Have tech companies forgotten about ADA accessibility for NYC Wi-Fi kiosks?

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Two weeks ago,  National Federation for the Blind (NFB) filed a lawsuit against the City of New York, the New York City Department of Information Technology and Telecommunications, and CityBridge LLC for failing to make LinkNYC accessible to the blind and visually impaired.  LinkNYC is a new digital communications network that is replacing New York City’s 7,500 pay phones with kiosks that let users make free phone calls to anywhere in the U.S., access free Gigabit Wi-Fi, use a tablet to access the web, or use one of the two USB charging ports for devices.  Links are free to the public because it derives its funding through advertising on the side of the kiosk.  CityBridge plans to install at least 7,500 Link kiosks throughout the five boroughs of New York City.  Link kiosks also come with opt-in location services that allow users to detect the kiosk with Bluetooth beacon technology—which is similar to GPS.

Android devices are already sold with screen reader technology and the issue stated in the NFB’s complaint is that the Link tablets do not contain the accessible software. 

The plaintiffs in the lawsuit include Mindy Jacobson, a blind Brooklyn resident who teaches technology classes.  Jacobson was unable to use the features of the Link kiosk because the Android tablet was not equipped with a screen reader, a type of software that visually impaired users can activate to listen to descriptions of the content on the screen.  The screen reader allows the blind individual to access all the features of the operating system, including using the web or placing calls.  Android devices are already sold with screen reader technology and the issue stated in the NFB’s complaint is that the Link tablets do not contain the accessible software.  Jacobson stated that the Link kiosk has an audio jack for headphones, but unlike ATMs, which now have audible software so that blind individuals can use them independently, the Links don’t have audio instructions to follow for access.  Joyce Carrico, a blind technology specialist, and Nihal Erkan, a blind college student, are also plaintiffs in the suit.  Disability Rights Advocates, a non-profit disability rights legal center, is bringing the suit in conjunction with the NFB.

The suit alleges disability-based discrimination that violates Title II of the Americans with Disabilities Act (ADA).  Title II prohibits public entities from discriminating against a person on the basis of disability.  A public entity—under Title II—includes both state and local government, as well as its instrumentalities.  LinkNYC is a service provided by the City of New York, a governmental body.  Additionally, the NFB alleges disability-based discrimination in violation of Title III of the ADA, which applies to places of public accommodation.  A place of public accommodation is a private entity that affects commerce, such as a hotel, restaurant, movie theater, store, or place of education.  The NFB alleges that CityBridge, the owner and operator of LinkNYC, has violated Title III because the kiosks are place of public accommodation and the kiosk interface is inaccessible.  The NFB alleges that the City of New York, and its IT and Telecommunications Department, have violated Section 504 of the Rehabilitation Act of 1973.  Section 504 prohibits any entity that receives Federal funding from discriminating against individuals with disabilities through the denial of services or benefits.

Talkback is Google’s screen reader software that comes on Android devices.

There are two additional state-law causes of action in the complaint: disability-based discrimination under the New York State Human Rights Law (NYSHRL) and disability-based discrimination under the New York City Human Rights Law (NYCHRL).  The NYSHRL and the NYCHRL contain language about “places of public accommodation” that is similar to Title III of the ADA.  On all five causes of action, the NFB seeks an injunction that would order the defendants to make the kiosks accessible and enjoin the defendants from continuing to install non-accessible Link kiosks.

Ruth Fasoldt, LinkNYC’s community affairs manager, stated that the organization is collaborating with the Mayor’s Office for People with Disabilities “on software updates that will incorporate new accessibility features and that will improve ease of use for the blind, including better 911 audio cues, talkback features, and mobile applications, among others, and we will continue to work with the City to make updates to LinkNYC to ensure accessibility for all.”  Talkback is Google’s screen reader software that comes on Android devices.

Representatives from LinkNYC have stated that incorporating accessibility features continues to be part of the plan for Link kiosks.  Maya Worman, a spokesperson for the city’s Department of Information Technology and Telecommunications, stated that the city’s franchise agreement with LinkNYC requires compliance with the ADA.  In August 2015, LinkNYC was given an ADA Sapolin Award by Mayor de Blasio for their “commitment to inclusion, accessibility, and equality.”

LinkNYC plans to add extra apps and services ranging anywhere from the next month to the next decade.

Link kiosks were promoted to help the one in four citizens of New York who don’t have access to high speed internet.  Intersection, one of the companies that makes up CityBridge, plans to net $500 million within the next 12 years from the ad revenue associated with the kiosks.  Intersection is owned by Alphabet, Google’s parent company.  New York City plans to install up to 500 Link kiosks within the next 15 months.  Some NYC residents have complained about the number of homeless people that the Links have attracted, with some individuals camping around the kiosks.

Currently, the Link kiosks are in a beta phase, which gives the public a chance to provide feedback on the project to LinkNYC.  LinkNYC plans to add extra apps and services ranging anywhere from the next month to the next decade, but there are no exceptions in Title II or Title III of the ADA for services or technologies that are publicly available yet still in development.  Users are encouraged to email be**@li**.nyc with feedback about their LinkNYC experience.

This past April, the Department of Justice withdrew its Notice of Proposed Rulemaking entitled, “Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities.”  Regulations from the DOJ could be used in the future to ensure that devices like LinkNYC are accessible to individuals with disabilities, but without guidance from the federal government many entities are unclear on how to make their online content or electronic devices accessible.  Web accessibility, and the potential liability associated with having an inaccessible site or electronic service, has garnered increased attention from the courts and news outlets.  Without any additional guidance from the DOJ on accessibility, it is unlikely that the current pattern of litigation will decrease.