The Tech Sector & the ADA – continued
A couple of days ago, a post on Disabilities, Civil Rights, & the Kindle Letter recounted the story of the war that the Civil Rights Division of the Department of Justice is waging against university pilot projects that use the Kindle, with CRD taking the position that the projects discriminate against the visually impaired in violation of the Americans for Disabilities Act (ADA). That post mentioned that CRD is planning a rulemaking proceeding on the ADA and websites generally, but it did not elaborate on just how ominous this development might be.
The tech world is a bit spoiled in its relations with the government because tech has been a teachers’ pet, regarded as cool and jazzy and subject to pampering rather than constraint. With occasional exceptions, such as the Microsoft antitrust case, where the techies were in a civil war, or the visa issue, which is tangled up in the vicious politics of immigration, sympathy and help is usually only a phone call away.
The tech sector may sometimes fume about regulatory agencies, but it is mostly governed by agencies that want to ensure that the sector keeps prospering. The FCC, for example, knows that it must deliver a functioning telecom system, and the agency will not deliberately take action that will sabotage this imperative. Fights may be fierce over the proper way to promote such functioning, as shown by the differences between such organizations as Digital Society and Free Press, but no one is pursuing the goal of shutting it down.
Some other sectors of the society face a quite different situation in that they are governed by agencies which would just as soon the sector died. The EPA, in particular, is controlled by environmentalists who will, to the extent politically possible, shut down all activities that emit any “pollution,” including dust or carbon dioxide, regardless of cost. No one involved in energy production or manufacturing expects any sympathy from EPA, and the struggle has become totally centered on the legal and political limits on EPA’s power, not on rational balancing between the needs of the economy and the environment.
The CRD is in the mold of EPA, not the FCC. It represents an ideology that any disadvantage suffered by the disabled counts as “discrimination” and is immoral. It also responds to a powerful and militant constituency; the Kindle affair is a joint effort of CRD and its supporters. And the head of the CRD has spent his whole career as an enforcer in the area. Read his bio, and his speeches, and you will agree with journalist Byron York that Perez does not see himself as a government official responsible for balancing the difficult conflicting values involved in the ADA; on the contrary, he is a paladin of a constituency and an ideology who has succeeded in capturing a government agency, and who can now deploy all of its mighty power on behalf of The Cause.
“I love this job,” said Thomas Perez, the hard-charging head of the Justice Department’s Civil Rights Division, in a speech last December to the liberal legal group American Constitution Society. “We have a very broad, a very ambitious vision. It’s a very exciting vision, and I wake up every morning with a hop in my step.”
In a speech last April, Perez spoke of his vision for the tech sector:
We know that modern technologies can pose significant challenges, and we must remain vigilant to ensure new technologies don’t leave individuals with disabilities in their wake. We acted swiftly on the complaints we received from the NFB about the use of the Amazon Kindle at universities . . . .
I know this particular challenge is close to home for the NFB. Technology has revolutionized our economy and culture. It has made communicating, obtaining information, entertainment, education and goods easier and more efficient. But many of these technologies, from Web sites to cell phones, from ticket kiosks to TV set-top devices, are either in whole or in part inaccessible to persons who are blind and other people with disabilities.
And though we have seen some voluntary efforts by companies once the matter is brought to their attention, far too many companies choose to forgo what I believe must be a profitable investment in making their products and services accessible to all consumers. We have a population that is aging, and making products accessible will only increase their customer base. The technology to make electronics accessible exists, and is relatively affordable to implement.
Let me be clear. It is and has been the position of the Department of Justice since the late 1990s that Title III of the ADA applies to Web sites. We intend to issue regulations under our Title III authority in this regard to help companies comply with their obligations to provide equal access.
Companies that do not consider accessibility in their Web site or product development will come to regret that decision, because we intend to use every tool at our disposal to ensure that people with disabilities have equal access to technology and the worlds that technology opens up.
These are not the thoughts of a man anxious to work with the tech industry to encourage the logic of developing products and then extending them to the disabled. This is someone who would rather that something not exist than that it be differentially available. And this is someone who has never spent a day in a private business and whose idea of what is “affordable” is considerably different than the ideas of those who must actually invest and engineer.
So welcome to the real regulatory state, kid, where you must deal with an agency that would be perfectly content to see you disappear, and which is impervious to all argument not based on a particular moral vision. Who knows; Silicon Valley may have to move to Texas, which is contemplating open rebellion against federal regulatory power. .