Regulations Would Improve the Tools That We Use and Awareness

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(upbeat orchestral music)

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- Hello, this is Digital Accessibility,

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The People Behind the Progress.

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I'm Joe Wilinski, the creator and host of this series,

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and as an accessibility professional myself,

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I find it very interesting as to how others

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have found their way into this profession.

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So let's meet one of those people right now

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and hear about their journey.

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(uplifting music)

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All right, well, here we go with another episode

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where I have the opportunity to chat

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with an accessibility practitioner,

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and today I am speaking with Ken Nakata.

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Hello, Ken, how are you today?

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- Oh, pretty good.

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It's an awesome day up here in Seattle.

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- Well, I'm in the Seattle area as well, actually,

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on Vashon Island,

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which is near Blink's Seattle headquarters.

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- Oh, okay, I'm over by the university

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and Children's Hospital.

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- All right, excellent.

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Well, I've had the opportunity

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to teach on that campus part-time for many years,

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so it's always, but of course,

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that hasn't happened for a while with the pandemic,

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but hopefully we'll get back to that again in the future.

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- Yeah, hopefully.

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- It's good to have the opportunity to chat with you,

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and, you know, a good place,

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always a good place to start is

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if you could just talk a little bit

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about the work that you're doing now.

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- Well, at this very moment,

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I'm working on helping a county government

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with their self-evaluation under Title II of the ADA,

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but that's a little different from what I normally do.

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Most of the time, on a typical day like today,

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I would be working in web accessibility

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and trying to help, typically a law firm,

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understand web accessibility

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when their client just suddenly got sued

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for having an inaccessible website.

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- And so is this

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your personal business?

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What are some of the things

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that typically go on for you with one of your clients?

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- Yeah, so my company is Converge Accessibility,

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and we're about two years old.

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We started right at the beginning of COVID,

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and my business partner, Jeff Singleton and I,

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have been doing this kind of work for the last however,

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have been doing this kind of work for, gosh,

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the last 15 years, I wanna say we've been working together.

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And for that work,

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we've mostly been doing web accessibility audits.

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We've been also doing things like mobile app accessibility,

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and sometimes we get into bigger-picture stuff.

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Like, we've helped a number of companies

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develop their global accessibility standards.

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If they're, say, one of these big companies like an HP

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or a Microsoft or a company like that,

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that has a lot of product teams around the world,

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we help them with their accessibility,

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although now they pretty much have it all in house,

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so they've got their processes pretty much locked down.

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We sometimes just get involved

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in some of these really bigger, more interesting projects

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because we have a, well, I think one of the things

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that makes us unique is that we have this perspective

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that combines my background from working

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at the Department of Justice,

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and that work was doing lots of law and policy

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together with my business partner

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who comes from the more technical side

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of working at Microsoft

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and part of the accessible technology group there.

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- Well, there's some things you mentioned

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that I definitely wanna follow up with,

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but right now I'd like to get into one of the things

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that we always talk about in this program,

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which is finding out how people ended up getting

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to where they are today.

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Accessibility, there's a lot of different paths

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where people find their way into it.

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So maybe reflect back on your own experiences

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of work life or lived life.

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Where did it start for you

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where you start to think about accessibility

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as something that was gonna be a big part of your life?

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- Well, it's all just pure serendipity in my case.

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So I don't have a disability,

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and actually in my family,

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no one in my family really has a disability.

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So the way in which this got started,

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and it's just the way in which my career developed,

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I was working at a law firm in 1992,

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and my friend says,

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"You've always wanted to be a Civil Rights attorney, right?"

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And I said, "Absolutely."

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And he told me, "Well, the ADA recently got passed

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and they are probably looking for attorneys down there."

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And so I made some inquiries.

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There was no job posting at the time,

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and I just thought, okay, this is something I wanna do,

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so I was very persistent

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in applying for a position,

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and sent constant writing samples,

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that's one of the things you have to do

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if you're an attorney, when you're applying for a job,

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and made connections to people.

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Well, I had some connections with people

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in the Civil Rights division at the Justice Department,

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and I ended up getting the job,

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and I think I was maybe the third or fourth attorney

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in the section, with this newly formed section,

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that at that time was called

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the Office on the Americans with Disabilities Act.

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And we were actually a sub office within one of the sections

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in the Justice Department

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in a kind of lousy building in Washington, DC,

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and we started there,

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and back then we did everything.

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We answered the phone lines, we did our investigations,

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we did all the litigation, we answered the policy letters,

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and we were coming up with, on a blank slate,

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all the policies for the country

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on the Americans with Disabilities Act.

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And eventually that section grew

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and became the Disability Rights Section,

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and then, I think, now it's, what, 50, maybe 75 attorneys.

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And it's obviously got a much bigger scope

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in terms of what they have to do,

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but it was really exciting back in those days,

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basically doing everything.

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So for the first half of my career,

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I was pretty much like one of the other attorneys

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and I did everything else,

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the things that everybody else did.

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After a few years, when Janet Reno came in,

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she said, "Well, we don't want attorneys

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answering the phone lines,"

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so they got a whole bunch of people to do that,

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and so I didn't have to do that,

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although I kind of missed doing that.

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And then during the second half of my career,

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Section 508 of the Rehab Act was amended,

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and that required that federal agencies had to make

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their technology accessible, and so I jumped at that.

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Nobody else wanted to do it

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and I was really surprised by that,

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but you gotta remember, attorneys are pretty much Luddites.

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They don't wanna deal with technology, and so I did.

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So I jumped at that and that led me to,

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actually, yeah, that's the thing I'm most known for.

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I had to do the surveys of the federal government,

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so I was surveying all the different agencies

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and the government about how they were managing

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their technology to make sure it was accessible.

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And I was leading this group

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of agency coordinators

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to try to develop best practices

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and try to make sure

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that the government's technology was accessible.

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And then I was also doing the stuff

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with trying to make the ADA policies aligned

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with the concepts of web accessibility.

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And then I left in 2004,

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and I became a consultant after that,

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and now I've just been mostly dealing with the stuff

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with web accessibility and digital accessibility

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that I had during the second half of my career,

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but every now and then I get into one of these projects

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where I do the stuff in my first half of my career,

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like the stuff that I'm doing for self-evaluation

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for a local government.

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- Well, you covered a lot of things there.

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Let me just go back a little bit

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because I find it really interesting

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just historically as well.

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So when you first got involved with the ADA,

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I mean, what was that like at the time?

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It must have seemed like

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there was just an enormous pool of things to look into.

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Like, how did you prioritize what the activities were

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that you would actually do in those early days?

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- Yeah, so back then it was really complaint driven.

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Under the ADA, an individual can file a private complaint

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with the Department of Justice,

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and we're supposed to go and look at it

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and investigate it, you know.

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And if there's discriminatory behavior by the respondent,

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then we're supposed to take corrective action

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and potentially litigate against them.

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And it's really a matter back then

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of responding to the complaints that are coming in.

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And back then, I used to work on a lot of new construction

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and alterations cases.

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So that's something that we don't really get into

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in the web accessibility world so much

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because, well, there's no teeth to the requirements,

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there's no teeth to the idea

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that you have to build your website to WCAG 2.1 and AA.

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Yes, that's what we tell people,

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but it's not specifically spelled out in the regulations.

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- It's different than building codes and things,

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which traditionally have been

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very much more prescriptive in the community.

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- Oh yeah, exactly, yeah.

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In the building, in the built environment,

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yeah, there's a very strict requirement

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that you have to comply

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with the Justice Department's standards

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on exactly what your building has to look like.

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And those are really easy cases, I think,

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because either, you know, either the,

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the doorway is, what, 32 inches wide or it's not,

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and if it isn't, then you get to sue about it.

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And so it was pretty easy bringing those cases back then,

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and we just got a lot of them,

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and obviously, they were a high priority for us,

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and I think that that was really important

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because it created this awareness in the business community

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that, "Oh my gosh, yeah,

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we really have to make sure that our new buildings

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and our alterations are accessible."

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So I think that was definitely a high priority

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in the very, very beginning, and then after that,

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it moved into other things,

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it moved into these more subtle forms of discrimination.

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- And I think, generally, oh, sorry.

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Yeah, I think, generally, then it kind of worked

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because over time we did get, you know,

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yeah, peers in the built out physical world

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that standards are fairly well adhered to,

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for the most part.

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- For the most part, yeah.

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There's still a surprising amount of construction out there

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that is inaccessible,

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but some of it is relatively minor violations

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and some of them are not.

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I was really surprised by some of the things I've seen

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over the years.

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- Well, then as you came into the Section 508 work,

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I guess that was contemporaneous

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with the work being done by the W3C,

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with the WCAG guidelines and things

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which helped to inform that,

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but what was that activity like early on,

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starting to formulate how to address digital accessibility?

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- Oh, that was just like starting with the ADA.

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It was writing on a whole new blank slate,

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and it's something exciting about doing that.

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There aren't that many opportunities

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that that kind of time

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just presents itself.

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You know, like, when the ADA was passed

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and people were struggling to figure things out,

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yes, we had the regulations out there,

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but there were so many things that were issues

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that had to be considered and questions that came up,

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and it was really exciting as an attorney

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to be working in that early stages of things.

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Once things have set,

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they're a little bit more boring.

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You just look up the answer and you make your argument,

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but when it's all new and you're coming up with guidance,

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you have to think about, well, gosh,

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is that really the right thing to do?

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Is that really too costly?

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Is that really going to achieve the end result

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that we want to achieve, which is trying to lower barriers

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or eliminate barriers for people with disabilities?

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And so there's a lot of thought

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that goes into that kind of balance, and that's fun.

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And so it was fun during the beginning of the ADA

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and it was fun during the beginning of 508, too.

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- Well, I think you mentioned that the Section 508 work

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was subject to more interpretation maybe

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than some of the legal requirements

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about the physical world.

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How did you approach those gray areas?

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What were the places where you identified

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that it was important to get involved,

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and then how did that kind of move into a legal framework?

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- Yeah, well, being a lawyer that knows,

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with a fair understanding of technology,

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does make this a lot easier.

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So I think of it as web accessibility

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ultimately comes down to a very simple ADA requirement,

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which is effective communication,

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and so the question then becomes, well, what does that mean?

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So in the ADA, well, we have certain ways in which,

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the technical assistance manuals

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that accompany the ADA regulations that were developed

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by the Justice Department,

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they give examples of things

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that public entities and places of public accommodation

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have to do in order to make sure

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that their information is accessible.

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So they have to provide sign language interpreters,

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they have to provide CART

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if they're doing, say, a public event,

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they have to make sure

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that written communications are accessible

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by providing them in alternate formats.

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And so when we think about web accessibility,

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well, what does that look like?

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And really,

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because a webpage

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is not a one-on-one kind of communication,

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we need to have a universal design standard

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for web accessibility that we can say

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these are the things you should design your website to,

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and conveniently, that happens to be WCAG.

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So we've got something that we can point to,

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and we've got a legal basis for saying it.

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We use the effective communication requirement to get there.

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And the way in which I've always said it is

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that WCAG is really a safe harbor right now

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because there's no regulation that says you have to do it.

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You have to just provide effective communication.

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But if every settlement agreement out there

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that's issued by the Justice Department that uses web,

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that involves web accessibility,

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always uses the WCAG standards as the standard

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that they're building to,

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and so if you are a web developer

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and you build to that,

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the Justice Department doesn't go higher than that,

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so it's effectively a safe harbor.

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- Well, then exploring that maybe a little bit more,

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if we could, when you're talking about it

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as a safe harbor with your clients,

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how does that manifest itself

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in terms of their strategy?

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Is it that they do things

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in a certain way that will, essentially,

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put them in that safe harbor?

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I'm assuming that a lot of the people that you work with

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don't really have an understanding,

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at least early on, of the technical underpinnings,

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and so how do they start to identify

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that they're starting to be in that safe place legally?

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- Oh yeah, so,

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well, I think that the way

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in which most consultants do this,

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most of the consultants that are in my space,

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we pretty much all follow the same basic methodology.

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It all comes down to trying to,

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we examine the website,

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and we usually have a client walk us through their website,

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and the goal there is to try to find the type of content

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that they're typically putting up on a webpage,

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'cause on a website, people tend not to experiment that much

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and just say, "Oh, I'm putting up a new webpage today.

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I think I'm gonna come up with some brand new content

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I've never placed on this webpage before.

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I'm gonna put up a new type of control,

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or I'm gonna put up a calendar date picker,

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or I'm gonna pick up a three-state checkbox

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because I can."

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People tend not to do that.

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People tend to use the same design motifs

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that they've always used.

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They tend to use, if I've used the tab control

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for displaying tabs and content and tabs,

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I'm probably gonna do that not just on one page.

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I'm probably gonna do it on a bunch of pages

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because it's just something that I'm used to

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and people are used to that,

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my visitors are used to seeing that.

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Or if I'm putting it on videos,

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I'm probably gonna make my videos

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probably pretty much looked the same,

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and so it's not that hard

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to try to get representative samples of the type

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of content that people typically put up on their page.

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And so you can take a site that's quite complex

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and really boil it down

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to just a couple of different pages

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that includes that type of content,

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and that also includes the templated content,

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like the headers and the footers, and the navigation panes,

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and things like that.

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And so that's basically what all of us consultants do.

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We try to take this e-commerce site, for instance,

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with tens of thousands of products and different pages

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and boil it down to about 25, maybe 30, maybe 50,

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if you're looking at the backend consumer,

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the login process for managing their accounts,

Speaker: 00:20:48

if you get into that, yeah, then it's a bunch more pages,

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but it really brings a site down

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to a very finite number of pages.

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Okay, once you identify the accessibility patterns

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that are problematic on that limited set,

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then the client can go and replicate that

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throughout the rest of their site,

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and so that makes it relatively easy.

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And for the time being, in a short term,

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that's really great because, well,

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as they're building out new content,

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chances are they're gonna still be using

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that same old designs,

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and so you can actually get a lot of traction,

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you can get a lot of mileage, not traction.

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You can get a lot of mileage out of that approach,

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and then you combine that with, you know,

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some automated testing,

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and maybe a periodic accessibility review,

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and yeah, you're pretty good.

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So until the next major design refresh comes along

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where all of a sudden

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you're starting from zero, essentially,

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when you bring out all new wire frames

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and just completely change the site, until that happens,

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you're pretty good for accessibility.

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So as long as you just keep doing that.

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So I think that that's really what,

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I think that's the way in which

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most of our clients approach it,

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and I think that that's the way, yeah,

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I think, in general, most people approach it

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if they wanna be thorough about it.

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- Do you get questions about,

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quote, unquote, "Certification?"

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I know I run into that a lot with organizations

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that aren't familiar with accessibility.

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They're kind of looking for something

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that maybe is the equivalent of a building code

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in the physical world,

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which applies some official

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stamp of approval.

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We don't really have that in the digital space.

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How do you handle those types of conversations

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and express the way for them to show

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that they're doing things in the right way?

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- Well, all lawyers are trained

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in how to avoid answers.

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No, okay, seriously though,

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the way in which I answer that is

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by just pointing to the W3C site itself and saying,

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there's a, I forgot what page it's at,

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but basically, in order to say

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that you are WCAG 2.0 or 2.1 A or AA compliant,

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you have to meet all of the requirements

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on all of your pages on a site,

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and on a typical client site that has thousands of pages,

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there's practically no way that anybody can say that.

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And I think that that's one of the major impetuses

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for, so-called, Silver, WCAG 3.0,

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is to come up with a more realistic, I suppose,

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certification, or not certification,

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a grading process for whether you're compliant

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or you're not compliant.

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I don't know whether I agree with that effort,

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but it is that really high bar that the W3C set

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in terms of every page has to fully comply

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with the standards, basically makes it impossible

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for anybody to say that they fully comply with the standards

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and that they meet that bar

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'cause websites are always changing.

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So that's what I tell them.

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- Well, maybe if we could move

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into kind of more free thinking

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about the past and future.

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You've been involved in this for a long time,

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kind of looking back on how things have evolved,

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do you have any thoughts about areas

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that you think, where, like, you're surprised

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that things have moved in a positive way

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as well as they have?

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And then the other side of it,

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are there some areas

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where you still see significant challenges

Speaker: 00:25:06

for bringing accessibility into the world?

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- Well, you know, it's no secret

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that I've been frustrated by the fact

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that the Justice Department, my old office,

Speaker: 00:25:17

hasn't issued a update to the Title III

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and Title II regulations for web accessibility.

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I think that that would go really long way

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to improving awareness, I think,

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and I think that if every business out there had something

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that they could definitely point to,

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then all the content management providers,

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the WordPresses of the world,

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or in the case of state and local government,

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CivicPluses of the world

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would have a much stronger incentive to make sure

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that they make it really easy

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to make really compliant webpages.

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So I think that the regulations would improve the tools

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that we use, it would improve the awareness,

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it would just make things just generally better.

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In the short term, it may increase the number of lawsuits,

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but I guess they could take care of that

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by building in a phase-in period.

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But for the fact that it's 20 years later

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and we're still talking about,

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20 years since I left,

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almost 20 years since I left the Justice Department

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and came up with the basic technical guidance

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for state and local governments,

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the fact that now they just issued new guidance

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that says exactly the same thing,

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so it says to me

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that really they haven't gotten anywhere on this.

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And then there's the explosion of lawsuits,

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which are just being fueled by the inaction

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and the vagueness of what Title III entities have to do,

Speaker: 00:26:56

so that's the big one.

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I think another thing,

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another opportunity that's coming up is

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that our society really hasn't still

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gotten to the point that the worlds of digital accessibility

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and the worlds of physical accessibility,

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built environment accessibility, have merged, so to speak.

Speaker: 00:27:26

Yeah, you go to these conferences

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on digital accessibility, like CSUN

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or Accessing Higher Ground,

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and you only hear barely mention a physical accessibility

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or traditional accessibility.

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You go to the ADA Symposium

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or any other traditional,

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built environment type of conference,

Speaker: 00:27:48

and you mention web and digital accessibility,

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and generally people's eyes glaze over

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and they have no idea what you're talking about,

Speaker: 00:27:57

and that's unfortunate

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because there's a much stronger framework

Speaker: 00:28:02

in terms of accomplishing things in that built environment,

Speaker: 00:28:07

and if they were to merge, then I think

Speaker: 00:28:10

that we'd end up having a lot better compliance.

Speaker: 00:28:14

Like, for instance, state and local governments

Speaker: 00:28:16

have to have a Title II coordinator who's responsible

Speaker: 00:28:19

for everything that that agency is doing

Speaker: 00:28:23

in terms of accessibility.

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It's kind of like the one-stop shop for accessibility,

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and that person is also responsible

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for overseeing the planning for accessibility,

Speaker: 00:28:36

and usually that doesn't include the website

Speaker: 00:28:39

or the digital communications, and that's really too bad

Speaker: 00:28:43

because if they were,

Speaker: 00:28:45

then they'd get extra budget for that

Speaker: 00:28:48

and they could plan much more intelligently for that.

Speaker: 00:28:53

And the fact that, as a consultant,

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I see a lot of RFPs that come out

Speaker: 00:28:59

from state and local governments,

Speaker: 00:29:02

and they come across my desk every day,

Speaker: 00:29:04

and I can't tell you how many RFPs I see

Speaker: 00:29:08

for website redesigns

Speaker: 00:29:10

that either don't mention accessibility,

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or if they do mention accessibility,

Speaker: 00:29:17

just have it as one little check off item

Speaker: 00:29:19

on a list of 30 other items, that says,

Speaker: 00:29:23

"Oh yeah, and by the way,

Speaker: 00:29:24

yeah, our website fully complies

Speaker: 00:29:26

with all these security requirements,

Speaker: 00:29:28

our website complies with all these privacy requirements.

Speaker: 00:29:31

We are not exporting technologies

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outside of territorial boundaries of the United States,"

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blah, blah, blah, blah, blah,

Speaker: 00:29:39

we don't beat up on puppies and little children,

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and, by the way, we fully meet WCAG 2.0,

Speaker: 00:29:47

and of course, a vendor is just gonna be, check.

Speaker: 00:29:49

He's just gonna be, like, barely paying attention

Speaker: 00:29:52

to the requirements and checking things off,

Speaker: 00:29:54

and so we all know what happens,

Speaker: 00:29:56

of course end up an inaccessible website.

Speaker: 00:30:00

- Well, I really appreciate those insights

Speaker: 00:30:04

that you just provided

Speaker: 00:30:07

as a look to the future,

Speaker: 00:30:08

and it was also really interesting to me

Speaker: 00:30:11

to learn about how some of the things move forward

Speaker: 00:30:16

in the Justice Department.

Speaker: 00:30:18

So thanks so much for taking the time

Speaker: 00:30:21

to share your knowledge and expertise with us.

Speaker: 00:30:24

- Yeah, thanks, and also,

Speaker: 00:30:27

one little thing I forgot to mention is,

Speaker: 00:30:30

supposedly, the Justice Department is coming up

Speaker: 00:30:33

with regulations next year on Title II

Speaker: 00:30:36

and web accessibility.

Speaker: 00:30:38

So when they do, definitely seek those,

Speaker: 00:30:43

seek that draft regulation out

Speaker: 00:30:47

because anybody can comment on a regulation

Speaker: 00:30:51

no matter who they are.

Speaker: 00:30:53

You don't have to be a person who's directly affected

Speaker: 00:30:56

by a regulation, and they wanna hear from you,

Speaker: 00:31:00

so they'll be hearing from me.

Speaker: 00:31:02

- That's a really good point as well.

Speaker: 00:31:04

So look for that sometime next year.

Speaker: 00:31:08

Well, thanks again, Ken,

Speaker: 00:31:10

and hopefully we can meet up

Speaker: 00:31:12

at one of those events that you'd mentioned

Speaker: 00:31:16

in a physical sense sometime.

Speaker: 00:31:18

- Yeah, hopefully, once COVID's over.

Speaker: 00:31:21

- All right, thanks a lot, bye bye.