Navigating digital accessibility: Insights from legal and technical perspectives

Inclusivity Included: Powerful personal stories

In this episode, we delve into the critical intersection of law and technology, exploring the multifaceted landscape of digital accessibility. Joining Bareeq Barqawi, Reed Smith’s DEI talent development analyst, are three distinguished panelists: Angie Matney, counsel in the Entertainment and Media Industry Group at Reed Smith; Jamie Dean, senior corporate counsel on Microsoft’s Accessibility Regulations team; and Ken Nakata, an accessibility consultant with Converge Accessibility and a former U.S. DOJ attorney. Discover key legal considerations, collaborative challenges, and proactive measures for enhancing accessibility in the digital landscape with our insightful panel.

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Transcript:

Intro: Welcome to the Reed Smith podcast. Inclusivity Included: Powerful Personal Stories. In each episode of this podcast, our guests will share their personal stories, passions and challenges, past and present all with a goal of bringing people together and learning more about others. You might be surprised by what we all have in common, inclusivity included.

Bareeq: Welcome to another episode of Inclusivity Included, Reed Smith's podcast on fostering diversity, equity and inclusion. I'm your host, Bareeq Barqawi DEI talent development analyst at Reed Smith. Today we're diving into the realm of digital accessibility and accessibility audits, joined by three incredible experts in the field.

I'm delighted to have Angie Matney, Reed Smith counsel in the Entertainment and Media Industry group. Joining us today with a focus on information, privacy, data, security, and digital accessibility. Angie supports clients across diverse sectors including health care, entertainment, retail and finance. She's also a part of our LEADRS, business inclusion group, supporting professional and personal development of individuals with all types of disabilities at the firm and as someone with a complete loss of sight.

Joining us also is Jamie Dean, senior corporate counsel on Microsoft's accessibility regulations team with a wealth of experience, Jamie champions accessibility and technology, drawing from his personal journey as a person with a loss of sight and his extensive legal and rowing background.

And I'm also thrilled to welcome Ken Nakata, former senior trial attorney with the US Justice Department's disability rights section. Recognized for developing nationwide ADA policies for the internet and spearheading accessibility in federal government IT. He's also a founding board member of the International Association of Accessibility Professionals.

Welcome everyone. So let's get started. I'm going to ask Angie the first question and as counsel in the Entertainment and Media Industry group at Reed Smith, Angie from a legal standpoint, what are the key legal considerations that companies should be aware of in terms of regarding digital accessibility?

Angie: Thanks Bareeq. Yeah. So the I would say one thing to keep in mind is that the legal landscape is uh you know, there are several different laws that might implicate digital accessibility considerations. And then within that though, there are different interpretations of some of those. And so I think it can be a little bit overwhelming at first maybe to, to navigate and, and that's where, you know, counsel can definitely assist. And so the types of laws that involve digital accessibility, we have civil rights laws and we have procurement laws and now we're seeing more, you know, consumer privacy laws and regulations that look at that as well.

So in the civil rights arena and the non-discrimination area, it would be, of course, the Americans With Disabilities Act, that's what most people in the US sort of automatically think of when you start to talk about accessibility. And, you know, the ADA there's been a, a long history that we definitely uh don't have time to fully go into here. But suffice to say there have been sort of different interpretations and proposed interpretations as to when uh a website, for example, has to be accessible to be compliant with the law. Does that require that the website somehow have a nexus to a physical location or do online businesses have accessibility obligations under the ADA and those are questions that have been answered differently by different courts.

And then on also at the other civil rights laws that come into play, it might be something like the federal Rehab Act that has some accessibility requirements for recipients of federal financial assistance.

And then there's some industry specific acts that uh include accessibility obligations like the Air Carrier Access Act. And then uh arguably like section 1557 of the Affordable Care Act for in the healthcare space. At the state level, we've got a lot of those same kinds of civil rights laws that may uh require digital accessibility. Then there are states like Colorado where there's a very specific, you know, procurement requirement that if a state agency is looking to obtain a some kind of technology, uh digital accessibility has to be a consideration and then pretty recently too, we've seen in uh some regulations under some of the new privacy laws that have been passed in different states of requirement for accessibility.

So these laws like the California Consumer Privacy Act, and then again, going back to Colorado, the Colorado Privacy Act, the main aim of these statutes is to give consumers, you know, transparency and control over how their data is being processed by covered companies. And these laws do under their regulatory regimes involve an accessibility requirement, which makes sense if you think about it, because if consumers are supposed to be able to understand how their data is being processed and make choices about that, then without an accessibility requirement, not all consumers may be able to participate in, in those kind of processes. So that's sort of a very brief overview of the legal landscape.

Bareeq: Thank you so much, Angie, some great insights and some really, really great examples. So now let's turn to Jamie. Jamie as someone who has worked as outside counsel on accessibility matters, what challenges do organizations commonly face when striving for accessibility compliance?

Jamie: Yeah, that's a great question. And there's, there's a number of different challenges uh that folks face when they're trying to make their digital properties accessible. I'd say one of the primary ones, and Ken's insights here would be really interesting because I know this is something that's near and dear to his heart, is while there are industry standards for accessibility, like the web content accessibility guidelines or in Europe en 301 549.

On the United States side, we haven't clearly incorporated those requirements into some of our landmark legislation like the Americans With Disabilities Act. And there's rule making um that's underway right now to look at whether the web content accessibility guidelines should be adopted as a standard for some purposes under the ADA but not for all.

And so what I found most often when I was outside counsel was that I had clients who really wanted to make their websites and apps accessible, but they weren't sure what standard to follow that would both make the website accessible and protect them from litigation. Because let's be honest, litigation is a huge problem in this this sphere. Problems, maybe not the right word. Challenge. Issue. Some of that litigation is really, I would say uh important and impactful. And I think everybody in this space would say some of that litigation is uh questionable. You know, it's benefiting the lawyers but it's not benefiting anyone else.

So I think when you're, we're talking about making your website accessible, the the this challenge of not having a clear standard is a really big one. And then the other is just the lack of understanding, accessibility isn't something that most people are familiar with. Unless you have a disability or grew up around people with disabilities, you might not even understand what it means. And in fact, I got into this work because simply because I'm a blind person and, and a blind lawyer doing commercial litigation. And so as our clients started to see litigation in this area, no one knew what it meant. And they were reaching out to me saying, hey, you're blind, you use the internet. What is this?

So I, I think there's a lack of understanding with accessibility that folks just haven't had enough exposure to it. And unlike if, if you or I were to go to a physical building and it had a ramp or an elevator, we would see that, right? And we would understand. Oh, that's the, the purpose of this is to help people who have mobility based disabilities.

Well, a website whether or not it's accessible if you're a sighted user and you're using a mouse and I'm not sort of using any type of assistive technology. You might not see any difference in the website versus a person with a disability. So it's sort of hard to recognize it. It's hard to know when something is accessible or not if you're not a person with a disability. And we just have a long way to go and helping the general public understand what it means for websites and other digital content to be accessible.

Bareeq: Thank you, Jamie. Some really great points there. Uh Now let's bring in Ken. Ken as an accessibility consultant with a technical background what methodologies or tools do you commonly employ during accessibility audits and how do these contribute to ensuring compliance?

Ken: Yeah, thanks Bareeq. I'll answer the question and I'm, I think I'm I'll chime in and talk about some of the things that Jamie just mentioned also. But from my perspective, as an accessibility consultant, accessibility reviews, always, they always have to start with a manual audit and that can be really labor intensive and it requires testing with different screen readers and multiple other types of assistive technologies across different operating systems. And now both mobile and desktop devices.

A lot of the later WCAG requirements in 2.1 are really focused on mobile testing. It's only after fixing those issues and a manual review does automated testing, which is the first thing most people just naturally gravitate towards. It's only there that it, I think it really becomes useful. But a complete solution really does require both really careful manual testing to really catch the significant issues. But then I think it also from a legal perspective, you really also need automated testing. Because what I've noticed is that a lot of the serial plaintiffs, the attorneys representing the serial plaintiffs, I should say sometimes often, well often triage their cases using automated testing tools.

So that's one, that's one reason why I think automated testing still is a key component. And the other reason is because because you can't really test every page manually, you can get a sense as to where the, um where the, well, there may be accessibility problems through an automated test that you can then verify by manually looking at it later.

So now I'm gonna get back to what Jamie was mentioning about the, the standards. Jamie is absolutely right. That and, and so is uh Angie that this, this, this is a really a shifting land escape. We've been using WCAG mostly because the justice department has been settling their cases at WCAG. But there's really nothing in the regulations that say that you have to meet WCAG. And so we've been doing that as kind of like a safe harbor even though nobody's ever said as much. Uh, that's basically the reason that we're doing it.

And now with WCAG 2.2 out there, it's, now that's ultimately going to become the standard we think. But we haven't, I haven't noticed any settlement agreements that have required that, but then again, WCAG 2.2 is only a couple of months old. Yeah. So recently the justice department has come out with their title two opposed regulations and those are proposing WCAG 2.1 but they, who knows where that's gonna go. Um That's creating quite a bit of controversy.

And I think one of the reasons why from a technical perspective that causes controversy, at least for me is because say you're a state or local government and you've got a website and it has thousands of pages because you put everything up on your website. Can you really ever guarantee that that site is fully WCAG 2.1 aa compliant on every single page? I don't think so yet. Even though we're setting the bar there as a practical matter, we can't really ever guarantee it.

I think one of the things that industry has been struggling with for a very long, long time is trying to figure out some kind of standard around what we would think of as like substantial conformance, you know, does that look like? Ok, we're gonna do regular testing on our web pages. But you know, if I, if you can't access to content on the web page on a particular web page, how do you provide effective communication to that web page? You know, maybe through um a telephone number or maybe through chat, a chat feature or something like that, we don't have answers to those things. And so that's one of the, I think that's one of the things that really irritates a lot of a lot of big companies and a lot of organizations that have really enormous digital presences.

Jamie: And can I dovetail with one thing kind of saying this is Jamie again, I, what, what Ken just said really deserves to be highlighted. Websites are really unique because the content can change frequently and because the, the tools that people use to access the website are not all the same. Some people use Edge, some people use Chrome, some people use Firefox, some people use a screen reader. Some people use, you know, various brands of screen readers. Some people visit on mobile, some on desktop. So it's really unlike something like an office building. Once we build the office building, the types of changes that you make to it, you know, they're significant and they're permanent websites may change hundreds of times a day, thousands of times a day and the tools that we tax system and make a difference.

And so in some ways, it becomes an expedient for lawyers to say, well, let's just make full compliance with something like the web content, accessibility guidelines or WCAG let's just make that the standard and that's the law, but that expedient isn't very practical. And so I would say to my clients when I was an outside lawyer, you know, the standard is really helpful to us to understand the technical approach to making the website accessible.

But at the end of the day, there's a couple of things that are also important. One of those is, you know, keeping the consumer experience first and foremost, how are people gonna use your website? How are you going to make it actually work for people with disabilities? And then the second is once you have invested in making the website accessible, how are you going to keep it that way? What kind of testing are you are you going to continue to do? Because as your website changes, these things that you've implemented, they're not static things get broken. And so these are unique challenges of the website world that you don't face in a physical space.

Bareeq: Thank you so much, Ken and Jamie. I love where the conversation is going about this, not only the speed of change, but also the, the constant evolution and then the sustainability of it all. I'm gonna go back to you Angie. How do you see the role of legal professionals evolving and ensuring digital accessibility compliance across the industries you mentioned earlier?

Angie: Yeah, thanks. I wanna also add to continue this conversation about evolution as we hear in a lot of areas in the tech space, you know, does law evolve fast enough to keep up with reality here, we may have, you know, that issue as well as as um Jamie and and Ken have pointed out. So, you know, there have been many conversations about website accessibility and some of those earlier discussions and laws and considerations really did focus, you know, maybe exclusively on websites versus other kinds of digital content.

But of course, now that conversation has to be changing a little bit and we're looking at different types of digital properties that companies are um making use of whether they're mobile apps or other kinds of experiences. Um you know, experiences in the metaverse for example, what do the existing standards and laws have to say about that? And those are challenges that we all grapple with um including how, what will the implications of generative AI be for accessibility? How might some of those tools end up helping us solve some of these issues? How do the obligations change as technology changes?

So basically, all I've done there is present a bunch of questions without real clear answers. How counsel can help in some of these processes is to help them evaluate what their legal obligations are. Many times as counsel, we might partner with somebody like Ken, so that that person and that firm can come in and do a a more technical based analysis and audit of the client's digital properties. And then as counsel, we might help clients make decisions about how to address, you know, the biggest areas of risk, how to be transparent to users about what we're doing from an accessibility point of view without sort of making promises that we're not in a position to keep.

For example, you know, so how to how to have your messaging be reflect what you're actually able to do and accomplish. And then also, you know, counsel can be helpful in working with you if you're a customer and you're working with vendors to help make sure that vendor contracts appropriately address matters of accessible deliverables, those sorts of areas. But essentially good counsel can be a partner and help you sort of assess your needs and requirements and then help make sure that you know, you can implement those.

Bareeq: Thank you so much, Angie, great, excellent insight as well. I'm gonna actually pose this question to first Jamie and then Ken. So can you provide some insights into the collaborative efforts between legal and technical teams in achieving and maintaining this digital accessibility? Especially in the evolutions we considered how, what are some best practices when it comes to trying to maintain and sustain digital accessibility.

Jamie: So, this is one of the areas where legal advice is so tightly married to technical advice that the two have to be addressed simultaneously. And I would actually say it's even bigger than that. So if you're, when I was advising clients, it depended on their industry. But so many of the clients that have concerns over website accessibility are in a public retail or a public service provider type role. And for them, this is an even bigger issue where it's not just legal and technical, but you also have marketing and communications, people who need to be involved because they're the ones of course who are creating the content for the website. So just sort of this is implicit in your question.

But it bears reiterating, you know, getting all of the stakeholders into the room as you formulate a strategy is step one and the most important step because if the engineers understand what's required based on legal advice, but no one's told the marketing department and they upload content that doesn't meet accessibility guidelines, then the engineers work is sort of, you know, all for not and the legal advice is all for not. So I think step one is getting everybody in the right Uh everybody in the room who's contributing to either building the website or adding content to the website.

And then I'll kick over to Ken because he's got more experience on this side than I do But what I would say is the second piece of it is sort of aligning on what the specific objective will be. Whether it's these specific function on the website, we are going to ensure are always 100% WCAG compliant because they are most highly trafficked sections. But maybe these other sections of the website that get very little usage, you know, we're, we're only going to audit those on a less frequent basis, making sure that everyone is aligned on what the actual goal is so that you can build a strategy that points to that goal rather than making the objective something more nebulous, like improve website accessibility or have an accessible website. As Ken's already said, having a quote unquote "accessible website" is almost impossible for a large complex site so you have to define an objective with specificity.

Ken: Yeah. OK. I'm gonna jump in now, Jamie. You're absolutely right. It's, it's, it does, this is an area where legal and technical definitely are, have to be on the same page, but I'd say it even goes broader than that. So for instance, an e-commerce organization, they really have to have all of customer service involved in the process to make sure that everything is aligned in terms of how they want to provide services for their customers. So part of it, you know, and, and accessibility, I've noticed that,
you know, the between the technical people that do work on digital accessibility and the traditional built environment accessibility, the people that do things like, you know, traditional effective communication and modifications of policies and new construction and alterations.

That traditional idea of ADA and the digital side of ADA aren't really even aligned yet yet that we should be. And so when Jamie said you have to bring in all the stakeholders into the room, I think that it's broader than just the technical and the legal people. It's really all about how you're providing services to your customers. And then once everybody has an aligned vision, I think that that has to be communicated back out in a digital presence.

And so for instance, you know, like in the California Privacy Protection Act, we've got this idea of uh privacy statements and now every organization has a privacy statement on their website. I think that it makes sense to also provide an accessibility statement so that visitors to your website know exactly what to expect, how to, what the problems are, how you're going about providing accessibility and what are the different for lack of a better word workarounds for um inaccessible content so that any visitor that isn't using the website can get access to the same goods and services in an equally convenient or minimally inconvenient I should say way according to, you know, roughly the same hours of operation or at least an expected known hours of operation. So can you, if those workarounds can provide uh the same comparable access I think that that really goes a long way.

I mean, like in a Domino's pizza case after it went up to the Supreme Court and was reentered back to the district court. Domino's Pizza made that argument and they said, well, you know, people can always call and order a pizza instead of having to do it over a website and the opinion noted. Well, yeah, that's all well and good. But waiting 45 minutes, which is what happened to the plaintiff. It isn't uh isn't um the same kind of experience, it doesn't provide effective communication. So that's an instance where, you know, had Domino's Pizza in their operations been aligned with the legal requirements. And that had the technical people all sat down in a room and said, ok, this is how we're going to provide access to our services and let it be known that this is how we're going to do it and we're going to be efficient in doing it. So you only have to wait a couple of minutes at most to order a pizza. They could have potentially save themselves a boatload of pain.

Jamie: And one thing that I would add that couple of what Angie and Ken have said together is you have to know and the lawyer can help you with this You have to know when you're in over your head and when you need to bring in a third party vendor to help you, you know, it, the most organizations probably don't have in house tremendous digital accessibility expertise and are gonna need some level of outside help. That level of outside help could be a one time audit where they say here's the issues and then your internal department takes them from there or it could be continuous monitoring of your website and remediating it by the vendor rather than doing anything in house.

There's not a one size fits all approach because it really depends on the the organizations um assets. But I think this is really critical picking the right partners because all website vendors are not created equal. And without being too controversial, I think that we could say that there are actually some approaches and some vendors who, whose efforts have been counterproductive for the organization involved. And, and there's some products that uh we, we've heard plaintiff's lawyer actually target websites to use those those website remediation products. So getting your lawyer to help you find and retain a good vendor if needed Um so that you can actually address this issue, I think is, is critical and just being honest with yourself that the expertise to do this might not reside within your business.

Ken: I'll add to that Jamie by saying that a good accessibility vendor knows when they're over their head too. And so for instance, I can tell you about PDFs generally, but if you had a bunch of PDFs, uh don't ask me to remediate them, I'd send you to a PDF expert for that. So I would partner with somebody else for that, those kinds of things. And similarly, I'd also partner with somebody that does really great automated testing. I wouldn't necessarily say that they should be interpreting your results because they might not have, they may have a great tool but not great staff. So it's, yeah, it really is It really does become a team effort.

Bareeq: Thank you all so much for sharing your expertise. And as we wrap up, I just wanted to again, say thank you so much for your participation in this insightful conversation on digital accessibility and accessibility audits. I know we covered a lot of ground even in these short 30 minutes to our listeners. Thank you so much for tuning in. To tune in for more episodes of Inclusivity Included Please be sure to follow us. Uh until next time, foster inclusivity, embrace diversity and make inclusion a part of your everyday journey. Thank you again, Angie, Jamie, and Ken for joining us, take care.

Outro: Inclusivity Included is a Reed Smith production. Our producers are Ali McCardell and Shannon Ryan. You can find our podcast on Spotify, Apple Podcasts, Google Podcasts, Reedsmith.com, and our social media accounts.

Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice, and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome. Any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers.

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