Communication Strategist - Accessibility Advocate - Multimedia Designer

Lily Zimmerman / F’18 – Law & Policy of Digital Media

Combatting Hate Speech Online: An Argument in Support of CAP’s

“Change the Terms”

Today in the US, debates are ongoing between lawmakers, civil rights groups, free speech activists, and commercial technology entities about how to handle the growing presence of hate speech and other hateful activities on the internet. As Neera Tanden of the Center for American Progress explains, the Change the Terms coalition defines “…hateful activities [as] those that incite or engage in violence intimidation, threats, or defamation targeting groups or individuals based on actual or perceived race, color, religion, national origin, ethnicity, immigration status, gender, gender identity, sexual orientation or disability”.[1] Much of the disagreement centers around the question of whether or not the First Amendment protects the right to engage in (even hateful) free speech on the modern internet. The trouble is, this is not strictly a first amendment issue. First, private platforms do not have the same obligations as government entities to honor First Amendment rights. The issue of hate speech and hate organizing online is profoundly complex and likely calls for more than that which legislative remedies alone can accomplish. Conflicting international regulatory frameworks were an additional factor leading to the decision to focus on extralegal remedies for hate online.

The Communications Decency Act of 1996 sought mainly to regulate pornography on the internet; although, it has proved to have much broader potential applications. Section 230 of the Communications Decency Act of 1996 holds that ISP’s (internet service providers) will not be held criminally responsible for the speech of their users.[2] Just this July, a Twitter user, Mezey, sued Twitter for suspending Mezey’s account. The court upheld Twitter’s right to remove content due to protections afforded by Section 230.[3] Author and Professor of Law, Danielle Keats Citron explains,

“With regard to civil liability, [Section 230] guarantees that “no provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected”. (Keats Citron, 171)

Despite the existence of legal means of combating hate, we are not necessarily dependent upon new or existing laws to aid in this fight. We should, however, seek to update current laws to fit today’s technological realities. Law enforcement to legislators and all government agents should enforce intangible internet laws regarding hate activities with the same rigor as hate speech laws for print as well as in vivo, physical speech.

Change the Terms is a collaborative initiative between Center for American Progress, Color of Change, Free Press, Lawyer’s Committee for Civil Rights Under Law, National Hispanic Media Coalition, and the Southern Poverty Law Center. Change the Terms calls on internet companies to take stronger action in policing hateful activities taking place on their platforms. The coalition drafted this set of policy recommendations with the aim of balancing the need to disrupt violent and hateful activity with the values of free expression and privacy. Additionally, to avoid threatening net-neutrality, the coalition directed “Change the Terms” not at Internet Service Providers, but rather, toward companies providing services over the internet such as Facebook, Reddit, Twitter, and PayPal. This approach acknowledges the need for a broad strategy that encompasses the entire “stack” of companies on the internet, from ISP’s at the bottom, to user-facing services like Facebook at the top, and financing and ad services in between. While critics might see some of the proposed steps to curbing online hate activity as attacks on free speech rights, these policy recommendations are focused on action, and not just words. The incitement of violent, hateful activities offline by hateful activities online is the determinant in suggested corporate response

Change the Terms outlines a strategy with seven main corporate policy recommendations centered mostly around optimizing online platforms’ self-regulation. The initiative states that first, internet companies should prohibit hateful activities on their platform (employing the definition stated above). Second, though it may require the investment of time and resources, including money and human power, internet companies must expand enforcement mechanisms and further define them in great detail. The third and fourth remedies propose accessible and transparent removal and appeals processes, which would, in part, serve as an avenue for public accountability. A crucial element for improving the takedown process involves improving training of content moderators working at internet companies to make sure they are aware of and able to think critically about the social, political, and cultural contexts in which they are operating. For example, content moderators outsourced outside of the United States may have difficulty detecting some of the nuances involved in American racism and white nationalism. The sixth recommendation necessitates a restructuring of corporate governance and accountability. Change the Terms suggests appointing someone from senior management, along with a board committee, to oversee removals and appeals related to hateful content. The release of annual, publicly available reports would allow for online companies, civil rights watch groups, and other members of the public to follow ongoing efforts and utilize data to improve moving forward.  This process might include creating a mechanism for civil rights watch organizations to flag for review any material potentially in violation of adopted online corporate anti-hate measures. The last piece of the Change the Terms policy recommendations urges internet companies to prohibit state actors, bots, and troll campaigns that use racism and hateful activities to forward their missions. This concept gained traction after the 2016 election-hacking by Russian bots, and the verified role of fake news and hate propaganda in laying the groundwork for the genocide in Myanmar.[4]

While I agree with the premise of Change the Terms’ focus on extra-legal strategies to combating hate online; I also see some potential areas of legal action. We ought to make sure that civil rights laws are adapted carefully but quickly to meet the complex needs of our networked world. Translating existing hate laws into the online context necessitates the involvement of government, human rights groups, media rights groups, open-internet organizations, as well as self-regulating for-profit internet service providers and other internet companies. I see power and truth in Keats Citron’s understanding that,

“Civil rights law has the same potential for civil rights violations in cyberspace. Law would signal that online abuse produces corrosive harm to individuals, groups, and society, just as law helped people appreciate the social harms of sexual harassment in the workplace. Civil rights law would help show victims that they do not have to sacrifice their emotional and physical well-being to work, speak, and interact online, much as courts in the 1970s made clear that women did not need to choose between working in sexually harassing environments and earning a living. (Keats Citron, 128)

 

In-person gender and racial discrimination in the workplace were eventually found to violate citizen civil rights. One prong of Citron’s argument holds that the existence online of hateful and false information about an individual poses a threat to equal opportunity employment. A victim of dehumanization and other hate-driven online may suffer inevitable detriment due to the enduring and extremely far-reaching nature of the internet today. While there are apparent contextual differences, the current atmosphere of online hate activity does share parallels with past civil rights struggles. We may look to successes in the battle for civil rights to direct our future actions in the fight against hate in cyberspace.

Aside from the moral and civil-rights-related obligations faced by internet companies, there is a positive business case to be made for internet companies eliminating hate activity on their platforms/services and for strengthening the safety and freedom of all individuals, especially marginalized communities, to participate in global discourse online. Platforms and other internet companies might be able to fend off growing user attrition rates if they can demonstrate a competitive advantage in cultivating and maintaining safe, equitable, and civil environments online.[5]

 

[1] Center for American Progress (seeprog) Filmed [October 2018]. “Change the Terms: Reducing Hate Online,” Dur: 1:18:05. Posted [October 2018]. https://www.youtube.com/watch                              ?time_continue=503&v=fnFJc15bQh4.

[2] Banks, James, “Regulating Hate Speech Online.” International Review of Law, Computers & Technology” Routledge Vol. 24, No. 3, November 2010, (pg. 237)

[3] Mezey v. Twitter, Inc., 2018 WL 5306769 (S.D. Fla. July 19, 2018)

[4] Mozer, Paul. “A Genocide Incited on Facebook, With Posts From Myanmar’s Military.” The New York Times Online. https://www.nytimes.com/2018/10/15/technology/myanmar-facebook-genocide.html

[5] Winkler, Elizabeth. “Twitter Loses Users, But Will Advertisers Follow?”. The Wall Street Journal Online. https://www.wsj.com/articles/twitter-loses-users-but-will-advertisers-follow-1532705997

 

Web accessibility and U.S. Law:

An overview + tips for communication professionals

This online exhibit is meant to be an easily digestible introduction to web accessibility and law in the United States. Along with some cultural context and case law history, I’ve included tips for supporting web accessibility as well as links to other resources so you can explore these topics more on your own!

I’m still learning how to design web pages, so please let me know if you have any access difficulties or recommendations for optimizing the accessibility of this site!


What is Web Accessibility and Why Does it Matter?

Web accessibility means people with disabilities, whether visual, auditory, cognitive, neurological, and beyond, can fully access all functions and content on the internet. Examples of web accessibility barriers include images that cannot be read by a screen reader, text that cannot be enlarged or adjusted for users with different visual abilities, or web content that requires a mouse for navigation.

In the past, and unfortunately still much of the time today, the onus is placed on the web user to get access help from a non-disabled person or make due with an incomplete and unequal web experience. Web accessibility is a civil rights issue; and, as you’ll learn, the majority of web accessibility case law hinges on this truth. That’s why every web developer and organization operating over the web should have a comprehensive web accessibility policy. As an example, take a look at the University of Washington’s accessibility policy:

UW IT Accessibility Policy - http://www.washington.edu/accessibility/policy/ 

Web Accessibility Standards

W3C - WAI

While this exhibit focuses on web accessibility within the United States, US law regularly (not universally) refers to the international voluntary standards set forth by the World Wide Web Consortium (W3C) and its Web Accessibility Initiative (WAI). In short, the W3C is an international coalition of designers, technologists, accessibility advocates, and host institutions such as MIT. Within the W3C, smaller working groups work together, in person, and remotely, over long periods of time, to write and update web accessibility guidelines.

WCAG 2.1 - Quick Guide:

“POUR” - Perceivable, Operable, Understandable, Robust

Perceivable - Information and user interface can be perceived by individuals of all abilities

Operable - User interface and navigation can be utilized by individuals of all abilities

Understandable - Information and operation of user interface must be intelligible

Robust - Content must be sufficient so as to be interpreted of individuals of all abilities, including those using assistive technologies

WCAG 2.1 Webinar

Sponsors & Funders of WAI

U.S. Access Board

The U.S. Access Board gives technical guidance for implementing Section 508. In 2000, the U.S. Access Board published the Electronic Information technology Standards. These are now part of Federal government procurement regulations. The Access Board is empowered to issue monetary penalties for entities found to be in violation of these standards. [Web Accessibility: Web Standards and Regulatory Compliance, by Andrew Kirkpatrick]

Overview of W3C


Examples of Key U.S. Web Accessibility Law

Rehabilitation Act of 1973

When the Rehabilitation Act was enacted one of the issues addressed, government communication, was limited to in-person meetings, mail, and telephone. “Digital information, however, offers the promise of mainstream access: the same information to all, at the same time, through the same modality” [Ensuring Digital Accessibility through Process and Policy]. So, in 1998, in order to usher the aging laws into the future, Congress enacted Section 508

Section 504 prohibits executive agencies of the federal government, U.S.P.S, and recipients of federal financial assistance from denying persons with disabilities participation in and the benefits of, or otherwise discriminating against or excluding such persons from, any “program or activity,” solely on the basis of disability. [29 U.S. Code § 794 - Nondiscrimination under Federal grants and programs]

“Program or activity” includes all governmental operations and all the operations of private educational, health care, housing, social service, parks and recreation institutions, and the entirety of a private entity if the federal assistance is extended to the organization as a whole.[Ensuring Digital Accessibility through Process and Policy]

Section 508 enacted in 1998, requires, that executive agencies of the federal government ensure that this technology is accessible to employees and members of the general public who have disabilities when developing, procuring, maintaining, and using electronic information technology. [9 U.S.C. § 794d] [Ensuring Digital Accessibility through Process and Policy]


2) Americans with Disabilities Act of 1990

With guidance from the National Council on Disability Congress passed this key U.S. civil rights law prohibiting discrimination based on disability. In 2008, the ADA Amendments Act was passed. This act further defined the term “disability” and reaffirmed broad civil rights protections for people with disabilities. [https://www.eeoc.gov/laws/statutes/adaaa_info.cfm]

Title I (State and Local Governments)

Title I of the ADA prohibits disability-based discrimination as it pertains to the rights of employees and job seekers. [ADA.gov]

Title II (Public Accommodations and Commercial Facilities)

Title II states that, "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity”. [42 U.S.C. § 12132.] [Ensuring Digital Accessibility through Process and Policy]

Title III

Title III of the ADA addresses disability discrimination by places of public accommodation, a broad term that covers lodging and food establishments, exhibition, entertainment and other places the public gathers, retail establishments, professional offices, transit stations, museums, libraries, zoos, parks, private schools, day care, senior citizen and homeless centers, food banks, adoption agencies, golf courses, health spas, and other places for exercise or recreation”.[Ensuring Digital Accessibility through Process and Policy]


Chafee Amendment to the Copyright Act of 1976

In 1996, Congress Amended the Copyright Act to provide that it would not be copyright infringement if a nonprofit organization or a government agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities to make and distribute previously published nondramatic copyrighted literary works in specialized formats exclusively for the use by blind and certain other persons with disabilities.

Senator Chafee presented a compromise agreed upon by the National Federation of the Blind and the Association of American Publishers. The statute explicitly included "digital formats" in the definition of "specialized formats". [17 U.S.C. § 121(d)(4)(A)][Ensuring Digital Accessibility through Process and Policy]


Telecommunications Act of 1996– Section 255

The Telecommunications Act of 1996 was the first major change to our nation's communications policy since the passage of the original Communications Act in 1934. “Section 255 requires that manufacturers of telecommunications and customer premises equipment, as well as vendors of telecommunications services, make their products and services accessible to, and usable by, persons with disabilities, unless it is not "readily achievable" to do so. [Web Accessibility: Web Standards and Regulatory Compliance]


Twenty-First Century Communications and Video Accessibility Act of 2010 (Learn more about CVAA)

This law, also known as CVAA seeks to expand accessibility requirements (by allowing the Federal Communication Commission enforce regulations) in order for them to address entities manufacturing of products with, “advance communication services” or those providing these services. [47 U.S.C. § 15] After enacting the CVAA, the FCC extended the scope of CVAA rules under Section 255 of the Telecommunications Act. [Martinez L, Pluke M. Mandate M 376: new software accessibility requirements. Procedia Comput Sci 2014;(DSAI 2013):271–280] Under the updated law, the definition of “telecommunications services” was expanded to include internet service providers and the equipment they manufacture for consumers.

Sample U.S. Web Accessibility Case Law

1994 - Carparts Distribution Center v. Automotive Wholesalers Association of New England

In 1994, the First Circuit Court held that places of accommodation are not limited to physical facilities

  • Much of web accessibility case law is argued along the lines of pre-internet accessibility discrimination issues (i.e. architectural accessibility). This ruling was especially important in bringing disability law into the digital age.


1995 - City of San José Administrative Complaint

An ADA Administrative Complaint was filed with City of San José, California when a city commisisoner, who was blind, was unable to access City Council documents necessary for her to fulfill her advisory duties.

—> The City of San José agreed to cooperate with experts to create a web accessibility design standard. This was designated as a “best practice” by the federal government in 1997.


1999 - NFB vs. AOL Inc

National Federation of the Blind filed suit against America Online Inc, claiming that AOL’s browser and website were not accessible to blind users

  • The complaint was resolved by mutual agreement between AOL and NFB

  • AOL agreed to:

    • Raise employee awareness of IT accessibility issues

    • Take responsibility for developing accessible products and services

    • Collaborate with the disability community for input and feedback in designing and producing AOL products and services


2002 - Rendon v. Valeycrest Productions Ltd

The 11th Circuit Court found that a game show holding auditions via telephone discriminated against Deaf people and individuals with differential upper mobility

  • Court affirmed that the game show company’s actions constituted discrimination under Title III of the ADA despite the auditions being held “offsite” from the actual game show


2012 - National Association of the Deaf vs. Netflix

In NAD vs. Netflix, the First Circuit trial court upheld precedent set by Carparts, stating that Netflix’ online video streaming platform “Watch Instantly” is a place of public accommodation and its services must include Close Captioning in order to be truly accessible to all


2015 – National Federation of the Blind v. Scribd

In 2015, the National Federation of the Blind sued the web-subscription-based digital library service operated through phones and tablets. The NFB claimed, “Scribd's Web site and apps were inaccessible to blind users "because they use an exclusively visual interface and lack any non-visual means of operation," like screen readers ([National Federation of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 567 D.Vt. 201] as cited by Ekstrand). The federal district court in Vermont ruled, similarly to the First Circuit court in NAD v. Netflix, that  websites and content offered over the internet, are indeed places of public accommodation [Areheart B, Stein M, 2014] as cited by (Goldstein, Taylor, and Lazar, 2015).

Last words

Web accessibility law in the United States has come a long way; however, as it has been interpreted and enforced, it is still far from securing total equal web access for individuals with disabilities. While lawyers and advocates work to further enshrine web accessibility civil rights in United States law in our ever-changing technological environment, everyone else (especially communications professionals) can play an integral role in shifting the conversation toward increased inclusivity and web accessibility. Web accessibility-optimized sites and content quite often afford benefits to non-disabled folks as well! Using accessibility guidelines to design user interfaces actually leads to more and better web experiences for everyone (i.e. structuring web pages into different sections for screen readers often makes the content more digestible for everyone). A function like alternative text for images not only creates a more inclusive experience for certain individuals with disabilities, but also could allow someone using the internet with lower bandwith to access a textual description of an image without having to download the actual image file.

If the ethical and moral implications aren’t enough to convince you to take web accessibility more seriously, perhaps the potential legal repercussions will do the trick. As a web designer, if your client faces a claim of discrimination, they may likely turn to an indemnification clause in your contract to seek recovery damages from YOU.

Web Accessibility Takeaways for Communications Professionals

  • Get educated and stay educated.

    • Be aware of both Federal, local, and international law and standards

    • Learn about disability rights history

    • Listen to stories and perspectives shared by individuals with disabilities

  • Plan ahead to make sure accessibility standards and procedures are clear and fully supported by all

More Tips for Web Accessibility

  • Provide an Access Instruction page for visitors (explain accessibility features of the website and provide an e-mail hyperlink for visitors to communicate problems with web page accessibility).

  • Provide support for text browsers and descriptive hyperlinks (links such as this and click here do not alone convey the nature of the target link).

  • Attach alt-text to graphic images so that screen readers can identify the content.

  • For each photograph contributing meaningful content to the page, provide a hyperlink to a page providing descriptive text of the image.

  • Provide text transcriptions or descriptions for all audio and video clips.

  • Provide alternative mechanisms for online forms since forms are not supported by all browsers (such as e-mail or voice/TTY phone numbers).

  • Avoid access barriers such as the posting of documents in PDF, nonlinear format, Frame format, or requiring visitors to download software for access to content. If posting in PDF, then accessible HTML or ASCII must also be posted by the web-master converting the document. [Web Accessibility: Web Standards and Regulatory Compliance]

 Sources

Ensuring Digital Accessibility through Process and Policy, by Anne TaylorDaniel F. GoldsteinJonathan Lazar, Published by Morgan Kaufmann, Release Date: June 2015, ISBN: 9780128007105 (Accessed from: https://www.safaribooksonline.com/library/view/ensuring-digital-accessibility/9780128007105/)

Web Accessibility: Web Standards and Regulatory Compliance, by Andrew Kirkpatrick, Patrick H. Lauke, Jim Thatcher, Shawn Lawton Henry, Cynthia D. Waddell, Bruce Lawson, Michael R. Burks, Christian Heilmann, Mark Urban, Richard Rutter, Bob Regan, Published by friends of ED, Release Date: July 2006, ISBN: 9781590596388 (Accessed from: https://www.oreilly.com/library/view/web-accessibility-web/9781590596388/)

Martinez L, Pluke M. Mandate M 376: new software accessibility requirements. Procedia Comput Sci 2014;(DSAI 2013):271–280

https://www.w3.org/

https://www.nngroup.com/articles/ten-usability-heuristics/