The State of the Law on Technology and The Blind: What It Is and What It Ought To Be
ABSTRACT
Lack of access to information because of the inability to read print is a persistent problem for blind and visually impaired persons in employment, education, home life, civic and social life. The National Federation of the Blind (NFB), with over 50,000 members, is having considerable success on the state and federal level to address this issue through legislation and litigation. This article is an overview of important landmarks such as a suit against AOL for lack of access, efforts concerning the Voting Rights bill, the background for Section 508 (which affects the internal and external accessibility of all federal agency electronic and information technology), passage of similar state laws, and other important initiatives of the NFB to address computer accessibility problems affecting all blind and visually impaired Americans. The article demonstrates an approach to access focused on the law of procurement and not solely on nondiscrimination law. It concludes with a look at current and future legislative initiatives.
There ought to be a law! When during one of its annual national conventions the members of the National Federation of the Blind pass a resolution to address an inequity for blind Americans, a new piece of legislation may be the only way to comply with the resolution and the will of the members. The Director of Governmental Affairs for the National Federation of the Blind is assigned the task of carrying out the work necessary. Having laws made, rather than having machines made, is often America's way of fixing things and solving problems. "Too many laws" is what many people say is wrong with our country. Perhaps that is so, but for those who are blind, the advent of modern and evolving communications technology virtually forces this response--"There ought to be a law."
Many observers have wondered about the success the National Federation of the Blind has had in changing so many laws over the years. The fact is, it has not been "luck"; but a combining of the American system of government and a citizen's right to "educate" elected officials in order to mitigate inequities, along with the sagacity and persistence of a series of hard working NFB leaders and members. According to long-time NFB members, the NFB's success comes about year after year because of several factors that they take care to make work together. The founder of the National Federation of the Blind in 1940 was Dr. Jacobus tenBroek, blind university professor and author of books on the U. S. Constitution which are still used in law courses today. Leaders of the NFB learned how laws are made in the various states and in the U.S. Congress. When new leaders are elected, they are helped to utilize the legislative process.
Members take every opportunity to get acquainted with elected representatives when they are in their home districts. The success of many of the most important pieces of legislation affecting the lives of all blind Americans rests on the many grassroots members who take the time to stuff envelopes during local politicians' election campaigns, who go to political forums and participate, who invite officials to their homes for a coffee with blind constituents, and often attend the political fundraisers (with their white canes and guide dogs helping them to be noticed in the crowds). It is the personal contacts with elected representatives and the rapport that builds when "that blind woman" turns into Mary Jones, a mother of a blind son who can be trusted to know what she is talking about when she says her blind son is not getting a level playing field in his school because the new computers are not accessible to his software. This personal touch is often crucial when "We, the people" want to see change.
To educate legislators about the needs of blind Americans, the National Federation of the Blind holds an important legislative event each year called "The Washington Seminar." It takes place in Washington, D.C., over a weekend plus 3 week days at the end of January or the beginning of February, whenever the Members of Congress return to Washington for a new term. Members make formal appointments to meet every one of their own state's elected officials. Before this seminar takes place, the leaders of the NFB work out which two or three pieces of legislation are most needed by blind Americans--most often based on the resolutions passed at the July convention. Each of these resolutions contains a phrase which is taken seriously by NFB members, "Be it resolved by the National Federation of the Blind in convention assembled. . . . " Occasionally some piece of legislation, legal decision, or bureaucratic maneuvering will have occurred in the interim which must be quickly addressed through legislation.
When other parties have an interest in a particular piece of legislation, such as the Association of American Publishers (AAP) with the changes the NFB recommended in the revision of the Copyright Law, then the NFB works directly with such parties to find common ground. In the case of the Copyright Law, it is doubtful that change would have occurred so quickly if Dr. Kenneth Jernigan, NFB President-Emeritus, and Dr. Marc Maurer, NFB President, had not had several meetings with the president of AAP to educate, compromise, and allay the understandable fears of this trade group that publishers would lose control of their product and, thereby, their earnings. It helped immensely that the leadership of the NFB had already built good rapport with the AAP president during the days she had been a Congresswoman.
Laws must change as conditions change. For most blind people in the workforce in the United States, contact with sophisticated computer and communications technology has not been a common, daily experience until very recently. If we go back ten years, certainly fifteen years, this is before almost anybody in the workplace had e-mail and we didn't pass our documents around electronically. If you were blind, unless computers were directly within your line of work--such as programming them--you could avoid interacting with them pretty much altogether. Someone else with the ability and skill required could usually be called upon to operate the equipment when needed.
Communication and information technology is no longer just interesting, the technology which is now at our fingertips has become a regular part of daily life. Access to electronic information technology is absolutely essential. The communications infrastructure now being built will make skilled use of this technology even more essential for anyone, blind or sighted, in the years ahead. Simply put, we are all being forced to become technology-literate, or watch from the sidelines while those who are technology-literate pass us by.
Several years ago it was not as essential for a blind person to use electronic and information technology since secretaries and living readers were available. The expectation was that you'd need some sighted person to read to you and readers were easy to find. Now the transmittal method is via electronics and the expectation is that most people in the workplace must be able to use that technology. If you cannot, you are left out of the chain of information. There are readily available solutions to electronic text so the technology can work effectively for blind people. Then what is the problem?
The problem is it cannot be assumed that the technology will work with these readily available solutions. Purchased out of the box a standard computer work station will not work for a blind person using Braille or speech output, or, in many cases enhanced print enlargement. (http://www.nfb.org/Tech/buyingcomputer.htm)
Can a standard computer work station be made accessible? That depends on the programs and the applications that the blind employee needs to use. The fact is that purchased out of the box, a blind employee cannot assume that the applications will be accessible unless the vendor thought of this in advance. Jobs were lost as well as gained when DOS became popular and, again, when Windows became the standard office computer operating system. The NFB quickly understood that it would again need to be a catalyst for change, this time, in the assumptions made by inventors and manufacturers of new computerized systems as they developed new designs on the drawing board. In the case of proprietary software, the company programmer must think of accessibility in advance. Experience shows us that the problem is that accessibility will NOT be thought of in advance unless there is a law, a regulation, a policy, or a directive that makes accessibility a critical criteria in procurement. That's why --"There ought to be a law!"
The pace of implementing new ways to communicate and acquire information is frightening to some, but it is the failure to include a means of nonvisual access that is most frightening for blind people. This is most frightening because barriers to communication are intolerable roadblocks to success in the knowledge-based economy of today and beyond. Barriers to the acquisition of information are not the kind of nuisance-level annoyance that the blind can overcome with good training. The barriers in the cyber-world are real. (http://www.nfb.org/tech/webacc.htm) Unless we respond effectively, these barriers now being built will impose a competitive disadvantage upon blind people as a class.
This is obviously a serious matter. Therefore, among the things which must be done, we need more laws. Of course, there are laws on the books already to deal with technology access, but we really do need more of them. The Americans with Disabilities Act of 1990 (ADA) declares that discrimination on the basis of disability is illegal in public services and in public accommodations provided by private entities. This prohibition is echoed and applied to governmental entities--federal, state, and local--by Section 504 of The Rehabilitation Act of 1973, as amended.
Section 508 of this same Act is the most relevant for this discussion (www.section508.gov). That section states the federal government commitment to purchase electronic and information technology which meets the accessibility standards required by law. The standards which have been issued by the Access Board are considered important by technology vendors who want to sell their products to federal government agencies (www.access-board.gov/sec508/508standards.htm). These standards for accessibility are also considered important by state governments considering requirements for accessibility. The State of California in 2002, after encouragement from the National Federation of the Blind passed a law requiring ALL state agencies to abide by Section 508 when they purchase electronic and information technology. Also in 2002, in the State of Maryland, the NFB secured enactment of a state law requiring all school districts to comply with the federal Section 508 accessibility standards, giving particular attention to nonvisual access. (Both of these state-based efforts required countless phone calls, letters, and trips to the state legislatures over more than one legislative session.) As demonstrated in these two instances, although Section 508 legally applies only to federal agencies and has no direct applicability to purchasing decisions by anyone other than the federal government, it still has a major impact as a model.
Isn't this enough law? The National Federation of the Blind doesn't think so.
Broad general laws against discrimination, such as the ADA, are fine and the NFB usually supports them. However, using the ADA or some other general nondiscrimination law to address technology access has not worked, or at least not worked very well. This is so because enforcement of laws against discrimination occurs more or less as a case-by-case event; also, enforcement usually occurs to correct wrongdoing after the fact.
With nonvisual access to information technology, we need to correct wrongdoing before the fact--before the technology is built and particularly before it is installed. If that does not occur, the claim of hardship, which will be presented as a defense against a charge of discrimination, may be overpowering. After all, most judges can see, and they generally don't believe that a failure to make a device one way, as opposed to another, would constitute discrimination.
Besides, when the federal government requires accessible technology as a criteria for purchase of information technology, everyone benefits since accessibility then tends to become the standard, rather than the exception. When state and local governments and even private companies join in by establishing and living by parallel access requirements, the impact of Section 508 is even more powerful.
The point is there ought to be a law. Lots of laws! Anytime there is a purchase of electronic and information technology, it must be simply a matter of understood fact that the technology must be accessible. Accordingly, to Section 508 and other laws, such as the recently passed Help America Vote Act, accessibility means non-visual access as well. It was the National Federation of the Blind that worked with Congress to ensure that the Help America Vote Act included the words, "nonvisual access" in every essential place in this law.
The AOL suit and the incident of the IRS tax forms online illustrate the power of federal laws. In the case of America Online (AOL), after years of correspondence between the NFB and AOL which AOL virtually ignored, a lawsuit was filed by the National Federation of the Blind and individual plaintiffs stating that for many years AOL violated the provision of the ADA concerning accessibility since most of its proprietary software was inaccessible to any blind person using screen access software. (http://www.nfb.org/bm/bm00/bm0001/bm000107.htm) Rather than fighting this charge, which would have been risky, AOL capitulated and agreed with this assessment. Within a few months, AOL agreed to modify its software so blind people would have access to its service. Rather than just something out there in the future to think about one day when nothing else would interfere, this suit made accessibility a corporate commitment of AOL (http://www.nfb.org/tech/aolacc.htm).
In the case of online tax-filing, here again the power of the federal law was demonstrated. Shortly after the Internal Revenue Service (IRS) announced that taxpayers would be able to complete forms and pay their taxes online, the National Federation of the Blind and the Connecticut Attorney General sent demand letters to companies providing electronic tax filing services in collaboration with this new service of the Internal Revenue Service. These letters pointed out that the application software approved by the IRS was inaccessible to blind citizens using screen access software and Section 508 required agencies of the government to meet an accessibility standard which was not being met. Section 508 speaks forcefully for access requirements in the development, purchasing, and use of electronic and information technology by agencies of the federal government. These standards are in effect for all of the federal government.
Once these demands for accessibility were made and considered to be legally enforceable, the companies made accessibility a requirement for future versions of their software. This would never have been done without a law and the forceful threat to use it.
This is certainly part of what is needed, but it is still not enough. About six years ago in 1997, the National Federation of the Blind published a model bill for states to use in promoting nonvisual access to information technology--the Accessible Information Technology Act. By 1999, five states--Arkansas, Maryland, Minnesota, Texas, and Virginia--had enacted laws patterned on this model, and more have enacted it since.
The provisions of these laws differ somewhat from one state to another, but the general thrust is the same--to require all procurement contracts for information technology to include a nonvisual access clause. In Maryland and most of the other states as well, the content of this clause is specified in the law, requiring (1) that the technology must provide equivalent access for effective use by both visual and nonvisual means; (2) that the technology will present information, including prompts used for interactive communications, in formats intended for both visual and nonvisual use; (3) that the technology can be integrated into networks for obtaining, retrieving, and disseminating information used by individuals who are not blind or visually impaired; and (4) that technology which is designed to be compatible with nonvisual access devices and software will be obtained whenever such technology, not requiring modification, is available.
The most fundamental point of this legislation is that systems and technology which are purchased and used by the state must be designed with compatibility for nonvisual use built in from the very beginning. The federal government is not the only entity involved in the procurement of information technology. When the NFB placed this bill before the Maryland General Assembly in 1998, the state was expecting to spend close to half a billion dollars on information technology in that year alone. The same is happening everywhere. Cities and counties too are purchasing information technology in order to be part of the new infrastructure being used to communicate and disseminate information.
Aside from laws relating to procurement, the NFB is also working to insure that educational textbooks used in schools are accessible to blind children through the use of modern technology. Since 1991, members have been convincing state legislatures to adopt the NFB's model Braille Literacy Bill with its requirement that publishers must supply ASCII text versions of textbooks when needed for reproduction of a text for a blind student. However, due to the existence of numerous electronic textbook markup codes, this does not yet result in material that can be used conveniently to produce textbooks in Braille. Technology is changing here, too, and this change is in our favor. Now publishers can feasibly produce electronic text versions of textbooks that can be readily converted into Braille or other accessible formats. They can, if they wish to or are required to do so. The National Federation of the Blind and several groups, including the American Printing House for the Blind, the American Foundation for the Blind, and Recording for the Blind and Dyslexic, worked with the American Association of Publishers until gaining their full backing for new model legislation, the Instructional Materials Accessibility Act (IMAA), to make this happen. This proposed federal law is one of the key pieces on the legislative agenda of the National Federation of the Blind for 2003.
In the view of the National Federation of the Blind, and, no doubt, this is a generally held view by anyone concerned with equal access, any public entity must include criteria for nonvisual access in contracts for the purchase of information technology. The same is true of private entities that provide services to the public. The role of a consumer group is to see to it that they do it.
Consistent enactment of model access legislation is at the top of the NFB's priority list in as many political jurisdictions as possible, and applying to as many entities as possible--states, counties, cities, school districts, and the private sector. The technology of the future will certainly have a new look. Members of the National Federation of the Blind believe their responsibility is to insist upon a new sound and a new feel to the technology as well. The times require it, and the law must demand it. The National Federation of the Blind invites all interested parties to help see to it because--there ought to be a law!
SOME HIGHLIGHTS IN ACCESSIBLE TECHNOLOGY
National Federation of the Blind 1990 - 2003
OVERVIEW OF THE 1990s: Throughout the '90s new opportunities open up which depend on the use of computers for the employment of blind persons, even as blind Americans in increasing numbers contact the NFB to relate jobs lost and former opportunities for jobs disappearing as computers continue to replace low tech methods for literacy in the workplace. The Americans with Disabilities Act of 1990 is passed, soon making the terms "accessible" and "undue hardship" widely known if imperfectly understood. Blind persons struggle to learn, first, DOS and the special software that permits access to this operating system, then, Windows, as it becomes the standard operating system in the business world. In K-8 education, inaccessible Apple computers are ubiquitous. Blind consumers or their state agencies are expected to purchase expensive pieces of equipment with few options to compare products by rival companies or to confirm the worth of the equipment before buying. At the decade ages, inaccessible computers such as bank machines and information kiosks are found in increasing numbers of public institutions, while human clerks are increasingly absent. Blind persons begin again to find a way to manage this new technology. In 1998, the NFB succeeds in educating Congress to the need for passing Section 508.
November 16, 1990: The National Braille and Technology Center for the Blind (NBTC) opens its doors on this 50th anniversary of the founding of the NFB. Its mandate is to acquire a working model of every speech output computer, Braille device, and Braille embosser currently sold to blind Americans, to compare models, to offer free hands-on tours, and to offer fair and impartial assessments to anyone who requests information. (http://www.nfb.org/bm/bm91/brlm9102.htm)
1991: The First U.S./Canada Conference on Technology for the Blind convenes at NFB headquarters. Every major organization of and for the blind in both countries participates. Cooperative interaction among producers of technology, service providers, and blind consumers stimulates accelerated development of new products and innovative technology. (Proceedings: http://www.nfb.org/bm/bm92/brlm9201.htm)
1991: The NFB's model "Braille Literacy Bill" entitled The Blind Person's Literacy Rights and Education Act is passed by the Texas legislature. One provision requires textbook publishers to supply textbooks on computer disk if needed for reproduction into Braille or other special format for a blind student. Another requires textbook publishers who sell material in Texas to also publish it in Braille or provide the text on computer disk for local Braille producers to provide their students with a Braille copy in a timely manner. ("Braille bills: what are they and what do they mean?" by Fredric K. Schroeder, Braille Monitor, June, 1992, http://www.nfb.org/bm/bm92/brlm9206.htm)
1991 [non-NFB]: Guidelines are adopted under the authority of the Americans with Disabilities Act that require automatic teller machines (ATMs) to be independently usable by people who are blind. (http://www.nfb.org/bm/bm00/bm0008/bm000803.htm)
1994: The NFB model legislation for comprehensive Braille literacy covering Braille teaching and electronic computer files to produce Braille textbooks adds 7 states in 1994, bringing the total to 25 states.
1994: With Newsline for the Blind®, the NFB pioneers in developing the technology to access and search computer files with a standard touch-tone telephone. In the pilot system in Baltimore, blind readers listen to USA Today, a daily newspaper, as the system instantly converts articles they've selected into computerized speech.
1994: The Second U.S./Canada Conference on Technology for the Blind is held at NFB headquarters. Newly renovated and greatly expanded, the International Braille and Technology Center for the Blind (IBTC) continues to have more technology for speech and Braille output than any other such facility in the world. (Proceedings: http://www.nfb.org/bm/bm94/brlm9401.htm)
1995: GUI replaces DOS as textual information in DOS format is becoming old fashioned. In current trends computers begin to use pictographs (graphic user interface or GUI). Synthesized speech software and Braille translation programs are less and less able to read the screen and interact with it. (NOTE: Before 1990, the NFB created the Speaqualizer, the only text-based hardware screen access system for DOS machines. It provides speech output.)
1995: The NFB participates with other concerned groups in an "Accessibility Summit" held at Microsoft headquarters in Redmond, Washington. (This beginning with subsequent interactions ultimately resulted in a more accessible Windows system.)
1995: The NFB establishes an Internet site at www.nfb.org and www.blind.org.
February 1996: Congress adopts amendments to the Telecommunications Act including a requirement that communication devices be accessible to the disabled.
July 1996: Congress passes an amendment to the Copyright Act. Drafted jointly by the NFB and the Association of American Publishers, and effective in September, 1996, no permission is required by nonprofit organizations or government agencies from the copyright holder to reproduce books and other materials in special formats, including electronic text, "for blind or other persons with disabilities." Within a year, similar legislation passes in Canada and is being considered in Italy and elsewhere. (http://www.nfb.org/bm/bm96/brlm9604.htm#1)
1996: The Third U.S./Canada Conference on Technology for the Blind is held at NFB headquarters.
1997: The NFB publishes model legislation for states called the Accessible Information Technology Act which requires information technology purchased by a state to be accessible for use by blind persons.
1998: The NFB's model for the Accessible Technology Act passes in Texas, Minnesota, and Maryland. This model becomes the prototype for federal legislation requiring all federal agencies to purchase electronic and information technology that is accessible to and useable by persons with disabilities, including blindness. These requirements are in Section 508 of The Rehabilitation Act of 1973, as amended in 1998.
1998: The NFB develops America's Jobline® software which provides job announcements from an Internet site, America's Job Bank, in high-quality synthetic speech instead of text, 24 hours a day on any touch-tone telephone (1-800-414-5748). The U.S. Department of Labor underwrites the costs to make it free nationwide for two years to all sighted and blind Americans (http://www.nfb.org/jobline/enter.htm).
1999: The Fourth U.S./Canada Conference on Technology for the Blind is held at NFB headquarters.
1999: The National Federation of the Blind of Pennsylvania along with several individual blind people file suit against Mellon Bank to require it to install accessible ATMs.
November 4, 1999: The NFB sues AOL, the largest Internet provider in the world, alleging its proprietary software is incompatible with screen access readers "thus denying the blind independent access to this service in violation of Title III of the ADA." (http://www.nfb.org/bm/bm99/brlm9912.htm).
OVERVIEW OF THE TURN OF THE CENTURY: "The Digital Divide" becomes a by-word referring to workers who can use computers successfully and those who cannot; businesses that incorporate computers into their processes and those that do not. There continues to be a Digital Divide between sighted and blind computer users as software for accessibility plays catch-up with each new innovation. As the new century advances, blind persons in increasing numbers are commenting on the growing inaccessibility of home appliances with digital technology, incorporating features such as LED windows and heat-activated fingertip controls on smooth surfaces. "Virtual keyboards" composed solely of infrared outlines projected on a flat surface are in development. Parents and students become more aggressive in demanding a level playing field when it comes to textbooks, tests, and auxiliary materials being made available in an accessible medium at the same time sighted classmates receive their textbooks and other materials. Throughout society, persons with disabilities are demanding accessibility in many different instances now that technology has made it possible. The NFB continues to concentrate on the building-in of accessibility in the design phase and in procurement choices for technology.
May 24, 2000: The NFB and other concerned parties file suit against Chevy Chase Bank, Rite Aid Corp., and Diebold (a top manufacturer of ATM machines) over the lack of accessibility in their ATMs. Diebold's CEO and the NFB President find mutual ground and a friendship that, with NFB's top technical experts assisting Diebold engineers, speeds production of truly accessible "Talking" ATMs. (http://www.nfb.org/bm/bm00/bm0007/bm000701.htm)
July 26, 2000: NFB and AOL sign an agreement that the NFB will refrain from invoking its suit if AOL carries through on its promise to make its service accessible to blind persons using screen readers. (http://www.nfb.org/tech/aolacc.htm) (http://www.nfb.org/BM/BM01/BM0102/bm010203.htm)
July, 2001: A sign of the times: "Accessible Machines for Commerce: First the Bank Machine" is the title of remarks by Walden O'Dell, Chairman of the Board, President, and Chief Executive Officer of Diebold, Incorporated. (2001 Convention Roundup, Braille Monitor, August-September, 2001)
November, 2001: Diebold Corporation and the NFB sign an agreement to work together on developing the next generation of talking ATMs for use in retail stores.
2002: To eliminate inaccessible educational materials and textbooks, a model act called the Instructional Materials Accessibility Act (IMAA) is developed by the NFB and several other groups, including the American Foundation for the Blind, the American Printing House for the Blind, and Recording for the Blind and Dyslexic, in consultation with the Association of American Publishers, which is fully behind it. Once enacted, it would set up one textbook repository for the United States to which textbook publishers would be required to send one electronic file in a standard format which the act authorizes to be developed as a national standard. The act includes grants to states to establish or augment their means of producing materials in alternative formats from such files. (http://www.nfb.org/fr/fr8/frsf0205.htm)
2002: Maryland is the first state to enact a law requiring instructional technology to be accessible to students with disabilities, including the blind. (NFB members monitor purchases by state agencies and lodge protests whenever the law is circumvented.)
October, 2002: President George W. Bush signs the Help America Vote Act, requiring installation of computerized voting equipment in all polling places by November, 2006. With work done by the NFB, this law requires nonvisual access providing blind persons with the opportunity to vote in private and to verify choices made independently.
March 1, 2002: NFB-NEWSLINE® goes nationwide with more than 50 newspapers from across the United States now instantly accessible to blind readers, without cost, via synthetic speech on any touch-tone telephone. (http://www.nfb.org/bm/bm02/bm0201/bm020115.htm).
December, 2002: The State of Maryland's Department of General Services (DGS) is the first state agency in the nation to receive the NFB's Nonvisual Accessibility Web Certification (NFB-NVA Certification). (http://www.nfb.org/seal/intro.htm) (http://www.nfb.org/coming/petarelease.htm)
February 2, 2003: America's Jobline® is enhanced with an automated resume feature. In response to job announcements, job applicants answer questions on the telephone to generate resumes which are transcribed into print, then e-mailed or faxed to employers in 4 hours.
RECOMMENDED WEB SITES:
http://www.usdoj.gov/crt/ada/adahom1.htm. The ADA Home Page contains ADA Regulations and Technical Assistance Manuals.
http://www.access-board.gov/508.htm. Section 508 of the Rehabilitation Act: Electronic and Information Technology Accessibility Standards. .
http://128.104.192.129/taproject/policy/initiatives/508.html. Section 508 success stories contain food for thought.
http://www.nfb.org/emptrn/tech.htm. National Federation of the Blind's Web page on Technology.