Waiting for Section 508 A tragicomedy in 10 acts

Update - January 2017

On January 5th, 2017 the US Access Board announced that the Office of Management and Budget (OMB) cleared the Section 508 Refresh, with the compliance deadline set for January 18, 2018.


Welcome to a series of articles on accessibility laws, standards, and statistics around the globe. These articles will help web professionals to understand accessibility legislation within a wider policy context. Every accessibility law has both strengths and weaknesses which can offer valuable lessons for other countries and systems. As disability laws become increasingly harmonized it is essential for accessibility professionals to understand the impact that these laws have made in their local and national contexts.

We will start by examining the overhaul of the US Federal government’s web accessibility law, a process known as the Section 508 refresh. The United States has four laws concerning web accessibility, and two of them are being reviewed in this process. Far from being a straightforward process, the Section 508 refresh has become the web accessibility community’s version of Waiting for Godot, the absurdist play about two men waiting in vain for an authority figure who may never come.

What is section 508?

Section 508 (29 U.S.C. § 794 (d)) was a 1998 amendment to the Rehabilitation Act of 1973. In plain English the law requires US Federal agencies to ensure that employees and members of the public with disabilities have equal opportunities to access government information.

While the 1973 law was technologically neutral, the 1998 amendment included provisions addressing software, web pages, telecommunications, video and multimedia, office equipment, and desktop computers. This article focuses only on the provision concerning web pages. Following a two year consultation period the initial Section 508 guidelines were issued in the year 2000.

It is important to note that Section 508 only applies to US Federal agencies and their electronic communications, and by extension, to private contractors developing for the Federal government. The law does not apply to US state and local government web sites, although many have used Section 508 as a blueprint for their own localized legislation. Section 508 does not apply to private sector web sites. While compliance obligations therefore fall onto a relatively small portion of the accessibility community, the size and scope of the US Federal government makes Section 508 a hugely influential piece of legislation.

Another area of the Telecommunications Act, Section 255, requires functionality for the disabled in telecommunications hardware and products, such as phones and computers. The Section 255 guidelines, which were last updated in the year 2000, have been put to public consultation as part of the Section 508 refresh.

The development of the Section 508 guidelines, and their ongoing refresh, falls under the purview of an independent Federal agency called the US Access Board. The deployment of Section 508 standards throughout the US Government falls to the General Services Administration. The US Department of Justice is required to report to Congress and the President on Section 508 compliance every two years, although they rarely do. In other words, three separate Federal bureaucracies are responsible for the development, dissemination, and monitoring of Section 508, a state of play which has not helped an already negative view of the law within the accessibility community.

Is Section 508 the same thing as WCAG?

Section 508 is the law, but the actual standard is called the Electronic and Information Technology Accessibility Standards. The standard, as with Section 508 itself, was drawn up at a critical moment in accessibility history. The WCAG 1.0 guidelines were released in May 1999 around the same time that Section 508 guidelines were being drafted. WCAG of course is a standard, not a law. The existing Section 508 guidelines were based on a subset of WCAG 1.0. While there are similarities between many sections of WCAG 1.0 and the Section 508 standard, there are also elements of WCAG 1.0 which are not addressed in Section 508. To further complicate matters there are aspects of Section 508 which are more restrictive than WCAG 1.0, and there are aspects of WCAG 1.0 which are more restrictive than Section 508. A full comparison table can be found here.

WCAG 1.0 was superseded in December 2008 by WCAG 2.0, two years into the Section 508 refresh process. While heroic efforts have been made to map Section 508 to WCAG 2.0, they remain two separate and independent sets of standards. The Section 508 refresh – should Godot ever come – incorporates WCAG 2.0 by reference.

Although incorporating WCAG 2.0 by reference into the draft refresh was an admission by the US Access Board that it “addresses deficiencies” in their own standard, the 2000 version of Section 508 nevertheless remains the law requiring Federal compliance.

As with WCAG 2.0, Section 508 applies to the elements within a web page, not just the markup of the page itself. Documents, PDFs, and multimedia files must be given full consideration under the standard.

Waiting for Godot, accessibility version

It is increasingly the norm, and not the exception, for digital laws to spend so many years languishing in committee processes that they risk being irrelevant by the time they become law. For their part, digital professionals who depend on these pieces of legislation to provide standards for their work lose patience with the process as well as respect for the responsible bureaucracy.

Even within that norm, the delays to Section 508 have been truly remarkable. For many within the accessibility community the phrase “Section 508” is no longer a term describing the legislation itself, but a euphemism for everything that is wrong with public policy in digital law.

“You are exhausting well-minded people who want to embrace accessibility and universal usability by further delaying the implementation of the new guidelines.” - Steve Faulkner in testimony to the Access Board, 11 January 2012 (nearly four years ago)

A refresh to the 1998 Section 508 standards was first proposed by the US Access Board in September 2006. Committees were established, meetings were held, evidence was solicited, and two years later, a report was delivered. The accessibility community waited.

Nothing happened in 2006.

In the meantime, WCAG 2.0 was released in December 2008.

In 2010 the Access Board issued a draft set of guidelines on the refresh for public consultation. Evidence was solicited. The consultation deadline passed. The accessibility community waited.

Nothing happened in 2010.

In 2011 a draft rule was released for public comment. The community responded by correctly noting that these draft rules could be interpreted differently to WCAG 2.0 and recommended that the new Section 508 rule should incorporate WCAG 2.0 by reference. The Access Board agreed. The accessibility community waited.

Nothing happened in 2011.

That year a member of the Access Board announced that the refresh might take effect in the autumn of 2013. The accessibility community waited.

Finally, in February 2015, an exhaustive preliminary regulatory impact analysis was released along with a proposed draft rule to finally update the Section 508 standards. The consultation closed in May.

As it has done for the past nine years, the accessibility community is currently waiting for something to happen. Still Godot does not come.

In the years that Section 508 has been moving through committee processes, web development has evolved beyond all recognition, with life-changing results for people with disabilities. Assistive technology in particular has become inexpensive, mobile, and flexible, while social media and the mobile web have transformed the fundamentals of human communication. Clearly these developments have caught the Access Board by surprise, and may explain their repetitive returning to square one. This desire to “get it right” is admirable. However, taking nine years to update a technical standard, regardless of context or industry, is as bewildering as it is unacceptable.

The delays and inaction which have come to define the Section 508 refresh have caused the US Access Board to come under severe criticism from the accessibility community. While some have tried respectful diplomacy (to little avail), others have gone so far as to label the Board “negligent”. Many have given up hoping for change or caring about the outcome of the process, with one publicly declaring he “just doesn’t care anymore”. The Access Board has clearly damaged its reputation, and by extension, its credibility within the community.

As of this writing in Autumn 2015 a finalized rule and a compliance deadline is promised for 2016. If the next refresh takes as long as this one has, the guidelines would not have another refresh until 2026. The technology of 2026, and the accessibility standards those inventions will require, can only be imagined.

“The Section 508 refresh in three words? Completely mismanaged expectations.” - Adrian Roselli

Frozen in time

When considering the lengthy delays to the Section 508 refresh it is helpful to understand how legislation works. When digital laws are enacted based on technical standards, those standards are considered frozen in time. The Access Board explained this quite helpfully:

The Board cannot accept the suggestion of software industry representatives that the proposed rule permit compliance with any follow-on versions of WCAG 2.0. Federal agencies cannot “dynamically” incorporate by reference future editions of consensus standards. Such action is legally prohibited since it would, among other things, unlawfully delegate the government’s regulatory authority to standards development organizations, as well as bypass rulemaking requirements (which would typically include a public notice‐and‐comment period). Federal agencies are required to identify the particular version of consensus standards incorporated by reference in a regulation. When an updated edition of a consensus standard is published, the agency must revise its regulation if it seeks to incorporate any of the new material.

That is understandable and quite sensible; after all, private industry cannot be allowed to move goalposts at will. However, revising regulations to keep up with evolving standards requires focused and efficient action at regular intervals. Clearly that has not happened with Section 508, which remains locked into the technical specifications of the late 1990s.

At the time that Section 508 was created it was hoped that standard’s impact on public procurement would cascade to the private sector and that businesses would adopt the Federal guidelines as a best-practice example. In actual fact the opposite has happened. Because it is not bound by legislative requirements, the private sector has been able to continuously improve their accessibility practices based on more recent standards, including WCAG 2.0 and user-centered design. As Karl Groves noted, this “has resulted in chaos for {private} contractors who are told by their public sector clients that they have to conform to grossly out of date standards.”

Monitoring and enforcement

The delays to the Section 508 refresh have made ongoing enforcement an unusual issue. There is ample evidence that Federal agencies are failing to comply with the regulation despite being legally required to do so. A 2011 academic study of 100 Federal web sites found violations of accessibility guidelines in over 90% of them. Despite those errors, 42% of the sample sites carried Section 508 compliance declarations and 58% had accessibility policy statements. The authors of the study suggested that this effort justification was due to the fact that the US Department of Justice had not posted new accessibility data.

Since the publication of that 2011 study, the Department of Justice has posted data on compliance for the year 2011 on their Section 508 page. A broken link below that for the previous data set - 2003 - notes that “Every two years, Section 508 requires the Department of Justice to report to the Congress and the President on the federal government’s progress in complying with section 508.” The implication here is clear: this a law which is barely being monitored or policed by its own responsible agency.

One surprising example of noncompliance was cited at the Department of Veterans Affairs, whose resources were criticized in Congress for being inaccessible to blind and visually impaired veterans. Although the VA was given a reasonable deadline to bring all its web sites into compliance, it still had not completed the work over a year past the deadline. When an agency specifically established to serve the disabled is not compliant with an accessibility law it is clear that something has gone badly wrong across many policy levels.

The trouble with noncompliance

But can noncompliance with Section 508 really be taken at face value? After all, as of 2015, Federal web developers are working to a seventeen year old technical standard from the desktop and dial-up era. And to return to our Godot metaphor, they have been waiting on an “imminent” refresh for nine years. It may well be the case that some supposedly non-compliant agencies have created more accessible web sites built on a combination of WCAG 2.0 guidelines, user-centered standards, and continuous improvement. Those efforts cannot be measured by a 1998 standard.

The issue of noncompliance, as with all accessibility issues, is further complicated by today’s infinite combinations of disabilities and assistive technologies. Strict user testing on a laptop with a user who has a cognitive disability will not provide meaningful insight on the needs of a visually impaired user on a tablet. The needs of that visually impaired user, in turn, will be completely different from the needs of a completely blind user on a screen reader. The Section 508 guidelines simply never foresaw this problem.

Given the age of the Section 508 standards, responsible development on affected sites must involve user testing and continuous feedback. If a user’s needs on a tablet in 2015 have no equivalent in the Section 508 standards for desktop use in 2000, it is your professional obligation to meet the user’s needs outwith the standard.

Until Godot appears and the standard is refreshed, the Section 508 rules alone cannot be considered an adequate measure of accessibility compliance. Noncompliance, while never advisable, does not equate to a lack of accessibility, and for activist developers, “noncompliance” may in fact be a badge of pride.

When can we expect the refresh?

The countdown to compliance with the Section 508 refresh will begin as soon as the finalized rules are published in the Federal Register, the official journal of the US government. The compliance deadline will be six months from the rules’ publication date. While the consultation on the refresh closed in May 2015, as of this writing there is no indication of when the rules will be published. Until then the existing Section 508 rules continue to apply to US Federal agency web sites.

Professionals impacted by the regulation (and waiting for Godot) should continue to develop in conformance with the existing Section 508 guidelines while always maintaining a continued focus on WCAG 2.0 and user-centered design. Develop for the full range of disabilities and technologies which exist today, not the ones that existed in 1998.

The accessibility community should watch the developments surrounding the refresh very closely as its success, or failure, will contribute to the continuing development of web standards around the globe. Interested professionals should sign up for email alerts from the US Access Board which will alert you to the publication of the draft rules in the Federal Register.

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