{e} Interviews Cynthia Waddell, Executive Director of the ICDRI

Cynthia Waddell, known globally for her tremendous achievements in the advancement of web accessibility, spoke with {e} this week. She reflects on her career path, her continuous efforts to bring civil rights to people with disabilities and clears up some common misconceptions about Section 508.

Q: Can you tell us about your organization, the ICDRI, and why accessibility is an important global issue?

A: As an internationally recognized public policy centre organized by and for people with disabilities, the International Center for Disability Resources on the Internet seeks to increase opportunities for people with disabilities by identifying barriers to participation in society and promoting best practices and universal design for the global community. ICDRI’s mission includes the collection of a knowledge base of quality disability resources and best practices and to provide education, outreach and training based on these core resources. ICDRI makes this information available in an accessible format through our web site at http://www.icdri.org. In addition, we provide Accessibility Oversight Professional Consulting Services for government and private sector clients. Our clients include U.S. and foreign governments, higher education, major corporations and the United Nations.

ICDRI enables people in every country to post best practices resources on our web site. We also facilitate meetings on public policy such as the Pacific Rim meeting in Manila on accessible information and communications technology, and the annual presentations held during the Technology and Persons with Disabilities International Conference in Los Angeles, California. In fact, next week I will be speaking at the conference on a number of topics including an update on accessible web litigation, the Google Library Book Settlement and the Kindle 2 text to speech controversy.

The accessible design of products, services and facilities and the implementation of effective communication for persons with disabilities have increasingly become priorities worldwide. For example, on 3 May 2008, the United Nations Convention or treaty on the Rights of Persons with Disabilities (UNCRPD) came into legal force setting forth the obligations of countries who have signed the treaty to address accessibility in all sectors of society. As the first human rights treaty of the millennium, it received a historic number of signatories for any treaty on opening day and was one of the fastest treaties ever negotiated with active participation from organizations of persons with disabilities.

It was an honor and privilege to serve as an accessibility expert in the drafting of the UNCRPD and to now be engaged in assisting countries in their implementation of the accessibility provisions of the treaty.

Q: What initially inspired you to pursue this career path and how have you remained passionate about this cause?

A: As a person with a lifetime hearing loss - who has had years of speech and lip reading lessons and wears two hearing aids - I first became active in cross-disability issues while I was studying for my Juris Doctor degree at Santa Clara University School of Law. By cross-disability, I mean the entire spectrum of disability issues impacting people with visual, hearing, speech, mental and mobility disabilities. At that time the ground-breaking Americans with Disabilities Act of 1990 (ADA) had just been enacted by Congress. I found that it was not enough to learn about disability rights laws and how they sought to protect people with disabilities from discrimination. I wanted to know more- what was the practical application of these laws in society? What were the real public policy challenges of government and the private sector in meeting these requirements? Did people with disabilities really benefit from this effort? Did their quality of life improve?

As a pragmatic person seeking practical solutions, I sought out venues to learn more and tried to put myself in the position to understand the challenges. Every employment, volunteer position and government appointment I have had addresses civil rights for people with disabilities. When I served as a public interest scholar at the Employment Law Center, I learned about employment issues and wrote a training manual for lawyers on how to litigate under the ADA. In my work as an ADA consultant for higher education, I learned about issues concerning the built environment, faculty access to the work environment and student access to learning.

This was my training ground for eventually serving as an ADA compliance officer for local government and as an ADA Mediator for discrimination complaints filed with the U.S. Department of Justice. At one time I even held local, county, state and federal appointments — all dealing with access for people with disabilities! Those appointments provided a reservoir of information as I worked with and alongside people with disabilities and tackled systemic change issues for management. Little did I know that writing the first accessible web design standard for local government in 1996, would lead to recognition as a best practice by the federal government and contribute to the Section 508 effort. When I subsequently provided input into the language of the Section 508 legislation, I had no idea whether or not Congress would enact the legislation. This was also true during my work on the UNCRPD. I had no idea it would eventually be so widely accepted and enter into legal force on my birthday.

Perhaps I have remained passionate about the cause because I have seen how the removal of barriers enables persons with disabilities to contribute to society. I also see how the accessible design of technology can improve the quality of life for persons with disabilities by providing independence, dignity, equal access and even privacy.

Q: You’ve had such an accomplished career, including multiple publications and awards, what was the most problematic obstacle you’ve had to overcome to get where you are today?

“My mantra continues to be: Technology changes, but civil rights do not!”A: Understanding and working in a field addressing systemic change is one of the most difficult things to do. Notwithstanding all the efforts underway, there is still a lack of education and understanding about the accessible design of technology, its impact on consumers and the public policy ramifications. Even with the promise of innovation through convergence, technology barriers continue to be erected.

Q: User-generated content (”web 2.0″) has become the latest trend on the web, and with it has come the latest hurdle for accessibility-focused web authors. What is your opinion on the current state of web accessibility? If you believe it should be improved, please explain why.

A: In the beginning, there was a lot of Web 2.0 stuff that prevented user-generated content to be produced in an accessible manner. Now we are seeing efforts to address accessibility in Facebook and Twitter and even YouTube. In fact, I do not think that many people know that YouTube now has captioning functionality in the application and this is now an education and awareness issue that needs to be tackled. By the way, I think that user-generated content should have features that create accessible content by default so that the user does not need to know how to address accessibility. My opinion is that accessibility always needs to be addressed and it can certainly be improved in the Web 2.0 arena. I understand that there is an Accessibility Center in Second Life? What do you think about it?

Q: The majority of opponents to web accessibility are concerned that making their website Section 508 compliant costs too much. According to the National Center For Health Statistics (http://www.cdc.gov/nchs/), 21.2 million (9.6%) American adults experience “vision trouble”, 37.2 million (17%) experience “hearing trouble” and 32.3 million (15%) American adults experience “physical functioning difficulty”. With these numbers in mind, what would you tell an opponent to web accessibility that would sway their decision?

A: I do not believe the majority of opponents to web accessibility are concerned that making their websites conform to the Federal Electronic and Information Technology Accessibility Standards is too expensive. This is the cost of doing business in the Federal marketplace for vendors providing documentation, help and support online for their products and services. If it was too expensive, then they can opt out of participating in the federal marketplace and I do not see that happening. In fact, in a recent bid protest on a contract award, the facts showed that the winner of the multi-million dollar contract award had an accessible web site while the loser did not. Even vendors who sell to State governments are finding that State governments may have adopted the Federal Section 508 accessibility standards in some form in their procurement practices. And now with the new treaty requiring accessible web design on behalf of 650 million persons with disabilities around the world, there are more legal incentives to do so. The irony here is that one would think that a sales organization would want the greatest number of people possible to access the content on their website.

Q: While regulations exist in the UK, Australia and other countries for commercial websites to comply with web accessibility guidelines, only federal agency websites require compliance in the United States. Do you feel that all US-based commercial websites (e-commerce, brochure, etc.) should be Section 508-compliant? What can be done to achieve this goal and how would these regulations be enforced?

A: Your question contains a number of assumptions that are not correct and since I may be discussing legal issues, I would like to add a disclaimer here to say that the following response is not to be considered legal advice or opinion on specific facts. Particular legal questions can best be answered by seeking the advice of legal counsel.

Having said that, perhaps you should ask whether or not there are legal incentives for U.S.-based commercial websites to be accessible? Since 1995 there have been both private and public accessible web settlements by commercial vendors. Also, we already have a U.S. company found in violation of the UK Disability Discrimination Act and fined for having an inaccessible web-based testing exam - and this company did not even have a physical presence in the U.K. In the U.S. there continues to be Americans with Disabilities Act Title III obligations and risks for businesses that have websites. There are also State Statutes that prevent discrimination on the basis of disability and these State Statutes can create obligations and risks for commercial businesses that have websites.

“If a business has any online customers in the State of California, and their website is not accessible, they risk a treble damage lawsuit”For example, we now have persuasive authority in the State of California that impacts commercial businesses with websites. If a business has any online customers in the State of California, and their website is not accessible, they risk a treble damage lawsuit with liability starting at $4,000.00 per incident. A broad interpretation of the statutory damages would be to count the number of inaccessible elements on a website and multiple this number by $4,000. Then multiply it by each day the website was not accessible. Treble damages can be a serious risk in California. As I said, this hypothetical is based on the persuasive authority of the Court in the NFB v. Target case even though it was settled. I think all of us will stay tuned to the outcome of the recently filed web accessibility case, NFB v. Law School Admissions Council. This is because the complaint is based on the same California State disability rights statutes of the Unruh Civil Rights Act and the Disabled Persons Act.

How ironic it is that the first paper I ever published was on Treble Damages under the Unruh Civil Rights Act for the Consumer Trial Attorneys of California back in 1995. At the time, I was interested in how the State Statute was being utilized in litigation to address discrimination against persons with disabilities. It is still with us today – but now being applied to prevent discrimination on the basis of disability in access to a commercial website.

Q: While the WAI and W3C have made great strides in setting standards for web authors to follow, the standards themselves have yet to achieve wide-spread acceptance. What, in your opinion, is responsible for this, and what can be done in the immediate future to rectify this situation?

A: The Web Accessibility Initiative (WAI) leads the way for setting industry standards in accessible web design, but by definition, all industry setting standards are voluntary. Only when a country or government incorporates a standard in a regulatory setting can the standard become mandatory in a legal sense.

The WAI leadership participated in the Section 508 refresh effort, but the final report came out prior to W3C WCAG 2.0 becoming a Recommendation and a stable standard. I expect that the new Section 508 Proposed Rules for web accessibility will be published by the U.S. Access Board in 2010, and at that time, it would be prudent for all voices to respond about accessible web needs during the comment period. The more the community of persons with disabilities and the WAI participate during the comment period for the proposed rules, the better the possibility that the final rules for accessible web will address the concerns raised.