2019 Digital Accessibility Trends – An Evening With Tim Springer, Level Access | Accessibility NYC Meetup Recap

TIM: So hi, I'm Tim. So initially this talk that you see was broken up into two chunks. I'll give only a very small part of the first chunk. The second chunk was given by this wonderful guy, Jonathan Avila.

I've been doing this for 20 years. This beautiful youthful face that you see... I just started doing this out of a dorm room in Stanford. So I've been on the entire journey.

I started a company, that company failed, I have resurrected that company, and I built it up with a team that (inaudible). So I've been doing the whole thing. I've had some cool stuff along the way. I worked with lots of organizations on it.

I got an award from the White House, which is kind of cool. So I've been in the business for a long time. Why am I useful to you? I know a lot about how the business of digital accessibility works and I know about how to implement that at a particular scale, and I understand how that intersects with what I would call the legal and regulatory environment.

So I am reasonably considered an expert in those three different regions, which is what is the business like in this space, how does that business work for customers, and (inaudible). I have slides that have an agenda associated with them and all of that. But I might go off-script and wander around. I would say 35 or 40 minutes of slides.

And then we'll just go into questions. I'm a huge fan of taking questions as they come, as they pop into your mind. You can raise your hand.

JOLY: You're better off using the wireless mic. Which is over there.

TIM: If you decide to yell, I will repeat the question.

TIM: So just talking about the market that we are in, as digital accessibility experts, and how that plays out over the course of 20, 30, 40, 50 years. Let's focus on the legal environment, so we get a little bit of a sense of what is driving the market in the short term. Why we care about digital accessibility. Not just because it's a good thing but because there are legal matters associated with that.

And I'll talk a little bit about market access and a little bit on program maturity. Does that make sense? Cool. So let's go in a totally different direction.

Let's have a little exercise. Take your cell phone. Hold it up in the air. Do you not have a cell phone?

(inaudible) take your cell phone and hand it to the person next to you. If you're at the end of a row, hand it to the person behind you. Just get rid of your cell phone. (inaudible) (laughter) So the person holding the cell phone...

How do you feel holding somebody else's cell phone? Is that weird? Complicated? It's a little out there.

And... How do you feel that someone else is holding your cell phone? I think it's a little weird too. That's good.

Just a little exercise. If we keep doing this for five minutes... How awkward will this be? It will feel really bad.

When I've got something that's yours, I shouldn't have this. This is a key part of your life. How do you feel if I take your cell phone away? What if I threw it out the window?

(inaudible) so I'll hand your cell phone back. So a super simple illustration. Technology is important. And very, very fundamental.

What we would tell you is that technology is important in your life. Access to technology is critical. And ultimately, there are three things you try in life. (inaudible).

Earnings. Can you make a living? Can you do something that's productive? Learning?

Can you educate yourself? (inaudible) those three things, those fundamental -- I would say they're human rights -- those three things are critical, and they're constantly mediated by technology. They will be more mediated by technology for the rest of our lives. For the rest of our lives, these devices, computers, will play a bigger and bigger role in our life.

So the first thing I'll tell you is that we as an industry, the digital accessibility industry, we should challenge ourselves to something a little bit bigger than just digital accessibility. We should challenge ourselves to general access to technology. It's my belief that as an industry, we should say that access to technology is a fundamental right of human beings. Again, civil right, human right, and this is how we live.

And if you don't have access to technology, that is a profound negative course in your life. And in the same way that you do have access to technology -- it's a profoundly empowering force in your life. So tonight we should raise the discussion to generally say: In our industry, digital accessibility, access to technology is critical. And we should be intolerant of discrimination of any kind to access to technology.

We have chosen from a professional perspective to work in the area of access for people with disabilities. But fundamentally, we should take the stance that access to technology is important and we should try to ensure that it is available for all people. And ultimately, if you just back it up a touch and you wonder what is Level Access about and what are we trying to do, it's our goal -- at a fundamental level, you live your fullest life in today's society via access to technology.

You don't get to live up to your full potential without access to technology. You can argue that. But at a fundamental level, we think that's true. And if you think that's true, then the next step is: Where can we have the most impact?

And we believe the biggest impact you can have in this day and age, in particular based on where we're at as a company, as people, is via access to technology for people with disabilities. So that's the framework for what we do as a company. And ultimately what I would say... If that sounds interesting to you...

And that is something that you think makes sense, that's a good thing to join the Level Access team, digital accessibility, whatever you want. That's where you're working. Makes sense? Okay.

That's as abstract as I'm gonna get. Now I'm gonna get super detailed. So let's talk about the big picture. Why do we care about digital accessibility?

So we knew this hundreds of years ago. We're just brilliant smart folks. And you guys just caught up. But here's the deal: This industry will be a dominant industry for the rest of our professional careers.

I would argue for the rest of our life. And there are a variety of reasons for that. But at a fundamental level, what will continue to drive digital accessibility more or less for the rest of our lives is the fact that the demographic structure of the population is changing, and it is changing in a way that demands more accessibility (inaudible) technology resources. So you'll see a bunch of different trends on this.

There's a bunch of different data you can pull. But basically two things are happening. As a society, we are having less children and as a society, we are living longer. And this plays out the same way.

In developing economies, the developed world, it's more exacerbated in developing economy worlds. In Japan, it's further along in the process. You can actually see an aged economy. But basically the punchline is: More and more of the population will be older on average and more and more that population will actually use technology as a critical and core part of their day-to-day life.

There's also the fact that that chunk of the population actually votes at a higher rate than the rest of the population. These trends are unlikely to change in the next 30 to 50 years. So you will see more of the population get older. The reason you care about that is there is an almost perfect correlation between age and the incidence rate of disability.

So as we all get older, on average, we have more disabilities. As a portion of the population. You can see as we get older, it crosses a point where it's over 50% of the population. Interestingly enough, there's also a subpoint in this, which is to say that: People that get older will also not necessarily identify as individuals with disabilities, but will definitely use accessibility features of technology.

As an example, my parents would not say: I have disability. They would not self-identify to that. But they certainly use accessibility features on their phone. When they yell at their phone.

Siri, God damn it! Those are all features of accessibility. So those societal trends will not change. And will continue to drive us for the rest of our careers.

So good job. If we think a little bit further, in terms of... Where is the population at? There is a demand for digital experiences that has continued to grow on a generational basis.

So I'm barely in Gen X. I'm kind of in Gen Y. And you can see the density of screens continues to increase across all of those different generations. Particularly when you look at Generation Z, also called Millennials.

Probably the more common term. Mediated by screens from the time they get up, throughout the rest of their life. Within five minutes of waking up, they've got a screen in front of them and they're using it. I'm speaking in the third person here.

But second person... You (inaudible). More and more, though, people are actually using screens interactively. All those things are mediated by screens.

So the question from a Gen X perspective, the question from a Gen Y perspective... Are we mediated by screens? How does it work? Digital natives, those ahead of us from a generational perspective, it's all screens.

And if you don't have access to technology, you're totally shut out from this. First you're shut out from belonging, from societal interactions. And you're also shut out from earning opportunities and learning opportunities. And (inaudible).

We could argue about that. But that's (inaudible). So they expect technology to work -- it works all the time. It works across multiple devices.

And should be accessible or usable in all of the different spheres of life. Another big long-term trend we see is that commerce in general is no longer tied to any one physical location. So the era when I went to a store and I purchased something is basically dead. Already about 10-plus percent of retail commerce is online.

You'll see some data I'm quoting. It's about 9%. Some data quoting this as high as 13%. It's the same data.

It's just what you pull out for retail spending versus (inaudible). It's sort of irrelevant, which is to say: You continuously see more and more spending going online, and the criticality of being able to buy things online -- we'll talk about that later on when we talk about price differences online and off -- but essentially you're spending your money online. We expect to be able to spend money online. We also expect that experience to be integrated with the technology that you have.

You take it for granted that now you can walk into Starbucks and you can charge your Starbucks on your phone and that's an integrated experience. You take it for granted that there's geofencing on your phone that tells you that you should go in. And so the point here that's particularly critical from a legal perspective is: The physical experience is tied to the digital experience in an inextricable way. It's very difficult to experience (inaudible) as a consumer who is consuming business services.

And it has some material impacts when we think about the legal implications. Which is to say: It is inextricable, the online experience from the physical experience of the store. Because all of these things are driven more toward omnichannel commerce. The trend for omnichannel commerce, the combination of digital and physical experience, is unlikely to change.

And that actually has a legal implication. Make sense at all? Interestingly enough, I have a question down here that you can't see, which is: More and more mobile experience is tied into shopping. So one of the questions we ask on the slide is: (inaudible) this was an abstract theoretical question about a month ago.

And it's no longer an abstract question. They actually did it. So this one is particularly fascinating. If you say that an in-store physical experience that is accessible to people with disabilities is enough and an online experience is not needed, that assumes there's a correlation between the two experiences.

That a person with disabilities can access the website and go into a store and has a reasonable correlation of experiences. Just... That argument has been made. So one of the interesting questions is...

Cool. Let's buy for a second that that's a similar experience. Is that actually economically the same experience? One of the fascinating things that the data actually tells you is that...

That is actually not economically the same experience. That if you don't have access to online stores, you're at a pricing disadvantage. Another way to say that is: If you are forced to go to a physical store to buy goods, on average you will pay about 2% more than you would if you're actually in an online store. So it's basically...

Consumer prices for products, and what you're seeing is offline products. Dropped about 1%. From 2016 to 2018. Online products had dropped 3%.

This is on an inflation basis. Which tells you that online stores are cheaper or their prices are decreasing faster than offline physical stories. The thesis is that there is more competition online. I wouldn't buy that thesis.

It's hard to tease apart causality on that. But what we do know is that because there is more competition online, pricing pressure is greater online and it tends to drag down prices faster. So you ask the question: If you don't have access to online stores, are you economically disadvantaged? And generally the answer to that question, from the data, is yes.

Make sense? I'm a big data person, so that's it. Cool data from this Adobe report. (inaudible).

One of the cool things we see is accessible interactive games. I won't get as deeply into this. How many people are huge fans of (inaudible) here? SEC (inaudible) a chunk of legislation called the (inaudible).

If you've heard of it, good for you. If you haven't heard of it, there's absolutely no shame in that. It is such a deep in the weeds chunk of requirements. And it will have such a positive impact on the accessibility of technology that you will never know.

Basically this law and this set of regulations associated with it governs any human-human interaction over the internet. Our live stream would fall under this right now because I'm communicating with people over the internet. One of the things that's covered in this is video games. So if you're playing video games online and you can chat with your friends, that is covered under the CVAA and needs to be accessible.

So the video game industry had exemptions to this for about three years. This exemption ended. So now you see video games becoming accessible. Basically the reasoning for that...

The chat featured in the video game needs to be accessible, and (inaudible). The reason this is interesting is just the sheer number of people that play video games is ridiculous. Like, well over half of the US population uses video games. Some absurd amount of the population actually uses console games.

So there's a good argument that video games will be one of the most accessible platforms available for people to access technology. Just societally, a lot of people interact through games. And this is actually an organization... Able Gamers...

I want to hang out with my friends online in games. And he's like... If you have a disability, you can't do that. It sucked.

That's terrible! You're right! So interestingly enough, that's also fitting into the societal framework that we have now. So cool stuff with accessible Interactive games.

The nature of regulatory oversight for technology is kind of shifting. Over the last 20, 25-plus years, the regulatory view has been: Technology is inherently good. Let technology companies run and do their own thing. We're seeing that shift now.

We're already seeing it shift in the EU, where there is much more skepticism of control of information by particularly large technology firms. My instinct is that we'll probably see that in the US, though probably not so much. That trend tends to align with accessibility legislation. It doesn't seem unreasonable to say that if we're gonna hold large technology firms accountable for the use of our personal information, we should also hold them accountable for the degree of access they provide for people with disabilities.

So we're interested to see where that goes. More interesting to us is that the nature of work is shifting as well. How many people in here do part-time work or contract as a primary living? We're actually below the average population.

Right now 56.7 million Americans do freelance work. More and more we don't as a society -- particularly in America -- we don't necessarily buy that we're gonna work at the same place 40 hours a week. People more and more cobble their careers together and do various different things. And what's interesting is they access these opportunities through technology.

And so when they go in, they figure out... How am I gonna get my next contract... If you're a driver, you're like... Hey.

I'm in an Uber. I'm Lyft. So this fascinating spread of... People want more access.

Transactional work environments. And is that transactional work environment accessible? If it's not accessible -- almost definitionally, you are excluding people from opportunity. We can have a robust debate about whether or not they're employment opportunities or contracting opportunities, but moving that aside, the idea is your work is more and more mediated by digital platforms, and we want to make sure that those digital platforms provide access to individuals with disabilities.

Now, ultimately learning is also changing. So the way that you learn is more and more bite-sized. It's more and more video-based. And it's more and more self-directed.

And this is particularly prevalent if you're actually self-employed. So this concept that you're gonna go and get a four-year degree and you're gonna stay in college and do all these things... That still happens. But less and less is education about that.

More and more education is self-directed, online, and driven by platforms that you have access to. So we're talking about earning in the last one. This is about learning. Just the idea of...

If I don't have access to those platforms, how am I gonna be able to learn? (inaudible) so let's talk about the legal environment and what's actually happening with the law right now. So you heard a widely quoted statistic that there are at least 2,258 digital accessibility cases filed in 2018. That statistic is from a website -- basically what they've done is they've profiled cases that have filed under the ADA in federal court.

And that's where they got that actual number. They do that via PACER. So it's a pretty big number. That number is also growing at a ridiculous rate.

MIRABAI: Perfect audio! Keep that, please!!!

TIM: The state of the law is that you get different judges in different cases and you get different rulings. You don't really have a ton of precedent. There's potential we'll get more precedent on the Domino's case we'll talk about in a bit. But basically 99.9% of these cases settle.

Very few actually go to trial, so you don't actually have a lot of case law relative to the number of cases. The precursor to lawsuits, the number that's posted here -- demand letters or threats of litigation -- those are not publicly available, so there's probably a significant multiplier on top of this. I would guess it's probably 4 or 5x. So there's probably 10,000 actions in this.

Which is to say there is a material number of actions driving enforcement in this space. We're starting to get some appellate decisions, but that's quite early. I'm not an attorney. This is from someone who is a technical expert in this space and has read these decisions.

These were prepped by attorneys. But I cannot and have no desire to do so. So there's a case called Robles versus Domino's Pizza. Basically Robles says: Look, your website and your mobile apps are not accessible.

And the punchline on that says: Domino's says you can't actually sue us, because the DOJ has not made specific regulations for this. The district court, which is the lowest court, dismisses it. It goes up to the circuit court, and the circuit court is like... This is ridiculous.

Just because we don't have regulations doesn't mean the law doesn't apply. We as a court are perfectly capable of making a determination in these areas of ambiguity. That is in fact what courts do. So we're happy to say that this law in fact applies and pushes it back down to the district court to figure out what is actually going on in the case.

This is actually probably gonna get appealed to the Supreme Court. Which would be fascinating, to see if the Supreme Court actually takes it, and if they do, what the rendering on it is. What is interesting is: The takeaway, as it currently stands in the law: The ADA applies, even if there aren't regulations that have been issued by the DOJ. There's a slightly more subtle version of this, which we'll talk about in a second.

About... Let me see if I have a slide on it. We'll talk about it here. The implication of WCAG on these things.

A couple of other interesting decisions in the 11 Circuit Court, Florida, Alabama, and Georgia. This is Haynes versus Hooters of America. It's that Hooters. It's true.

And the plaintiff actually sued him. The punchline here is basically: They dismissed this Hooters case in the District Court because they had said: Hooters is getting sued. They have settled another case that is a web accessibility case. It came up to the district court.

Hooters argued: Like, we settled this thing. You can't hold us accountable for another lawsuit because we already settled one. The district court is like... That doesn't make sense.

A, this settlement can't be enforced by this other plaintiff, and B, we don't really know what that settlement is. It's a private settlement. So allow the case to go forward. Basically the punchline for that is: If you get sued once and you settle it has no bearing on whether or not you're gonna get sued again.

Interestingly enough, the data has now grown to support this. We see multiple clients being sued multiple times, and lawsuits are kind of the final point in issues relating to digital accessibility. So that's Haynes versus Hooters of America. Haynes versus Dunkins LLC, the exact same plaintiff -- this is interesting, because we got a ruling that said that the physical Dunkins store and the digital Dunkins stores don't have to be intersected for the ADA to apply.

That is a concept called Nexus, which is a huge consideration in how the ADA actually works and how the different circuits rule in association with that. But that wasn't a published decision, so it's sort of irrelevant. So Haynes would be... Yeah.

The question was: Who is Haynes, and why are they suing multiple people? Haynes is what would be characterized, rightly or wrongly, as a serial plaintiff. Essentially, Haynes would be named as a plaintiff in multiple lawsuits. And then those lawsuits are filed.

Make sense? Rightly or wrongly. Let's worry about the ethics of this later. So the accessibility of video is governed by both the CVAA and the ADA.

And essentially the judge said the plaintiff can choose which one of these they want to pursue legal action under. So way back in 2016, they said: You've got to make your websites accessible. We, the Department of Transportation, are defining accessibility after a structured process as WCAG and AA conformant... There's a little more subtlety to that, in terms of the website and when they're covered...

But basically they said you've got to be AA compliant. So SAS, Scandinavian Airline System, goes out and buys a solution to create an alternative website. They buy a solution from a competing company. We won't say which one.

So they go out and buy this solution and they deploy it. And it has... So imagine the website and the website has alternate site or assistive site. You click on that and go to this site.

You could argue on that a lot. I would argue it's not an accessible experience. I think the regulations would support me on that, but you can argue it anyway. But SAS said we're gonna do it and the vendor said it was okay.

So basically what happened here is the Department of Transportation came back after they received some complaints and they were like... No, you can't do that. You can't create an alternative site. You have to make the primary site accessible.

And because you went and made an alternative site, we're gonna fine you $100,000 now. You have a year to fix it. And if you don't fix it in a year, we're gonna fine you another $100,000 for your trouble. So the first thing is: Don't build a separate site.

It's not true. It doesn't actually work. And it's not accessible. The second is: If you have a firm that comes to you and is in the business of building alternative sites and they're like...

This alternative site is perfect. It will solve all of your legal needs and make you fully compliant... You should be skeptical of these claims. They may not be true.

They are probably not in the best interest of you. There's a bunch of theory that backs this up. Both from the domain space of digital accessibility, as well as from the legal space as well. What's interesting in this -- this is the first time a US federal government agency has gone on record on that and actually issued a specific ruling.

Does not apply to the ADA. This is not an ADA case, so it's not necessarily binding law, but it's from a legitimate promulgation, from an agency that is tasked with this sort of regulation. So outside of that, what do we see on the front for legislative and regulatory changes? To be honest, not much.

There was a push to refine components of the ADA. There was an ADA education and reform act of 2017. It was House Bill 620, HR 620. We predicted it would go nowhere and would die in the Senate.

It went nowhere. It died in the Senate. So yay, we got that one right. Congress isn't gonna pass anything to actually change the ADA any time soon.

We think that's really, really unlikely. To get anything passed through both houses. Especially something that takes away rights rather than grants new rights. We do see some chipping away at that, at the state level.

But these are particularly with state level requirements. They can't actually impact federal requirements. And we actually see some states going more restrictive, some states going a little bit more aggressive as well. Generally the trend is generally towards more restriction in terms of filing lawsuits at the state level, but most of the lawsuits are filed federally as well.

The punchline for us is... You're probably really not gonna see any changes at the federal level. Big game changers could be different rulings out of the Supreme Court. If the Supreme Court takes up one of these cases first and rules in a particular way, we may see something with material changes, but that's probably not gonna happen any time soon.

With that said, what's interesting to me is always that the DOJ always keeps saying... The ADA applies to websites. They have been consistent on this point through multiple different administrations. So they actually said this in the Bush administration, they said it in the Obama Administration, and they've said it in the Trump administration.

Which people may find shocking, but the DOJ has been very consistent that the ADA in fact applies to websites. And they have said this in an official capacity. Most recently they said this under the current administration in a letter to Congress. Stating that the DOJ continues to feel that Title III applies to websites.

With that said, the chance that you're gonna get a regulation from the DOJ is about 0%. So that's not gonna happen. DOJ wrote this letter to Congress and they basically... Congress was like...

DOJ, why don't you make regulations? DOJ is like: Congress, why don't you make a law? It was like siblings arguing. It was great.

Outside of that, you're probably not gonna see any DOJ enforcement. In the Obama Administration, DOJ did aggressively enforce certain marquee cases in the area of digital accessibility. We have not seen that in the Trump administration. We have seen continuing enforcement of the settlements they have in place.

It's not like they've abandoned the settlements. They've continued to see them through but they're not aggressively pursuing legislation. We see that at the state, federal, and local level as well. We talk about WCAG 2.1 later, if people ask about that.

Right now, legal standard -- that's kind of in air quotes. There's no regulatory standard there. Tends to be 2.0. We do not see plaintiffs' attorneys pushing for 2.1.

We see some leading plaintiffs' attorneys pushing for that. So we expect the market will shift to 2.1, but the market has not shifted yet. Right now if you're looking for a standard to adopt, it's still 2.0. With that said, there are material reasons why you would go ahead and move to 2.1, as you future-proof yourself, but you're not gonna be forced to do that by an extra party at this point.

So we talked about some of the lawsuits in enforcement. And the growth associated with these lawsuits. Our argument to you and our thesis is that this enforcement is going to continue to grow. Doesn't matter if you think it's good, doesn't matter if you think it's bad.

We think it's gonna continue to grow, just as a neutral statement there. So essentially what we saw was 210% increase in 2017. We were like... There's no way that can continue.

And it increased 177% in 2018. So our hunch is that it will continue to grow at a pretty aggressive rate and that you will continue to see more and more litigation in this space. The reason that we think that is the case is ultimately a supply and demand calculation. And so this is our data.

This is not Shah's data. But basically if you look at the top 20 plaintiff firms that are out there, those plaintiff firms accounted for 87% of all of the lawsuits that were filed. So 20 firms accounted for 80% of the 2,258 lawsuits that were out there. There are potentially hundreds of firms that can file lawsuits in this space.

So if you think of lawsuits as a supply, the supply of the lawsuits is unlikely to be tapped out at any time soon. And we see a huge number of lawsuits and a small number of firms, so the logical thesis is... If that number of lawsuits expands to the rest of the firms, on average, how many will we get? And the answer is: A lot more than we have now.

Now, one ethical side note here, and this is Tim Springer talking, not Level Access talking. I don't know if you think these lawsuits are good things or bad suits. People say they're trolls, they're terrible, they're drive-by lawsuits, there are people saying they're bad, people say they're doing these as an advocacy perspective. They're good.

I don't know if they're good or bad. I can tell you they're here. I can also tell you I've been in this business for 20 years, and this issue is a thousand times more prevalent now because of the lawsuits. So I don't know if they're good or bad ways to drive societal change, but I can tell you, as a totally neutral fact, this is changing the discussion in digital accessibility.

So whether or not you think they're good or bad, I can tell you it has changed things and it has drastically increased the level of awareness that we have of digital accessibility at the industry level. So that's great. Tim, how do I avoid these lawsuits? So the first thing you do is you get an analytics package like Access Analytics, or a scanning tool like AMP.

Those are both products that we manufacture, if you don't know. Basically the way these lawsuits mechanically work is you have a plaintiffs' firm. They pick an industry. They go through everyone in the industry.

Almost literally. From A to Z. They run a scanning tool like AMP, which is a tool that we manufacture. But it's basically a tool that goes out and scans the web pages.

Finds technical errors with accessibility. Which I would say are syntax errors of accessibility. They take that data. They stick it in what is called a demand letter, and then they send it to you.

And then they see what happens. And if you respond, they negotiate and settle with you. For a couple thousand bucks. And if you don't respond, they go to the court and they file a lawsuit.

And then they wait for you to respond, because the chances that you will settle that lawsuit are 99.9%. Because it makes no sense for you to litigate it. The reason it makes no sense for you to litigate it is if you haven't materially invested in digital accessibility, you are probably inaccessible, just as a general factual statement independent of any website. So the point that I would give you here is that: Whether or not you think automated scanning tools are good and are a key part of the accessibility life cycle, I would argue pretty strongly they are, and they are actually quite useful: That is what drives a lot of litigation.

And so one of the key things you want to do is make sure that your website scans cleanly. That if we were to run an automated testing tool on it, it has a minimum number of violations and we've addressed those violations in an appropriate fashion throughout our software development cycle. Then the question becomes: Okay. Where are these lawsuits happening?

What chunks of the industry? This is the smallest print that I could possibly fit on this page. Thankfully you can download these slides. The punchline here is pretty simple: If it has to do with consumers and it has to do with a physical location, it has high risk.

So all of the industries we see with a lot of digital accessibility litigation basically fit that profile. And the combination of that profile is particularly litigious. So the retail industry is the number one space. Because that has to do with general consumers.

And it has to do with physical locations. And basically from a legal perspective and from an overarching sort of risk perspective, those are broadly intertwined. In the same vein, electronics manufacturers do not face as much risk, because they're manufacturing electronics in a warehouse in wherever the heck. So not a physical location, et cetera.

But the places that sell those electronics are actually quite liable. So that is a drastic oversimplification of where we actually see the data coming out. This would be... Let's see.

We probably pulled this data back in January for the trailing 6-month period. So the first question was: When did we pull the data from? And the answer to that was we pulled it from basically January back about 6 months.

Testing. One, two. Okay. Is that...

Is the reason for the association with the physical place due to that nexus issue?

TIM: I would argue it is.

Which can potentially change over time, to the point that you brought up earlier?

TIM: I would argue it is. The question is: Is it about the nexus issue, the combination of the digital store and the physical footprint? The tighter that combination is, to oversimplify, the stronger the law arguments are that you have to comply, and I would argue yes. They're easy targets in a lot of different jurisdictions.

What happens if you get a demand but you have already... You're already working with a vendor to make your site accessible?

TIM: You get to settle another lawsuit, potentially! It doesn't matter. So it really comes down to the plaintiff. And then the level of accessibility that you have on the site.

So you basically have two options. Again, this is a great question for an attorney. So I'm just giving you kind of my cheap seats view. But essentially the calculus most customers have is...

If the site itself is not accessible, independent of whether or not you're working with someone, the site is not accessible. That is a fact of the situation. And so ultimately, there is arguably a good claim to say that you are not providing effective communication through that website for people with disabilities. And that's what the facts would turn on.

And so you have the option of saying: Well, look. We're working with someone else, but the fact is, it's still non-accessible. And so generally most people in that situation would settle. Now, whether or not you want to fight it out, et cetera, is open to discussion.

But broadly, if you go back to the case we were referencing before, the stance that just because you settled another one doesn't mean you're protected... Kind of applies there as well. But it doesn't matter. 'til it's actually accessible, I would say you probably don't fight the situation.

Okay? A couple other takeaways I would give you here. Multiple lawsuits or demand letters against a single organization -- that's common and you should expect that to be more of the case going forward. So if you work for a large organization, that has a relatively well known brand, you will be hit multiple times in a year in the relatively near future if you're not already.

We have multiple organizations that have settled not one, not two, but five to six of these, and larger companies settle these as a matter of course. You can defend yourself, but ultimately, you have to defend yourselves on the facts. That's a difficult thing. And you have to spend money to defend yourself.

So broader discussion about what you want to do: Factually, I can tell you, the data indicates this is not going away and you should expect it to get materially worse, and the absence of a regulation doesn't give you any definition of safe harbor. Your only safe harbor is this definition of effective communication, which we can talk about, if you want. We have seen leading multibrand entities being targeted multiple times as well.

Which is nothing more complicated than to say: If you own ten companies and ten separate brands and one holding company, you have ten points of risk, not one point of risk. So your legal structure is irrelevant. It's the number of things exposed to the consumer that drives the risk. We have clients with 155 brands.

They have 155 points of risk. Not one point of risk. One thing I would flag to you is: Expertise does in fact count in this space. GNC recently lost a case I guess...

If you could say that... But basically had the testimony of their expert thrown out, because their expert was not actually an expert in digital accessibility. They were an expert in IT, which... I don't really ever know what IT means.

But basically if you go into court, you actually have to have a person that knows what they're talking about. I would also counsel you to have a person that understands how to speak attorney. Because the relationship between the attorney and the technical expert is particularly critical in these cases. Especially as the law is still developing.

One final point we'll give you on this one, which is: ADA title I litigation. It covers employment. There's a couple of lawsuits here, but the most interesting one was recently in Massachusetts. And basically the NFB sued a software provider, and they basically said: You're a software provider selling stuff that isn't fully accessible in the NFB's view, and because you're selling this software and people are using it as part of their job, you are liable.

Normally the argument would be: I work for a company, and the company bought software that's inaccessible, so the company has to make it accessible. The company have a liability. The NFB constructed this particular argument in a way where they could actually argue against the end software provider. So it will be interesting to see how that one plays out.

It's a bit of a long shot. But it kind of gets you to another point where we think over the next 20, 30 years, you'll actually see things growing, which is: Does digital accessibility go from just sort of consumer-facing general use and actually really penetrate into employment as well? Which we think has a particularly big potential impact.

So would you say that the impetus for companies to make their websites more accessible is driven by... I don't want to get sued? Or I got 20 million customers I want to access?

TIM: I don't know. I'm on the live stream. I don't know how candid I should be. Here's the deal.

Companies initiate budget to deal with digital accessibility because they have been sued or because they can't sell their product. Hard stop. So like... It is very difficult to argue for budget based on...

Access to potential incremental spending dollars. I do think there are incremental spending dollars there. I think we as an industry have done a really bad job of arguing that point, because we've argued it from our hearts, not our head. And we can have a robust discussion about this later on, but basically our arguments are not credible, is really what it comes down to.

What is credible is I got sued in a lawsuit and I don't want to get sued again, because I have to talk to my CEO and it's a pain in the ass. I don't want to deal with that. So our experience is that budget and change is allocated based on response to legal risk or market risk, which is an inability to sell your product. Really important caveat.

The organizations that do this really well accept that and accept the fact that they want to do it because it is good for their users. And they hold both of these seemingly in contrast truths to both be true at the same time. So organizations that really do well in digital accessibility do in fact do it because it is good for the people that they serve. And they think it is fundamentally aligned with who they want to be as an organization.

And they recognize that they have to do it from a regulatory perspective. My general view is that when either of those things get out of balance, you actually don't get as good results. If you have people that say: Oh, we're doing it for the good of the world and it's great... Once some hard sort of budget thing comes down, the budget gets cut.

If you have organizations that just do it for the legal component, they tend to not really realize their potential. But organizations that are actually fairly self-actualized in doing it do it pretty well. So budget initiation is from legal or market risk, but really the organizations that do it well... They really do it because they want to do it and want to do something that's good for their users, but they also understand the business implications.

So... Slightly longer answer.

So I remember when social media came along, nobody wanted to invest in social media because of the -- all the CEOs believed that... Whatever. They didn't want to adopt that social media. Now the ADA technology is very, very expensive, usually.

To have it, you need to adopt all the websites. Do you think this is kind of the same example, like how people take longer to adapt to... To adopt certain technologies? Somehow?

Despite the fact that people don't really care? Because it's more expensive?

TIM: So I'm gonna answer that question sort of in a roundabout fashion. Accessibility as a domain space, accessibility is probably most readily described like information security. And so if you think about the adoption curve of information security, over the last 20-plus years, that is probably what will play out in our industry, basically. And essentially it went from...

What's information security? To... Oh yeah. That sounds like a good idea.

To now it's like... Oh, if we don't get information security right, I'm gonna get fired, our stock price is gonna drop 10%... There are massive associated impacts with that. So the difference between that is: Social media is...

I would call that a revenue-generating driver. Which is: How do I grow the company more aggressively, or how do I expand the footprint of my product or how do I service more customers? How do I service more constituents? Whereas this is probably gonna be more driven by the actual fear component of it as well.

Again, I don't know if that's good or bad. I'm just telling you that's the psychology we see actually playing out in the marketplace. With that said, as a domain space, we do look a lot more like information security than we do necessarily like some of the more classic marketing things, because we do something that's super technical and esoteric at the end of the day. We're in the code of applications and there's multiple layers we have to impact.

I don't know if that answered your question. It's a bit of a riff.

We've got a question from the livestream. Aria.

TIM: Hi, Aria!

I think we're giving the industry the wrong measure by saying they should strive to "scan clean". The top scanners are 40% complete to WCAG 2.0 at best. They can still be unusable in real life to people with disabilities.

TIM: I strongly agree with Aria on this one. If I were to oversimplify Aria's argument, and you can yell online, and we'll go back there. Scanning clean, which I was saying is a first step in the area of defending yourself from litigation, does not mean you are accessible. All that means is you passed a spellchecker.

You can pass a spellchecker by writing a document that is incomprehensible and makes no sense. So as a rough corollary, think of it like that. Just because the words are spelled correctly doesn't mean it's a good or compelling thing you need to read. Accessibility is actually to make something that is a good and compelling thing to read.

This metaphor is gonna get a little stretched, but bear with me. Which is to say: Ultimately, scanning the site, scanning the code, is a step in the process, but you need to make sure that ultimately the site as a whole is usable. The app as a whole is usable to individuals with disabilities. And there are ways to measure that.

That does not need to be a qualitative measure. There are quantitative measures associated with that.

Hi. So for people who are... For groups or companies or departments who are doing their own service website and they did their due diligence to check technically... And also usability, whether they're accessible...

What is your opinion on accessibility statements that they put out? Does that cover everything? Or will that attract more problems?

TIM: So I would encourage you to put forward an accessibility statement that is relatively generic. And invites people to have a dialogue with you. And then I would encourage you to actually pay attention to that dialogue. So just covering that in three parts.

Relatively generic. You can try to make a claim about the level of technical standards that you conform to. There are so many ways to slice those claims. That it's like...

It's almost counterproductive, and there's no actual legal obligation to meet any particular claim. So I would go for the more general approach, which is what you want to do. We're striving to make our stuff accessible to people with disabilities. We've provided a degree of due diligence against relevant technical standards.

WCAG 2.0 tends to be -- you can do 2.1. Whatever you want. But ultimately, tell us if you have problems. And tell us if you have problems...

Invites a dialogue with the community. Where if people have problems, they should be able to communicate it back to you. The catch is: You have to listen if they have problems! So it sounds really, really stupid.

But the absolute burliest situations in digital accessibility come from people have a help line and they don't answer the help line. So they're like... If you have an accessibility issue, email us at accessibility... Whatever.

And people email them and it goes nowhere, and then the only recourse left for someone is litigation, which is insane for everybody. It doesn't make any sense. So that's a key thing. Invite communication.

From the population as a whole. But then you have to actually pay attention to it.

Do any of your clients actually use individuals with disabilities to test their sites? Because there's technical accessibility, and then there's accessibility. And I do website testing. I see it all the time.

Technically, it's fine. But it's still not accessible.

TIM: So hopefully all of our clients do. As part of our audit process. We offer that. I can give you a very long answer on that.

But the basic one is: We've got compliance broken out into two degrees. There's technical and functional compliance. Technical compliance is: Did you meet a coding standard, which is WCAG compliance, typically. And functional compliance is: Does it actually work for people with disabilities?

There are ways you can evaluate both. What happens is: On the maturity curve, organizations should go through technical conformance before they move on to functional conformance, and again, we can have a robust debate about that, if you want. But for a bunch of reasons on the development curve, that makes sense. But the problem is when they stall out there and they don't actually go to functional conformance.

The law requires functional conformance. We can debate that extensively, but that's basically what you've got to do. You have to be effective in communicating with individuals with disabilities, and if you don't, you fail that standard. Ultimately you have to get there.

There's a statistic on the slides, which is: Unfortunately only about 50% of organizations actually do testing with individuals with disabilities. Which I think we should be... Irate about. That's terrible.

And also doesn't make legal sense as well.

Tim, thank you for your presentation. What are the names of some of the other accessibility scanning tools that are out there?

TIM: So AMP is ours. And you can use Analytics as well. There's one by a product called DQ. Which is horrible.

It's terrible. It's broken all the time. You should never use it. And the other big one is probably Siteimprove, I would say.

They're another big one, I would say. And they do a couple different scanning tools. Yeah. If you're looking for scanning tools, I would tell you not to buy a scanning tool.

I would tell you to get an Analytics platform. And we can have a robust discussion about this. Scanning is a horrible technology. It is not a good way to monitor websites for accessibility.

You should move to an analytics platform. It gives you way more data that's way more effective. But we can talk about that separately. That's a good buy me a beer discussion.

I'll tell you all about Analytics.

Are you guys actually tracking or do you know anybody that's actually tracking which types of disabilities are becoming more prevalent as the population is getting older?

TIM: You actually can pull really good census bureau data on that. I don't know if the Census Bureau breaks it out by disability type. I feel like they do, though. No, they do.

I'm flashing back to the report. They do it based on modality types, though. Sensory and mobility. So it might not be super fine grained data.

But yeah, there is some data on that as well.

(inaudible)

TIM: You can infer that from the data. Yeah. They have cohorts.

I see people with more and more conditions of different types.

TIM: Yeah.

And so...

TIM: I believe they break it out that way. But I don't know. You have to look at it. I'm gonna say it's 2015 or 2016 Census Bureau Report on disability statistics that breaks it out and breaks it out based on different modalities.

There's a point where they won't break out the data too far, but I think it's covered on there.

Hi. I want to go back to the question about accessible web testing tools. I do web accessibility testing, and I also am totally blind, and my challenge out there is finding one of the scanning/analytics tools that is accessible to me using a screen reader. I just wanted to know if you knew of anyone out there in the livestream...

Know of any tools that are accessible to a tester that is using a screen reader.

TIM: You should use the Level Access Technology Stack! AMP! We have a variety of people on the staff at Level Access who are totally blind, partially blind, use screen readers. So not only do we test for that as part of the development process, but we would get lit up by our own internal testers if it was not accessible.

Obviously we can't release something that's inaccessible. So we have a lot of good data on that. If you want it.

THOMAS: I'm gonna comment, just as a third party to Tim, but for me, working with Tim's company, that was something that really did show up to me as a difference. If you know, I've worked a similarly long career in accessibility. And I do think that that was something immediately, working with his team, that there are people with all types of disabilities, they're contributing, and it does actually go to -- even thinking about this legally, and the discussions we've heard tonight -- definitely things that I learned from a lot of people on his team.

There are a lot of things that need to be done in technology that don't necessarily fall into the technical standard and the technical view. It does come down to, you know, people with disabilities being employed. People with disabilities giving feedback. People with disabilities having a voice.

And that is something that I totally got from working with his company. And it's something that was one of the reasons why I was like... Yeah. I really like working with them.

To the point of actually having people be able to use the tools with disabilities. That's completely something that so many companies miss. Right? To the question here of like...

Well, this should be something just like... Everything else needs to be accessible. It's like all of these tools need to be accessible. And that was something that I definitely saw there.

And also just honest. I think it's rare to see that.

TIM: This is OCR. So let's do that. Department of Education. So...

Sorry, just one question on this. Earlier. Department of Education, OCR, office of civil rights, an enforcement agency. To make a very long, complicated story short, the OCR enforces civil rights in the area of education.

They do that in primary education, secondary education, et cetera. There was a variety of different digital accessibility lawsuits -- sorry. Lawsuits is not the right word. Complaints that have been filed by an advocate named Marcie Lipsitt.

She had followed something like 2400. Basically what happened -- you'll see these complaints bounce up and down. The blue chart there, which is not the best, is the number of digital accessibility complaints. So essentially what happened is a bunch of these were filed, the Department of Education last year changed a rule that basically said: The Department of Education can dismiss any sort of complaint that comes for digital accessibility that has been filed by the same person more than once.

Sorry. Invert that. A complaint that has been filed by a person that has filed another complaint can be out of hand dismissed. I.e., if you file multiple complaints, the multiple filer rule, you're getting thrown out.

So they changed that rule. They threw out a ton of these different digital accessibility issues that were out there. The case database dropped. The National Federation of the Blind, I have to look it up...

A couple of different organizations... A few other ones actually sued, and they sued the Department of Education. You can't change the rules arbitrarily like that. You have to go through a structured process.

Which I think is the administrative procedures act. They're like... That's correct. You actually have to do it.

You can't just go through this and arbitrarily change the rules. So they reinstated the rule. So all of a sudden you saw the cases jump back up, basically. So we've been tracking that database.

The total final on all of that is... OCR enforcement dropped off materially at the beginning of the current administration. We don't know if they're gonna drag their feet on these, but at least the complaints will stay in there. So we expect you'll still see a bunch of actions from the office of civil rights enforcing things.

I can tell you that the number of settlements has continued to grow as well too.

Does that number include private institutions?

TIM: Private/public doesn't matter. Title II, Title III. They should have statutory oversight over both.

Is your product --

TIM: The best ever! Yeah, totally.

In addition, is it a scanning tool or analytic tool? How does it compare to aXe in terms of false positives?

TIM: Think about the universe of digital accessibility tools split into preproduction and production tools. Preproduction tools will scan, continuous integration environments, content management systems, things like that. Production tools monitor production websites. And those are analytics or scanning packages.

So Level Access and DQ will have similar products. On a preproduction side, aXe is a free Open Source tool. We have a freely available closed-ish sort of tool called Continuum which is there. So you can pick aXe, you can pick Continuum.

They're free. You can pick whatever you want. Testing coverage is gonna be similar. We can tell you why ours is better.

We have this analysis. Et cetera. You're gonna get 5% or 7% more coverage on it. I'll give you one comment on that in a second.

I'll say something horrible, but it's kind of funny, I think. That's on the preproduction side. On the production side, you have two options. Scanning tools, which are web spiders that go out and crawl around, and you have analytics, which is JavaScript that sits on a site and test for accessibility.

The JavaScript approach gives you way, way, way, way better data. And is a thousand times easier to deploy. The scanning tools are old. We have scanning tools.

You can buy them from us. You can buy them from DQ. We have, as of two years ago, have decided that we're not gonna invest in that anymore and have really focused in on the analytics tool. The analytics tool works across every time the page is loaded, across every device, across every browser, it is aware of the traffic you have, you don't have to upgrade scripts, it works across firewalls.

And you can take that data and put it in automated systems. But the point is that our tools are great and DQ's are terrible. Just kidding. We have a little bit more of an integrated stack.

All right. Thanks for everything. I'm a bit new to this space, and I think it was mentioned earlier just about the types of disabilities that are covered when it comes to scanning and when it comes to legislation around this. Can you explain just a bit about the nature of the different types?

I'm thinking kind of the differences between physical disabilities, being actually kind of partially blind or blind, compared to learning disabilities, and other types of psychological disabilities that impair your comprehension and other things like that. Of certain forms of information. Whether it's kind of... Dyslexia, where you switch letters around, and other types of solutions that target those types of disabilities.

I'm just kind of asking more generally about the space.

TIM: Yeah. So... Drastically oversimplifying... Drastically oversimplifying -- disability.

Impairment of a life function. You could argue it's major life function, minor life function. Whatever. Impairment of a life function is an easy way to define that.

Easy ways to classify disabilities -- and I'll tell you why that's totally impossible. Sensory disability, impairment of the five senses, mobility disability, impairment of motion, cognitive, impairment of the cognitive process, speech disability, impairment of the speech process, producing speech, generally speaking. With that said, people with disabilities are people. They're as infinitely varied and changed as all of us and the manner in which their abilities are different or modified or...

It's just always different. So the taxonomies can be useful, in terms of determining how you actually want to deploy technical solutions, but the one thing I would really strongly stress is: It's all about people at the end of the day, and can people do stuff? If people can do stuff, that's accessibility. So that's kind of how we split it out.

If you think about those broad taxonomies... Without getting too deep into the technical details, the technical standards have gone through a pretty solid process of looking at those different types of disabilities that are commonly prevalent and looking at the technology that is commonly prevalent and figuring out: What is a set of requirements that impacts the broadest set of users with disabilities? So if you look at the WCAG, the WCAG process is actually quite robust, in terms of determining what's in and what's not in and how that and how that factors out across various disability types.

Types of disabilities shifted them over time as well -- I think from an awareness perspective, I would say. Not from a population perspective. As an example, WCAG 2.1 has more more individuals with cognitive disabilities than was present in WCAG 2.0, and that was something they wanted to build in. Technical standards -- if you're starting at a base level, the technical standards have considered that stuff.

As you get to a more advanced and nuanced view of accessibility, you start to bring in user testing. You have users with various types of disabilities testing stuff and seeing if they can get done various different tasks on that. The only point I would put on is: There is a fascinating type of intersection between types of disabilities that you wouldn't think are correlated. People who are blind use screen readers and people with dyslexia use screen readers.

That may not be intuitive. One person has a complete visual context and one person does not, but the technology is totally the same and has as radical and positive an impact on people's lives. So we do see a lot of correlations or mergers, if you will, between those various different things, which gets you back to the technical standards that have kind of accounted for a lot of that.

Thank you.

TIM: It's about 8:15. You want to break?

Very close. One last one from our live stream. This is our last one. And it's Aria again!

Great. What about documents on these websites? What have you found about enforcement of accessibility on the PDFs and other formats? Just getting into other things than just web.

TIM: So enforcement of accessibility of digital documents -- it's a mess. It's virtually impossible. There are not great systems to do it. You can try to do it in a content management system.

It doesn't work particularly well. You can try to do it in postmarket products. There are postmarket products with varying degrees of success. You can try to do it in Adobe, varying degrees of success there.

There aren't really great solutions for that, and the problem that we sort of cite with digital documents -- we always call it the adjunct professor problem -- which is really to say: You have a website, but a website is not a standard, integral thing. I have hundreds of people that are posting content to this website. Potentially thousands. And those people barely know how to operate Microsoft Word, let alone how to make a Word document accessible.

So... It's a really, really difficult problem to try to get them to all make documents in a standardized fashion, let alone an accessible fashion. There is some stuff we do on the scanning side. Less so on the analytics side, that does scan documents for accessibility.

So there are good automated checkers out there, but the solution for automated document accessibility... They need to make the next great iteration. I was gonna say great leap forward and I was like... That's a terrible thing to say, Tim!

Don't say that! But they need a big leap forward in terms of the technical efficacy there. But mostly they're ad hoc solutions. There's not really a good consistent approach right now.

THOMAS: Great. All right. Let give Tim a round of applause. Thank you, Tim!

(applause) And again, thank you, everyone, for coming to the Meetup tonight. We'll be basically around here for probably the next 30 minutes. We definitely need to get out of here in about 30 minutes. But there is some time for Q and A and hanging out afterwards.

I really appreciate everyone coming out tonight. Again, I want to thank our sponsors. Level Access. CEO right here.

I want to thank sponsors Adobe, and I also want to thank the sponsors of Thoughtbot, which is the space that you're in tonight. So we will be having events in May and June. Stay tuned on the Meetup page, on the YouTube. Twitter.

We will post those announcements out, and as always, if anyone here in the room tonight is interested in presenting or has a community event that you would like announced out to the New York City community, you can message our group. You can get connected with our group. We also seek to help promote and make people in the city aware of other events that are going on in the city. Thank you, everyone, for coming tonight, and let's network!

(applause)