Photosensitive epilepsy

The Americans with Disabilities Act goes online.

As we filed out of a Capitol Hill hearing room on February 9, Web accessibility expert Judy Brewer stopped me and said she was sure I wouldn't want to spread misconceptions about our subject. I'd just warned members of the House Judiciary Committee that requiring Web publishers to make their sites "accessible" to blind, deaf, and other handicapped users under the Americans with Disabilities Act was a nearly perfect way to stifle creative freedom and slam the brakes on the Internet's expansion. That sort of talk misrepresented the aims of the Web accessibility community, Brewer advised me. It was particularly irresponsible for me to suggest that if Web site owners suddenly decided to take seriously the prospect of being legally liable for content not accessible to impaired users, they might pull down millions of existing Web pages. I should be aware, Brewer sternly told me, that the accessibility community did not want existing pages to be torn down. It just expected them to be improved.

So was I guilty of "fear-mongering," alarmism, or worse, as disabled activists later charged in an online discussion? As readers of this space know, I've written a lot about the ADA's often surprising effects in areas such as employment and schooling. And on a personal level, I put out a Web site, Overlawyered.com, for which I do the HTML coding and other techie stuff myself, so I constantly run into the sorts of design issues that might trigger liability under an expansive reading of the law. Has this led me to overreact to a distant and rather unlikely threat? Read on, and decide for yourself.

The British national anthem has been described as a series of curt demands on Jehovah, but it has nothing on the list of demands placed on Web developers by the "Web Content Accessibility Guidelines," published by the private but quasi-official W3 Consortium's Web Accessibility Initiative (which Brewer directs). "Don't rely on color alone" to convey information. Don't use navigation methods that require a mouse; some users have motor impairments. "Until user agents allow users to freeze moving content, avoid movement in pages." Same with blinking or, worse yet, flickering text (which may cause seizures in persons with photosensitive epilepsy). Don't use tables for layout unless you're really trying to render tabular data, and watch out even then (text readers for the blind have trouble with tables). Don't use block quotations as a shortcut when all you're trying to do is indent. (For the full text of the guidelines, see www.w3.org/TR/WAI-WEBCONTENT.)

That's just a sampling. Other sins include "poor color contrast," "lack of alternative text for imagemap hot-spots[ldots]lack of alternative information for users who cannot access frames or scripts." Don't use auto-redirect or auto-refresh, or cause links to open in a new window. "Use style sheets to control layout and presentation"--and if you haven't gotten around to learning style sheets or you use older page authoring software that doesn't provide for them, that's your problem. Don't use audio clips on your site unless you caption them for the deaf, or video clips unless you attach descriptions of what's going on for the blind.

The guidelines, Brewer said in her House testimony, represent "a consensus[ldots]among leaders in Web industry, user representatives, and accessibility researchers." If so, it's all the more curious that scarcely anyone on the Web actually lives up to them. According to the tech-news service CNet, 98 percent of current Web sites are considered inaccessible to the disabled; indeed, an August 1999 survey found that 65 percent of 200 sites geared to disability issues weren't accessible (www.whitehouse.gov isn't, either).

As an aspirational and advisory matter--as distinct from something I might be forced to do by law--I actually appreciate the W3 guidelines, which have helped improve my own coding style. But I was startled when Brewer described the guidelines to the House panel as "generally inexpensive and easy to implement." Sean Lindsay, editor of Disability Times, is more on the mark when he writes that for commercial Web sites, "compliance might mean a total overhaul of their design and publishing process."

Consider, for example, the implications of a phrase frequently repeated in the Web access literature: "at least one mode." It's a mistake, say advocates, to see their recommendations as barring the creative use of graphics, audio, color, or mouse navigation. Thus, an advisory panel report on accessibility for federal Web sites last summer found such staples of current Web design as Javascript and pull-down menus to be acceptable so long as sites also provided "at least one mode that does not require fine motor control or simultaneous actions." Images? No problem, so long as you put in "alternative text" describing their content. Color to convey information--say, red lettering for losses and black for profits on a financial table--is OK so long as you also provide a second way of conveying the information. Ditto for at least one mode that does not involve use of touchscreens; "at least one mode that does not require a response time" from the user; "at least one mode that minimizes the cognitive, and memory ab ility required of the user."

That adds up to a lot of modes. What happens to the Main Street business person who just wants to post a document originally created for some other medium, say a scanned-in brochure or resume, or a video clip from a seminar? Alternative navigation schemes, transcripts, and video captioning are neither cheap nor quick. Pending FCC regulations requiring broadcasters to provide video descriptions for up to four hours of TV programming a day for the sake of blind users are projected to increase programming costs by $4,000 an hour.

In her congressional testimony, Brewer looked on the sunny side: "On sites that have extensive multimedia, captioning of audio and description of video involves minimal production cost compared to production of the multimedia itself." That's true, I suppose, if you're Sony or CNN developing glossy original content. But Web commentator Dave Hitt, in a Usenet discussion, is more convincing: "Slapping up an audio or audio/video file of a long speech can be done simply and quickly. Providing a transcript of that speech is so time consuming, expensive and boring most web masters will just avoid putting the a/v file up in the first place. So the vast majority is deprived of useful information because a small minority couldn't use it."

Those aren't the only costs awaiting us. Right now, the owner of a local motel, gym, or bodega can borrow an obsolete piece of page-authoring software from his teenaged offspring, learn the basics within a half-hour, and have up a working Web site promoting his business by day's end. Add to the mix potential ADA liability for failing to follow elaborate rules like those above, and the balance of prudence begins to tilt toward using professional design help if you venture onto the Web at all. And even among paid Webslingers, you'll do well to hire the veterans who can show they've attended the proper seminars and constructed a few certified-compliant sites.

Big firms, perhaps, can take this sort of thing in stride. But a genuine (for a change) "digital divide" is apt to open up as others hesitate until they get around to attending a few remedial courses at which they can unlearn the common layout techniques of the past. "We'd probably lose 90% of the free web content within a week if such standards were enforced legally," multimedia producer D. Joseph Hennessy predicted in one recent Usenet discussion. "The net would dry up."

What about the prospect of new software that will make it less onerous to construct accessible pages? That poses policy questions of its own. One role of Brewer's group is pressuring developers of authoring software to build the necessary complications into their programs to generate accessible code--which in practice often means building in ways to foil users who would otherwise grab and run with simple solutions that generate unaccessible code. Not all developers of authoring tools are willing to make such changes. Will the holdouts be menaced with liability for selling their authoring software, or will their customers merely be menaced with liability for using it? And that's aside from the chaos of tolerating hundreds of older programs (and homemade code fixes) which don't so much as nod at accessibility. It would be remarkable if the ADA turned out to give officialdom the power to pressure us all into using only certain approved tools for our expression--much as if journalists were issued special typewri ters certified to be incapable of emitting improper texts.

It's worth throwing in a few caveats at this point. First, confusion has arisen because the most visible regulations to move forward during the past year have been aimed at setting rules for government-sponsored, as opposed to private, Web sites. It's not a wild stretch to expect that the principles adopted in the one context will influence what courts eventually decide with regard to the other, so the controversy is not exactly misplaced. And what barely seems to have sunk in is that the exposure of private Web site operators to the ADA isn't something due to be phased in four or five years from now; it exists right now. In November, for example, the National Federation of the Blind sued America Online for moving too slowly to make its services available to sightless users; everyone expects that other suits will follow, and not just against online providers that (like AOL) themselves provide a direct connection to the Web and thus can be analogized to telecommunications providers.

It's possible, though hardly certain, that conservative court interpretations will eventually spare us some of the law's most traumatic applications. Courts might, for example, rule many businesses not to be "public accommodations"; or they might rule, as some have suggested, that a business with a nonaccessible e-commerce site has not violated the ADA so long as it maintains an 800-number telephone operation that can provide disabled customers with the same information and buying options. What is certain is that the disabled activist community, as represented at the House hearing that day, firmly rejects such halfway measures. As its representatives told the committee, its position is that nearly everything is covered by the law: e-commerce, large and small Internet service providers, online applications providers, nonprofits when not otherwise exempt, online magazines and journals, and so forth. Entities of all these sorts can therefore expect to be sued under the law in coming years, with a resulting crap shoot in court as to whether they wind up covered or not.

When suits come, it is likely that only a minority of them will emanate from established or well-known disability groups. In Florida, a few previously obscure nonprofits with close ties to law firms have emerged to file more than 600 complaints against businesses large and small, including funeral home and motel operators and retailers, over inaccessible physical features of their buildings and grounds. No less than 323 of the cases name as the plaintiff the same 72-year-old man, who happens to be the uncle of one of the lawyers, and that lawyer expects defendants to pay his $275-an-hour fee each time he settles a charge.

If it's easy for entrepreneurial litigators to stroll down the main street of a town and find stores vulnerable to an ADA suit because their water fountain or pay phone is at the wrong height, it's even easier for them to surf the Web and find sites that flunk the most widely accepted disability guidelines. Assuming a court can be found with proper jurisdiction over them, the next logical step is the filing of accessibility complaints by the cartload.

Disabled advocates talk a lot about the Web's need for "universality," but what's going on here is in fact a retreat from universality on the vital issue of who among us gets to publish. What is the frontier of the fight over free expression? Whether the Brooklyn Museum gets a subsidy next year? Or whether users of the predominant mass medium of tomorrow will retain the right to select the verbal, audio, and visual palette and syntax in which they wish to communicate with the world? Imagine the outrage if the government told visual artists that they couldn't use low-contrast colors or eye-straining optical effects. Yet pro-ADA panelists at the hearing repeatedly emphasized their position that the Constitution's guarantee of free speech has no bearing whatsoever on this case; the First Amendment may prohibit officials from suppressing speech based on disfavored content, but in this case the rules are just going to control everyone's speech alike, whatever its content. Are you feeling reassured yet? Or are you ready to join me in the alarmist camp?

Contributing Editor Walter Olson (wo@walterolson.com) is a senior fellow at the Manhattan Institute and publisher of Overlawyered.com.

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