to examine how 

the ADA can achieve its promise of equal opportunity and full participation for people with disabilities as technology continues to advance and grow. 

The internet and web-based technology has significantly changed our lives. Today, 

you can earn a college degree online without ever stepping foot in a classroom. Our 

constituents look for jobs online, do their banking online, and go shopping online. 

Years ago, many of these activities could only be done by leaving one’s home and 

entering a physical building such as a bank, college, or store. 

The times have surely changed. Today, many of us are frustrated when the internet is down or feel helpless without our BlackBerries which give us 24 hour access 

to the internet. 

In this digital age, we cannot afford to leave anyone behind. We must ensure that 

people with disabilities have the necessary tools to fully access the internet and all 

it has to offer. This includes screen readers, Braille displays, captions for audio, and 

other assistive technologies. 

Millions of people have disabilities that affect their use of the web. These individuals have the right to access emerging and innovative technology. As I think about 

my constituents, I am anxious to examine what Congress can do to ensure that individuals with disabilities have full access to the internet. 

I thank the Chairman for holding this hearing, and I look forward to hearing from 

our witnesses today. 

Æ