Ken Nakata, Principal at Converge Accessibility.
Even if we could somehow wave a magic wand and make every website out there comply fully with WCAG 2.1 A and double A, that’s not good enough at the end of the day, because there’s still a lot of people left out in the cold.
Ken Nakata, Principal at Converge Accessibility and former trial attorney for the Department of Justice, has worked in accessibility for over 30 years.
John Michael Griffin, Publisher of Accessibility.com, speaks with Ken Nakata, Principal at Converge Accessibility.
Transcript for John Michael Griffin, Publisher of Accessibility.com, speaks with Ken Nakata, Principal at Converge Accessibility.
John: Okay. Ken, we finally uh, have uh, figured out the wonder of Zoom and here we are, face-to-face. Ken, your career distinguishes itself by not being disabled, but being an, uh, almost an apostle for disabilities. Uh, you’ve defended it, you have observed it, you have uh, been a part of groundbreaking, and you know, uh, all kinds of efforts to to uh bring justice, and disability to the right place; follow the intent of the laws that were put in place. One thing that you talk about all the time, going back to 1992, when you when you joined the DOJ, digital access is broken. That’s an important statement. And it brings you to, I think, if I have it correctly, it brings you to a position now where you are in pursuit of both clarity and awareness. That’s, that’s that’s got a certain obligation to it, but it also has a tremendous nobility to it. Uh. So, why don’t we start there? Why don’t we tell why don’t you tell us what your what’s on your mind when you generate that?
Ken: Sure. That’s easy. So, for several years now, I’ve felt that on the technological side, that the ideas and concepts around web accessibility and digital accessibility are not very well understood by people that are developers and designers. And we don’t make it very easy for them. So, we say things like WCAG is simple. And we can point to things very simple examples like, oh, yeah, look at this image that we put on a web page, and we put an alt attribute on that image, that’s simple enough. But when we really start going into the nuances of it, it becomes impossibly difficult. And WCAG and its structure makes this really difficult because it starts with very general statements, very high-level academic sounding statements and give and when it gets into the nuances, though, it becomes almost impossible to actually implement. So, there’s a there’s a real lack of clarity. For instance, like in 1.3.1, our [inaudible 00:02:43] regions and html5 uh, um, uh, region tags like banner, and bane, are they really required or not or are they not? Um, you know, WCAG says, well, it’s sufficient technique is you can do that, but doesn’t actually say you have to absolutely do that.
So, with that kind of loose guidance, it’s really hard to say to a developer, this is what you’ve got to do. Or if you’re designing a wireframe, this is the this is how you have to annotate your wireframe. We don’t -- We can’t give that kind of clear guidance. And also on the legal front, we we point to WCAG right now, but because we don’t know, because we can’t tell developers exactly what they have to do under that, they, as a consequence, businesses don’t have the guidance that they need. And DOJ isn’t going to say, well, hasn’t said yet, that WCAG has to be part of the new Title um, 3 ADA regulations. And so businesses just blow it off. So, legally, it’s uncertain, and technologically, it’s uncertain. And we could be doing a lot better job at adding clarity around that.
John: You know, as a as a 20-year attorney in the DOJ, you have a sort of a library reference that goes along way back. Is it worse now? Or better now? Or was it worse back when you first began to, to, you know, uh, to work for the DOJ on this?
Ken: I think it’s a lot better now. Yeah.
Ken: When I first started at DOJ gosh back in 1992 when the ADA first went into effect.
John: Yeah, right.
Ken: There were no accessible businesses really well, there were but there was really under it wasn’t really rigorously enforced. You could find things like accessible parking stalls and and ramps at the front of businesses but it was pretty much hit or miss. Back then you, you know, we all remember, well, most of us remember America from back then. I’m, maybe I’m just [laughs] revealing my age by saying that but back in back in 1990, yeah, we did have a lot of ramps out out in the public. But it was easier to find them in front of public buildings um, than it was in front of private sector buildings. But that legally makes sense because they had obligations under Section 504. But it’s definitely improved, and especially technologically. Oh my gosh, yeah. It’s remarkable.
John: Yeah, yeah. When something is broken, for businesses anyway, do you think that that the fact that there’s so many ambiguities in in everything that that uh, that’s part of the reason why businesses are so slow, or in some, cases flat out reluctant to say, I --I’m not getting involved? And, you know, I’ll go with this way it has to be until somebody knocks on my door and tells me I’m not in compliance.
Ken: Yeah, absolutely. [mmm] Yeah. And so like, for instance, in the, in architectural context and the built environment, I really don’t believe that. We’d have built, we have accessible buildings if it wasn’t part of -- if it wasn’t required of them. And that’s spelled out very clearly in the Title 3 ADA regulations that you have to build your buildings according to the ADA standards for Accessible Design.
Ken: Yeah. And we need that same sort of clarity, for digital accessibility. Otherwise, it’s not going anywhere. And I could tell people till I’m blue in the face that it’s really a safe harbor. And if you build the WCAG 2.1 A and double A, that the chances of you getting sued are really, really small. Um, and that part, that’s the standard private plaintiffs are ultimately going to hold you to anyways. We could say all those things, but businesses real-- realistically, businesses don’t have a strong incentive to go there until someone comes along and says, you have to do it.
John: Is there a solution?
Ken: Well, yeah. I mean, clearly, justice has to come up with those regulations. They’ve been prompted, and on the books since -- Well, they’ve been saying that they’ve been working on it since 2010, when the first draft ADA rule came out for web accessibility. But then that was delayed and they asked a lot of more questions. They, the rulemaking process as they came up with what they called a um, advance notice of proposed rulemaking, which basically says, we’re thinking about creating regulations in this area, what do you think? And the public has a lot of opportunities to say, well, they answered a question that the Justice Department asks, I think they asked about 100 different questions. And instead of -- the next step is usually we come up with a Notice of Proposed Rulemaking, which is a draft regulation. And then they say -- they ah, send that out and they asked the public in 90 days to comment on that Notice of Proposed Rulemaking.
The Justice Department never did that. Instead, they got their answers from the advanced notice of proposed rulemaking, and they created another advanced notice of proposed rulemaking, another set of questions. And they don’t do that very often, unless they’re really confused. It’s called a supplemental advance notice of proposed rulemaking or SANPRM. And, in talking to my friends at the Justice Department who are working on that, there was a lot of concern about what the impact is going to be on small businesses. And I thought to myself, I tried to explain this, that the impact I thought was relatively small, because it’s not as if a small mom and pop shop is typically setting up their own e-commerce system. They may be selling through Amazon, they might be selling through eBay, they’re going to be leveraging somebody else’s platform. And so to add an accessibility on to their offerings, it’s really a matter of what that other platform offers.
We have a lot of problems since then, because of things like, you know, Wordpress, accessibility and Drupal accessibility. And, you know, they’re not -- they leave something to be desired. But still it -- they do provide the fundamental basics for accessibility. You know, you can find you -- We created an accessible WordPress site, we find, we can find a plugins that help us make sure it’s an accessible site um, by choosing more accessible plugins versus less accessible plugins for things like forums. If -- you can do it. But for -- I think the fear that the Justice Department had was almost as if they, they were saying, well, an e-commerce, an -- a mom and pop shop doesn’t know how to write the code for an e-commerce system to make it accessible. But in reality, they’re not creating that e-commerce system. They’re leveraging somebody else. So, I thought oh, is that the bigger impact is going to be on the larger organizations, not the smaller organizations.
John: Typically, the word regulations is is is a bad word when you’re speaking to business people. That generally gets associated with an interruption of capitalism. And if you’re a CEO, or you’re an owner, or proprietor of a business, when somebody tells you new regulations are coming out, you sort of like, the red light goes on. Uh, what are those going to cost me? And um how do you -- How do you, as a small business, navigate across the multiplicity of, the variations of disabilities that are out there; blindness, deafness, wheelchair, CP, etc, etc? Are, are we trying to stuff too much into the equation? Is is there a, from the view of the law, would there be a simpler way to, to possibly do this?
Ken: I think so. Whenever we’ve got -- Whenever we’re talking about how to design towards disability, there’s a, I think there’s a, a, an understanding that we can’t accommodate every single person with a disability. And so we have to have some common understanding about what that compromise, for lack of a better word is, like, what is it that meets the -- meet needs of the most number of people with disabilities while also meeting the practical needs of business. And so in the architectural sense, that’s what creates the architectural standards like the ADA standards for accessible design. But in the digital sense, our closest analog to that is the Web Content Accessibility Guidelines. And now those have been expanded to all of digital technology. Things like EM 301549, or the Section 508 Standards expand WCAG 2, all these technologies that it was originally never intended to cover.
But that set of guidelines is intended to be that’s -- that universal design standard that accommodates the most number of people with disabilities. So, it includes things like, oh, flash rate to make sure that people that have photosensitive epilepsy don’t get triggered by looking at a webpage just as much as it includes um, requirements for things like alt attributes or a heading structure, um, things that accommodate screenreader users, for instance, or that includes things for color contrast. So, one set of standards encompasses the basic requirements that every group, major group with disabilities is supposed to well come to the table and express their needs on and, and, and, and have their needs met.
With that said, there are obviously lots of shortcomings with WCAG. For instance, it doesn’t include cognitive uh, disabilities nearly as much as it potentially could. Although that’s, I mean, it’s one side -- It’s an interesting challenge to try and get around that. And I’m sure, you know, academics out there would tell me that it’s so much easier to challenge. But I remember being back at the Justice Department when we’re coming up with their Section 508 Standards and I said, I don’t think that you could get the IRS to be able to explain alternative minimum tax requirements um, at a, at a sufficiently um, easy level, that [yeah] that someone with a cognitive disability would be able to easily understand [yeah] because it makes my head spin.
John: Yeah, and it always ends up with the questions. Why? [laughs] Who needs this? Do you see hope in this? Uh, I mean, some of the people that that that I’ve talked to across the year, uh, on these, on these discussions, uh, they, they think that we are at a point that that there has been a silver lining to the cloud of, of COVID and the pandemic and that, that um, the visibility and the empathy, yh, towards disabled um, and accessibility to, for those that need it, um, is just is at a time, uh, the social uh, voice of, of our society in general in America was shaken to the core last summer. Uh, and there’s been a whole, you know, movement to begin, you know, granting uh, rights to people um, appropriately. Disability is not at the top of that list. What do you think?
Ken: Yeah. Well, I’m not a pessimist to that, by any stretch of the imagination, even though I say digital accessibility is broken. [yeah] I say digital accessibility is broken more is a wake up call to people to try to get them to focus on this need for clarity around accessibility. And even with clarity, I don’t think that that struggle ends there. Even if we could make, even if we could somehow wave a magic wand and make every website out there comply fully with WCAG 2.1 A and double A, that’s not good enough at the end of the day, because there’s still a lot of people left out in the cold. But with that said, I think that it’s, it’s, it’s important to at least have that clarity so that you can establish what the base level should be. I think about what Justice Brennan used to say about civil rights that, that the federal government comes in and sets the floor. And then state governments can come in and set a higher ceiling for what for, for the protections that you give to any disadvantaged group. And I’ve --
What I’m suggesting is we have to be able to set that floor. And companies can go out there and innovate and set grip, and raise the bar and make all these incredible technologies that really push the bar in terms of accessibility and really try to create that higher level of accessibility that’s way above the basic floor. And there’s always that push-pull tension that has technology improves, and we can keep innovating, and companies say well, why cannot we try and hit this higher level, then what happens is that the floor starts rising too. And then once you’ve -- the floor starts rise, and then other companies start thinking, oh, wow, we can think about these other cool innovations and raise the ceiling even higher. And so it just keeps going up and up and up. And I think that that’s where we’ve got a -- we’ve -- that’s where I think it’s why I’m optimistic, I suppose that I do see that movement happening. You could see that in the way in which we’ve approached things like, oh, gosh, like my phone, for instance, I never in my life would have thought that we could have a fully touchscreen phone and make it accessible. Um, that’s remarkable. And so that’s an example of that innovation.
And eventually we start thinking about, okay, how do we make all touch screens that they, to meet up to those same basic requirements, when we start raising the floor. And so we see that happening all the time. So, I’m very optimistic about that. But at the same time, I think that we’ve got to be realistic in terms of like, how do we drag all the businesses in America up to that basic floor, this, this level. And I think that the way in which you can do that is only by having very clear standards. You don’t necessarily want clarity at the upper end, you don’t want to be restricted and prescriptive in terms of what you have to do. Like if we were, you’d never had that accessible touchscreen. Because back in the old days, we had that we said you have to have tactfully discernible controls, and that, an accessible touchscreen isn’t that. So, it, you still have to allow the room for innovation at the top.
But then you also need that basic clear requirements to make sure that the people that don’t really want to innovate, are at least meeting that minimum bar. So, I’m optimistic about that. I’m just when I say that accessibility is broken, my frustration is that we need to clarify what that bottom level is. [yeah] Yeah. I think though, that right now is a really interesting time because of everything else that’s going on in our society. So, I think that, the thing that’s fascinating to me about accessibility is how different it is from other forms of discrimination. I think the only one that comes close is perhaps um, um, sexual and gender minorities, where you end up with some level of this kind of grayness that, that the, that mainstream society doesn’t understand. But I think that it’s easier to understand with disabilities, because disabilities are something that I think everybody, not everybody, but I think a larger number of people can accept are just things that you’re -- things that are intrinsic in a person.
Ah. So, when you’re talking -- when we talk about things that are uh, disabilities, it’s, it’s we have these prejudices that I think that are, that are much more, that are much deeper in us, that I don’t think any, that I don’t think most of us are really ever aware of until we start really working in this field for years and years. Like the level to which our society just assumes that certain physical abilities are inherent in people.
Ken: Um, and you know, I make this analogy, you know, the moment that a child can start crawling across the, the floor as a baby, its parents celebrate its physical abilities, the moment it does well, does -- gets an A on a test, they start celebrating the child’s cognitive abilities. Um, and, you know, the moment that it does well, in a sports event, you know, it’s, it’s almost like they just got the Olympic gold medal. And those memories, those associations with those abilities are just formed such a important basis of us at such an early childhood level that I think that it comes in at a much earlier stage in which then, then that stage in life where we start making, and we start parsing people based on gender or parsing people based on race. It -- this kind of, this kind of an appreciation for abilities is so fundamental, and in early childhood development, and you could see it and the way in which our society works, I think that [inaudible 00:21:10] Yeah.
John: Yeah. No, you’re, you’re absolutely correct. And, and my own personal belief is that people outside of the disability uh, universe, identify a disa-- disabled person as the worst case they remember. Uh, you know, and not necessarily uh, somebody that is hard of hearing, or somebody with PTSD, or, you know, a, a child on the spectrum that is not really radically autistic. Ah, you know, um, they remember the one that, you know, that was in great stress ah, at an inappropriate time and think that’s what everything is like, but it’s not.
Ken: That’s what every person with a disability must be like. Yes, yeah.
John: Yeah, yeah. So, it’s, it’s, you know, there is, there is this class of, class distinction that people who don’t understand, it’s not that they won’t understand. But they remember what they don’t understand. Uh, you know, and that gets in the way.
Ken: Yeah. And so much of, I think that so much of disability discrimination involves that not understanding or neglect that’s associated with [yeah] just assuming that a person has an ability that they don’t have. And that, that neglect, it’s just it’s not necessarily because they wanted to discriminate against someone, they just never want -- thought about how to make that extra step of making [yeah] sure that a person with a disability was included. [yeah] Yeah. It’s, it’s, I think it’s really fundamentally different though than most other forms of discrimination [clears throat] in that regard.
John: Well, it--
Ken: And that’s what really makes it interesting to me. [clears throat]
John: It absolutely is because, you know, I mean, another one, going back to we talked earlier my grandmother’s kitchen wisdom, uh, but one of the things that she used to say all the time is you you don’t understand something until a hammer hit your thumb. [mm] You know, and [laughs] then you, then you understand it. You know, and I think that that’s very true, if you’ve been, you know. But I found that, that, at least for me, anyway, uh, my, my experience was safeguarded until I had an autistic person in my family and until I got involved in Accessibility.com.
And amazingly, I began to look around. And there were many disabilities around me that I had never even thought about, including one of my own children when they were very young. They were in a leg brace for quite some time, several years. Um, because of a dysfunction, a medical dys--, you know, a, a, a medical dysfunction. But and the time, you know, we never thought of him, isn’t it because he didn’t act like he was disabled, but you know, but, you know, when a kid is in a brace from his, from his ankle to his hip, that’s a disability, you know. Yet he did climb trees and play ball and do all the things he wasn’t supposed to be doing like that. Anyway, any event. You don’t really think about it that way. Um, until you, you know, you do have to, and [yeah] you know, I mean, I confess, it’s, it’s, you know, it was something that wasn’t on my mind because it wasn’t there for me.
Ken: Yeah, yeah, [crosstalk] well, it’s -- You can work in an area and the peace around by people with disabilities, but it doesn’t necessarily mean that you’re -- have developed an appreciation for all the disabilities also. So, for instance, when I was working at the Justice Department, [clears throat] there were a lot of people in my office that had physical disabilities. And so and I did work on a lot of architectural cases in the beginning. So, I developed, I think, a much more appreciation for what life was like, using a wheelchair, even though I’ve never used a wheelchair in my life, uh, just from watch -- just from hanging out, being friends, going places, doing things, seeing what life is like for my friends who had who used wheelchairs. And then in 1998, I started focusing more on digital tech, digital accessibility. [yeah] And then I started hanging out with people that were primarily blind, um, because those are the folks who are really involved in Section 508 the most.
And sure, I’d worked with a few times as people who are blind when I was back at in in, in, in my old career at DRS. But then in the second half of my career at DRS, I started working with the people who were visually impaired much before often. And the perspective is quite different. It’s just it’s, it’s like, it’s like starting all over again. I mean, yes, they, you know, both groups have different challenges, but it almost -- it did feel like oh, I’m back at the beginning, again, because the challenges are entirely different. The types of neglect are entirely different. It’s, [yeah] that’s, the neglect is still the same underlying common denominator, but it’s the form in which that takes that’s entirely different. [yeah] It’s yeah, it’s really, it’s, I found that that it’s uh, working, where I worked was really a great opportunity, just by being able to get exposed to all these, to all the different ways in which this can take shape.
And I think that that’s one of the challenges too, for everybody. Because I was thrown in to this with some sensitivity towards the needs of people with disabilities, when I worked in digital accessibility, and it was a quite a gap for me to make up just going from physical accessibility to digital accessibility, from going from mo-- physical, physical issues and physical mobility to more visual perception and things like that; those, those kinds of um, hurdles. But if it’s difficult for me to do that in that role, then I can’t imagine how difficult it is for somebody who’s a business owner, who has no concept of these things. It’s [crosstalk] really, really, really hard. [yeah] So, yeah, I mean, I get why it’s so challenging. But it’s, it’s a fun challenge to go through. And I think that that’s, that’s, again, why we have to have clear standards. So, that -- because I can’t possibly imagine that your average retailer is suddenly going to become a screen reader user, and be able to get to that high level of accessibility.
John: Yeah. Well, our mission, our mission on at Accessibility.com from day one, and we launched on the 30th anniversary of of the ADA a, is to is to provide trusted information and resources that would empower accessibility for businesses. It’s a whole in, in the, in the universe, you know, like, like, you know, like, to be fair, you know, we talk about accessibility being broken, but in need of clarity, and, and awareness. Okay. So, clarity, and awareness is what we can bring in trusted information and, and resources. And to date, it’s, it’s been very, very well accepted. And there’s a great deal of interest in, in moving forward. This discussion that we’re having today will bring us to the next year, because it’ll run into, into the beginning of next year’s prediction. Do you have one for next year uh, and beyond as to where accessibility will, will take?
Ken: Well, you know, [beep sound] as I mentioned, I really think that one of the most important things we need from in in the world of accessibility is we need some movement from justice to come up with those regulations. Without it businesses are just not going to move. And [sigh] I hope that we can get an NPRM out this year [mm] from from justice. I hope that, you know, and that would possibly get a final reg out before the end of the administration. Um, but I’m not terribly hopeful that that’s going to happen. Um, I don’t think it’s pro-- I don’t think it’s going to happen on the Title 3 contexts. It may happen in the Title 2 context. So, that would be state and local governments. Because there are legal nuances that come up in Title 3 that you don’t, that that you don’t get entitled to, apart from just the impact on small businesses. Even just even going beyond that, just getting back to what constitutes a place of public accommodation gets tricky when you’re talking about websites.
John: Yeah, yeah.
Ken: So, anyways, I hope we get a title to regulation out there, I think that that would be an enormous help. And with that, that would end up providing a bit more clarity. But I think looking down the road, I mean, there’s so many things that I think that we -- so many things that we’ve started that we’ve been talking about, about accessibility that we just uh, haven’t really gone the extra step in trying to achieve. So, um, you know, for instance, we’ve been talking for the last 30 or 40 years about a kind of a universal API for being able to interact with things in the physical environment for digital accessibility.
So, if I’m blind, and I walk into a hotel room, I’ll immediately know through my phone, exactly how to raise the shades, turn on the lights, do all the things, a physical, that can be physically done. I could do it through my technology, and it’ll be technology agnostic, you know. We’ve been talking about that for forever. There isn’t any reason why we can’t do it. It’s just we haven’t done it. [laughs] So, things like that. Just, it also comes back to even even in web accessibility, I was thinking about things like, you know, things like a, a player that I’ve got, I’ve got a player that plays a Vimeo video on my web page. Why is it that, you know, if I’m using a screen reader, I still have to hunt around for the controls on that player, like, and they could be arranging whatever order that Vimeo happens to put them in.
Why do I have to hunt around for those controls? If there’s a video player, a video player should automatically just assume that the -- that there’s -- that there’s a play button, there’s a rewind button, there’s a forward button, you know, there’s a volume button, and it should just, it should just be built in and assumed, you know, just like, kind of like what the way in which we’re handling sliders now, or the way in which we handle input forms. You know, we should be able to do this with every piece of digital, every piece of web based technology. So, we’re getting there. But it’s, yeah, it’s -- when I first started this, in this field, what, 30 years ago? Uh, yeah, 30 years ago. Um, [laughs] when I first started in this field 30 years ago, [oops] you know, right, oops. [laughs] Um, we’ve made so much more progress since then. But I knew even back then that this was going to be a struggle that was going to be going on well beyond my lifetime.
John: Yeah, but always worth it. [yeah] Um, you know, it’s uh, it’s a very, very special field of endeavor. Uh, it’s, it’s, for those who labor in it, uh, when we were just, the self gratification of making even an inch of progress is both gratifying and frustrating. Uh. [yeah] But, you know, it’s it. When you think back so like you said before, you know, uh, where you started and what it was like, to where it is today, has been tremendous, tremendous progress. I’ve really enjoyed, I really enjoyed this discussion, Ken, more than man -- than many. It’s time to go. And I want to thank you for your input and your perspective and, and and your effort. Um, you should be congratulated for being such a, a good foot soldier in the, in the army to [laughs] to cause this liberation for the uh, for the disability through accessibility. That’s accessibility matters. So --
Ken: Yeah. Well, thanks, John. I appreciate it.
John: It was really nice having you today. [Outro Music] And I know we’re coming in, you’re coming up on our uh, on our January event, so uh, thank you again.
Ken: Yep. Okay. Thanks, John.