R. Naeve & C. Morrison, Web Accessibility -- DOJ Kicks The Regulatory Can - Again

Robert A. Naeve

Christopher M. Morrison

Portfolio Media. Inc. | 860 Broadway, 6th Floor | New York, NY 10003 | www.law360.comPhone: +1 646 783 7100 | Fax: +1 646 783 7161 | [email protected]

Web Accessibility: DOJ Kicks The Regulatory Can — AgainLaw360, New York (June 1, 2016, 11:41 AM ET) -- The past decade has been a time of exponential growth for the worldwide web, and at least in the United States, the internet and electronic media are now the prevailing modes of communication. After all, 10 years ago, Law360 was a small legal blog focusing on a few target practices; today, this alert was delivered to thousands of practitioners across the country and around the world with the push of a button.

Partly in response to the ubiquity of internet communications the U.S. Department of Justice announced in a July 2010 advanced notice of proposed rulemaking (ANPRM)[1] that it planned to issue regulations providing accessibility standards for websites operated by state and local public entities regulated by Title II of the Americans with Disabilities Act[2], as well as public accommodations covered by Title III.[3] The DOJ explained in its ANPRM that “inconsistent court decisions, differing standards for determining web accessibility, and repeated calls for department action indicate remaining uncertainty regarding the applicability of the ADA to websites of entities covered by Title III.”[4]

Six years later, the world is a different place. Outside the walls of the DOJ, everyday apps like Instagram, Snapchat and Groupon were born and have become part of the everyday jargon. By 2015, 65 percent of adults in the U.S. used some form of social media, up 20 percentage points from 2010.[5] When the ANPRM was issued, about 29 percent of the world’s population had internet access; today, that number is fast approaching 50 percent internationally and 90 percent in North America.[6]

Despite these changes, the DOJ has only haltingly pursued website accessibility rulemaking. After receiving comments on its ANPRM, the DOJ ultimately decided to issue separate website regulations for Titles II and III.[7] On July 9, 2014, four years after its ANPRM, the DOJ submitted proposed Title II regulations for Office of Management and Budget (OMB) review, indicating that it expected to release proposed Title II and Title III regulations by the end of 2014 and the third quarter of 2015, respectively.[8] In November 2015, the DOJ then announced that it expected to release its proposed Title II regulations “early in fiscal year 2016,” and that it had placed proposed Title III regulations on the back-burner, with an anticipated release of proposed regulations delayed to sometime “during fiscal year 2018.”[9]

On April 28, 2016, the DOJ looped back to the beginning by withdrawing its proposed Title II regulations from OMB review.[10] On May 9, 2016, the DOJ published a supplemental

of 8Web Accessibility: DOJ Kicks The Regulatory Can — Again - Law360

6/1/2016http://www.law360.com/articles/801987/print?section=consumerprotection

advance notice of proposed rulemaking, (SANPRM),[11] indicating that it now needs “additional public comment ... to help the department shape and further its rulemaking efforts.”[12]

Ordinarily, public entities and businesses might not prefer greater regulation of their programs, activities and business endeavors, preferring to comply with a more general and flexible set of accessibility rules. However, a number of countries (including England, France, Canada, Australia and the European Union) have already enacted website accessibility standards. The federal government and a number of states have done likewise with respect to their own websites. At some point, the DOJ will certainly get around to promulgating regulations for Title II and III entities, based in no small part on the views the DOJ expresses in the SANPRM.

The public comment period on the SANPRM opened on May 9, 2016, and will close three months later on August 9, 2016. Because the Title II regulations will provide a framework for their Title III counterparts, public and private website owners should review the SANPRM in detail, and consider whether and when to submit comments to guide DOJ in its rulemaking efforts.

Rationale for Proposed Rule Governing Website Accessibility

The SANPRM is predicated upon the department’s convictions that the ADA applies to internet websites — at least in the context of the services provided by public entities — and that regulation is necessary to eliminate the “digital divide” between disabled and nondisabled users of web-based governmental services.[13] The DOJ reiterates that rulemaking is necessary because voluntary compliance with Title II as applied to websites has “not resulted in equal access for persons with disabilities.”[14]

The DOJ continues to acknowledge, as it first did in 2003,[15] that, “State and local governments might be able to meet their title II obligations by providing an alternative accessible means of obtaining the website’s information and services (e.g., a staffed telephone line),” noting only that these “alternative means would be unlikely to provide an equal degree of access in terms of hours of operation and the range of options and programs available.”[16] This concession is important, at least in the short-run. In the absence of final regulations mandating compliance with specific accessibility standards, Titles II and III generally give covered entities flexibility to determine how best to effectively communicate web content to individuals with disabilities. Use of the most advanced technology, or adoption of any particular standard, is not required.[17]

What’s the Standard?

In its 2010 ANPRM, the DOJ said it was considering whether, “[g]iven the ever-changing nature of many websites,” the department simply should “adopt performance standards instead of any set of specific technical standards for website accessibility.”[18] With respect to technical standards, the ANPRM suggested two similar standards that might be adopted in website accessibility regulations. The first, known as the “Section 508 standards,” was promulgated by the federal Architectural and Transportation Barriers Compliance Board and applies only to websites operated by federal government agencies, as required by section 508 of the Rehabilitation Act.[19] The second, known as the “WCAG 2.0 standards” is a set of voluntary accessibility guidelines published by the World Wide Web Consortium.[20]

The SANPRM confirms that the DOJ is now focused on the WCAG 2.0 standards. The DOJ is of the view that general performance-based standards (such as general prohibitions against discrimination or requirements that full and equal access be provided) likely are “too vague and subjective and would prove insufficient in providing consistent and testable requirements for web accessibility,” and that the WCAG 2.0 standards provide “flexibility



similar to a performance standard, but also provides more clarity, consistency and objectivity.”[21]

This comes as no surprise. All of the DOJ’s recent settlements with public and private entities under Titles II and III have required some level of compliance with the WCAG 2.0 standards.[22] What may be of greater interest is that the DOJ is considering whether to require all web content be 100 percent compliant with the WCAG 2.0 standards, or whether it should adopt some other, less demanding standard that might, for example, establish a “minimum threshold” or “acceptable level of noncompliance for purposes of complaint filing or enforcement action.”[23]

“Web Content” And Certain Exceptions

Subject to limited exceptions, the DOJ proposes in its SANPRM to regulate all web content without regard to whether it is “viewed on desktop computers, notebook computers, smart phones or other mobile devices.”[24] Hence, it proposes to define “web content” as “[i]nformation or sensory experience — including the encoding that defines the structure, presentation and interactions — that is communicated to the user by a web browser or other software. Examples of web content include text, images, sounds, videos, controls and animations.”[25] This definition is quite broad and, like the WCAG 2.0 standards themselves[26], is “technology neutral” — that is, the WCAG 2.0 standards prescribe how a website should be programmed, and assume that user agent and assistive technology developers will create programs that know how to “read” compliant programming.[27]

In its 2010 ANPRM, the DOJ proposed to limit application of its proposed website accessibility regulations by applying them only to “governmental entities and public accommodations covered by the ADA that provide goods, services, programs or activities to the public via websites on the internet.” The DOJ suggested that its regulations might not apply to online content (1) “created or posted by website users for personal, noncommercial use ... , even if that content is posted on the website of a public accommodation;” (2) posted on public accommodations’ websites “by individuals not under their control as long as they provide their website users the ability to make their posts accessible;” and (3) “linked to [a public accommodation’s] site, but that it does not operate or control.”[28]

The DOJ refines these concepts in its SANPRM, which omits mention of an exception for personal noncommercial uses. The DOJ now proposes that “[t]hird-party web content linked from the public entity’s website is not required to comply with the web access standards unless the public entity uses the third-party website or web content to allow members of the public to participate in or benefit from the public entity’s services, programs or activities.”[29]

The DOJ also proposes “generally excepting web content posted by third parties on public entities’ websites from compliance with WCAG 2.0 Level AA,” reasoning that “a public entity generally does not have control over the volume or substance of content posted by a third party on the public entity’s website.”[30] Web content created by a third party that is “essential for engaging in civic participation” or that “a public entity decides to post itself” would not be excepted by this rule.[31]

The DOJ also is considering additional exceptions for electronic filings made by litigants in judicial and quasi-judicial proceedings;[32] third-party social media websites public entities use to provide services, programs or activities;[33] and password-protected web content of public educational institutions.[34]

Conforming Alternative Websites

One approach to improving web accessibility has been to create simplified “alternative”



accessible websites that contain the same basic information as a covered entity’s original website, but that are presented in a simplified format, with fewer graphics or animations, and that can be formatted more easily for compliance with the WCAG 2.0 standards. Those objecting to this approach typically point out that alternative websites violate the letter and spirit of the ADA by segregating disabled users and relegating them to a “second-best” web experience. Objectors also complain that many alternative pages do not provide identical content, and are not as frequently updated.[35]

The DOJ recognizes that provision of an alternative website may be necessary in some circumstances, but seeks to avoid promulgating a rule that might “be interpreted to permit the development of two separate websites — one for individuals with disabilities and another for individuals without disabilities — even when doing so is unnecessary.”[36] Hence, the DOJ is considering whether to permit public entities to create conforming alternate versions of webpages and web content only: (1) when it is not possible to make web content directly accessible due to technical or legal limitations; or (2) when used to provide access to conventional electronic documents.[37]

With respect to the first “technical or legal limitations” category, the DOJ’s proposed approach would “permit the use of conforming alternate versions of webpages and web content to comply with web accessibility requirements only where it is not possible to make webpages and web content directly accessible due to technical limitations (e.g., technology is not yet accessibility supported) or legal limitations (e.g., web content is protected by copyright).” The second category would require public entities to ensure that only one of several versions of the same online document be made accessible. For example, “a public entity would not be required to remediate an inaccessible PDF where a WCAG 2.0-compliant Microsoft Word version is also provided on the public entity’s website (i.e., the Microsoft Word document acts as a conforming alternate version providing accessible information to individuals with disabilities).”[38]

Effective Dates and Safe Harbors

The DOJ suggested demanding compliance deadlines in its 2010 ANPRM by mandating accessibility for new websites, and new content on existing websites, created six months after publication of its final rule.[39] For existing websites or pages, the DOJ proposed “having the website access requirement apply two years after the date of publication of the final rule.”[40]

Apparently in response to earlier comments, the SANPRM proposes to jettison the six-month effective date for new websites and new web pages. The DOJ instead assumes that, by now, most public entities have a basic understanding of the WCAG 2.0 standards, and that, with the exception of live audio content in synchronized media, it is appropriate to mandate “a two-year implementation time frame for most public entities in an effort to balance the importance of accessibility for individuals with disabilities with the resource challenges faced by public entities.”[41]

The DOJ recognizes that it may not be possible or feasible to caption all live audio content in synchronized media. Hence, the DOJ proposes to give public entities more time — up to three years — to comply with the WCAG 2.0 standards with respect to captioning live-audio content in synchronized media, “unless the public entity can demonstrate that compliance with this section would result in a fundamental alteration in the nature of a service, program or activity or in undue financial and administrative burdens.”[42]

The SANPRM eschews the earlier proposed safe harbor for web content that has not been updated or modified. Instead, the DOJ proposes two more tailored exceptions.

First, the SANPRM proposes to except “archived materials” from compliance with the WCAG 2.0 standards so long as this material “(1) is maintained exclusively for reference,



research or record keeping; (2) is not altered or updated after the date of archiving; and (3) is organized and stored in a dedicated area or areas clearly identified as being archived.”[43] However, the DOJ proposes that “individual requests for access to these excepted documents would still need to be addressed on a case-by-case basis in order to ensure that individuals with disabilities are able to receive the benefits or services of the public entity’s archived web content through other effective means.”[44]

Second, the SANPRM contains a more tailored exception for “conventional electronic documents,” a term which is defined to include “electronic files available on a public entity’s website that are in the following electronic file formats: portable document file (PDF) formats, word processor file formats, presentation file formats, spreadsheet file formats, and database file formats.”[45] The DOJ proposes that “conventional electronic documents created by or for a public entity that are available on a public entity’s website before the date the public entity is required to comply with this rule are not required to comply with the web access standards, unless such documents are to be used by members of the public to apply for, gain access to, or participate in a public entity’s services, programs or activities.”[46]

These are just a few of the ways the DOJ may change the rules for the internet superhighway. Time will tell whether and to what extent DOJ rulemaking efforts will be guided by comments it likely will receive from public and private entities that will be subject to the regulations the department promulgates.

—By Robert A. Naeve and Christopher M. Morrison, Jones Day

Robert Naeve is a partner in the labor and employment group of Jones Day’s Irvine, California, office. In addition to his employment law practice, Naeve represents public entities and private businesses throughout the U.S. in access litigation involving internet websites and other forms of technology. He is the author of "Managing ADA: The Complete Compliance Guide," a two volume treatise on all five titles of the ADA, published by John Wiley & Sons.

Christopher Morrison is a partner in the business and tort litigation group of Jones Day’s Boston office. His interdisciplinary practice sits at the intersection of litigation and intellectual property rights. He regularly advises clients respecting accessibility obligations, particularly as they relate to the world wide web.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] DOJ, Advance Notice of Proposed Rulemaking, Accessibility of Web Information Services of State and Local Governments and Public Accommodations (“ANPRM”), 75 Fed. Reg. 43460, 43463 (July 26, 2010).

[2] 42 U.S.C. §§ 12131 et seq.

[3] 42 U.S.C. §§ 12818 et seq.

[4] ANPRM, 75 Fed. Reg. at 43464. According to the DOJ, “[t]here is no doubt that the programs, services and activities provided by state and local government entities on their websites are covered by title II of the ADA.” ANPRM, 75 Fed. Reg. at 43464; SANPRM 81 Fed. Reg. at 28660; see Innes v. Bd. of Regents of the Univ. Sys. of Md., 29 F. Supp. 3d 566, 57778 (D. Md. 2014). However, the same cannot be said of websites operated by private entities covered by Title III. Most federal circuit courts limit Title III’s application to physical places. E.g., Rendon v. Valleycrest Prod. Ltd., 294 F.3d 1279, 1280-81 (11th Cir.



2002); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000); Ford v. Schering-Plough Corp., 145 F.3d 601, 612 (3d Cir. 1998); Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1010-11 (6th Cir. 1998) (en banc); Stoutenborough v. National Football League, 59 F.3d 580, 583-84 (6th Cir. 1995).

Courts in these circuits generally hold that Title III does not apply to websites that exist “only in cyberspace,” Young v. Facebook Inc., 790 F. Supp. 2d 1110, 1115 (N.D. Cal. 2011), at least in the absence of “some connection” to, or “nexus” with, a physical place. Cullen v. Netflix Inc., 2015 U.S. App. LEXIS 5257 (9th Cir. 2015); Earll v. Ebay Inc., 599 Fed. Appx. 695 (9th Cir. 2015); National Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946, 956 (N.D. Cal. 2006); Access Now Inc. v. Southwest Airlines, 227 F. Supp. 2d 1312, 1318-19 (S.D. Fla. 2002), appeal dismissed, 385 F.3d 1324 (11th Cir. 2004); see also Davis v. BMI / BND Travelware, Case No. CIVDS1504682 (San Bernardino Superior Court, March 21, 2016).

A minority of federal circuits do not limit Title III’s application to physical places. E.g., Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 33 (2d Cir. 1999); Doe v. Mutual of Omaha, 179 F.3d 557, 559 (7th Cir. 1999); Carparts Distribution Center Inc. v. Automotive Wholesaler’s Association of New England Inc., 37 F.3d 12, 19-20 (1st Cir. 1994). Courts in these circuits generally hold that Title III does apply to websites operated by public accommodations, without regard to whether they are somehow connected to a physical space. E.g., Nat’l Fed’n of the Blind v. Scribd Inc., 2015 U.S. Dist. LEXIS 34213 (D. Vt. March 19, 2015); Nat’l Ass’n of the Deaf v. Netflix Inc., 869 F. Supp. 2d 196, 200 (D. Mass. 2012).

[5] Pew Research Center, Social Media Usage, http://www.pewinternet.org/2015/10/08/social-networking-usage-2005-2015/

[6] Internet World Facts, Internet Growth Statistics, http://www.internetworldstats.com/emarketing.htm.

[7] DOJ, Fall 2015 Statement of Regulatory Priorities (“2015 Statement of Regulatory Priorities”), http://www.reginfo.gov/public/jsp/eAgenda/StaticContent/201510/Statement_1100.html, at 3.

[8] Regulatory Information Service Center, Unified Agenda of Federal Regulatory and Deregulatory Actions, 79 Fed. Reg. 76456, 76565 & 76570 (Dec. 22, 2014).

[9] 2015 Statement of Regulatory Priorities at 4.

[10] DOJ, Statement Regarding Rulemaking on Accessibility of Web Information and Services of State and Local Government Entities (“DOJ Statement”), http://www.ada.gov/regs2016/sanprm_statement.html at 1.

[11] DOJ, Supplemental Advance Notice of Proposed Rulemaking - Accessibility of Web Information and Services of State and Local Government Entities (“SANPRM”), 81 Fed. Reg. 28658 (May 9, 2016).

[12] DOJ Statement at 2.

[13] SANPRM, 81 Fed. Reg. at 28659.

[14] Id. at 28661.

[15] DOJ, Accessibility of State and Local Government Websites to People with Disabilities, http://www.ada.gov/websites2.htm (June 2003).




[17] E.g., West v Moe’s Franchisor LLC, 2015 U. S. Dist. LEXIS 165070 at *6 (S.D.N.Y. Dec. 9, 2015); DOJ, Nondiscrimination on the Basis of Disability, Final Rule, 56 Fed. Reg. 35544, 35566 (July 26, 1991)

[18] ANPRM, 75 Fed. Reg. at 43465.

[19] 29 U.S.C. § 794d (a)(1)(A)(i)-(ii); 36 C.F.R. § 1194.22; ANPRM, 75 Fed. Reg. at 43465.

[20] W3C, Web Content Accessibility Guidelines 2.0, http://www.w3.org/TR/WCAG20/; ANPRM, 75 Fed. Reg. at 43465.


[22] For DOJ settlements adopting the WCAG 2.0 standards, see, United States v. edX Inc., DOJ Case No. 202-36-255 (April 2, 2015); United States v. Ahold USA Inc., DOJ Case No. 202-63-169 (Nov. 17, 2014) United States v. Florida State University, DOJ Case No. 205-17-13 (June 5, 2014); Department of Fair Employment and Housing v. LSAC, Case No. CV 12-1830-EMC (N.D. Cal. May 12, 2014); Nat'l Fed'n of the Blind v. HRB Digital LLC, Case No. 1:13-cv-10799-GAO (D. Mass. March 25, 2014). For DOJ statements of interest and amicus briefs arguing that the ADA applies to internet websites, see Statement of Interest of the United States, Nat’l Assoc. of the Deaf v. Netflix Inc., 869 F. Supp. 2d 196 (D. Mass. 2012); Brief of the United States as Amicus Curiae in Support of Appellant, Hooks v. OKBridge Inc., 232 F. 3d 208 (5th Cir. 2000) (mem).


[24] Id. at 28662.

[25] Id.

[26] See http://www.w3.org/TR/WCAG20/.


[28] ANPRM, 75 Fed. Reg. at 43465.


[30] Id.

[31] Id.

[32] Id. at 28671.

[33] Id. at 28672.

[34] Id. at 28672-73.

[35] For a description of the objections to text-only websites in the airline industry, see DOT, Nondiscrimination on the Basis of Disability in Air Travel — Accessibility of Websites and Automated Kiosks at U.S. Airports, Final Rule, 78 Fed. Reg. 67882, 67891-92 & 67898 (Nov. 12, 2013).




[37] Id.

[38] Id.

[39] ANPRM, 75 Fed. Reg. at 43466.

[40] Id.

[41] SANPRM at 28665.

[42] Id.

[43] Id. at 28668.

[44] Id.

[45] Id. at 28669.

[46] Id. All Content © 2003-2016, Portfolio Media, Inc.



R. Naeve & C. Morrison, Web Accessibility -- DOJ Kicks The Regulatory Can - Again

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