• Law, Policy—and IT?

    Tracy Mitrano explores the intersection where higher education, the internet and the world meet (and sometimes collide).


Accessibility Standards, Cloud Computing and Innovation

An important accessibility issue.

July 14, 2014

What difference does cloud computing make with regard to accessibility? As a governance, compliance, and matter of risk management, the answer is essentially “no difference.” Accessibility is as much a compliance issue as privacy, security, and export control.  If the law requires a college or university to comply with certain standards, for example section 508 of the Rehabilitation Act that the state of California adopted from that federal law, then it does not matter if the product or service that a vendor offers is on the premises or in the cloud; if the institution is in California, it must comply with that law.  But unlike privacy and security, where colleges and universities have focused much attention in the last several years, the accessibility compliance and standards’ landscape has been a little more uncertain … until recently.   And that is where the relationship between cloud computing and accessibility becomes interesting.  A far greater degree of certainty about accessibility compliance and standards is emerging at the same time that cloud computing is transforming the Internet and enterprise systems.  This coincidence offers some unique opportunities.

Before going into detail on what those opportunities might be, we must understand something about the technology and the law.  “Cloud computing” is a metaphor for Internet services that use the “web” rather than a localized infrastructure.  Internet users have been engaged in cloud computing for some time now if, for example, they had a Yahoo mail account, a Facebook profile, or searched on Google.  In all of those examples, the technical infrastructure is not on the individual’s computer but rather with the company.   “Enterprise services” such as electronic mail, data storage, or learning management operate on the same principle.  Instead of the college or university having the system on their premises, the vendor does the hosting.  The institution has to “plug in” and tailor the system to their campus, but usually that’s done through “authentication” mechanisms, just as one would provide a password for their Yahoo mail account or Facebook profile, only more sophisticated, given the scale of an enterprise system.  For reasons of operational effectiveness and financial efficiency, almost all information technology services are moving to the “cloud.”  If it has not already, cloud computing is sure to become a standard for enterprise systems in virtually all sectors of society: corporate, government, and education.  Computer scientists and other observers of the Internet regard it as a defining feature of what they call “Internet 2.0.”

At the same time that cloud computing was becoming a standard of Internet usage, accessibility law has been undergoing a shift from relative uncertainty to greater clarity about applicability and standards.   A brief history of the law begins with the passage of the Americans with Disabilities Act (ADA) in 1990.   The  “Internet” at that time would not be public for another three years, and then it was very much in its infancy as a driver of culture and commerce.  “Accommodations,” the centerpiece of the ADA, revolved around physical space.  But it was not long before people with disabilities began to identify the technical impediments.  In response, technologists created “assistive technologies” to overcome impediments, such as screen readers, captioned video, adjustable monitor frequencies (to accommodate people with seizure disorders), and special mouse tools.  Web accessibility standards complemented these assistive technologies.  In some cases, those standards set clear rules, such as “all video should be captioned.”  In other cases, standards address software code.  For example, a sighted person who opens the New York Times web page has no interaction with the underlying code that renders the page intelligible.  But a person relying on a screen reader does.  In fact, the term “screen reader” is a misnomer.  Readers do not read what is on the screen – what the sighted person sees – but its underlying code.   The more correct, but less melodious, name would be a “code reader.”  If the code includes excessive tab bars, for example, the “screen reader” articulates every single one.  Read at a normal speed, a “screen reader” could take several minutes to get to the top headline!  Web accessibility standards include code design rules to reduce the frequency of, or to eliminate completely, this impediment.

In 1998, Congress passed an amendment to the Rehabilitation Act of 1973, section 508, which established a number of these kind of these standards as a legal requirement for the federal government and its agencies.  Some states, such as California, adopted the standards wholesale in 2003.  Many other states either adopted these standards in part, or created hybrid standards, drawing not only from section 508 but also from other organizations that issued guidelines, such as the World Wide Web Consortium's (W3C) Web Accessibility Initiative (WAI).   While this array of standards reflected the creative nature of the Internet in its early years, it also resulted in both technical and legal difficulties for standardizing rules.  Tools designed to check websites for compliance could not be written for every state or entity that set its own standards.  Nevertheless, for almost a decade, section 508 did fix rules for some entities, provided web developers with some standards, and generated aspirations for many others.

What role the ADA would play in cyberspace remained a legal question.  The fundamental purpose of the ADA was to extend the promise of equal opportunity to people with disabilities.   As a component of a broad range of civil rights acts passed in that era, which were designed to address other prejudices such as “race,” gender, national origin, and religion, the ADA penetrated that arena once considered sacrosanct from government action: private enterprise and public life.  “Reasonable accommodations” were the means by which Congress designed the ADA to right that balance for people with disabilities.  In public areas of society, the law required that hotels, restaurants, bus stations, schools, and hospitals provide people with disabilities accommodations that would allow them access to those facilities, such as curb cuts and ramps for wheelchairs, service animal exceptions to rules prohibiting dogs, or closed-captioning options on broadcast and video materials.   In the “private,” or business sector, reasonable accommodations were those adjustments that the employer could make to the workplace which would allow the employee with a disability to perform the required job functions.  In cases both of public facilities and of private enterprise, the entity bore the burden in terms of costs or design – so long as the burden was not “undue” – to make the accommodation.

Advocates for people with disabilities embraced early on the notion that the ADA applied to cyberspace.  But as is so often the case with change, it was not a universally accepted position.  Not only did advocates confront some of the same kinds of resistance they had encountered before – primarily, the undue burden of expense – but they also had to address the larger and sometimes overwhelming question of the transformative nature of the Internet overall.  Advocates began to use the courts to assert ADA applicability to cyberspace.  Seminal to the effort were the plaintiffs the National Federation of the Blind, in a case against the retailer Target Corporation, which established the rule that the ADA could be brought to bear on transactional websites.  The court having established this rule as a matter of summary judgment, the parties then settled, which had the effect of truncating its significance and leaving a fuller understanding of what it meant for another day.

Higher education soon became both a means and an end to that lesson. Angered by the failure of Amazon to create accessible navigation in its Kindle DX, the American Council for the Blind and the National Federation of the Blind prompted the Department of Justice to investigate a number of colleges and universities for ADA compliance in their use of these devices in pilot programs.  The investigations cut across the Carnegie Classes of Institutions of Higher Education: from large public universities, such as the University of Arizona and University of Wisconsin-Madison (both of which decided not to pursue the pilot), to medium and small privates, such as Case Western Reserve and Reed College (both of which had begun such programs).

For almost everyone in higher education, these investigations came as a surprise.   The institutions testing the Kindle DX were not responsible for the design; in fact, accessibility was a part of the test!   But in the march toward accessibility, those distinctions did not matter.   Higher education provided an actionable vehicle for advocates.  As the lead counsel for the National Federation for the Blind, Daniel F. Goldstein, once explained, time is critical for decisions that could last a generation or a century.  It resembles the design decision to put the break on the left and the accelerator on the right of an automobile over a hundred years ago for transportation.  If the devices that are being made now are not accessible, people with vision impairments would lose out on opportunities not only today, but also tomorrow and going forward.

New standards, known as WCAG 2.0, address that need. Having won the battle to extend the interpretation of the ADA to include cyberspace, the Department of Justice now proposes standards that fill in the meaning left open by Target and other ADA cases.  These regulations make the ADA equivalent for cyberspace.  Initially proposed for those sections of the ADA that address public facilities (Title II), the Department of Justice is now poised to use the same administrative process, notice, and comment, for application to those sections that include education (Title III).   The future of compliance by information technologies and use of the web for higher education is therefore knowable and predictable.  Higher education must comply with the ADA.  The ADA includes information technologies and web applications.  The regulations for compliance will be the WCAG 2.0 standards.

These legal developments run concurrently with the emergence of “cloud computing.”   Herein lies the opportunity.   Education, together with government and the private sector, must insist that cloud vendors design their services to conform to these rules.  Because it is more efficient and effective to build standards into products rather than attempt to retrofit them, that insistence must come now.  Arguments from fear, such as “accessible standards will shut down higher education’s research missions,” or pinched legal reasoning that would suggest colleges and universities need not comply with legal standards no longer stand in the way of progress. 

The spirit of anticipation and excitement that the Internet 2.0 offers, including cloud computing, joins with the celebratory optimism for greater accessibility to create a unique moment.  Technology, the law, social norms, and market drivers come together for benefit to all users.   Not only is it time to cement cloud computing and accessibility standards, but to think about how this convergence can drive innovation and the promise of an open Internet going forward!

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Tracy Mitrano

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