[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]


 
 ACHIEVING THE PROMISES OF THE AMERICANS WITH DISABILITIES ACT IN THE 
       DIGITAL AGE--CURRENT ISSUES, CHALLENGES, AND OPPORTUNITIES

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION, 
                   CIVIL RIGHTS, AND CIVIL LIBERTIES

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 22, 2010

                               __________

                           Serial No. 111-95

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov



                  U.S. GOVERNMENT PRINTING OFFICE
56-070                    WASHINGTON : 2010
-----------------------------------------------------------------------
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092104 Mail: Stop IDCC, Washington, DC 20402ï¿½090001

                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee               STEVE KING, Iowa
HENRY C. ``HANK'' JOHNSON, Jr.,      TRENT FRANKS, Arizona
  Georgia                            LOUIE GOHMERT, Texas
PEDRO PIERLUISI, Puerto Rico         JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois               TED POE, Texas
JUDY CHU, California                 JASON CHAFFETZ, Utah
LUIS V. GUTIERREZ, Illinois          TOM ROONEY, Florida
TAMMY BALDWIN, Wisconsin             GREGG HARPER, Mississippi
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York
[Vacant]

       Perry Apelbaum, Majority Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel
                                 ------                                

  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                   JERROLD NADLER, New York, Chairman

MELVIN L. WATT, North Carolina       F. JAMES SENSENBRENNER, Jr., 
ROBERT C. ``BOBBY'' SCOTT, Virginia  Wisconsin
WILLIAM D. DELAHUNT, Massachusetts   TOM ROONEY, Florida
HENRY C. ``HANK'' JOHNSON, Jr.,      STEVE KING, Iowa
  Georgia                            TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan          JIM JORDAN, Ohio
STEVE COHEN, Tennessee
SHEILA JACKSON LEE, Texas
JUDY CHU, California

                     David Lachmann, Chief of Staff

                    Paul B. Taylor, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             APRIL 22, 2010

                                                                   Page

                           OPENING STATEMENTS

The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     1
The Honorable F. James Sensenbrenner, Jr., a Representative in 
  Congress from the State of Wisconsin, and Ranking Member, 
  Subcommittee on the Constitution, Civil Rights, and Civil 
  Liberties......................................................     3

                               WITNESSES

The Honorable Samuel R. Bagenstos, Principal Deputy Assistant 
  Attorney General, U.S. Department of Justice
  Oral Testimony.................................................     5
  Prepared Statement.............................................     8
Mark D. Richert, Esq., Director, Public Policy, American 
  Foundation for the Blind
  Oral Testimony.................................................    22
  Prepared Statement.............................................    24
Ms. Judy Brewer, Director, Web Accessibility Initiative, World 
  Wide Web Consortium
  Oral Testimony.................................................    34
  Prepared Statement.............................................    36
Mr. Steven I. Jacobs, President, Ideal Group, Inc.
  Oral Testimony.................................................    40
  Prepared Statement.............................................    42
Mr. Daniel F. Goldstein, Brown, Goldstein & Levy, LLP
  Oral Testimony.................................................    79
  Prepared Statement.............................................    82

               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas, and Member, 
  Subcommittee on the Constitution, Civil Rights, and Civil 
  Liberties......................................................   105
Prepared Statement of the Honorable Henry C. ``Hank'' Johnson, 
  Jr., a Representative in Congress from the State of Georgia, 
  and Member, Subcommittee on the Constitution, Civil Rights, and 
  Civil Liberties................................................   106


 ACHIEVING THE PROMISES OF THE AMERICANS WITH DISABILITIES ACT IN THE 
       DIGITAL AGE--CURRENT ISSUES, CHALLENGES, AND OPPORTUNITIES

                              ----------                              


                        THURSDAY, APRIL 22, 2010

              House of Representatives,    
              Subcommittee on the Constitution,    
                 Civil Rights, and Civil Liberties,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 1:10 p.m., in 
room 2141, Rayburn House Office Building, the Honorable Jerrold 
Nadler (Chairman of the Subcommittee) presiding.
    Present: Representatives Nadler, Scott, Jackson Lee, Chu, 
and Sensenbrenner.
    Staff Present: (Majority) David Lachmann, Subcommittee 
Chief of Staff; Heather Sawyer, Counsel; and Paul Taylor, 
Minority Counsel.
    Mr. Nadler. This hearing of the Subcommittee on the 
Constitution, Civil Rights, and Civil Liberties will come to 
order please.
    Before we begin, if you want to take advantage of the sign 
language interpreter for today's hearing, we have reserved some 
seats up front for that purpose.
    I would also ask those of you with cameras please refrain 
from taking flash pictures today.
    We will start by I will recognize myself for a 5-minute 
opening statement.
    Today's hearing examines the application of the Americans 
with Disabilities Act in the digital age. This July, we will 
celebrate the 20th anniversary of the Americans with 
Disabilities Act of 1990.
    Often described as the most sweeping civil rights 
legislation since the Civil Rights Act of 1964, the ADA 
embodies our promise that the gateways to participation in 
American society, avenues to work, public services, and public 
accommodations will be open to people with disabilities. We 
renewed that promise 2 years ago when we came together in a 
fully bipartisan effort to pass the ADA Amendments Act of 2008, 
which responded to court decisions interpreting the definition 
of disability too narrowly and in a manner that was completely 
at odds with the broad remedial purposes of this great law. I 
want to thank the Ranking Member, my colleague from Wisconsin, 
Jim Sensenbrenner, the Chairman of the full Committee, John 
Conyers, and the majority leader, Steny Hoyer, for their 
particular leadership on that bill.
    Today's oversight hearing shows that our commitment to 
achieving the ADA's promise did not end 2 years ago. That 
commitment endures, and as the world around us changes and new 
gateways to participation in American life are opened, we must 
ensure that people with disabilities are included.
    When Congress passed the ADA 20 years ago, we were not 
communicating by e-mail, blog, or tweet; we were not filling 
virtual shopping carts with clothes, books, music, and food; we 
weren't banking, renewing our driver's licenses, paying taxes 
or registering for and taking classes online.
    Congress could not have foreseen these advances in 
technology. Despite Congress' great cognitive powers, it could 
not have foreseen these advances in technology which are now an 
integral part of our daily lives. Yet Congress understood that 
the world around us would change and believed that the 
nondiscrimination mandate contained in the ADA should be broad 
and flexible enough to keep pace.
    As one Committee report explained, we quote, intend that 
the types of accommodation and services provided to individuals 
with disabilities under all of the titles of this bill should 
keep pace with the rapidly changing technology of the times, 
closed quote.
    Today, we have a chance to hear from the Department of 
Justice and other experts on whether Congress' expectation is 
being met. Through informal guidance, the Department 
consistently has taken the position that public and private 
entities must ensure that individuals with disabilities have 
equal access when the goods or services are provided over the 
Internet or through other evolving technologies. But the 
Department has yet to modernize its regulations to make that 
clear, and the courts have struggled to articulate a consistent 
approach.
    This lack of clarity is harmful and places individuals with 
disabilities at great risk of being left behind. It also leaves 
public and private entities uncertain as to whether they are 
subject to and, for that matter, in compliance with ADA 
requirements. I therefore urge the Department to update its 
regulations and hope to hear today about its plans to issue 
guidance that clarifies application of the law and provides 
meaningful resources for entities seeking to comply.
    With this additional clarity and guidance, I am hopeful 
that we will avoid a repeat of the problems that we encountered 
with the court's misinterpretation of the definition of the 
word ``disability'' in the ADA. In correcting the courts unduly 
restrictive interpretation of this term, we made clear that we 
will not tolerate a narrow reading of the ADA.
    That same message should apply with full force as the 
courts interpret and apply key phrases like ``place of public 
accommodation'' in Title III of the Act. The notion that 
Congress prohibited discrimination only when it occurs in a 
physical place or required structural changes only to physical 
places is not consistent with the spirit and the plain language 
of the law.
    In recognizing and seeking to remove barriers that had 
limited access and opportunity of individuals with 
disabilities, Congress certainly did require changes to 
physical structures, but that was not all. Congress also 
required, among other things, reasonable accommodations and 
modifications to policies, practices, services, or activities, 
the provision of auxiliary aides, and the removal of 
communication barriers. None of these requirements can 
accurately be characterized as limited to physical spaces.
    I am confident that removing barriers, whether they occur 
in physical or cyberspace, and ensuring accessibility and equal 
opportunity when jobs, public services, and public 
accommodations rely upon access to new technologies benefits 
all of us. I am also confident that achieving this goal is not 
unduly burdensome, and it will not staunch innovation or 
creativity.
    Having been fortunate enough to work with a young attorney 
on the Subcommittee who, in addition to being brilliant and 
thoughtful, is also blind, I have seen and enjoyed the benefits 
that a few simple accommodations can bring. And I can assure 
you that we all have a lot to lose if and when those 
accommodations are not made.
    I am pleased to welcome our witnesses today, and I look 
forward to hearing from them on how we can continue to ensure 
that the promise of the ADA is achieved in the digital age.
    The Chair will now recognize the distinguished Ranking 
Member for 5 minutes for an opening statement.
    Mr. Sensenbrenner. Thank you, Mr. Chairman.
    Twenty years ago, this country took a significant step 
forward in eliminating the barriers that for far too long kept 
disabled Americans from fully participating in the American 
dream. Prior to the ADA Act of 1990, disabled Americans faced 
not only physical barriers in almost all aspects of society but 
also attitudinal barriers which relegated them to a form of 
second-class citizenship. Moreover, because Federal and State 
laws were ill-equipped to protect disabled Americans at the 
time, false stereotypes and discriminatory treatment employed 
by others created a vicious cycle. As a result, disabled 
Americans experienced lower graduation and employment rates, 
higher poverty rates, and less personal freedom and 
independence than more able-bodied citizens.
    The ADA enacted on July 26, 1990, broke this vicious cycle 
by helping restore the full meaning of equal protection under 
the law. Like the civil rights laws that came before it, this 
landmark bipartisan law has worked to transform our Nation. As 
a result of the ADA, fewer citizens are judged by their 
physical and mental impairments and are now evaluated according 
to their character and qualifications.
    In the last Congress, I worked with Chairman Conyers and 
Majority Leader Hoyer to achieve the enactment of the ADA 
Amendments Act of 2008, which further fulfilled the promise of 
the ADA by resolving the intent of Congress to cover a broad 
group of individuals with disabilities under the Act. That 
legislation served to eliminate the problems of courts focusing 
too heavily on whether individuals are covered by the law 
rather than on whether discrimination occurred.
    My wife, Cheryl, who was then chairman of the board of the 
American Association of People with Disabilities and who is in 
the audience today, was dogged in her advocacy for that 
legislation. Many members report still hurting when she hit 
them over the head with her cane.
    Still, the fight for fair and equal access continues. 
Through the ADA's clear and comprehensive national mandate for 
the elimination of discrimination against individuals with 
disabilities, communities have visibly become more accessible 
and more friendly to disabled citizens. The ADA has encouraged 
conscious change to our infrastructures, governments, 
businesses, policies, and practices.
    Part of that changing infrastructure is the Internet. With 
the ever-expanding and increasingly inexpensive bandwidth, 
technology is now helping to solve many accessibility issues by 
allowing the disabled to interact more easily with other 
people, businesses, and government from their own homes. Just 
like buildings, Web sites can be designed to meet the needs of 
everyone, including the disabled.
    In our new digital age, an accessible online environment is 
part of what is required by the ADA's reasonable accommodation 
standard, as Federal appeals courts have already recognized. 
Students are coming to expect better access to long-distance 
learning courses, consumers are reasonably expecting an easier 
transaction with businesses, and citizens are expecting better 
interaction with their government.
    While lawsuits continue to spur greater accommodations 
within the digital landscape, technology is rapidly making it 
easier for ADA-covered entities to avoid lawsuits by simply 
providing reasonable accommodations. That may have been the 
case a decade ago that companies wondered how they could make 
online interactions with the disabled more accommodating. But 
today the question is how do we do it and should give way to 
just do it as the advance of technology makes former excuse 
making incredibly untenable.
    The ADA has been one of the most effective pieces of civil 
rights laws passed by Congress. This continued effectiveness is 
paramount to ensuring that the transformation that our Nation 
has undergone continues in the future and that the guarantees 
and promises on which this country was established continue to 
be recognized on behalf of all of our citizens.
    I am happy that all of our witnesses are here today and 
that they will tell us more about how technology is helping to 
make compliance with the ADA even easier.
    I thank the Chairman for the time and yield back.
    Mr. Nadler. I thank the gentlemen.
    In the interest of proceeding to our witnesses and mindful 
of our busy schedules I ask that other Members submit their 
statements for the record.
    Without objection, all Members will have 5 legislative days 
to submit opening statements for inclusion in the record.
    Without objection, the Chair will be authorized to declare 
a recess of the hearing, which, since the House is not in 
session, we expect no votes, I don't expect to have to do.
    We will now turn to our first panel. As we ask questions of 
our witnesses, the Chair will recognize Members in the order of 
their seniority in the Subcommittee, alternating between 
majority and minority, provided that the Member is present when 
his or her turn arrives. Members who are not present when their 
turns begin will be recognized after the other Members have had 
the opportunity to ask their questions. The Chair reserves the 
right to accommodate a Member who is unavoidably late or only 
able to be with us for a short time.
    Our first witness and our first panel is Samuel Bagenstos, 
who is the Principal Deputy Assistant Attorney General in the 
Civil Rights Division of the Department of Justice. As 
Principal Deputy AAG, Mr. Bagenstos assists in the overall 
management of the Division and directly supervises the 
Division's appellate and disability rights sections, as well as 
the disability rights work of the Division's special litigation 
section.
    From 1994 to 1997, he worked as a career attorney in the 
appellate section of the Division. Prior to rejoining the 
Department, Mr. Bagenstos was a law professor, having taught at 
Harvard, Washington University at St. Louis, UCLA, and the 
University of Michigan. He is a graduate of the University of 
North Carolina and received his J.D. magna cum laude from 
Harvard law school.
    I am pleased to welcome you. Your written statement in its 
entirety--and I will address this to the witnesses in our 
second panel, too, so I will say it in the plural. Your written 
statements in their entirety will be made part of the record.
    I would ask each witness to summarize his or her testimony 
in 5 minutes or less. To help you stay within that time, there 
is a timing light at the table. When 1 minute remains, the 
light will switch from green to yellow and then red when the 5 
minutes are up. I will lightly tap the gavel when the light 
turns yellow and then tap it harder when it turns red.
    Before we begin, it is customary for the Committee to swear 
in its witnesses. If you would please raise your right hand to 
take the oath.
    [Witness sworn.]
    Mr. Nadler. Let the record reflect that the witness 
answered in the affirmative.
    I will now recognize Deputy Assistant Attorney General 
Bagenstos for 5 minutes for his opening statement.

   TESTIMONY OF THE HONORABLE SAMUEL R. BAGENSTOS, PRINCIPAL 
 DEPUTY ASSISTANT ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE

    Mr. Bagenstos. Thank you, Chairman Nadler and Members of 
the Committee. It's a great pleasure and honor to appear today 
to discuss the rights of individuals with disabilities to 
access emerging technologies, particularly as we come up to the 
20th anniversary of the ADA this summer.
    Under the ADA, access to the Internet and emerging 
technologies is not simply a technical matter, it's a 
fundamental issue of civil rights. And as more and more of our 
social infrastructure is made available on the Internet, and in 
some cases exclusively online, and as emerging technologies 
play an increasingly central role in education, employment, and 
other important areas of civic and economic life, access to 
information and electronic technologies is increasingly 
becoming the gateway civil rights issue for persons with 
disabilities.
    The Internet and emerging technologies certainly hold 
enormous promise for people with disabilities, just as they do 
for everyone else. But a digital divide exists and threatens to 
grow between people with and without disabilities. When Web 
sites are inaccessible because they incorporate untagged 
images, for example, that can't be read by a screen reader, 
individuals with disabilities are shut out of the opportunities 
that the Web site provides. And inaccessible Web sites that are 
operated by State and local governments or private businesses 
undermine the ADA's promise that people with disabilities will 
have full and equal access to all areas of civic and economic 
life.
    Where schools use electronic text or e-book readers that 
are inaccessible because, for example, they lack a text-to-
speech function, they deny people with disabilities the full 
and equal access to class materials and opportunities that the 
ADA demands.
    Ensuring that people with disabilities have an equal 
opportunity to access the benefits of emerging technologies is 
an essential part of our disability rights enforcement at the 
Department of Justice. We have long taken the position that 
both State and local government Web sites and the Web sites of 
private entities that are public accommodations, whether or not 
they operate exclusively online, are covered by the ADA. In 
other words, entities covered by both Title II and Title III of 
the statute are required by law to ensure that their sites are 
fully accessible to individuals with disabilities.
    The Department is considering issuing guidance or 
additional regulations on the range of issues that arise with 
regard to the Internet sites of private businesses that are 
public accommodations covered by Title III of the ADA, and in 
so doing we intend to solicit public comment from the broad 
range of parties interested in the issue.
    There's no doubt that the Internet sites of State and local 
government entities are covered by Title II of the ADA. As to 
places of public accommodation, there are only two cases, both 
in Federal District Court, that specifically address the 
application of ADA Title III, and those cases have reached 
differing conclusions.
    Mr. Nadler. Don't assume everybody knows what Title III is 
automatically. Describe that in one sentence.
    Mr. Bagenstos. Title III of the ADA, meaning the part that 
covers places of public accommodation.
    But the position of the Department of Justice has been 
clear. Title III applies to the Internet sites and services of 
private entities that meet the definition of public 
accommodations set forth in the statute, whether or not they 
operate exclusively online, and the implementing regulation.
    The Department first made this position public in a 1996 
letter from Assistant Attorney General Patrick which did not 
specifically address online-only enterprises. But later the 
Department filed an amicus brief in the Fifth Circuit in a case 
called Hooks v. OKBridge, which involved a Web-only business 
and explained that businesses providing services solely over 
the Internet are subject to the ADA's prohibitions on 
discrimination on the basis of disability. And we continue to 
endorse that position.
    There are several sets of standards that I'm happy to talk 
about how to make Web sites accessible. But I want to talk 
about another area that we're also working in in the emerging 
technology area.
    We're also working aggressively in terms of e-book readers. 
In June of last year, we received several complaints from the 
National Federation of the Blind, the American Council of the 
Blind, and the Coalition of Disability Rights Groups that are 
known as the Reading Rights Coalition which allege that 
colleges or universities were violating their obligations under 
the ADA by having students use electronic book readers that 
were inaccessible to individuals who were blind for course 
materials.
    We investigated each complaint. In January, we announced 
that we had reached separate settlement agreements with Case 
Western University, Reed College and Pace University; 
subsequently also Princeton and Arizona State Universities. 
These settlement agreements provide that the universities will 
not purchase, require, or in any way incorporate into their 
curriculum the Kindle DX or any other dedicated electronic book 
reader to the extent it's not fully accessible to individuals 
who are blind or have low vision. These agreements underscore 
that requiring the use of emerging technology in the classroom 
that is inaccessible to persons with disabilities is 
discrimination that's prohibited by the ADA in 504.
    The happy result, during the course of our investigations 
and negotiations with these colleges, Amazon.com, which is not 
covered by the ADA directly, announced that it is intending to 
make the Kindle DX fully accessible to individuals who are 
blind or have low vision by extending its text-to-speech 
feature to these functions by the end of the year 2010.
    As we come to realize anew each day, the pace of 
technological change is amazing and what appeared impossible 
just months or years ago is now commonplace. Advancing 
technologies can open doors for people with disabilities and 
provide the means for them to have a full, equal, and 
integrated experience and access to American life. But 
technological advances will leave people with disabilities 
behind if technology developers and manufacturers do not make 
their new products accessible. We must make sure that the legal 
protections to the rights of individuals with disabilities are 
sufficiently strong to ensure opportunities for everyone, and 
we must avoid the travesty that would occur if the doors that 
are opening for Americans with advancing technologies were 
closed for individuals with disabilities simply because we are 
not vigilant.
    Thanks, and I look forward to answering your questions.
    [The prepared statement of Mr. Bagenstos follows:]

        Prepared Statement of the Honorable Samuel R. Bagenstos

















                               __________

    Mr. Nadler. Thank you very much, and we will begin the 
questioning by recognizing myself for 5 minutes.
    Sir, you testified that the Department is considering 
issuing guidance with regard to Internet sites of public 
accommodations. Can you give us a stronger commitment for the 
record that the Department will update its regulations?
    Mr. Bagenstos. It's certainly our intention to update our 
regulations, absolutely.
    Mr. Nadler. Can you give us a date?
    Mr. Bagenstos. I can't give you a date because, obviously, 
it's a process within the Department.
    Mr. Nadler. An estimated ETA.
    Mr. Bagenstos. We intend to make an announcement on 
something like this in the months ahead.
    Mr. Nadler. In several months, in other words.
    Mr. Bagenstos. Yes.
    Mr. Nadler. Okay. Thank you.
    The Department's consistent position has been, as you've 
stated, that Titles 2 and 3 reach covered entities operating in 
cyberspace. What is the legal requirement placed on them? Must 
they make Web sites themselves accessible or are there other 
alternatives?
    Mr. Bagenstos. Well, the legal requirements are the 
requirements that apply to any business, first of all, that's 
covered by the public accommodations' provision of the ADA. So 
they have to provide individuals with disabilities the full and 
equal enjoyment of the goods, services, facilities, privileges, 
advantages, and accommodations of the business.
    When a business is operating through a Web site, whether as 
an adjunct to a bricks-and-mortar operation or simply on a Web 
site, those principles imply a set of requirements, a 
requirement to make sure that everything on the Web site is 
fully accessible. Or we have said in the past that there are 
ways in which it's conceivable theoretically for a business to 
provide the exact equivalent of what's on the Web site not 
through the Web site to people with disabilities. That might be 
by having someone available 24 hours a day to answer questions.
    But we were very clear that, to the extent that's what on 
the Web provides a unique experience or a unique opportunity 
for people who use the Web, that unique experience or 
opportunity has to be provided to people with disabilities. And 
I think that's the essence of the Kindle case.
    Mr. Nadler. So you say, in effect, a Web site must be 
equally accessible or if that is not the case something else 
equally effective.
    Mr. Bagenstos. Right. It has to be equally effective in 
providing all the opportunities.
    Mr. Nadler. And it must be as convenient, I assume.
    Mr. Bagenstos. Yes.
    Mr. Nadler. In other words, 24 hours.
    What alternatives might qualify, given the relative ease 
and convenience of the Internet or other emerging technologies 
like the e-readers noted in your testimony?
    Mr. Bagenstos. I'm sorry, I didn't hear the first part of 
the question.
    Mr. Nadler. What alternatives might qualify, given the 
relative ease and convenience of the Internet, like the e-
readers noted in your testimony, for example.
    Mr. Bagenstos. Right. I think that in the case of the e-
readers it's difficult to think of the alternatives that 
qualify. Because what the e-reader provides is not just access 
to the information that would be in a textbook but a way of 
accessing that information that is uniquely convenient that 
allows for searching in uniquely good ways. And so that would 
have to be provided to people with disabilities. In that 
context, because these devices are so revolutionary, it may be 
difficult to have anything else that's equivalent to it, and if 
there is nothing else that's equivalent to it then the e-reader 
or the Internet site or whatever must be made fully accessible.
    Mr. Nadler. Thank you.
    Assistant Attorney General Tom Perez in a recent speech at 
a disability law symposium noted a number of different 
technologies. He mentioned Web sites, cell phones, ticket 
kiosks, and other devices that currently are not accessible to 
people with disabilities. Will the Department be updating its 
guidance to address this full range of issues?
    Mr. Bagenstos. We are certainly looking into that full 
range of issues, what's going to be exactly and what comes out. 
I think we intend to issue technical assistance about all those 
issues at some point, and we're also looking into a regulatory 
solution as well.
    Mr. Nadler. You testified that the Department has provided 
letter advice and filed amicus briefs but that the courts still 
have reached different conclusions on the coverage of Web sites 
under Title III. What is the Department's game plan for getting 
better results in consistency in cases going forward? And, 
specifically, also, is part of your game plan or might it be to 
ask for some legislative changes?
    Mr. Bagenstos. Well, we haven't asked for some legislative 
changes.
    Mr. Nadler. You have not.
    Mr. Bagenstos. We have not. We think that the statute is 
clear, and we think there's been just very little litigation 
under it and certainly especially litigation in which we have 
participated. So our game plan is to do a couple of things. 
First of all, we want to do more in the regulation, guidance, 
technical assistance area to make clear what our position is.
    Mr. Nadler. Make clear to the courts.
    Mr. Bagenstos. Make clear to the courts and to the public 
what our position is. And also to provide assistance as to how 
to comply. And then at the same time to look strategically at 
cases that exist and cases that we might bring, complaints that 
come to us, and look for opportunities to make our position 
clear.
    That's something we did in the Kindle case. It's not with 
respect to the Internet. But with respect to e-book readers, 
when the complaints came to us, we saw this as an exceptionally 
important area to make clear it needs to be accessible to 
people with disabilities and so decided to jump right into it. 
And that's the kind of thing we're doing.
    Mr. Nadler. My last question is, in the cases involving the 
Kindle DX, you testified that technology existed for Amazon to 
make the Kindle usable by blind students but that it hadn't 
done so although is now planning to do so. Why hadn't they and 
what happens when the technology does not yet exist to make a 
new technology accessible? Does the school or business have to 
hold up using the new technology until it can be made 
accessible?
    Mr. Bagenstos. I don't know about Amazon.com's motives. I 
can tell you the general pattern that we've seen in disability 
rights through the years, and it's true in technological areas 
as well as in all older sorts of accessibility areas, has been 
just a failure to think of the market of people with 
disabilities as a market that products are designed for, 
institutions are being designed for.
    The technology certainly exists. It's in other devices. 
Amazon is going to put it into the Kindle. So the technology 
certainly exists. And as to why it wasn't put in there, I think 
it's just----
    Mr. Nadler. They didn't think of it.
    Mr. Bagenstos [continuing]. Less of people with 
disabilities that Congress adopted the ADA to combat.
    Mr. Nadler. And my second question, when the technology 
does not yet exist to make a new technology accessible, does 
the school of business have to hold up using that new 
technology until it can be made accessible?
    Mr. Bagenstos. I guess a couple of points about that.
    Often, in a typical case, it is quite possible to make the 
technology accessible. I think there are cases where, to the 
extent there is a case where for a period there is no means of 
making the technology accessible, what a school or an 
institution has to do is provide something that, to the 
greatest extent possible, gives people with disabilities the 
same experience in terms of convenience in terms of all the 
opportunities provided by the technology. That may be 
difficult.
    Mr. Nadler. Okay. Thank you.
    My time is expired. I will now recognize the gentleman from 
Virginia.
    Mr. Scott. Thank you.
    As I understand it, the access is both the employees and 
the customers.
    Mr. Bagenstos. Yes, that's right. Different provisions of 
the ADA apply. Title I of the ADA applies with respect to 
employees. Title III with respect to customers. But, yes, the 
statute requires access for both.
    Mr. Scott. You talked about books. One of the ways you can 
make books accessible to those who are blind is to have audio 
tape recordings. Many books are published in audio tape. Could 
you comply with the ADA by having someone read the book and 
make your own copy without getting into copyright 
complications?
    Mr. Bagenstos. I think the copyright issues here I know 
have been a significant source of discussion. Mr. Goldstein, 
who is going to testify on the next panel, has engaged in some 
litigation around that and I think might have a useful 
discussion of the parameters of those issues.
    And certainly copyright issues are not issues that we deal 
with in the Civil Rights Division. There are many ways without 
running afoul of copyright to provide equal and full access to 
people with disabilities to the text that appears in books.
    Mr. Scott. One of the things you have to do with employees 
is make reasonable accommodations. Do we need any new laws to 
clarify what a reasonable accommodation is, and how much 
expense would you have to go to to stay within the realm of 
reasonableness?
    We had an ADA equivalent in Virginia before the ADA, and 
one of the things we put in that law was a presumption that 
anything under $500 was presumptively reasonable. Do you have 
any guidelines on what's reasonable and what's not in terms of 
expense to accommodate employees' disabilities?
    Mr. Bagenstos. What the statute provides is that an 
employer is required to provide a reasonable accommodation that 
doesn't lead to undue hardship. And the statute talks about 
what undue hardship means as being especially difficult or 
especially expensive and gives a series of factors for that. As 
to what's a reasonable accommodation, there is a degree to 
which in the case law what the courts look at is a rough 
proportionality kind of a rule. So Congress when it adopted the 
ADA originally resisted imposing any specific number targets 
because----
    Mr. Scott. We found in Virginia that 80 percent--just to 
get past the legislative process, found that 80 percent of the 
accommodations could be done under $500, so that's why we came 
up with that number.
    Mr. Bagenstos. Right. And I think that is true nationwide 
as well. In all of the studies of accommodation that I've seen 
in the employment sector, the overwhelming majority of 
accommodations occur at less than $500, that's true. Many have 
no direct costs at all. And so certainly there are a lot of 
cases where there ought to be no argument about what's a 
reasonable accommodation.
    Mr. Scott. So we do not need to clarify the law. You can 
work with the law that we have on what a reasonable 
accommodation is.
    Mr. Bagenstos. That's certainly what we've been working 
with for a number of years.
    What we have seen before the ADA amendments Act was a lot 
of cases getting knocked out before they got to the point of 
reasonable accommodation being defined or elaborated. So I 
think we have to see what's going to happen now that courts 
will be less able to kick cases out just on the grounds that 
the plaintiff doesn't have a disability after Congress adopted 
the ADA amendment, so we will have to look into that.
    Mr. Scott. Thank you. Thank you.
    Mr. Nadler. I thank the Assistant Attorney General.
    I'm sorry. I didn't see Ms. Chu. I now recognize the 
gentlelady from California.
    Ms. Chu. Thank you, Mr. Chair.
    I'm so pleased to welcome you here today, Mr. Bagenstos; 
and I commend your many years of service as an educator. And 
certainly I can relate my--I understand you came from UCLA.
    Mr. Bagenstos. I did teach at UCLA for a while, yes.
    Ms. Chu. Okay. Right. And as one who taught there as well I 
certainly am concerned about how students with disabilities are 
utilizing the digital classroom technologies.
    After hearing about your example of the Kindle projects 
that were there with the pilot project in the university 
classrooms, I wanted to ask you what the role of the DOJ is in 
creating and providing guidance for all universities who may 
want to test, buy, or use new classroom technologies in the 
future.
    Mr. Bagenstos. I think we have a very significant role. One 
of the reasons why we wanted to pursue these Kindle 
investigations was to make clear that this is a very important 
technology. It's a technology that can provide lots of 
opportunities for people but that it was leaving people with 
some disabilities behind and that we need to make clear to 
universities that their obligations of nondiscrimination and 
accommodation apply not just in the bricks-and-mortar physical 
world but also in terms of these electronic devices.
    I think also something that we ought to do and we will do 
is, based on our enforcement experience, having dealt with a 
few of these cases, issue some broader, more perspective 
guidance to regulate institutions; and we intend to do a number 
of things in that regard in the months to come.
    Ms. Chu. Are you going to be releasing common guidelines to 
schools so that they can design their pilot projects to 
adequately include students with disabilities?
    Mr. Bagenstos. What we certainly intend to do is 
communicate with schools in a general and prospective way that 
there are ways of doing this that harness the benefit of 
emerging technologies and keep people with disabilities having 
full access, and so that's something we intend to do.
    Ms. Chu. And are you working with the Department of Ed. to 
make sure that these guidelines are distributed?
    Mr. Bagenstos. We are working with the Department of 
Education to figure out exactly how and when we are going to 
talk to the universities and the schools about how they can 
comply with their obligations under the ADA and, of course, 
also the Rehabilitation Act, so, yeah.
    Ms. Chu. There are more online classes in the universities 
now, and currently there are over 6,500 online courses 
available. What would happen if a disabled person was mandated 
to take a course like this but the technology was not available 
to them?
    Mr. Bagenstos. Well, I think you're defining something that 
would probably be a violation of the ADA or the Rehabilitation 
Act. To the extent that online courses exist, I mean, it's 
relatively simple to make them accessible. If there's something 
special and unique about them, and one of the things that's 
unique about them is the convenience factor, at least in many 
cases, then that ought to be made accessible. Or an individual 
with a disability shouldn't certainly be required to take a 
course where there's an alternative that is inaccessible.
    Ms. Chu. There are many businesses that try to avoid ADA 
compliance by claiming that it's an undue burden on business, 
and yet there is a way to make a Web site useful for a blind 
person or putting captions on an online video that would appear 
to not cost a lot of money. What is the Justice Department's 
position on this issue with regard to businesses reacting to 
lawsuits seeking to make their online services available to 
disabled Americans?
    Mr. Bagenstos. Well, certainly we believe that, and it's 
our experience that the kinds of changes that need to be made 
to make Web sites accessible are not especially difficult or 
expensive. There's always, you know, some transition cost, but 
the things you're talking about, captioning of videos, that's 
something that a number of institutions do that is not 
especially costly. And that may be the most costly thing. I 
mean, if you look at tagging of images or something like that 
or providing a means for computers to kind of read where 
keyboard controls should be used, again, not that difficult. I 
mean, these are fairly simple technological solutions. So our 
experience is it's not that complicated or expensive.
    Ms. Chu. Thank you. I yield back.
    Mr. Nadler. Thank you, and I thank the witness.
    We will now proceed with our second panel, and I would ask 
the witnesses on our second panel to take their places.
    In the interest of time, I will introduce you while you are 
taking your seats.
    Mark Richert is Director of Public Policy for the American 
Foundation for the Blind, which I am proud to say is 
headquartered in my district. A member of the Florida bar since 
1993, Mr. Richert served as the AFB's primary representative to 
the Congress and to Federal agencies with responsibility for 
programs, services, and enforcement of rights important to 
individuals with vision laws.
    Additionally, Mr. Richert serves as a co-chair of the Civil 
Rights Task Force of the Consortium for Citizens with 
Disabilities and is a co-founder of the Coalition of 
Organizations for Accessible Technology, a cross-disability 
coalition advocating for the rights of all people with 
disabilities to full access to digital age telecommunications 
and video technologies.
    Judy Brewer directs the Web Accessibility Initiative at the 
World Wide Web Consortium. Since 1997, she has worked to ensure 
that the W3C technologies support accessibility, promoting 
standardization efforts for W3C awareness and implementation of 
Web accessibility internationally and ensuring effective 
dialogue among industry, the disability community, 
accessibility researchers, and government on development of 
consensus-based accessibility solutions.
    She holds a research appointment at MIT's computer science 
and artificial intelligence laboratory and is a consultant at 
the European Research Consortium on Informatics and 
Mathematics.
    Steve Jacobs has been in the computer industry for 35 years 
and is President of IDEAL Group, whose subsidiary companies 
provide services and applications to make new technologies 
available to the disability community. Mr. Jacobs previously 
served as chairman of AT&T Global Information Solutions Project 
Freedom, which pioneered the use of interactive video 
technology in support of sign language communication over the 
Internet. Mr. Jacobs is a 1973 graduate of Ohio State 
University.
    And, finally, Daniel Goldstein is an attorney with the law 
firm of Brown, Goldstein and Levy. He has been practicing 
disability rights law for nearly 25 years and through 
litigation has worked to, among other things, increase 
accessibility to the Internet to make consumer kiosks such as 
ATMs accessible, to make voting accessible through suits 
against States and counties, and to make mainstream digital 
book systems accessible through suits against educational 
institutions. Before setting up his private practice in 1982, 
Mr. Goldstein was an Assistant U.S. Attorney for the District 
of Maryland for 6 years.
    I am pleased to welcome all of you. I will not repeat the 
boilerplate that we usually go into about the timing lights. I 
presume you've heard that.
    Your written statements will be made part of the record in 
their entirety.
    But it is customary before we begin for the Committee to 
swear in its witnesses. Would you please raise your right hands 
to take the oath.
    [Witnesses sworn.]
    Mr. Nadler. Let the record reflect the witnesses answered 
in the affirmative. Thank you.
    We will begin by recognizing our witnesses. I will begin by 
recognizing Mr. Richert for 5 minutes for an opening statement.

 TESTIMONY OF MARK D. RICHERT, ESQ., DIRECTOR, PUBLIC POLICY, 
               AMERICAN FOUNDATION FOR THE BLIND

    Mr. Richert. Thank you very much, Mr. Chairman and Members 
of the Committee. It's such a pleasure to be here and to listen 
to that first panel and Mr. Bagenstos' comments. It is a thrill 
to hear that the Department of Justice is exercising the kind 
of leadership that we know the Department can and indeed has 
for such a long time with respect to folks with disabilities 
and their needs for technology equity.
    For us and for folks with disabilities generally the 
question has never been does the ADA apply to the Internet. The 
question really or the issue really is that the ADA applies 
today, as it always has, to employers, to State, and local 
government entities, to public accommodations. And we know that 
the ADA and the promise of full inclusion that the ADA stands 
for cannot be avoided simply because we go online in this 21st 
century.
    The statement that we submitted for the record I think has 
a lot of compelling stories. We asked folks with disabilities 
from across the country to sort of weigh in and give their own 
personal perspective on how they deal with technology in the 
Internet every day and, quite frankly, some of the stories are 
heart wrenching. I'll only just share one here, because I think 
it connects well with what Mr. Bagenstos was talking about.
    Pat from California tells us that her bank is very 
reluctant to provide to her the kind of information that's 
available to everybody else online. She happens to be a woman 
who is visually impaired, and she's alerted the bank to this 
challenge that indeed the site is inaccessible. She cannot 
manage her checking account the way everybody else can, she 
can't check her balance, she can't find out exactly whether or 
not the bank is levying annoying extra charges and the like 
and, quite frankly, she has a right----
    Mr. Nadler. So, unlike the rest of us, she's not annoyed?
    Mr. Richert. Yeah. You're fair to draw that conclusion, I 
guess.
    She's alerted them to this issue and, quite frankly, the 
response to her is we will be happy to read through your 
statements over the phone. And she's told them in no uncertain 
terms, probably in more polite terms than I would use if I were 
in her situation, that, you know, it's going to take forever to 
read through a bank statement and, quite frankly, it doesn't 
provide her the same level of accuracy and independence with 
the use of that statement as everyone else is given.
    That's just simply not acceptable. If a person with a 
disability showed up in person at the bank and the bank refused 
to provide services to them, I think we would all find that 
disgusting, let alone a violation of the law. And, quite 
clearly, we can't tolerate that kind of conduct in a digital 
age. And it's great not only to know that the ADA provides a 
remedy but to hear it affirmed again today, and I look forward 
to the kind of guidance that we expect to see.
    We know that people with disabilities are not utilizing the 
benefits, the full benefits of the Internet as do all of the 
rest of us. Data, such as we have it, would suggest that at 
least 60 percent of Americans have some kind of ability to 
connect to the Internet. That data, of course, is a couple of 
years old, which means naturally it's a light year's time 
difference, so undoubtedly that number is much higher. The same 
numbers would suggest that less than 30 percent of people with 
disabilities have access to the Internet.
    And the Federal Communications Commission similarly did a 
survey in the last few months asking the question of the folks 
who don't have access to the Internet, let's find out more 
about who those folks are so we can address the issue and make 
sure that folks are given connection to broadband and to the 
Internet. And they found that something like 39 percent of the 
people who are not connected to the Internet are folks with 
disabilities. That's pretty astounding.
    There are lots of reasons for why that's the case. We know, 
of course, that affordability is a major limiter for folks 
access with and without disabilities to high-speed data and 
broadband. But we also know that inaccessibility exacerbates 
the problem. And what we need to do is to look, frankly, to the 
future to opportunities to address the inaccessibility of the 
Web and to make sure, frankly, that the technologies that are 
used to access to get online and to browse and enjoy full 
inclusion along with everybody else are themselves accessible.
    We know that this can be done. The American Foundation for 
the Blind has proudly worked with Marriott Corporation. Others 
with whom we partner, the American Council of the Blind and 
others, have worked certainly with CBS and Rite Aid and Radio 
Shack. All of these groups and companies have committed to the 
concept that Web access is a right and, frankly, is good 
business and have found success in making the Web more 
accessible.
    But we need to look more to the future, and I think this 
hearing talks about challenges and opportunities. Quite 
frankly, one of the major policy opportunities that this 
Congress has is to remember that Web accessibility is not and 
cannot be considered in isolation. We can't talk about Web 
accessibility without talking about the technologies that gets 
you there.
    One of the best things that this Congress can do and in my 
mind one of the best ways to commemorate the 20th anniversary 
of the Americans with Disabilities Act this year would be to 
promptly pass H.R. 3101, the 21st Century Communications and 
Video Accessibility Act introduced by Mr. Markey. And that is, 
in fact, bipartisan legislation. Once passed, this legislation 
will ensure that more and more of the technologies that we 
use--the mobile technologies that we use that connect to the 
Internet--are themselves accessible. Most are not, and we can 
do better.
    With that, Mr. Chairman, thank you very much for the 
opportunity. I really appreciate you and indeed all Members of 
this Subcommittee for the attention.
    [The prepared statement of Mr. Richert follows:]

                 Prepared Statement of Mark D. Richert






















                               __________
    Mr. Nadler. I thank you, and I now recognize Ms. Brewer for 
5 minutes.

     TESTIMONY OF JUDY BREWER, DIRECTOR, WEB ACCESSIBILITY 
             INITIATIVE, WORLD WIDE WEB CONSORTIUM

    Ms. Brewer. Mr. Chairman, Members of the Committee, thank 
you for this opportunity to talk with you again regarding 
accessibility of the Web.
    My name is Judy Brewer, and I direct the Web Accessibility 
Initiative at the World Wide Web Consortium.
    For the Web to work, computers need to be able to talk to 
each other across the Internet in the same computer languages, 
and W3C is where those languages are agreed upon. W3C has 
developed over 100 technical standards and guidelines ranging 
from HTML and XML to graphics, math, voice, rich media, mobile 
devices, Web services, linked data, security privacy, e-
government, internationalization and more.
    Among its other work, W3C hosts the Web Accessibility 
Initiative. WAI develops standards, guidelines, and resources 
to make the Web accessible for people with disabilities. It 
ensures accessibility of all those W3C technologies that I 
listed a moment ago and develops educational resources to 
support Web accessibility.
    WAI is supported in part by the National Institute on 
Disability and Rehabilitation Research at the U.S. Department 
of Education and others. My comments do not necessarily 
represent those of WAI's funders.
    Ten years ago, this Subcommittee invited me to address 
early questions about Web accessibility. A discussion that 
started with many myths and misperceptions concluded with a 
much clearer picture of the realities and promise of Web 
accessibility.
    In the intervening years, we've shown that businesses can 
flourish while producing accessible Web sites and services.
    We've shown that a multi-stakeholder process that includes 
industry, disability organizations, accessibility researchers, 
and governments can develop consensus solutions.
    We've developed guidelines and standards for Web content, 
authoring tools, browsers, media players, and rich Internet 
applications.
    In particular, we've shown that the Web Content 
Accessibility Guidelines, WCAG 2.0, are feasible for simple mom 
and pop Web sites, as well as for complex and dynamically 
generated million-page Web sites; are technology neutral, 
meaning they can be applied to any Web technology; and are more 
sustainable, yet support innovation.
    Web developers from around the world have shown that 
accessible Web sites can be colorful, media rich, dynamic, 
interactive, device independent, and international.
    The Web has changed immensely in the past 10 years. Many of 
our activities have moved to the Web. We get our education, 
jobs, health care, and tax forms online, buy music, clothes, 
and tickets, get our news, and not only buy but also read our 
books online. We use our mobile phones to do our banking and 
our laptops to make phone calls. We do social networking with 
colleagues, family and friends.
    In contrast to 10 years ago, many of these services exist 
only on the Web through real-time transactions yet are as vital 
to our social and economic life today as any bricks-and-mortar 
business of the past.
    W3C's consensus-based standards development process, multi-
stakeholder participation, broad public reviews, and 
implementation testing prior to finalization of standards have 
been an advantage to the development of the Web as a whole and 
equally to Web accessibility. These processes have enabled the 
disability community to be present at the design table for Web 
standards, to influence technologies that are newly moving onto 
the Web, and to influence accessibility of Web-based interfaces 
as they move beyond the traditional Web into environments such 
as household devices and medical equipment.
    In 2008, the standards process produced the Web Content 
Accessibility Guidelines 2.0. The U.S. Access Board has stated 
its intent to harmonize the Web portions of its Section 508 
regulations with WCAG 2. WCAG has been referenced in the 
Department of Justice ADA technical assistance manual and in 
negotiated settlements within banking, retail, and sports 
sectors. During the past year, we've seen countries in Europe 
as well as Japan, Australia, New Zealand, and many others move 
from other Web accessibility standards to WCAG 2. This 
standards harmonization is immensely helpful because it creates 
a unified market and drives improvements in software, such as 
authoring tools, that can facilitate Web accessibility.
    Surveys of Web accessibility progress continue to show 
barriers, the majority of which are due to failure to apply 
existing solutions, despite the good business case for Web 
accessibility. Barriers include missing alternative text for 
images, missing captions for audio, forms that ``time out'' 
before you can submit them, images that flash and may cause 
seizures, text that moves or refreshes before you can interact 
with it, and Web sites that don't work well with assistive 
technologies that some people with disabilities rely on. The 
impact on people with disabilities ranges from exclusion from 
social networks, to missed school admissions, lost jobs, and an 
inability to access lifesaving health care information.
    There are many opportunities to improve and accelerate Web 
accessibility. These include publishing existing data on 
compliance of Federal Web sites with Section 508 requirements 
and conducting new studies that evaluate gaps in ADA compliance 
across Title II and Title III entities; communicating the 
applicability of the ADA to the Web more clearly, with updated 
guidance reflecting the benefits of standards harmonization at 
international, Federal, and State levels; promoting development 
of improved authoring tools that facilitate the production of 
accessible Web content and that include accessible templates 
for Web site development; continuing research and development 
on accessibility techniques for new technologies, improved 
accessibility supports for cognitive disabilities, and more 
affordable assistive technologies.
    I would like to express my gratitude to the many hard-
working participants and supporters around the world in the 
ongoing work on Web accessibility, and my sincere thanks to the 
Subcommittee for your continued attention to accessibility of 
information technologies.
    [The prepared statement of Ms. Brewer follows:]

                   Prepared Statement of Judy Brewer









                               __________

    Mr. Nadler. Thank you.
    I will now recognize Mr. Jacobs for 5 minutes.

                TESTIMONY OF STEVEN I. JACOBS, 
                  PRESIDENT, IDEAL GROUP, INC.

    Mr. Jacobs. Mr. Chairman and other Members of the 
Committee, thank you for this opportunity to present testimony 
at this important hearing.
    My name is Steve Jacobs. I've been in the computer industry 
for 35 years. As president of IDEAL Group, a 2002 spin-off from 
IDEAL at NCR Corporation, I've been intimately involved in the 
technological issues, challenges, and opportunities being 
discussed here today.
    As part of my testimony, I am going to show by example that 
there are alternatives to certain beliefs and concerns held by 
those who feel it isn't reasonable, technically possible, or 
economically feasible to design accessible electronic and 
information technology.
    Over the past 10 years, our industry has grown 
exponentially, which, on the surface, can easily appear to 
exacerbate technology accessibility issues. The number of 
Internet users has risen from 361 million 10 years ago to over 
1.8 billion users today. If this growth rate continues, half 
the world's population will be using the Internet by the end of 
2012.
    Web-based social networking applications and Web sites are 
now frequented by over half a billion people. 4.1 billion SMS 
messages are being sent on a daily basis. The number of 
organizations using Web-delivered applications, like Google 
apps, is tens of millions and increasing rapidly. 6,500 college 
courses are offered online. Shopping and making travel 
arrangements online is less expensive than brick-and-mortar 
alternatives. The trend in online learning is headed skyward, 
because it is a less expensive method of delivering course 
materials to wider audiences of students.
    Technology is woven into every aspect of life as we know it 
today. The ADA is about civil rights of people with 
disabilities. When technology is inaccessible to people with 
disabilities seeking to access the same resources as their 
nondisabled counterparts, it violates their civil rights.
    I manage four companies that market E&IT products and 
services. All of our solutions are accessible to people with 
disabilities. It is now more reasonable, technically possible, 
economically feasible, and profitable to develop accessible 
E&IT than ever before in history.
    For example, up until recently, individuals who are blind 
had to pay $300 to $400 extra just to screenreader enable a 
cell phone. And it's separate, and separate but equal has a 
rather ugly history in this country. It's not equal. Then along 
came Google with Android, which is a free, open-source 
operating system for cell phones. All Android cell phones come 
with a free screen reader, as well as other accessibility 
applications. The iPhone and iPad include free accessibility 
features, including screen readers.
    Google and Apple are not in business to lose money. They 
would not be integrating accessibility features into their 
devices for free were it not technically possible, economically 
feasible, and profitable.
    Google provides free tools and platforms that enable 
companies to develop accessible Web-based applications. For 
example, one of our companies, Apps4Android, was formed in 
January of 2009. They develop accessible applications for 
Android cell phones. In 15 months, our user base grew from zero 
to 600,000 users in 25 countries. The focus of our apps are 
assistive technology apps, by the way.
    If our small company can be successful designing and 
selling accessible applications, so can other companies. It 
used to be technically difficult and expensive to retrofit Web-
based applications to be accessible. That's no longer the case. 
Google's AxsJAX is an environment that enables developers to 
create dynamically changing scripts that make Web applications 
more accessible even after the fact. Another of our subsidiary 
companies, IDEAL Conference, has been providing fully 
accessible distance learning, online conferencing, and webinar 
services to hundreds of thousands of users over the past 8 
years. Approximately 40 percent of our users are individuals 
with hearing impairments, people who are deaf, consumers with 
vision loss, people with speech disabilities, and persons with 
mobility disabilities.
    It makes good business sense, is reasonable, technically 
possible, economically feasible, and profitable for us to do 
what we do. We are in business to make money. Just imagine the 
possibilities if large companies currently developing similar 
but inaccessible products would do the same.
    In closing, I encourage all of you not to permit the 
sometimes exaggerated perceptions of accessible design issues 
and challenges cloud the fact that there are now more 
opportunities than ever before in history to design accessible 
and profitable E&IT products and services.
    Thank you very much.
    [The prepared statement of Mr. Jacobs follows:]

                 Prepared Statement of Steven I. Jacobs













































































                               __________

    Mr. Nadler. Thank you. And I will now recognize Mr. 
Goldstein for 5 minutes.

               TESTIMONY OF DANIEL F. GOLDSTEIN, 
                  BROWN, GOLDSTEIN & LEVY, LLP

    Mr. Goldstein. Mr. Chairman, it's a pleasure and honor to 
be here. I was extraordinarily heartened by your opening 
statement and wish you would consider a second career as a 
Federal judge. Before I go to my statement, I want to mention 
that, from firsthand meetings with Amazon, I can answer your 
question if it's still in your mind.
    Electronic information is woven into the fabric of our 
lives, from the Internet to cell phones to, most recently, e-
books like the Kindle. Because digital information consists of 
zeros and ones, it is not inherently visual or tactile or aural 
but rather can be displayed in any one or all three of those 
manners. So it holds great promise to change the lives of those 
with print disabilities and those who are deaf. Instead of 
persons with those disabilities needing separate and rarely 
comparable accommodations, there is the potential for 
mainstream access. Unfortunately, at present, digital 
information is often only displayed for one sense, excluding 
persons with disabilities from participation in these 
innovations.
    Mainstream access to digital information could be 
transformative. Consider e-books. The contents of an e-book 
could be displayed on a refreshable Braille display or it could 
be read out loud. The number of books available on the Kindle 
since the Kindle was first introduced on the market in 
November, 2007, already exceeds all of the Braille books 
currently available to blind readers.
    When commercial e-books are accessible to those with print 
disabilities, which includes not just the blind but those with 
a host of other disabilities like dyslexia or, for that matter, 
severe arthritis, their disability will no longer exclude them 
from mainstream participation in reading what the rest of us 
read.
    The ADA has played a valuable role in helping the 
disability community move toward full integration into American 
society. In the field of technology, the ADA has been 
instrumental in making some Web sites, workplace software 
applications, ATMs, point of sale machines, cell phones, and e-
book reading devices accessible to people with disabilities. 
However, as we stand here today, we are not even halfway there 
on making the Internet accessible; and we are even further away 
from equal access to technology used in the workplace and those 
offered through public accommodations like educational 
institutions.
    In the educational sector, the accessibility gap is 
particularly severe. A 2008 study found that 97 percent of 
university home pages contain significant accessibility 
barriers. Even as online education is steeply increasing and 
digital books, course management systems, and other 
technologies have become an integral part of postsecondary and 
K-12 education, most of these technologies are gratuitously 
inaccessible.
    The barriers to technology are not for the most part the 
result of intractable technological issues and need not slow 
down innovation. Where an understanding of ADA obligations and 
commitment to accessibility exist, accessibility is achieved. 
For example, Microsoft's first release of Windows Vista and 
Windows 7 were accessible from day one; and the same is true of 
Apple's iPad, which was recently released to much hoopla. 
Clearly, accessibility has not hampered these companies' 
innovation.
    The ADA is a tremendous normative statement of the 
importance we attach as a Nation to equal opportunity without 
regard to disability. However, the need for clarity as to its 
application to the digital age is significant.
    Title III of the ADA applies to public accommodations. We 
believe both the intent and the language of the ADA cover Web 
sites and other digital information and services provided by 
these covered entities, regardless of whether those 
accommodations also operate brick-and-mortar locations.
    On behalf of the NFB, I have filed two lawsuits in Federal 
Court against companies for violating Title III by failing to 
make their Web sites accessible to the blind, one against 
America Online in 1999 and one more recently against Target. In 
both instances, the companies decided to make their Web sites 
accessible and settled, so we have not yet been able to 
establish judicial precedent that eCommerce falls within the 
ADA.
    Opponents of applying Title III to Web sites might point to 
a line of reasoning that a place of public accommodation must 
be an actual ``physical place.'' One District Court has wrongly 
applied such reasoning. This approach stands in stark contrast 
to the commonsense view that the phrase ``public 
accommodation'' encompasses more than just physical structures. 
Most circuit court cases addressing the ``physical place'' 
argument have been in the context of insurance. So we don't 
currently know what conclusion the courts would reach on this 
precise question.
    In today's increasingly online society, limiting the ADA or 
any civil rights law only to those businesses that operate in 
physical facilities would undermine the ADA's essential purpose 
to eliminate discrimination against people with disabilities in 
the basic day-to-day activities that are a fundamental part of 
living and functioning in the community.
    The near future will see the further spread of digital 
information in critical sectors, including health care records, 
education, employment, commerce, and social life. If we do not 
ensure that people with disabilities have equal access to 
digital information, they face greater exclusion from 
participation in our society. If we do not ensure that 
application of the ADA to public accommodations Web sites is 
clear, accessible electronic resources will continue to be hit 
or miss; and covered entities will continue to take their 
chances.
    Thank you.
    [The prepared statement of Mr. Goldstein follows:]

               Prepared Statement of Daniel F. Goldstein































                               __________

    Mr. Nadler. Well, thank you.
    I'll begin and, apparently, end the questioning with 
myself. I will not limit it to 5 minutes.
    For Mr. Goldstein first, in the Target case, the court 
found that Target's Web site was covered at least to the extent 
that there is overlap between products in the Web site and in 
Target's brick and mortar stores. How did that ruling impact 
Target's behavior?
    Mr. Goldstein. Well, there was also a claim brought under 
California's Unruh Act, which is not a public accommodation 
statute but applies to business establishments. And Target, as 
a business establishment, made the whole Web site susceptible 
to the claim under State law. The two claims together convinced 
Target that it was time to fix their site; and that's what they 
did, the entire site.
    Mr. Nadler. And did other businesses take notice of the 
ruling and increase their efforts toward accessibility?
    Mr. Goldstein. Indeed. A study that had been done of major 
retailing sites both before and after the lawsuit showed that 
there was a one-third increase in accessibility of major retail 
Web sites.
    Mr. Nadler. Thank you.
    Now, it sounds like there have been a number of voluntary 
agreements under which businesses have taken steps to make 
their Web sites accessible. What's your sense as to why 
businesses appear not to be taking sufficient steps on their 
own without having to be contacted about potential litigation?
    Mr. Goldstein. There's not a one-size-fits-all answer. Part 
of it is that something as simple as Web site developers when 
they compete for the bid to develop the company's new Web site 
list accessibility as an option as a separate line item on the 
price.
    Mr. Nadler. Why is that? Why do they list it as an option? 
Don't they know the law?
    Mr. Goldstein. Well, but the Web site developers aren't 
subject, unfortunately, to Title III. There's no joint and 
several liability here. So you want to compete on price. And 
what happens is between the procurement officer wanting to look 
good to the boss and the Web site developer wanting to offer 
the best price, a lot of this happens without----
    Mr. Nadler. So they are misleading their clients?
    Mr. Goldstein. Well, they may be leading their client to a 
position where they are liable and end up with lawsuits.
    Mr. Nadler. Well, they are misleading their clients as to 
the law, no?
    Mr. Goldstein. I don't know that they are advising the 
client on the law, but they are certainly leaving the client 
high and dry.
    Mr. Nadler. They are putting them in a bad legal position.
    Mr. Goldstein. Yes, in a very bad legal position.
    Mr. Nadler. Do you think that regulations from DOJ may 
impact on this dynamic?
    Mr. Goldstein. I think they would be a huge help.
    Mr. Nadler. And that regulations from DOJ should directly 
address this problem of Web site developers directing their 
clients into a vulnerable position?
    Mr. Goldstein. I think that would be extremely helpful.
    Mr. Nadler. Now you testified that we are not even halfway 
there in achieving accessibility. How do we accelerate the pace 
and get businesses and schools to do better?
    Mr. Goldstein. Well, I think the Department of Justice 
Civil Rights Division's decision to become active in this area 
is going to accelerate things tremendously. I was very excited 
by what Mr. Bagenstos said today, and the conversations we have 
had with the Civil Rights Division convince me they are for 
real.
    Mr. Nadler. I don't know if Mr. Bagenstos is still here, 
but if he is not you might want to mention to him your 
conclusion or your answer to my question about DOJ regulations 
on Web site developers.
    Mr. Goldstein. It is an excellent idea, and I will pass it 
along.
    Mr. Nadler. Thank you.
    Let me just ask if anyone else want to comment on the last 
couple of questions. Yes, Ms. Brewer.
    Ms. Brewer. Yes, my impression is that there are a number 
of issues which sometimes cause delay in implementation, and 
they can start from a very simple level of lack of sufficient 
awareness and training for the developers, managers' decision, 
competing design priorities, and so forth.
    I work for an international standards consortium. I get 
phone calls from people saying, does the ADA apply to my 
business? So my impression is that there is a lack of clarity: 
If it does, what should I use? And so I think there is a lack 
of clarity not just with regard to coverage but what standard 
to apply. It may be that those things might also help in terms 
of the compliance. There may also be other things that can 
accelerate implementation, such as improved authoring tools and 
so forth.
    Mr. Nadler. Again, you think the DOJ could help with 
regulations here?
    Ms. Brewer. It sounds as though it may address the 
questions that come in to us, yes.
    Mr. Nadler. Thank you.
    Does anyone else--Mr. Jacobs.
    Mr. Jacobs. Yes, I want to make sure I remember the 
question correctly. It was, why do you think more companies 
have not made their products and services accessible; is that 
correct, Mr. Chairman?
    Mr. Nadler. Well, how we accelerate the pace, yeah.
    Mr. Jacobs. Well, there, of course, needs to be more 
research. But, from my experience, if you look at who makes the 
purchasing decisions in companies, it is executive management, 
marketing people, business people, MIS people, computer 
science, financial people. If you look at their courses that 
they take in college, they are never taught about the business 
benefits of accessible design. The individuals who do learn 
that, major in ergonomics or other disciplines that teach them 
that.
    I think one of the solutions could be going back to the 
universities, going back to the accreditation agencies, and 
working with them and companies to ensure that the right people 
are learning the right things.
    In addition, I don't see anything wrong with our natural 
market forces. If companies stopped purchasing inaccessible 
electronic and information technology when accessible versions 
of that same technology are available, that does two things. It 
makes the statement that, hey, it must be possible to develop 
this because we are buying it, and the competition isn't 
getting the business. So they have to make a decision. Do we 
want their business? Do we want business from other companies? 
If we do, maybe we should take a look at what we're doing and 
change it.
    Mr. Nadler. So you're saying that, despite the market 
forces that would operate in a positive direction here, the 
ignorance of people making decisions on these questions 
operates in a negative direction.
    Mr. Jacobs. Yes, I would say their lack of knowledge does 
work----
    Mr. Nadler. So it is back to the old Edgar Snow question of 
the two cultures. Thank you.
    Mr. Richert.
    Mr. Richert. It is peer pressure. I have got to join--since 
the other three did, I have to put myself in.
    You asked these questions which are very salient, and one 
of the probably biggest things that we could do is use the 
buying power of the Federal Government to spur the kind of 
development and, frankly, awareness-raising that needs to be 
done on the technology solutions that do exist.
    Mr. Nadler. Let me stop you right there. That's a very good 
idea, but let me ask you, is it your experience that the 
procurement officers in the Federal Government are aware of 
this and are acting accordingly?
    Mr. Richert. Perhaps you might have anticipated that I was 
going to go there.
    Yes, I think what we do know is that the Federal Government 
has not lived up to its responsibilities under section 508 of 
the Rehabilitation Act. Twelve years' worth of that law being 
on the books has not resulted in the kind of changes that we 
need to see. And why is that? I think, such as we know it, we 
know that it is not because making Federal Web sites or buying, 
procuring technology is so hard to accomplish. It is frankly 
bureaucratic inertia.
    One of the things that we could be doing, and I would urge 
my colleagues from the Justice Department who have heard any of 
a number of us say this many times before, that the Justice 
Department itself has statutory obligations to monitor and 
report on what the Federal Government is doing; and, frankly, 
over the course of the last 10 years the Justice Department has 
not lived up to those obligations. That would be 
extraordinarily helpful in keeping the Federal Government 
accountable in living up to its requirements to make technology 
that it purchases and that it operates and maintains more 
accessible.
    Mr. Nadler. I would make the same suggestion to you. You 
might want to talk with Mr. Bagenstos about this one, too.
    Thank you. My time has expired. I now recognize for 5 
minutes the gentlelady from Texas.
    Ms. Jackson Lee. Let me thank the Chairman for this hearing 
and also the witnesses that have appeared as well as the 
Justice Department.
    I think that what I've gleaned and what I--I would not say 
be surprised but maybe somewhat disappointed because we live in 
a technological society that means that our minds should think 
accordingly, and we must look at the vast array of Americans 
that are distinctively different and unique. And it looks as 
if, wanting to be market savvy, I would work to have the 
quality product that allows access to new technologies by the 
disabled and, in particular, removing barriers to Web 
information which clearly impacts employment, health, 
educational, and financial information.
    Working with a senior age mother who is in her eighties, 
that is not classified as a disability, but it is an aged 
person who doesn't live in the world of technology. The kind of 
help that is needed to access medical records or medical 
information or to provide information is enormous.
    So what about the young person or the person who is in the 
work market right now? Why should they be denied opportunities 
because we haven't thought forthrightly?
    So let me ask Mr. Goldstein, who spoke of what I, too, 
think is favorable, that the Justice Department will look at 
rule making. But in the course of your thoughts or your 
positive comments on that, let me ask you the question, is that 
going to be fast enough? What do we do in Congress to make sure 
that it moves quickly?
    And I think you mentioned the Civil Rights Division. And 
you're right. What a breath of fresh air under the present 
Administration. But is that fast enough? Is there a sense of 
urgency? And I happen to think there is. Because as we have a 
population of disabled, there are others of an age that are in 
the school system, that are going to college. So that question 
and then what are the best ways to ensure that accessibility is 
considered at the front end when technology is being initially 
developed, which includes the private sector.
    Mr. Goldstein. Thank you, Congresswoman.
    I think regulations, by themselves, are not going to be 
fast enough. One of the things that we see with technology is 
that technologies that find a place in the market take off 
very, very fast and grow at a logarithmic rate. So you can't be 
a near follower of technology. If you don't get in on the 
ground floor, you get left out.
    Ms. Jackson Lee. Right.
    Mr. Goldstein. I, of course, think of litigation as a tool, 
because that's what I do for a living. But one of the things 
that Congress can do here is this isn't all just with the 
Department of Justice. The Department of Education can play a 
very significant role here because of their responsibility with 
respect to Title II and with respect to 504 as far as K through 
12 and postsecondary public education is concerned. Health and 
Human Services is going to have a lot to say with respect to 
health care records. The FCC is going to have a lot to say with 
respect to broadband plans. Anything that this Subcommittee or 
the Congress can do to heighten the awareness that a disability 
isn't an afterthought in going forward, that it needs to be in 
there at the ground floor would be of extraordinary assistance.
    Ms. Jackson Lee. Well, I like your approach, and I would 
just like to offer this before I ask the other witnesses to 
comment on the forward-thinking approach, is to make mention of 
the fact that in my State alone, the State of Texas, there are 
3 million and counting people with disability. And the 
University of Texas, you may be familiar with, has established 
the Texas Center for Disability Studies, which carefully looks 
at different disabilities and finds fresh and new innovative 
ways to treat them and make the simpler things in life more 
accessible. Maybe institutions like that need to really expand 
into the technology area and pull this from a perspective of 
the disabled people wanting to be able to help themselves and 
not be given something.
    With that in mind, I want to compliment my staff, Ms. 
Floyd. We're going to introduce a piece of legislation called 
the Wonder Act. We have been working with Stevie Wonder, named 
after him, by the way. And the Wonder Act, which stands for 
ways to open doors through education resources, goes right to 
the Department of Education and is designed to impact the 
visually impaired students at the elementary, secondary, and 
postsecondary level. It addresses major concerns of visually 
impaired Americans that were brought to our attention through 
meetings with organizations representing those visually 
impaired. And we hope to put a technology component in that 
legislation, but we want to start early to be able to enhance 
the civil rights of the disabled.
    Might I just ask in my closing question the other witnesses 
to be able to answer the question how do we get in front of 
this, as opposed to addressing the question at this point? And 
maybe Mr. Richert could start first, and then we'll go to the 
witnesses who have not answered the question. And any thoughts 
about a bill that deals with the impaired in the early stages, 
elementary and secondary. Mr. Richert.
    Mr. Richert. Sure. Thank you very much, Congresswoman. I 
appreciate that. Wow. Congratulations on your leadership. We 
need all the help we can get with respect to raising the 
awareness and indeed making substantial changes in our public 
policy along the lines that you're describing.
    I think one of the things that we've tried to beat the drum 
about up here is that access to information is not just 
something particularly critical for folks who are blind or 
visually impaired. Indeed, it is something that is essential 
for all students with disabilities.
    Over the course of the last, gosh, 10, 15 years, or more, 
we've sort of latched onto this notion of people with print 
disabilities, the concept that there are certainly more than 
folks like myself who are blind or visually impaired for whom 
access to information is very critical and because of 
disability they may not be able to interact with a book or 
equipment effectively. So I guess I would certainly encourage 
you and your colleagues as you're considering the Wonder Act 
and other public policy changes to remember that, indeed, 
access questions go well beyond folks who are blind or visually 
impaired.
    That having been said, it sounds cliche, but, quite 
frankly, hearings like this are essential to getting, quote, 
unquote, out in front of the issue. You would be amazed, or 
maybe you wouldn't be, on how much change in technology seems 
to happen whenever there is a sense that legislation or 
regulation is going to be coming down the pike.
    It is fascinating how when hearings take place up here or 
there are public hearings that are held around the country, as 
there just recently were under the auspices of the Department 
of Labor, of the disability employment policy, among many, many 
others, how simply having a presence out and about talking 
about disability and talking about it in connection with, 
frankly, everyday life does so much to get out in front of the 
issue. People then start to come to us, all four of us and 
plenty of others at this table, to ask us, my gosh, somebody's 
got a crazy idea to regulate in this area. How can we get ahead 
of this?
    Regulation is not the only thing we can do, but it is 
certainly one area, and, frankly, raising awareness about this 
whole matter is something that can be done just, frankly, from 
drawing attention to it and bringing the spotlight to it, as 
you're doing today.
    Ms. Jackson Lee. Thank you.
    Mr. Chairman, will you allow Mr. Jacobs quickly just to 
answer and Ms. Brewer?
    Mr. Nadler. Without objection.
    Ms. Jackson Lee. If you would, with the Chairman's great 
indulgence, I know that we have constituent engagements in our 
districts, so I thank you for your courtesy. Thank you, Mr. 
Chairman, for your courtesy.
    Mr. Jacobs. The most important think I would like to say is 
that you and I have to talk. There are a lot of reasons why 
students K through 12 and college students don't have the 
assistive technology that they need. It is because of cost. It 
is because of licensing limitations. Assistive technology 
software is among the only software that I'm aware of in the 
marketplace that has not been reduced in price over the past 10 
years. Check it out.
    There is something called open source software like Firefox 
browser, like FileZilla. Hundreds of millions of copies of 
high-quality software are out there. There are open-source 
assistive technology applications.
    We were fortunate enough to be part of a Department of 
Education grant. We are in the second phase. We have taken 30 
of these applications. They are all high quality, and they 
accommodate just about every type of disability you could 
imagine. They are free. The student could take them to school 
and use them and take them home to do homework. They don't need 
to worry about infringing upon the IP rights of the developer, 
because these applications are open source.
    So my thought is why not look at legislation to have 
organizations purchasing AT software first look at open source 
software that is free. If they can't find something that meets 
a student's needs, then go buy commercial. But I could tell 
from you my experience there are a lot of very good 
applications out there.
    So that is how I would address your question and 
congratulations.
    Ms. Jackson Lee. We will engage you. You have just given 
some very vital information.
    Ms. Brewer, do you have a quick response?
    Ms. Brewer. Yes, and I appreciate the Congresswoman's 
question.
    A few comments with regard to the needs of older Web users, 
your initial comment. The Web Accessibility Initiative has 
conducted an extensive international literature research 
regarding the needs of older users who may sometimes have 
similar accessibility needs. And the accessibility needs are 
actually--the functional needs are pretty much the same as 
people with disabilities and are already addressed by existing 
Web accessibility guidelines which we have developed with the 
World Wide Web Consortium. Our concern is still that these 
solutions are not being applied anywhere near as broadly as 
people with disabilities and older users need.
    You asked about potential accelerators. The clarifying of 
applicability of the ADA we believe would help, based on the 
questions we get where people are puzzled if they are covered 
or not. The clarifying of the standards to use is something 
that I also believe would help quite a bit. The adoption of a 
multi-stakeholder consensus standard as exists in the area of 
Web accessibility can help by removing uncertainty about what 
standard to use. It also enables sharing of technical support 
resources, enables repurposing of training materials without 
having to redevelop those, recreate the wheel each time.
    Also, in the IT industry it is very important to know what 
your development target is when product managers are making 
decisions about what features to implement. And if they see a 
range of different standards in every State or in different 
parts of the Federal Government, there is much less incentive. 
It is also very hard to decide which ones to support. And so 
these are things that may indeed help accelerate this.
    One other thing would be studies on adoption or 
implementation of Web accessibility across different sectors 
that relate to Title III, for instance, so that people who work 
in the field could more easily address the gaps that seem to be 
there. We develop extensive amounts of technical guidance, and 
we could target that if we knew where the worst gaps were.
    Ms. Jackson Lee. Thank you. Thank you, Mr. Chairman.
    Mr. Nadler. Thank you, and I thank the witnesses.
    Without objection, all Members will have 5 legislative days 
to submit to the Chair additional written questions for the 
witnesses which we will forward. And I ask the witnesses to 
respond as promptly as they can so that their answers may be 
made part of the record.
    Without objection, all Members will have 5 legislative days 
to submit any additional materials for inclusion in the record.
    With that, we thank the witnesses; and the hearing is 
adjourned.
    [Whereupon, at 2:32 p.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

       Prepared Statement of the Honorable Sheila Jackson Lee, a 
    Representative in Congress from the State of Texas, and Member, 
  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

    First and foremost, I would like to extend my gratitude to Chairman 
Nadler for holding this important Subcommittee Hearing addressing the 
applicability of the Americans with Disabilities Act as we navigate 
through this digital age, and technologies change day to day. Secondly, 
I would like to recognize the Honorable Samuel Bagenstos, the Principal 
Deputy Assistant Attorney General of the U.S. Department of Justice. 
Your participation in today's hearing is appreciated and I look forward 
to hearing more about what the Department of Justice is doing and plans 
to do to address this issue.
    I would like to thank our distinguished witness on the second 
panel: Mr. Mark Richert, the Director of Public Policy for the American 
Foundation for the Blind; Ms. Judy Brewer, Director of the Web 
Accessibility Initiative of the World Wide Web Consortium; Mr. Steve 
Jacobs, President of the IDEAL Group; and Mr. Daniel F. Goldstein, of 
Brown, Goldstein, and Levy, LLP.
    As we all know, we live in a technological age. Many of the tasks 
that used to require a physical process are now paperless, virtual, and 
can be done online. We shop online, apply for jobs online, and pay our 
bills online, just to name a few things. Many schools and universities 
hold classes online, supplement their curriculums online, and use 
electronic versions of textbooks. Many retailers have an online 
component, offering exclusive merchandise and internet discounts, while 
some conduct all operations online and have given up ``brick and 
mortar'' establishments entirely.
    We are a digital culture by definition. Ten years ago, only 46% of 
adults even used the internet, and of that 46%, only 5% had a broadband 
connection and almost none used wireless connections. The present day 
portrait of American society is very different. Over 75% of adults use 
the internet, and the percentage is even higher for children. Of those 
75%, 62% have a broadband connection in their home and 53% use a 
wireless connection. Many people even use mobile broadband to 
communicate for both business and entertainment purposes.
    These advancements in technology, especially with respect to public 
services, have made life much more convenient for many Americans in 
many ways. In some ways, it has improved accessibility by eliminating 
required physical presence and arduous paper processes. While 
technology has done a lot of good, it has also created some barriers 
that limit accessibility, and in some cases completely alienate, those 
Americans who are handicapped or disabled.
    The Americans with Disabilities Act of 1990 was implemented to 
ensure inclusion and opportunity for those considered handicapped or 
disabled. Congress was aware that technology would continue to evolve 
and expressed it belief that the non-discrimination mandate contained 
in the ADA would be broad and flexible enough to keep pace. Thus, 
ensuring that, as technology evolved, people with disabilities are not 
excluded when jobs, public services, or public accommodations that 
require access to new technology. However, in 1990, one could not have 
imagined that extent of the role which technological innovation plays 
in our lives.
    Today, just about every business, retailer, government and public 
service has a website which is intended to increase accessibility and 
make certain processes easier. For those with handicaps and 
disabilities, especially those who are blind or hearing-impaired or 
cannot manipulate a mouse, there are software programs and make use of 
these websites available to those with handicaps--programs read 
websites and images.
    However, there are simple features that need to be incorporated 
into websites in order for these programs to be effective, and many web 
designers are likely unaware. Something as simple as adding a caption 
to a picture or a photo would make a website more easily translatable. 
We need to figure out a way to ensure that these simple facts are known 
and implanted, especially on local, state, and federal government 
websites, and site that deal with other public services or 
accommodations.
    In my home state of Texas, over 3 million people have a disability. 
The University of Texas has established the Texas Center for 
Disabilities Studies which carefully looks at different disabilities 
and finds new and innovative ways to treat them and make the simple 
things in life more accessible to those with such disabilities. They 
have also established the Texas Technology Access Program which leads 
the state's efforts to carry out Federal initiatives associated with 
the ADA. The programs mission is to increase access for people with 
disabilities to assistive technology that provides them more control 
over their immediate environments and an enhanced ability to function 
independently.
    Furthermore, given the subject matter of this hearing, I find it 
apropos to mention my plan to soon introduce a piece of legislation 
called the ``WONDER Act,'' named after the legendary singer and 
humanitarian, Stevie Wonder. The WONDER Act, which stands for ``Ways to 
Open Doors through Educational Resources,'' is designed to impact 
visually impaired students at the elementary, secondary, and post-
secondary levels. It addresses major concerns of visually impaired 
Americans that were brought to my attention through meetings with 
organizations representing those who are visually impaired.
    Today, we are hoping to figure out what the Department of Justice 
can do, and we, as Congress can do to make sure that the ADA continues 
to fulfill its goal of inclusion. Thank you Mr. Chairman, and I yield 
back the remainder of my time.

                                

 Prepared Statement of the Honorable Henry C. ``Hank'' Johnson, Jr., a 
   Representative in Congress from the State of Georgia, and Member, 
  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

    Thank you, Mr. Chairman, for holding this very important hearing on 
the Americans with Disabilities Act, commonly referred to as the ADA.
    Congress passed the ADA in 1990. The ADA was recently amendment in 
2008 to revise the definition of ``disability'' to more broadly 
encompass impairments that substantially limit a major life activity. 
The ADA is extremely vital as it aims to prohibit discrimination 
against individuals with disabilities in American civic and economic 
life.
    This hearing is important because it will give us the opportunity 
to examine how the ADA can achieve its promise of equal opportunity and 
full participation for people with disabilities as technology continues 
to advance and grow.
    The internet and web-based technology has significantly changed our 
lives. Today, you can earn a college degree online without ever 
stepping foot in a classroom. Our constituents look for jobs online, do 
their banking online, and go shopping online.
    Years ago, many of these activities could only be done by leaving 
one's home and entering a physical building such as a bank, college, or 
store.
    The times have surely changed. Today, many of us are frustrated 
when the internet is down or feel helpless without our BlackBerries 
which give us 24 hour access to the internet.
    In this digital age, we cannot afford to leave anyone behind. We 
must ensure that people with disabilities have the necessary tools to 
fully access the internet and all it has to offer. This includes screen 
readers, Braille displays, captions for audio, and other assistive 
technologies.
    Millions of people have disabilities that affect their use of the 
web. These individuals have the right to access emerging and innovative 
technology. As I think about my constituents, I am anxious to examine 
what Congress can do to ensure that individuals with disabilities have 
full access to the internet.
    I thank the Chairman for holding this hearing, and I look forward 
to hearing from our witnesses today.

                                 
