Ken Nakata, Converge Accessibility, Principal

Ken Nakata helps law firms and corporation understand web accessibility issues. His career began in the Department of Justice working on the original Americans with Disability Act legislation and litigation. When Section 508 appeared, Ken started working in that area and spent a long time in that digital accessibility effort.

Mentioned in this episode:

Info about Accessibility at Blink

(upbeat orchestral music)

- Hello, this is Digital Accessibility,

The People Behind the Progress.

I'm Joe Wilinski, the creator and host of this series,

and as an accessibility professional myself,

I find it very interesting as to how others

have found their way into this profession.

So let's meet one of those people right now

and hear about their journey.

(uplifting music)

All right, well, here we go with another episode

where I have the opportunity to chat

with an accessibility practitioner,

and today I am speaking with Ken Nakata.

Hello, Ken, how are you today?

- Oh, pretty good.

It's an awesome day up here in Seattle.

- Well, I'm in the Seattle area as well, actually,

on Vashon Island,

which is near Blink's Seattle headquarters.

- Oh, okay, I'm over by the university

and Children's Hospital.

- All right, excellent.

Well, I've had the opportunity

to teach on that campus part-time for many years,

so it's always, but of course,

that hasn't happened for a while with the pandemic,

but hopefully we'll get back to that again in the future.

- Yeah, hopefully.

- It's good to have the opportunity to chat with you,

and, you know, a good place,

always a good place to start is

if you could just talk a little bit

about the work that you're doing now.

- Well, at this very moment,

I'm working on helping a county government

with their self-evaluation under Title II of the ADA,

but that's a little different from what I normally do.

Most of the time, on a typical day like today,

I would be working in web accessibility

and trying to help, typically a law firm,

understand web accessibility

when their client just suddenly got sued

for having an inaccessible website.

- And so is this

your personal business?

What are some of the things

that typically go on for you with one of your clients?

- Yeah, so my company is Converge Accessibility,

and we're about two years old.

We started right at the beginning of COVID,

and my business partner, Jeff Singleton and I,

have been doing this kind of work for the last however,

have been doing this kind of work for, gosh,

the last 15 years, I wanna say we've been working together.

And for that work,

we've mostly been doing web accessibility audits.

We've been also doing things like mobile app accessibility,

and sometimes we get into bigger-picture stuff.

Like, we've helped a number of companies

develop their global accessibility standards.

If they're, say, one of these big companies like an HP

or a Microsoft or a company like that,

that has a lot of product teams around the world,

we help them with their accessibility,

although now they pretty much have it all in house,

so they've got their processes pretty much locked down.

We sometimes just get involved

in some of these really bigger, more interesting projects

because we have a, well, I think one of the things

that makes us unique is that we have this perspective

that combines my background from working

at the Department of Justice,

and that work was doing lots of law and policy

together with my business partner

who comes from the more technical side

of working at Microsoft

and part of the accessible technology group there.

- Well, there's some things you mentioned

that I definitely wanna follow up with,

but right now I'd like to get into one of the things

that we always talk about in this program,

which is finding out how people ended up getting

to where they are today.

Accessibility, there's a lot of different paths

where people find their way into it.

So maybe reflect back on your own experiences

of work life or lived life.

Where did it start for you

where you start to think about accessibility

as something that was gonna be a big part of your life?

- Well, it's all just pure serendipity in my case.

So I don't have a disability,

and actually in my family,

no one in my family really has a disability.

So the way in which this got started,

and it's just the way in which my career developed,

I was working at a law firm in 1992,

and my friend says,

"You've always wanted to be a Civil Rights attorney, right?"

And I said, "Absolutely."

And he told me, "Well, the ADA recently got passed

and they are probably looking for attorneys down there."

And so I made some inquiries.

There was no job posting at the time,

and I just thought, okay, this is something I wanna do,

so I was very persistent

in applying for a position,

and sent constant writing samples,

that's one of the things you have to do

if you're an attorney, when you're applying for a job,

and made connections to people.

Well, I had some connections with people

in the Civil Rights division at the Justice Department,

and I ended up getting the job,

and I think I was maybe the third or fourth attorney

in the section, with this newly formed section,

that at that time was called

the Office on the Americans with Disabilities Act.

And we were actually a sub office within one of the sections

in the Justice Department

in a kind of lousy building in Washington, DC,

and we started there,

and back then we did everything.

We answered the phone lines, we did our investigations,

we did all the litigation, we answered the policy letters,

and we were coming up with, on a blank slate,

all the policies for the country

on the Americans with Disabilities Act.

And eventually that section grew

and became the Disability Rights Section,

and then, I think, now it's, what, 50, maybe 75 attorneys.

And it's obviously got a much bigger scope

in terms of what they have to do,

but it was really exciting back in those days,

basically doing everything.

So for the first half of my career,

I was pretty much like one of the other attorneys

and I did everything else,

the things that everybody else did.

After a few years, when Janet Reno came in,

she said, "Well, we don't want attorneys

answering the phone lines,"

so they got a whole bunch of people to do that,

and so I didn't have to do that,

although I kind of missed doing that.

And then during the second half of my career,

Section 508 of the Rehab Act was amended,

and that required that federal agencies had to make

their technology accessible, and so I jumped at that.

Nobody else wanted to do it

and I was really surprised by that,

but you gotta remember, attorneys are pretty much Luddites.

They don't wanna deal with technology, and so I did.

So I jumped at that and that led me to,

actually, yeah, that's the thing I'm most known for.

I had to do the surveys of the federal government,

so I was surveying all the different agencies

and the government about how they were managing

their technology to make sure it was accessible.

And I was leading this group

of agency coordinators

to try to develop best practices

and try to make sure

that the government's technology was accessible.

And then I was also doing the stuff

with trying to make the ADA policies aligned

with the concepts of web accessibility.

And then I left in 2004,

and I became a consultant after that,

and now I've just been mostly dealing with the stuff

with web accessibility and digital accessibility

that I had during the second half of my career,

but every now and then I get into one of these projects

where I do the stuff in my first half of my career,

like the stuff that I'm doing for self-evaluation

for a local government.

- Well, you covered a lot of things there.

Let me just go back a little bit

because I find it really interesting

just historically as well.

So when you first got involved with the ADA,

I mean, what was that like at the time?

It must have seemed like

there was just an enormous pool of things to look into.

Like, how did you prioritize what the activities were

that you would actually do in those early days?

- Yeah, so back then it was really complaint driven.

Under the ADA, an individual can file a private complaint

with the Department of Justice,

and we're supposed to go and look at it

and investigate it, you know.

And if there's discriminatory behavior by the respondent,

then we're supposed to take corrective action

and potentially litigate against them.

And it's really a matter back then

of responding to the complaints that are coming in.

And back then, I used to work on a lot of new construction

and alterations cases.

So that's something that we don't really get into

in the web accessibility world so much

because, well, there's no teeth to the requirements,

there's no teeth to the idea

that you have to build your website to WCAG 2.1 and AA.

Yes, that's what we tell people,

but it's not specifically spelled out in the regulations.

- It's different than building codes and things,

which traditionally have been

very much more prescriptive in the community.

- Oh yeah, exactly, yeah.

In the building, in the built environment,

yeah, there's a very strict requirement

that you have to comply

with the Justice Department's standards

on exactly what your building has to look like.

And those are really easy cases, I think,

because either, you know, either the,

the doorway is, what, 32 inches wide or it's not,

and if it isn't, then you get to sue about it.

And so it was pretty easy bringing those cases back then,

and we just got a lot of them,

and obviously, they were a high priority for us,

and I think that that was really important

because it created this awareness in the business community

that, "Oh my gosh, yeah,

we really have to make sure that our new buildings

and our alterations are accessible."

So I think that was definitely a high priority

in the very, very beginning, and then after that,

it moved into other things,

it moved into these more subtle forms of discrimination.

- And I think, generally, oh, sorry.

Yeah, I think, generally, then it kind of worked

because over time we did get, you know,

yeah, peers in the built out physical world

that standards are fairly well adhered to,

for the most part.

- For the most part, yeah.

There's still a surprising amount of construction out there

that is inaccessible,

but some of it is relatively minor violations

and some of them are not.

I was really surprised by some of the things I've seen

over the years.

- Well, then as you came into the Section 508 work,

I guess that was contemporaneous

with the work being done by the W3C,

with the WCAG guidelines and things

which helped to inform that,

but what was that activity like early on,

starting to formulate how to address digital accessibility?

- Oh, that was just like starting with the ADA.

It was writing on a whole new blank slate,

and it's something exciting about doing that.

There aren't that many opportunities

that that kind of time

just presents itself.

You know, like, when the ADA was passed

and people were struggling to figure things out,

yes, we had the regulations out there,

but there were so many things that were issues

that had to be considered and questions that came up,

and it was really exciting as an attorney

to be working in that early stages of things.

Once things have set,

they're a little bit more boring.

You just look up the answer and you make your argument,

but when it's all new and you're coming up with guidance,

you have to think about, well, gosh,

is that really the right thing to do?

Is that really too costly?

Is that really going to achieve the end result

that we want to achieve, which is trying to lower barriers

or eliminate barriers for people with disabilities?

And so there's a lot of thought

that goes into that kind of balance, and that's fun.

And so it was fun during the beginning of the ADA

and it was fun during the beginning of 508, too.

- Well, I think you mentioned that the Section 508 work

was subject to more interpretation maybe

than some of the legal requirements

about the physical world.

How did you approach those gray areas?

What were the places where you identified

that it was important to get involved,

and then how did that kind of move into a legal framework?

- Yeah, well, being a lawyer that knows,

with a fair understanding of technology,

does make this a lot easier.

So I think of it as web accessibility

ultimately comes down to a very simple ADA requirement,

which is effective communication,

and so the question then becomes, well, what does that mean?

So in the ADA, well, we have certain ways in which,

the technical assistance manuals

that accompany the ADA regulations that were developed

by the Justice Department,

they give examples of things

that public entities and places of public accommodation

have to do in order to make sure

that their information is accessible.

So they have to provide sign language interpreters,

they have to provide CART

if they're doing, say, a public event,

they have to make sure

that written communications are accessible

by providing them in alternate formats.

And so when we think about web accessibility,

well, what does that look like?

And really,

because a webpage

is not a one-on-one kind of communication,

we need to have a universal design standard

for web accessibility that we can say

these are the things you should design your website to,

and conveniently, that happens to be WCAG.

So we've got something that we can point to,

and we've got a legal basis for saying it.

We use the effective communication requirement to get there.

And the way in which I've always said it is

that WCAG is really a safe harbor right now

because there's no regulation that says you have to do it.

You have to just provide effective communication.

But if every settlement agreement out there

that's issued by the Justice Department that uses web,

that involves web accessibility,

always uses the WCAG standards as the standard

that they're building to,

and so if you are a web developer

and you build to that,

the Justice Department doesn't go higher than that,

so it's effectively a safe harbor.

- Well, then exploring that maybe a little bit more,

if we could, when you're talking about it

as a safe harbor with your clients,

how does that manifest itself

in terms of their strategy?

Is it that they do things

in a certain way that will, essentially,

put them in that safe harbor?

I'm assuming that a lot of the people that you work with

don't really have an understanding,

at least early on, of the technical underpinnings,

and so how do they start to identify

that they're starting to be in that safe place legally?

- Oh yeah, so,

well, I think that the way

in which most consultants do this,

most of the consultants that are in my space,

we pretty much all follow the same basic methodology.

It all comes down to trying to,

we examine the website,

and we usually have a client walk us through their website,

and the goal there is to try to find the type of content

that they're typically putting up on a webpage,

'cause on a website, people tend not to experiment that much

and just say, "Oh, I'm putting up a new webpage today.

I think I'm gonna come up with some brand new content

I've never placed on this webpage before.

I'm gonna put up a new type of control,

or I'm gonna put up a calendar date picker,

or I'm gonna pick up a three-state checkbox

because I can."

People tend not to do that.

People tend to use the same design motifs

that they've always used.

They tend to use, if I've used the tab control

for displaying tabs and content and tabs,

I'm probably gonna do that not just on one page.

I'm probably gonna do it on a bunch of pages

because it's just something that I'm used to

and people are used to that,

my visitors are used to seeing that.

Or if I'm putting it on videos,

I'm probably gonna make my videos

probably pretty much looked the same,

and so it's not that hard

to try to get representative samples of the type

of content that people typically put up on their page.

And so you can take a site that's quite complex

and really boil it down

to just a couple of different pages

that includes that type of content,

and that also includes the templated content,

like the headers and the footers, and the navigation panes,

and things like that.

And so that's basically what all of us consultants do.

We try to take this e-commerce site, for instance,

with tens of thousands of products and different pages

and boil it down to about 25, maybe 30, maybe 50,

if you're looking at the backend consumer,

the login process for managing their accounts,

if you get into that, yeah, then it's a bunch more pages,

but it really brings a site down

to a very finite number of pages.

Okay, once you identify the accessibility patterns

that are problematic on that limited set,

then the client can go and replicate that

throughout the rest of their site,

and so that makes it relatively easy.

And for the time being, in a short term,

that's really great because, well,

as they're building out new content,

chances are they're gonna still be using

that same old designs,

and so you can actually get a lot of traction,

you can get a lot of mileage, not traction.

You can get a lot of mileage out of that approach,

and then you combine that with, you know,

some automated testing,

and maybe a periodic accessibility review,

and yeah, you're pretty good.

So until the next major design refresh comes along

where all of a sudden

you're starting from zero, essentially,

when you bring out all new wire frames

and just completely change the site, until that happens,

you're pretty good for accessibility.

So as long as you just keep doing that.

So I think that that's really what,

I think that's the way in which

most of our clients approach it,

and I think that that's the way, yeah,

I think, in general, most people approach it

if they wanna be thorough about it.

- Do you get questions about,

quote, unquote, "Certification?"

I know I run into that a lot with organizations

that aren't familiar with accessibility.

They're kind of looking for something

that maybe is the equivalent of a building code

in the physical world,

which applies some official

stamp of approval.

We don't really have that in the digital space.

How do you handle those types of conversations

and express the way for them to show

that they're doing things in the right way?

- Well, all lawyers are trained

in how to avoid answers.

No, okay, seriously though,

the way in which I answer that is

by just pointing to the W3C site itself and saying,

there's a, I forgot what page it's at,

but basically, in order to say

that you are WCAG 2.0 or 2.1 A or AA compliant,

you have to meet all of the requirements

on all of your pages on a site,

and on a typical client site that has thousands of pages,

there's practically no way that anybody can say that.

And I think that that's one of the major impetuses

for, so-called, Silver, WCAG 3.0,

is to come up with a more realistic, I suppose,

certification, or not certification,

a grading process for whether you're compliant

or you're not compliant.

I don't know whether I agree with that effort,

but it is that really high bar that the W3C set

in terms of every page has to fully comply

with the standards, basically makes it impossible

for anybody to say that they fully comply with the standards

and that they meet that bar

'cause websites are always changing.

So that's what I tell them.

- Well, maybe if we could move

into kind of more free thinking

about the past and future.

You've been involved in this for a long time,

kind of looking back on how things have evolved,

do you have any thoughts about areas

that you think, where, like, you're surprised

that things have moved in a positive way

as well as they have?

And then the other side of it,

are there some areas

where you still see significant challenges

for bringing accessibility into the world?

- Well, you know, it's no secret

that I've been frustrated by the fact

that the Justice Department, my old office,

hasn't issued a update to the Title III

and Title II regulations for web accessibility.

I think that that would go really long way

to improving awareness, I think,

and I think that if every business out there had something

that they could definitely point to,

then all the content management providers,

the WordPresses of the world,

or in the case of state and local government,

CivicPluses of the world

would have a much stronger incentive to make sure

that they make it really easy

to make really compliant webpages.

So I think that the regulations would improve the tools

that we use, it would improve the awareness,

it would just make things just generally better.

In the short term, it may increase the number of lawsuits,

but I guess they could take care of that

by building in a phase-in period.

But for the fact that it's 20 years later

and we're still talking about,

20 years since I left,

almost 20 years since I left the Justice Department

and came up with the basic technical guidance

for state and local governments,

the fact that now they just issued new guidance

that says exactly the same thing,

so it says to me

that really they haven't gotten anywhere on this.

And then there's the explosion of lawsuits,

which are just being fueled by the inaction

and the vagueness of what Title III entities have to do,

so that's the big one.

I think another thing,

another opportunity that's coming up is

that our society really hasn't still

gotten to the point that the worlds of digital accessibility

and the worlds of physical accessibility,

built environment accessibility, have merged, so to speak.

Yeah, you go to these conferences

on digital accessibility, like CSUN

or Accessing Higher Ground,

and you only hear barely mention a physical accessibility

or traditional accessibility.

You go to the ADA Symposium

or any other traditional,

built environment type of conference,

and you mention web and digital accessibility,

and generally people's eyes glaze over

and they have no idea what you're talking about,

and that's unfortunate

because there's a much stronger framework

in terms of accomplishing things in that built environment,

and if they were to merge, then I think

that we'd end up having a lot better compliance.

Like, for instance, state and local governments

have to have a Title II coordinator who's responsible

for everything that that agency is doing

in terms of accessibility.

It's kind of like the one-stop shop for accessibility,

and that person is also responsible

for overseeing the planning for accessibility,

and usually that doesn't include the website

or the digital communications, and that's really too bad

because if they were,

then they'd get extra budget for that

and they could plan much more intelligently for that.

And the fact that, as a consultant,

I see a lot of RFPs that come out

from state and local governments,

and they come across my desk every day,

and I can't tell you how many RFPs I see

for website redesigns

that either don't mention accessibility,

or if they do mention accessibility,

just have it as one little check off item

on a list of 30 other items, that says,

"Oh yeah, and by the way,

yeah, our website fully complies

with all these security requirements,

our website complies with all these privacy requirements.

We are not exporting technologies

outside of territorial boundaries of the United States,"

blah, blah, blah, blah, blah,

we don't beat up on puppies and little children,

and, by the way, we fully meet WCAG 2.0,

and of course, a vendor is just gonna be, check.

He's just gonna be, like, barely paying attention

to the requirements and checking things off,

and so we all know what happens,

of course end up an inaccessible website.

- Well, I really appreciate those insights

that you just provided

as a look to the future,

and it was also really interesting to me

to learn about how some of the things move forward

in the Justice Department.

So thanks so much for taking the time

to share your knowledge and expertise with us.

- Yeah, thanks, and also,

one little thing I forgot to mention is,

supposedly, the Justice Department is coming up

with regulations next year on Title II

and web accessibility.

So when they do, definitely seek those,

seek that draft regulation out

because anybody can comment on a regulation

no matter who they are.

You don't have to be a person who's directly affected

by a regulation, and they wanna hear from you,

so they'll be hearing from me.

- That's a really good point as well.

So look for that sometime next year.

Well, thanks again, Ken,

and hopefully we can meet up

at one of those events that you'd mentioned

in a physical sense sometime.

- Yeah, hopefully, once COVID's over.

- All right, thanks a lot, bye bye.