LEGAL FRONTIERS: MULTIMEDIA WORKS, ONLINE SERVICES
AND THE AMERICANS WITH DISABILITIES ACT OF 1990


IS CYBERSPACE PUBLIC PROPERTY? IF SO, IT SHOULD ACCOMMODATE THE DISABLED

Copyright © 1995 Christopher R. Costa.


As multimedia producers and online communication service providers incorporate visual images, designs, graphical user interfaces ("GUIs"), icons, sound and text in their works and communications, they should consider how disabled Americans will access and interact with their products and services. As some 43 million Americans have one or more physical or mental disabilities, multimedia producers and service providers should consider incorporating reasonable means to provide their works and services to individuals with disabilities. This article briefly examines likely effects of The Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. (Supp. V 1993) ("ADA"), upon the provision of goods and services in the computer and communications industries.

Specifically, multimedia producers and online service providers should plan for and include options to provide reasonable accommodations for the visually or hearing impaired. Reasonable accommodations include incorporating "hooks" in their works to enable visually-impaired users to use screen reader programs to identify and process images and GUIs, as well as options to provide enhanced text captioning for hearing-impaired users.

SCREEN READERS

Using screen reader programs, visually-impaired computer users are able to interact with computers and process information at work and home. The screen reader programs process text based words on a computer display into recognizable speech. I first encountered screen reader software on a computer system in 1980 at the Mathematics department of the University of Illinois at Urbana-Champaign, where a blind professor used it to conduct research and correspond with colleagues and society. Although the sound of the voice processing the information on the computer screen sounded strange, I was impressed by the system.

While screen readers can process text-based works to permit access for the visually-impaired, screen readers are not able to process multimedia works or online communication services which include images, GUI's and icons (such as Microsoft's Windows product, America Online, etc.), since such works and services do not currently include proper identifying information or hooks.

THE ADA

The ADA was enacted "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." While the ADA's scope certainly includes discrimination in employment, housing, public accommodations, and transportation, the ADA's statement of findings indicates a much broader scope.

The ADA's findings include the facts that:

discrimination against individuals with disabilities persist in such critical areas as education, communication, recreation, and access to public services;

individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of communication barriers, and relegation to lesser services, programs, activities, or other opportunities;

individuals with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically and educationally; and

individuals with disabilities have faced restrictions and limitations and subjected to a history of purposeful unequal treatment, resulting from stereotypic assumptions (by non-disabled persons) concerning their individual ability to participate in and contribute to society; and

the nation's proper goals, with respect to individuals with disabilities, are to assure equality of opportunity, full participation, independent living and economic self-sufficiency.

Public Entities

The ADA prohibits public entities (i.e. State and local governments, and any of their departments, agencies, districts or instrumentalities) from:

excluding a disabled individual from participation in the benefits of services, programs or activities of the public entity;

denying a disabled individual the benefits of services, programs or activities of the public entity; or

subjecting a disabled individual to discrimination by the public entity. See 42 U.S.C. § 12132.

Thus, public entities are now seeking, and will continue to demand, multimedia works and online services which afford reasonable accommodations for communication with persons with disabilities. For example, David Wright, a National Public Radio reporter in Boston, has reported [All Things Considered, February 16, 1995] that eight state governments are considering whether to suspend purchases of the current Windows product due to its inaccessibility for the visually-impaired. Microsoft claims that its forthcoming Windows 95 product will contain hooks for screen readers. Clearly, products and services which address the needs of the disabled will have an effective value-added component to help boost sales.

Private Entities

"Public accommodations" which are provided by private entities or persons are also prohibited from discriminating on the basis of disability in the full and equal enjoyments of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person. See 42 U.S.C. § 12182. The ADA requires physical access to stores and public facilities by the physically disabled, similar to the visual access to media by closed captioned television services for the hearing-impaired.

The list of "public accommodations" is extensive and includes: hotels; restaurants; movie theaters or other places of exhibition or entertainment; auditoriums or other places of public gathering; retail stores; establishments; professional offices and other service establishments; museums, libraries, galleries or other places of public display or collection; and parks, zoos or other places of recreation. See 42 U.S.C. § 12181(7).

While the list of "public accommodations" does not explicitly state that information kiosks, cyberspace, the Internet or online services are "public accommodations," they are our generation's new places of public gathering and association, public display, collection, or discourse and an increasingly important place of exchange of information and association. It must be expected that information kiosks, cyberspace, the Internet and online services will be deeded to be "public accommodations." Consider the value-added component of products and services which provide access to these high-technology "public accommodations."

The 1994 calendar year was the first year that sales of computers exceeded television sets in the United States. Thus, the inability to access works by a computer will likely become as repugnant as the inability to provide closed captioning for television broadcasts.

Future applications of the ADA should be expected to address the issues of access to multimedia works used in kiosks provided to the public and/or museum displays and, then to multimedia works and online services used in business and at home. The inability of the disabled to access to publicly available information and services through multimedia works and online service providers will become legally unacceptable. As multimedia works and online services become more prevalent, accessibility by and reasonable accommodations for the disabled will be required.
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Point & Click, Official Newsletter of the NMAA, March/April 1995, at 1.
Computer Digest, May 1995, at 1.