I’m writing this on Monday March 22, 2021.
It’s the start of Spring Break.
I live in Portland, Oregon, so it’s been raining a lot, which has disappointed a lot of small people who want to go out and play tennis. My shoulder hurts, because of Typing and Mousing, which, honestly, I have no one to blame but myself. I should probably computer less?
Two short things up front, and then one big thing in this episode. Let’s go.
Substack update: I have been trying to delete my Substack account. The “delete my publication” button came back! But now clicking on it does nothing. This isn’t even a metaphor.
Two short things, and then one big thing. I know, the order has switched around.
Jimmy’s latest subject was System Shock [Wikipedia], the 1994 game from Looking Glass. It’s notable for me because a) I was 15 years old and very impressionable when System Shock came out, but b) because it’s one of the great examples of tight integration of narrative, game design and writing and all those different disciplines came together.
I still think it’s rare (though becoming less so) when, for lack of a better term, the ostensibly different two cultures of art and science come together to create something unique through skill and taste in those two cultures.
That’s the interesting part to me and I want to get it across more usefully than simply being at “the intersection of the liberal arts and technology”. That there is something new and wonderful where there is good storytelling, writing, art and good technical implementation. They don’t even have to be new.
And though tools appear to be improving little by little, the bicycles are still too difficult to use. Yes, I’ve seen all the videos about how amazing the young people these days are at video editing, and I know I’m going to sound like a No True Scotsman… but I want to see more tools like Twine, more REPL-style creative tools that are accessible to make stuff that’s interactive.
I had always thought California might be one of the first states to do this, in 2019 I wrote somewhat jokingly about establishments needing to include giant “THIS ESTABLISHMENT USES TECHNOLOGY KNOWN TO THE STATE OF CALIFORNIA TO ADVERSELY AFFECT YOUR PRIVACY.” signs [s07e16: “With the word POLICE on it”].
Back in 2017, I had tweeted about a future with apps containing notices like “WARNING: THIS APP CONTAINS ALGORITHMS KNOWN TO THE STATE OF CALIFORNIA TO CAUSE ADDICTION”, and 2019 also included this exciting favorite:
(aside: OOH! AN IMAGE! IN A NEWSLETTER!)
All of that is to say, I don’t see this kind of thing slowing down or being rolled back. Which brings me on to…
In America, there is the Americans with Disabilities Act. Helpfully, the Federal Government has put together a guide about it which is in complete vanilla HTML! [A Guide to Disability Rights Laws].
Back in the beforetimes of October 2019, the U.S. pizza chain Dominos lost a court case against Guillermo Robles, a blind person who uses screen readers to access the internet. Here’s a summary from Ars Technica:
Guillermo Robles, a blind California resident who uses screen readers to access the Internet, tried to place an order through Domino’s mobile app. Neither the app nor Domino’s website proved usable by a screen reader, and Robles eventually sued the company, arguing the site’s inaccessibility violated his rights under the Americans with Disabilities Act. [Ars Technica]
Robles got his case up to an appeals court, which said that Domino’s app and website should have been compliant with the ADA, of which Title III says, roughly, that certain private entities that are “public accommodations”, must:
comply with basic nondiscrimination requirements that prohibit exclusion, segregation, and unequal treatment. [A Guide to Disability Rights Laws]
Now, what’s interesting here is is what kind of requirements exist alongside the ones listed above. Here’s the rest of the summary from the government’s guide:
Public accommodations must comply with basic nondiscrimination requirements that prohibit exclusion, segregation, and unequal treatment. They also must comply with specific requirements related to architectural standards for new and altered buildings; reasonable modifications to policies, practices, and procedures; effective communication with people with hearing, vision, or speech disabilities; and other access requirements. Additionally, public accommodations must remove barriers in existing buildings where it is easy to do so without much difficulty or expense, given the public accommodation’s resources. (my emphasis)
You have the ADA. It’s the legislation that some people dislike because it means stores have to spend money on ramps (ugh) and make things “accessible” to, for example, people in wheelchairs, and who cares about them, Am I Right?
The regular counter-argument to this is that making things accessible for some people actually ends up making them accessible to all people. This argument is usually bolstered by the fact that most people will encounter at least one disability during their life. One of my go-to examples depending on the audience I’m talking to is helping people who are caregivers of children realize that making things usable when you “only have one hand because you are holding a baby” is something they both appreciate and benefit from due to contextual ability.
And so Domino’s v. Robles comes along and 9th Circuit Court of Appeals comes along and says things [ruling in, um, PDF OH THE IRONY] like:
Domino’s website and app facilitate access to the goods and services of a place of public accommodation—Domino’s physical restaurants. They are two of the primary (and heavily advertised) means of ordering Domino’s products to be picked up at or delivered from Domino’s restaurants. We agree with the district court in this case—and the many other district courts that have confronted this issue in similar contexts—that the ADA applies to Domino’s website and app, which connect customers to the goods and services of Domino’s physical restaurants
So then what? Domino’s appeals to the Supreme Court about not having to make its website and app accessible, which, you know, is not a good look and leads to jokes like “ADA Lawsuits Won” being one of the best product management metrics. Domino’s specifically asked the court to rule on the question of whether the ADA requires
“a website or mobile phone application that offers goods or services to the public to satisfy discrete accessibility requirements with respect to individuals with disabilities?”
Phew! So, what happened?
The Supreme Court declined to take up Dominos’ petition, which means the 9th Circuit Court of Appeal’s decision stands and, in as many words, “websites and apps” need to comply with the ADA.
OK, so it gets better. Bear with me.
Two points that came together in my mind. I’ll try to make the first one quick.
First, the concept of “accommodations” outside of ADA. In 2018, residents of Florida approved a state constitutional amendment that would give back to most convicted felons (excluding murders and sex offenders) the right to vote. Shenanigans (sorry, I misspelt “overt racism”) followed, where these felons would need to pay back any court fees or fines due before they could vote. This is pretty much a poll tax. The change was appealed. But in July last year, the Supreme Court decided actually, a poll tax is totally fine [Slate]. This is terrible.
BUT, what caught my attention about this was the concept of making reasonable accommodations to the process of registering to vote, and if there’s anyone with potential ADA standing. Because there’s a hammer to crack difficult-to-use government services.
(The felon connection also was reinforced in that brain of mine by this amazing, sad, thread from Maria Burnett, a human rights lawyer, who was helping a client who had just come out of 30 years in prison. Turns out, a lot of what you need to do is on the web, or information that’s emailed to you… and depending on exactly how (in)humane the incarceration process is in your jurisdiction, you might have no idea how to deal with any of that. So, again, accomodations.)
So first, considering ADA as direction or tool to advance the requirement of accommodations for voting, and therefore other government services.
Second thing, and this is the one where my conversation with Lauren Ancona really helped. Here’s what Lauren noted:
If short-term memory is a known feature of several diagnoses, why is it legal for everything from parking enforcement to credit card companies to charge me more when I inevitably forget to pay the bill, which I refuse to automate because no, you don’t get to just take my $. [tweet]
To which my response was:
I’ve been thinking about this for a while and wonder if we’re near the time for an ADA accommodations case for conditions like ADHD and, like you say, other diagnoses that include short-term memory. [Tweet]
I’ll walk through my thinking, because I think this could be thin end of a particularly litigious wedge.
(It’s interesting to note that a lot of practice and policy changes not only in government but also the private sector in the U.S. come about, I think, due to lawsuits… – citation needed, ideally from an academic lawyer?)
Let’s take ADHD. It’s covered under the ADA. It’s not a simple “I’m diagnosed so I’m covered” coverage, it’s one where (according to this article, at least), you have to be significantly impacted in your ability to perform major life activities or functions, and you must be regarded as having a disability and have a record of having been viewed as disabled [Disability Resource Community]
Let’s say that ADHD starts to be covered, or, that conditions like “brain fog” or difficulty concentrating start to be recognized more and more as affecting your day to day ability. Let’s say, for example, that having such a brain fog impacts your ability to pay bills, which affects your credit score, which directly affects your ability to get a mortgage to buy property. Let’s just assume that that’s the case, or that there’s a reasonable causal chain, there.
Let’s say, even, that ‘brain fog” is something that can also be very much like a transient or contextual change in ability, like, say being the caregiver of a newborn and having little to no sleep. So there’s no need to pathologize: it’s simply a change in ability that can (or, if the argument works), does result in discrimination that segregates or results in unequal treatment.
So then what happens?
For one, a lot of dark patterns are out, I think. For one, I think a lot of policies, practices, and procedures might come under the magnifying glass of whether they can be, or are, subject to reasonable modification.
Let me tell you now: there would be much protesting and gnashing of teeth if predatory business practices that happen to impact people with conditions that result in brain fog are required to make reasonable modifications not only because a) they may well be unprofitable, and b) have you even tried to change business policies, practices and procedures at scale, lately? Do you even computer?
I mean, let’s pull back a bit.
Say you’re working with your employer and the paperwork for filing expenses is super difficult to deal with and requires a bunch of concentration and organization. Is it reasonable for the expense process and policy to be modified? Would others benefit from that process and policy modification? Likely yes, right? I mean, you’d certainly be disadvantaged if the expense reimbursement policy and process just happened to discriminate against people with some sort of ADHD. Especially if there’s something like, say, Expensify, on the market? Can you imagine?
“Hey, I think switching to something like Expensify would be really helpful to me and to other people as a reasonable modification of our expense process.”
The point here is to consider what type of policies, practices and procedures, and the expression of such, a) discriminate against people with a recognized difference in ability and b) also, I don’t know, happen to be predatory business practices, which if they were amended, lots of people would benefit from.
Can you imagine if certain bureaucratic processes were made significantly easier? What even does navigating the American health insurance system look like with ADHD?
I mean, if I were a court, I also would be super careful of touching this because of course Where Would It All End, Hmmm? But for the moment, it feels like this is something that could happen.
PHEW that was longer than I thought.
As ever, I love getting notes and replies from people, even if they’re just “hi!”. How are you?