Earlier this year we predicted that 2016 would finally be the year that the Department of Justice would publish a notice of proposed rulemaking under Title II of the Americans With Disabilities Act to clarify rules for web accessibility. To the disappointment of many, this will not be happening.
Last fall in a statement of priorities, the DOJ optimistically estimated the new rules for web accessibility would be announced in early 2016. Title II regulations apply to the accessibility of state and local government websites, including those that are run by public state universities and colleges. Now over four months into the year, release of new regulations has again been delayed.
In early May the DOJ released a supplemental advance notice of proposed rulemaking (SANPRM) which, simply put, is intended to gather more feedback before setting anything in stone. We assume the motivation for this additional feedback phase is an effort to resolve the many new questions the DOJ is facing regarding emerging technologies and their impact on web accessibility.
What is the SANPRM?
The SANPRM solicits public assessment of the current accessibility of government websites and the cost and benefits of regulating web accessibility. It consists of 123 questions raised by the entities who are ultimately covered by Title II of the ADA on topics including the ones below.
Accessibility topics include
- How rules apply to password protected content
- What are the requirements for live captioning
- Exemptions on third party content
- Requirements for archived content
- Regulation of mobile applications
- Impacts on smaller entities
- Benefits of accessible websites for blind, deaf and those with mobility issues.
- How inaccessible websites can financially hurt those who cannot access them
- Cost to make sites accessible
- Effective date
- The adoption of Web Content Accessibility Guidelines 2.0 (WCAG 2.0)
The technological challenge
The DOJ issued a similar notice in 2010 to which over 400 people responded, so why are they asking again? Most of the information gathered in 2010 is now outdated due to changes in technology. The SANPRM asks for more current detailed information, along with some comments with the future of technology in mind.
Even though new rules for web accessibility is considered a high priority for the DOJ, the challenge ahead lies in the rapid pace and growth of technology and the Internet. With some future-facing research the DOJ hopes to gain insight on information that will keep proposed regulations as current as possible.
What does this mean for Title III of the ADA
Regulations on the accessibility of business and private entity websites are due to be released in 2018. We will have to wait and see if these will be delayed as well, or if the DOJ can leverage the new information that they gather during the Title II SANPRM. The technologies used and the associated costs for developing websites for public and private entities are very similar, so we may find that comments submitted for the Title II SANPRM also influence the final Title III regulations.
What happens now to current litigation?
Without existing standards and regulations, entities involved in current lawsuits who are obligated by Title II and III of the ADA, were hoping to receive some guidance from the Title II NPRM. However, even without the standards in place, the DOJ has made several settlements requiring entities to make their websites and mobile apps accessible. This means that even though many businesses and universities were waiting for the announcement of new standards, the best-practice is to proceed with making website content accessible now, regardless of when final standards will be issued.
We encourage you to submit your own comments to these questions if they apply to your situation, regardless of whether you are part of a government entity or are covered by Title III. You can submit your comments on the Regulations.gov website.
Quick info & resources
- How to submit comments: Visit regulations.gov
- Title II is for public (i.e. government) entities, such as state universities and community colleges
- Title III is for businesses and private colleges and universities, such as Harvard and MIT
- Official Supplemental Advance Notice of Proposed Rulemaking from the Department of Justice Civil Rights Division
- Legal assessment of questions issues in the SANPRM
- National Law Review: Defending Against Website Accessibility Claims: Recent Decisions Suggest the Primary Jurisdiction Doctrine Is Unlikely to Serve As Businesses’ Silver Bullet