Proposed Addition to the Record
House Judiciary Committee
Subcommittee on the Constitution
February 9, 2000
Oversight Hearing on
"The Applicability of the Americans with Disabilities Act (ADA)
to Private Internet Sites"
To: Chairman Charles T. Canady
From: Gregg C. Vanderheiden, Ph.D.
Director, Trace R&D Center, University of Wisconsin-Madison
Date: February 17, 2000
RE: Points of Information and Clarification
Regarding House Subcommittee Hearing on Internet and ADA
First I would like to thank the Chair for the opportunity to add comments to
the record of the House subcommittee hearing on the Internet and the ADA.
I spoke with you after the hearing last week, providing information on some
of the topics and questions raised during the hearing. As per our discussion,
I am sending this follow-up note so that the information can be included in
the formal record of the hearing. These notes simply repeat or elaborate on
the topics we discussed after the hearing.
For your records I am Gregg C. Vanderheiden, Ph.D., Professor in the Industrial
Engineering Department, and Director of the Trace Research & Development
Center at the University of Wisconsin-Madison. I am the principal investigator
for the Rehabilitation Engineering Research Center on Information Technology
Access, funded by the National Institute on Disability and Rehabilitation Research,
U.S. Department of Education. I also work with the Partners for Advanced Computational
Infrastructure (PACI) Program funded by the National Science Foundation.
The Trace R&D Center focuses on ways to make standard information technology
and telecommunication systems more accessible for people with all types of disabilities.
Trace works closely with the W3C's Web Accessibility Initiative and I co-chair
and co-edit the W3C-WAI Web Content Accessibility Guidelines. I was also a member
of the Electronic and Information Technology Access Advisory Council (EITAAC)
of the US Access Board.
Clarification on the use of graphics and color on Web
The Web Accessibility Guidelines do NOT discourage the use of graphics, icons
or color. In fact they encourage the use graphics.
Another area of inquiry at the hearing that was not clearly covered was whether
the Web Accessibility Guidelines allow the use of graphics, or discourage their
use. The answer is that graphics, icons or color are not barriers to accessibility.
In fact, the Web Accessibility Guidelines encourage the use of
graphics. They make the Web easier for many individuals with different types
of disabilities (as well as other users). The guidelines do say, however, that
where information is presented ONLY in graphic form, that the information should
also be available in text form and that information that is conveyed with color
should also be available in another way.
It should be noted that this alternative text (which has been required for
the past 2 years as part of standard HTML) is usually invisible to a reader
who has graphics turned on. Thus the use of alternative text would not alter
the appearance of the Web page at all. The text only appears when the graphics
are turned off (or before the graphics are loaded). Incidentally, the text is
also visible to search engines, which makes the pages easier to find using search
engines. It is also useful to anyone using phone browsers, or with slow Internet
The phrase which Chairman Canady sought clarification
on in the hearing ("at least one mode that minimizes
the cognitive and memory ability required of the users") is not from the Web accessibility guidelines.
During the hearing clarification was sought (but not received) on whether the
Web accessibility guidelines require Web sites to provide at least one mode
of presentation that minimizes the cognitive and memory ability required of
The answer is no. This requirement is not part of the W3C Web Content Accessibility
Guidelines or requirements proposed by EITAAC for the Web content. Rather, the
statement referred to above is from the EITAAC general guidelines that apply
to all electronic and information technology. That clause is meant to cover
a wide range of products, from copiers to phones. The clause from the EITAAC
report that addresses Web accessibility (and would be used to interpret any
general guidelines) was located lower in the report and specifies the use of
Priority 1 and 2 guidelines (only)of the W3C-WAI Web Content Accessibility Guidelines.
The appropriate EITAAC report item for Web access is:
126.96.36.199 Web content shall conform with level 'Double-A', satisfying
all Priority 1 and 2 checkpoints, of the World Wide Web Consortium (W3C) 'Web
Content Accessibility Guidelines 1.0' available at http://www.w3.org/TR//WAI-WEBCONTENT
The language in the Web Content Accessibility Guidelines that applies to this
14. Ensure that documents are clear and simple so they may be more easily
14.1 Use the clearest
and simplest language appropriate for a site's content. [Priority 1]
(There are also two Priority 3 guidelines in the W3C guidelines for this
area. However the EITAAC did not include any Priority 3 items in its recommendations
so they would not be included.: - 14.2 Supplement text
with graphic or auditory presentations where they will facilitate comprehension
of the page. [Priority 3] and - 14.3
Create a style of presentation that is consistent across pages. [Priority
Clarification on "One size fits all" misunderstanding
Providing Web accessibility is an additive process not a substitute.
Clarification was sought during the hearings as to whether Web accessibility
requires a "One-size-fits-all" or " least-common-denominator" approach (i.e.
whether Web accessibility mandates a single presentation format or mandates
a format that is very simple and basic).
Neither of these approaches is required or recommended by the guidelines. In
fact the guidelines specifically caution against that approach.
Instead the guidelines recommend that pages be created in rich but flexible
ways that allows users with different constraints to be able to view and use
the content. (This includes both those who have a disability and those that
are just using mobile technologies like phones to access the Web).
Clarification on Web recommendations regarding format:
The Web Accessibility Guidelines do not proscribe or restrict the way information
on the Web is presented.
A common misunderstanding is that accessibility regulations restrict the way
information on the Web is presented. There are no guidelines or regulations
that outlaw a particular form or technology from be used to present information
on the Web. The closest thing that will be found is a recommendation that W3C
technologies or other technologies developed in an open fashion be used. However,
this is not a requirement, and the guidelines simply state that if other non-accessible
technologies are used, that the information be available in some accessible
fashion as well.
11. Use W3C technologies (according to specification)
and follow accessibility guidelines. Where it is not possible to use a W3C
technology, or doing so results in material that does not transform gracefully,
provide an alternative version of the content that is accessible.
In most cases, the alternate accessible form is a short text phrase that only
appears if requested.
Clarification on cost of accessibility as a barrier to
High Cost = Undue Burden = Not Required
During the hearing, a concern was raised regarding whether companies would
be forced to tear down their Web sites or carry out extreme or burdensome conversions.
First – it should be noted that the vast majority of all information and services
on the Web can be made accessible for something on the order of 00.01% to 01%
of the cost of creating and providing the information or service in the first
place – especially if accessibility is addressed from the beginning of development.
This would be far below any likely determination of an "undue burden" threshold.
For those situations where excessive effort is required for some reason or
portion of the site the "undue burden" clause of the ADA would come into effect.
Again – it should be noted that in almost all cases, making Web sites and services
accessible to people with disabilities also makes them more useable to people
(without disabilities) who use small pocket computers, PDAs, cell phone browsers,
and other mobile browsing technologies.
Clarification on whether Web accessibility will require
removing pages from the Web.
The suggestion was made during the hearing that 'hundreds
of millions of existing pages would be torn down' from the Web if there
were requirements for Web accessibility.
The Web relies on URL's being "persistent," in other words, having stable addresses.
W3C Recommendations emphasize building a stable Web for today and for the future;
no W3C Recommendation has ever suggested removing pages from the Web, for accessibility
or for any other reason. To do so would create a far worse accessibility problem
for Web users, including people with disabilities, since people would encounter
"dead links" —no information at all —when trying to access pages that had been
If a site to which the ADA applied could not be made accessible with a reasonable
amount of effort, the undue burden provisions of the ADA would apply, and no
site would need to be removed. Therefore this scenario is not a logical consequence
of requirements for Web accessibility. It is not what is being sought by the
disability community and removal of pages if there was not an undue burden to
make them accessible does not make economic sense.
Comment regarding the Internet and public accommodations.
During the hearing the assertion was made that the Internet was not a public
accommodation because the examples listed in Title III were all physical places.
It should be noted that the examples do not anywhere specifically say that
they must be physical places. The actual terms used were "place" or "establishment".
In addition, of the 12 examples listed in Title III all but 3 of them are activities
that are being carried out on the Web today. The 3 that are not on the Web all
require the physical presence of one's body. They are
(1) an inn, hotel, motel; or other place of lodging, . . .
(2) a restaurant, bar or other establishment serving food or drink;
(7) a terminal, depots or other station used for specified public
Four of the 12 deal with entertainment and exhibition
(3) a motion picture house, theater, concert hall, stadium or other
place of exhibition or entertainment;
(8) a museum, library, gallery or other place of public display or
(9) a park, zoo, amusement park or other place of recreation;
(12) a gymnasium, health spa, bowling alley, golf course or other
place of exercise or recreation.
The Internet is (or soon will be) a location of entertainment that is used
more than all of the listed examples in this area combined. It is used for viewing
movies, concerts (live and recorded), watching games (live and recorded) and
exhibiting things of all types --- including collections from museums and art
galleries that are not otherwise viewable by the public. There are libraries
and entertainment sites of all types. Many more and of much greater variety
than are available in any but one or two cities in the US. The only items in
this list that are not available on the Internet again are those things that
require physical body presence. And even here, virtual reality sites are beginning
to break new ground
The remaining examples cited are also all commonly available on the Web:
(4) an auditorium, convention center, lecture hall or other place
of public gathering;
The Internet has created a whole new categories of gathering places including
chat rooms, joint video meetings, distance education classrooms, remote lecture
halls and more
(5) a bakery, grocery store, clothing store, hardware store, shopping
or other sales or rental establishment;
Sales of goods and services via the Internet is well established and rising
quickly. In many cases goods are available via the net that cannot be obtained
otherwise in local communities or via any catalog that a person would have (or
in many cases – that they would qualify to receive in the mail). In addition,
an increasing number of sales establishments exist only on the Internet making
access or use via any other means impossible. Thus the Internet not only an
example of sales and rental establishments – but it is an example of unique
sales (and rental?) establishments that are not otherwise available locally
or at all.
(6) a laundromat, dry cleaner, bank, barber shop, beauty shop, travel
service, shoe repair service, funeral parlor, gas station, office
accountant or lawyer, pharmacy, insurance office, professional office
health care provider, hospital, or other service establishment;
Although not all of the service establishments listed here are available on
the Internet, all those that do not require physical presence are. Travel services
on the Internet are so good and cost effective for consumers that they threaten
local travel agencies. They are also available at hours that local agencies
are not. Accountants, lawyers, insurance and even medical advice and care are
available via the Internet. Again, for many localities, there is no other local
equivalent to what is available to a person via the Web.
(10) a nursery, elementary, secondary, undergraduate or postgraduate
school, or other place of education;
The Internet is certainly a place of education. Both formal, and informal education
is conducted via the Web. And use of the Web is rapidly becoming a requirement
for any high or secondary school education.
(11) a day care center, senior citizen center, homeless shelter,
adoption agency or other social service center establishment;
Social services are increasingly being offered via the Web. Again, it may be
the only way for people in outlying communities to access social service information
Common misunderstanding: No Need for Regulation because
Industry is Already Doing It
The question was raised as to whether regulation was needed – or whether industry
was already working on access.
A couple of observations can help to shed some light on this question. First
- it should be remembered, that all of the companies working on more accessible
Web technologies, Web sites, etc., in any serious and concerted fashion are
aware of the ADA, and most are aware of the Justice Department's ruling. Thus
there is already a regulatory motivation in effect. Further, it is known that
many of these companies would reduce their efforts significantly if there were
no mandates and they knew that there would be no future mandates for the accessibility
of their material.
An interesting parallel to this was observed with Section 508 the first time
it came out. Section 508 required that computers and information technology
purchased by the government be accessible to people with disabilities. A number
of companies began gearing up accessibility efforts. Employees within companies
told their management about the regulations and the fact they should be creating
more accessible products to better compete for government contracts. Later,
when the initial 508 was only sporadically enforced and companies were not seeing
accessibility provisions showing up in government RFPs, I began receiving calls
from company employees saying that their companies were scaling back accessibility
efforts as a result of the lax enforcement of the regulations.
I have heard similar rumblings with regard to Internet companies' behavior
if the Internet were suddenly to be declared an accessibility-regulation-free
Clarification and Information on Economic Motivation.
Several presenters suggested that economic motivations might cause industry
to make their technologies accessible even without any regulation. The Trace
Center has done extensive work with industry (including building access features
into standard products) and has not found this to be the case. Trace has also
just completed a three-year study looking at why companies do or do not incorporate
accessibility features into their main product line. This research also supports
the position that companies will not engage in substantive, long term accessibility
efforts across their main mass-market products in the absence of either regulation
or the fear of regulation.
Although other (non-regulatory) motivations have led to particular actions
or caused features to appear, these efforts have not been maintained or applied
across product lines. Companies also often provide particular access features
for a product but omit other key access features resulting in a product that
is only partially useful or useful only for people with some disabilities. Unfortunately,
the piece that they do not provide access to is sometimes the "front door".
In the context of the Web this appears as Web site that is largely accessible
except that a person cannot use any of it because a few pages at the front are
Even when access is easy to implement it is very hard to accomplish in the
absence of a strong motivator. Everyone in these companies is so busy
that they are only getting to those things that are absolute financial homeruns
or absolute necessities. Side markets, additional markets, diverse markets (such
as people with disabilities) often end up on the list of "important things to
do" that people never get to.
This is best illustrated by a story once told to me by a vice president
of a large technology corporation.
It started when he asked me, "Why don't you just pass a law that requires us
to do this." After asking him to repeat what he said, I told him how surprised
we were to hear him say that and asked him why he said it. He said, "Two reasons".
"First," he said, "I think this is a really important thing for us to be doing.
I only wish that I could present it to my colleagues as well as you did. Be
that as it may, I'm going to take these materials back, and I'm going to set
it right on top of my desk as a very important thing to do. However, also on
my desk will be about six other stacks. Furthermore, two of them are likely
to be smoking, and one of them is going to be on fire. I'll start putting out
the fire, and one of the smoking stacks will burst into flame and another one
will start smoking. I will spend the rest of today putting out the fires and
hopefully a couple smokers. When I go home tonight, I'm likely to still have
a couple smokers. And in the morning my secretary will bring in four more stacks
- at least one of which will be on fire and one of which will be smoking. This
is the way the rest of the week, the month, and the year will go. A year from
now, your materials will still be sitting on the corner of my desk. It will
still be just as important -- and I'll still be putting out fires. It's just
the way my job works.
"But if you pass a law that says our company must do this, then your stack
will start to smoke...." (he paused for effect ...)
"Also, if you pass a law, you solve another problem for us. Things are so competitive
in our industry that we are afraid to ever take time out to work on anything
that we don't know that our competitors are also looking at (unless it will
let us leapfrog them in the market). If you pass a law that says we all have
to do this, then we don't need to be afraid to take time out to address these
issues – even if it is small."
That company was a not an Internet company but his analysis sounds to be even
more true in the area of Internet.
Disclosure Statement: "I am a Professor at the University of Wisconsin and
direct a research and development center with funding from the US Department
of Education, National Institute on Disability and Rehabilitation Research,
the US National Science Foundation, and industry. Last year I was asked by the
National Federation of the Blind if I would consult with them in their complaint
against America On-Line. I agreed to consult, and I have had one phone call
with NFB staff on this matter back in November 1999 and none since. At the time
I told them that I would also be available to answer questions for AOL should
they ask. Also, I had asked that any fees that might be involved be donated
directly to charity – so I have no financial interest in that case. The views
expressed in this statement reflect only those of the author and do not represent
the views of the federal government or any other entities.
Gregg C Vanderheiden Ph.D.