More Delay for DOJ Web Regs – Does it Matter?

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This is a post about the U.S. Department of Justice.  In 2010 the Agency began a process to create rules about website accessibility.  There are still no rules. The Department keeps delaying them.  Last week the DOJ said the next step towards rules for websites won’t happen until March 2015. The next step for state and local government websites might be this summer. But the DOJ has also been involved in court cases about web accessibility.  In those cases the Department is clear that websites should be accessible.  There is no reason to wait for new regulations.  Websites should be accessible today.

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Surprise Surprise. The United States Department of Justice has announced another delay in its long awaited website accessibility rules. The rules, if they are ever enacted, will address technical standards and obligations of state and local government agencies and public accommodations (private entities covered by the Americans with Disabilities Act) to make websites accessible to people with disabilities.

According to information released the last week in May, the next step in the regulatory process for private sector websites is now scheduled for March 2015. The next step for any rules governing state and local government web sites is this summer. These dates have been moved so many times that few in the field give them much credence. I certainly don’t. But despite the delay, and as described below, the DOJ has shown by its actions that entities with access barriers on their websites run afoul of federal law TODAY.

Saying that the DOJ “announced” its most recent delay is an overstatement. “Whispered” might be a better word. The news was buried in what is called a Unified Agenda. Federal agencies are supposed to regularly update the public about pending regulations. The web regulations have been pending since July 26, 2010 when the DOJ issued its Advanced Notice of Proposed Rule Making (ANPRM). The public comment period ended on January 24, 2011. Ever since then, the DOJ has been announcing deadlines for the next step — and then moving those deadlines as the target date approaches.

That next step in the rulemaking process is the Notice of Proposed Rule Making, or NPRM. Once (if) the NPRM is issued, there will be another public comment period, and (maybe) eventually there will be a final rule. You can find the new dates for the NPRMs at the very end of documents about web regulations published last week.

Hats off to the ADA Title III blog of defense firm Seyfarth Shaw, which first uncovered the hard-to-find new dates for the regulations.

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We May Not Have Regulations, but We Still Have the ADA

Even though it can’t seem to issue web accessibility regulations, the United States Department of Justice has recently been a forceful advocate for web accessibility. The Department has been crystal clear that the ADA already requires websites to be accessible.

In May 2012 the Department filed a Statement of Interest in litigation against Netflix for failing to caption streaming video. The Department agreed with the National Association of the Deaf that the lack of captioning violated the ADA:

[T]he Department of Justice (“DOJ” or the “Department”) has long interpreted title III to apply to web services, and DOJ’s ongoing regulatory developments concerning the accessibility of web content and services support that Netflix is a public accommodation subject to title III of the ADA.U.S. DOJ Netflix Statement of Interest at page 4.

The fact that that the regulatory process is not yet complete does not support any inference whatsoever that web-based services are not already covered by the ADA, or should not be covered by the ADA. U.S. DOJ Netflix Statement of Interest at page 12.

Consistent with its actions in Netflix, the DOJ recently filed papers in a South Florida case challenging a company’s failure to have point of sale devices that allow blind customers to independently enter their PIN. Referring to websites, the Department told the Court that the ADA applies to issues not expressly mentioned in the law:

Indeed, there are many instances where the Department has found physical and communication barriers not specifically identified in its regulation or the ADA Standards to be covered under title III. For example, the Department has long considered websites to be covered by title III despite the fact that there are no specific technical requirements for websites currently in the regulation or ADA Standards. April 10, 2014 Statement of Interest Filed by DOJ in Lucky Brand case

Read the DOJ Statement of Interest in the South Florida case against Lucky Brand. The DOJ’s activity in the case is listed in its summary of enforcement activities.

And in March of this year, the Department entered into a Consent Decree with H&R Block requiring accessibility of its websites and mobile apps under the Americans with Disabilities Act. The Consent Decree requires that the tax giant comply with the Web Content Accessibility Guidelines (WCAG) 2.0, which the Department described as “[t]he recognized international industry standards for web accessibility.” Read the DOJ press release announcing the H&R Block settlement. The H&R Block Consent Decree is also online.

No More Excuses

With these recent actions by the Department of Justice, there is no excuse for any site owner or developer to wait for regulations before undertaking digital accessibility plans. The ADA requires web accessibility. People with disabilities need web accessibility. It’s good coding practice, good usability practice, good for business. And there is a recognized international standard that works. Let’s stop waiting for regulations. Let’s start making the promise of a web for everyone a reality.

Resources on LFLegal about the DOJ Web Regulations