The rules would apply to new websites within six months of being updated, according to plans outlined in the DOJ's consultation paper. Existing websites would need to meet the new requirements within two years. Failure to comply could result in fines.
A disability rights group welcomed the DOJ's proposal but claimed that it is likely to be challenged in court by businesses that will oppose the potentially substantial costs involved in redesigning large websites.
The DOJ is planning to revise the rules that implemented the Americans with Disabilities Act (ADA), a law passed 20 years ago. The DOJ says that it wants to extend the ADA's accessibility requirements to the online services of State and local governments. It also wants to set minimum standards of web accessibility for the private sector.
In the private sector, the ADA presently requires 'places of public accommodation' to be accessible to disabled people. It lists 12 classes of public accommodation. These include hotels, clothing stores, cinemas, banks and zoos.
Courts have given inconsistent rulings on whether or not the ADA applies to the websites associated with physical places of public accommodation. Greater doubt surrounds the question of whether the website of a business which has no off-line branches, such as Amazon.com, can itself be classed as a place of public accommodation.
The DOJ has long believed that the websites of public accommodations are caught by the ADA. It said so in 1996, in a written response to an inquiry from a senator. "That letter does not, however, state whether entities doing business exclusively on the Internet are covered by the ADA," notes the DOJ in its consultation, published in the form of an Advisory Notice of Proposed Rulemaking.
However, the DOJ believes that sites like Amazon.com are caught by the ADA. Its consultation points to another case, from 2000, involving a web-only business, in which the DOJ filed a friend-of-the-court brief. "The Department's brief explained that a business providing services solely over the Internet is subject to the ADA's prohibitions on discrimination on the basis of disability," it said. It made similar arguments in another case two years later.
The courts have been less certain about the ADA's application to websites. The issue last came before the US courts in a case against Target which alleged that the retail giant's website breached the ADA because it was not accessible to blind internet users.
In 2006, Judge Marilyn Hall Patel ruled that Target.com was a service and benefit offered by Target stores, which are themselves public accommodations. The website had an online pharmacy, for example, where customers could order a prescription refill before driving to a Target store to collect the order. Judge Patel did not need to consider whether Target.com itself could be classed as a public accommodation.
The DOJ acknowledges that the lack of consensus leaves people unclear on the rights and duties that apply. The DOJ plans to clarify the position.
"While some actions have been brought regarding access to websites under the ADA that have resulted in courts finding liability or in the parties agreeing to a settlement to make the subject websites accessible, a clear requirement that provides the disability community consistent access to websites and covered entities clear guidance on what is required under the ADA does not exist," it said.
"Although the Department has been clear that the ADA applies to websites of private entities that meet the definition of 'public accommodations,' 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 [such websites]," it said. "For these reasons, the Department is exploring what regulatory guidance it can propose to make clear to entities covered by the ADA their obligations to make their websites accessible."
Exceptions to the rule
The DOJ appears to consider that a business that offers only an online entrance, not an off-line one, is caught by the ADA, because all stores are public accommodations. However, it said it would not address assertions made by some litigants that the internet itself should be considered a place of public accommodation.
According to the consultation paper, "the Department is focused on the goods and services of public accommodations that operate exclusively or through some type of presence on the Web".
It said that it is proposing "explicit regulatory language that makes clear that Web content created or posted by website users for personal, non-commercial use is not covered, even if that content is posted on the website of a public accommodation or a public entity."
"This would include individual participation in popular online communities, forums, or networks in which people upload personal videos or photos or engage in exchanges with other users," it said. "The Department could also make clear that public accommodations and public entities are not liable for inaccessible content posted to their sites by individuals not under their control as long as they provide their website users the ability to make their posts accessible."
It is possible that a social networking site like Facebook is covered, since the ADA's list of public accommodations includes any "place of public gathering"; but the content posted on that site by users will not be caught. And while the websites of law firms and insurers will be caught by the DOJ's proposals, the websites of newspapers will not be. Also, businesses that are covered by the rules will not be required to ensure the accessibility of sites to which their own sites link, the DOJ said.
The necessary standard
The DOJ suggests that organisations should be required to meet Level AA ('double-A') of Version 2 of the Web Content Accessibility Guidelines (WCAG), the technical guidelines published by the World Wide Web Consortium (W3C) that are widely recognised as the de facto standard for web accessibility.
While Level AA is the middle of the W3C's three accessibility levels, its requirements are demanding. Compliance requires that captions are provided for any live video on a website, as well as pre-recorded video, for example. Pages must also remain readable and functional when the text size is doubled.
The deadline for making "newly created websites or pages" accessible would be six months after the publication of the final rules. That deadline would also cover redesigned sites. New pages on existing websites would need to comply with the new rules "to the maximum extent feasible."
"For existing websites or pages, the Department is considering having the website access requirement apply two years after the date or publication of the final rule," it said.
Larry Paradis, Executive Director and co-founder of the non-profit legal centre Disability Rights Advocates, based in Berkeley, California, welcomed the DOJ's proposal. But Paradis, an experienced ADA litigator, expects a battle when the DOJ's plans are finalised.
"I do expect that there will be court challenges," he told OUT-LAW.COM. "Businesses will resist this. This is about the Justice Department's power to regulate the internet. Businesses have resisted regulations by the DOJ in a number of contexts. Will the court find that the DOJ's rules are valid interpretations of the federal ADA? That will be the big fight."
"We think it's good that the DOJ is finally taking explicit action," said Paradis. "Although it issued its position several years ago, by issuing these rules it will make the courts decide it one way or the other. If they find it [the DOJ's proposal] is not valid then we need to go back and amend the ADA."
Paradis noted that the DOJ is compromising its own stated position in its proposal. While claiming that the ADA has always applied to websites, the DOJ simultaneously proposes a grace period for organisations of six months or two years. "That's a compromise," he said, "because the DOJ says the ADA has applied to the internet for 20 years. We think big businesses should be making their websites accessible now."
Disability Rights Advocates has achieved undertakings from some major websites to make their sites accessible, without a court battle. Among them is Amazon.com.
"We negotiated a settlement that uses a usability standard. The site has to provide the same standard and benefits to the blind as it does to others, with substantially equivalent ease of use," explained Paradis.
He said that he would like to see the DOJ amend its proposal, to introduce the performance measure in addition to the WCAG-based technical requirement.
"I think it's good to have both – to require compliance with the standard and to have a performance measure as well. We're hoping the final rules will include both: technical compliance with Level AA and something that uses the term 'substantially equivalent ease of use.'"
Paradis said that the DOJ's proposal has been a long time coming.
"The digital divide has been a real problem," he said. "We've got to address these issues if we're going to be able to help disabled people play a part in our economy."
The DOJ has powers to enforce the ADA. It can seek civil penalties for a first violation of up to $55,000 and up to $110,000 for any subsequent violation, though it tends to bring relatively few cases and actual penalties tend to be at the lower end of the scale. Courts can also make awards of compensation to disabled individuals.
The DOJ's consultation will be open for 180 days.
At present, some State laws have relevance to web accessibility. At a federal level, aside from the ADA, the Rehabilitation Act provides, at Section 504, that an individual with a disability shall not be subjected to discrimination under any activity that receives Federal financial assistance. Section 508 of the same Act bars the Federal government from procuring IT services, including websites, that are not accessible to people with disabilities.