This article has been updated since it was first published on August 8, 2022. The most recent update was added on November 6, 2023. Read the updates for this article.
The ancient Greek story of Sisyphus tells of a doomed King sentenced forever to push a boulder uphill, only to witness it tumble down again just as he reaches the summit. The centuries-old story carries over to modern day English in the phrase “sisyphean task.” Dictionary.com defines such a task as one that is “seemingly endless and futile— you keep doing it but it never gets done.”
I’ve illustrated this article with a classic image of Sisyphus, painted in the 1500s and hanging in the Museo del Prado in Madrid Spain. (More on the image here.)
Because on July 27, 2022, the United States Department of Justice (DOJ) announced its intent to develop regulations about web accessibility for state and local government programs and entities covered by Title II of the Americans with Disabilities Act. (This includes websites of public schools and universities.)
I chose this picture as a warning. A call not to repeat the past. Despite a history of delayed web regulations, let’s get these regulations proposed and finalized. Let’s get them expanded to cover more than public sector websites. Let’s include the private sector.
Let’s be sure that adopting digital accessibility regulations in the United States is not in fact be a Sisyphean task. Even though I’m afraid it might be.
This article has the following sections:
- What does the Department of Justice announcement say (and not say) about web access regulations
- Will the DOJ’s July 2022 promise of ADA Title II web access regulations be fulfilled?
What does the Department of Justice announcement say (and not say) about web access regulations
What it says
Twice a year United States federal agencies are supposed to tell the public about their plans for the future. They share plans publicly in a document titled the Unified Agenda. The Spring 2022 Unified Agenda for the DOJ (published in July even though that’s Summer) is one paragraph long:
The Americans with Disabilities Act (ADA) states that: no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity 42 U.S.C. 12132. However, many websites from public entities (i.e., State and local governments) fail to incorporate or activate features that enable users with disabilities to access the public entity’s programs, activities, services, or information online.
The Department intends to publish a Notice of Proposed Rulemaking (NPRM) to amend its Title II ADA regulation to provide technical standards to assist public entities in complying with their existing obligations to make their websites accessible to individuals with disabilities.Spring 2022 DOJ Unified Agenda
According to the Unified Agenda, the DOJ plans to issue a Notice of Proposed Rule Making (NPRM) on the topic of public sector website accessibility in April 2023. If the agency meets this goal, the public will be able to submit comments through June, 2023.
What it doesn’t say
The July 2022 announcement says nothing about regulating private sector websites, though we could speculate that a final public sector rule could lead to a separate rule making process about private sector organizations. Or not. (As explained in the section below, last time around in 2010 the advanced notice of proposed rule making covered both public and private sector websites.)
The July 2022 announcement also says nothing about technology other than websites; Technology that needs to be accessible if people with disabilities are to be included in today’s digital world.
There is no mention of mobile apps, kiosks, workplace software, or emerging tech like virtual reality that need access. Yet as far as I know nothing prevents the DOJ from including today’s technology in its NPRM about web accessibility.
For regulations to be current and future-proof they must be.
To me the most important part of the July 2022 announcement is the Department’s stated goal to help public entitles comply with existing obligations to make their websites accessible. No new obligations – just clarity and technical standards on what is required. Since the Web Content Accessibility Guidelines (WCAG) are the universally accepted standard and one that the DOJ itself uses and recommends, there is no reason for any public entity to wait for the regulations.
The DOJ has long required public sector websites to be accessible. In July 2015 I wrote about four settlements the Department negotiated about web access with counties across the US. (Those counties were in in North Carolina, Georgia, Illinois and Washington.) And the DOJ’s web access work with Title II entities goes back much further than that. (DOJ wrote its guidance titled Accessibility of State and Local Government Websites to People with Disabilities in 2003!)
Will the DOJ’s July 2022 promise of ADA Title II web access regulations be fulfilled?
I am an optimist. I write about the value of optimism (quoting Helen Keller) in my book, Structured Negotiation, a Winning Alternative to Lawsuits. There I call it “grounded optimism” — a belief that things will turn out well based on experiences and strategies that have lead to win-win results in the digital accessibility space for more than a quarter century.
Without optimism, it is too easy to give up on the collaboration and relationship-building essential to Structured Negotiation.
So why am I concerned that getting web accessibility regulations may be a Sisyphean task? That regulations may be a goal reached for again and again, but never achieved.
Because we’ve been here before. My experience with delayed regulations make optimism a challenge.
Earlier attempts (a decade+ ago) at web access regulations
On July 25, 2010, I shared the news that the US DOJ had just published “Advanced Notices of Proposed Rulemaking (ANPRM) on four issues of importance to the disability community,” one of which was web accessibility regulations for both public and private ADA-covered organizations. Three of the four regulations proposed that day (the day before the 20th anniversary of the ADA) were never finalized, despite the passage of 12 more ADA anniversaries.
My 2010 article linked to the DOJ’s government filing which stated (twelve years ago) that:
The Department of Justice (Department) is considering revising the regulations implementing title III of the Americans with Disabilities Act (ADA or Act) in order to establish requirements for making the goods, services, facilities, privileges, accommodations, or advantages offered by public accommodations via the Internet, specifically at sites on the World Wide Web (Web), accessible to individuals with disabilities. The Department is also considering revising the ADA´s title II regulation to establish requirements for making the services, programs, or activities offered by State and local governments to the public via the Web accessible. Summary, 2010 DOJ web access ANPRM
In January of 2011 I testified at a public hearing about the importance of the web regulations. (You can read my testimony here.) Reading it over 11 years later, I like what I said, including this:
Remember that every limitation, every month of delay, every exception that you build into the regulations is a do not enter sign perched on the side of the information highway.Lainey’s testimony about 2010 proposed web access regulations
But there was a month of delay — in fact since I offered that testimony there have been 132 months of delay, because we still don’t have regulations. A little of that history is here:
- My July 2011 article on the regs was titled DOJ Delays Web Regulations
- In July of 2014, my article about the delayed regulations was titled “More Delay for DOJ Web Regs – Does it Matter?” I concluded that it did not, and in the article I linked to several DOJ court filings in support of web accessibility. One of those was the 2012 Netflix case, where the DOJ supported the plaintiffs’ position that the ADA applied to web-only businesses like Netflix. (Still the rule in many parts of the United States.)
- My November 2015 article was titled Fall 2015 Update: More Delay for DOJ Web Regulations
Then after all that delay, the Republican administration elected in 2016 took all pending regulations off the table. (Even with the devastating 2016 U.S. federal election results, that year I quoted Helen Keller’s belief in optimism in my article that stemmed from my feeling of “responsibility to remind us all that digital accessibility is here to stay.”)
And yes, whatever happens with the currently-promised regulations, I believe the law (both in the US and globally) will continue to support digital accessibility. But regulations are critical. And not because the law doesn’t already require accessibility (it does), and not because there should be any confusion that the current version of WCAG is the standard (there shouldn’t be).
But as my friend and digital technologist and thought leader Chancey Fleet says, we need accessibility regulations just as we need a plumbing code. Everyone in the field needs something specific to point to. Something with no room for legal arguments. Want safe plumbing? Go here. Want disability inclusive tech standards – go there.
No debate, and, as I’ve frequently written, no more excuses.
This is not to say the failure to adopt regulations based on the 2010 ANPRM before the end of the Obama administration was any individual’s fault. And if we don’t get a Notice of Proposed Rule Making next April as promised, that won’t be any individual’s fault either.
To the contrary. The Civil Rights Division of the DOJ in both the Obama and Biden administrations have done / are doing important work to advance digital accessibility. The lawyers I know who are or have been in these positions are ethical, committed to digital inclusion, and skilled. I count many as friends and colleagues.
But bureaucracy often has a life of its own. So does politics. Things happen and delay sems inevitable. Still, if anyone can get web regulations out the door, I trust the current DOJ to do it.
Eliminating arguments about digital inclusion in the public sector (and later, hopefully, the private sector) depends on it. We can’t allow it to be a Sisyphean task.
Updates to this article
November 6, 2023 Update
In the article above I wrote that “there is no reason for any public entity to wait for the regulations” about the accessibility of state and local government websites. That message was underscored by a press release issued by the Department of Justice today, on November 6, 2023.
Today’s DOJ headline read “Justice Department Finds Multiple Texas County Election Websites Inaccessible to People with Disabilities.” In the release, the Department announced
its findings that four Texas counties violated Title II of the Americans with Disabilities Act (ADA) by maintaining election websites that discriminate against individuals with vision or manual disabilities.DOJ November 6, 2023 press release
Linked to the release are four documents. Each one is titled “The United States’ Findings and Conclusions Based on its Investigation of [the particular county’s] Election Website Under Title II of the Americans with Disabilities Act.”
The Department of Justice’s work with these counties is a reminder that state and local government websites cannot exclude disabled people. They must be accessible now and in the future, even if the proposed web accessibility regulations never become final.
November 5, 2023 Update
On August 3, 2023, the United States Department of Justice finally published its long-awaited Notice of Proposed Rule Making (NPRM) about accessible websites of state and local governments. The comment period is now closed. The Department will be reviewing comments before issuing a final rule. There is no deadline for these activities.
Several comments were filed in response to the NPRM, including:
- On September 19, 2023 the National Federation of the Blind (NFB) submitted its Comments on the ADA Title II Website and Mobile App Notice of Proposed Rulemaking (September 19, 2023). These comments include a detailed explanation of why exceptions that the Department includes in its proposal are unfair to blind and other disabled people, and are actually a step backwards on the path to accessibility.
- The Association on Higher Education and Disability (AHEAD) also submitted comments, largely focused on the negative impact of proposed exceptions on higher education students, faculty, and staff with disabilities.
- Comments of the American Foundation of the Blind on the proposed regulations can be found here.
July 10, 2023 Update
The June deadline for issuing the Notice of Proposed Rule Making for Americans with Disabilities Act web regulations for state and local governments described in the previous update has come and gone. Why? The regulations are stuck in the Office of Management and Budget (OMB). The OMB is not part of the Department of Justice, the agency that will eventually put out the Notice and hopefully the regulations.
But the DOJ can’t do anything until the OMB acts. Why the delay?
I wrote about this development here: Who is to Blame for Delay in ADA Web Access Regs? It’s not the DOJ
June 16, 2023 Update
There’s been another short delay announced in the publication date for proposed regulations in the United States about “Accessibility of Web Information and Services of State and Local Government Entities.” When this article was first published in August 2022 the Department of Justice said the proposed regulations would be out in April 2023. I updated the article in January of this year when the DOJ said the regulations would be out in May.
Now the Department is saying they will be out this month (June 2023).
As described in the main article, this information appears in what is known as the agency’s Unified Agenda. The Spring 2023 Unified Agenda has the new June date. (The document says 6/00 meaning they expect to start the rulemaking in June, but are not committing to a specific date in June.)
When the proposed regulations do come, they will be in the form of a Notice of Proposed Rule Making (NPRM). According to the recent Unified Agenda, the public will have until sometime in August of this year to submit public comment (8/00/23).
Will it happen? My crystal ball says yes, though I wouldn’t rule out additional delays.
January 9, 2023 Update
In early January 2023 the US Department of Justice published its Unified Agenda for Fall 2022. This official federal document updates the Spring 2022 Unified Agenda talking about planned web accessibility regulations for state and local governments that is discussed in this article. Find the new Fall 2022 DOJ Unified Agenda about the web access rule here.
All federal agencies are supposed to issue a unified agenda telling the public of its plans twice a year in Spring and Fall. The Fall 2022 Agenda is the current one, even though it was published in Winter 2023.
The Spring 2022 Unified Agenda about web accessibility is different from the Fall version in a few ways:
- The Notice of Proposed Rule Making (NPRM) is now scheduled for May 2023 (moved from April 2023)
- The public comment period is now scheduled to close June 2023 (moved from May 2023)
- The current Unified Agenda has a section titled “Alternatives” which states “The Department intends to consider various alternatives for ensuring full access to websites of State and local Governments and will solicit public comments addressing these alternatives.” The Spring 2022 Agenda did not have this section. [Hopefully this sentence does not mean we will have to submit comments about why a phone can never be a substitute for an accessible website. If we do, I’m confident the US Department of Justice will not give a stamp of approval to a phone alternative.”]
- There is also a new section on “risks,” which focuses primarily on risks to disabled people if local government websites are not accessible.
For those who want to follow along, the DOJ public sector web accessibility regulation has been assigned the Regulation Identifier Number (RIN) of 1190-AA79. You can put this RIN to a search engine to find information going forward.