DOJ Refreshes Its Efforts to Promulgate Title II Website Accessibility Regulations and Other Accessible Technology Updates – What Does It All Suggest for Businesses?

On April 28, 2016, the U.S. Department of Justice, Civil Rights Division, withdrew its Notice of Proposed Rulemaking (NPRM) titled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities.  This original initiative, which was commenced at the 20th Anniversary of the ADA in 2010, was expected to result in a final NPRM setting forth website accessibility regulations for state and local government entities later this year.  Instead, citing a need to address the evolution and enhancement of technology (both with respect to web design and assistive technology for individuals with disabilities) and to collect more information on the costs and benefits associated with making websites accessible, DOJ “refreshed” its regulatory process and, instead, on May 9, 2016, published a Supplemental Notice of Proposed Rulemaking (SNPRM) in the federal register.

By August 8, 2016, the SNPRM seeks comments on a variety of issues, including, among others:

• The appropriate technical standards for providing an accessible website (e.g., WCAG 2.0?);
• The time period covered entities should be given for compliance once the regulations are effective (e.g., two years?)  and whether additional time should be granted for any specific requirements (e.g., narrative description?);
• Whether exemptions should be granted for a variety of reasons (e.g., smaller entities; archived materials; existing pdf/Word documents; third-party content/links);
• Should alternative formats ever be an acceptable alternative to an accessible website? and
• Should mobile applications be covered by the regulations?

While this development does not directly impact businesses covered by Title III, it does suggest a few relevant considerations.  The questions posed in the SNPRM indicate that DOJ is considering many of the issues that Title III businesses have been forced to grapple with on their own in the face of the recent wave of website accessibility demand letters and lawsuits commenced on behalf of private plaintiffs and advocacy groups.  It would be a positive development for any eventual government regulations to clearly speak to these issues.  Conversely, it may be even longer before we see final regulations for Title III entities.  DOJ has long indicated its intent to first promulgate Title II regulations and then draw upon them in developing subsequent Title III regulations.  While the final Title II regulations were expected in 2016, the Title III regulations were already not expected until any earlier than 2018.  Therefore, this unexpected development could result in even further delays in the issuance of final Title III regulations (something which could also be impacted by any developments relating to this being an election year) resulting in businesses continuing to have to draw teachings from a variety of indirect/analogous resources when assessing how to best address accessible technology issues.

One Industry Takes Action

In the face of mounting frustration stemming from DOJ’s ongoing delays in promulgating website accessibility regulations while plaintiff’s counsel are allowed to continue to aggressively pursue claims some in the real estate industry recently decided to take action.  Citing “the growing confusion around web site accessibility,” on April 29, 2016, the National Association of Realtors wrote a letter to DOJ’s Civil Rights Division imploring DOJ to take actions to regulate the issue of website accessibility for Title III entities as soon as possible.  The letter highlighted the unfortunate dynamic that currently exists as DOJ and plaintiffs’ counsel seek to enforce broad overarching civil rights provisions in the absence of any uniform federal regulations.  (This is similar to the December 2015 efforts of Senator Edward J. Markey (D-Mass.) and a group of eight other Senators who wrote to the Obama administration calling for the prompt release of rules that would clarify and support access to information and communications technology ADA.)

Another Possible Approach to Mobile Accessibility?

While most current settlement agreements regarding website accessibility focus on desktop websites, many businesses are anticipating that the next target for plaintiffs and advocacy groups will be their mobile websites and applications.  Such concern is well founded as recent DOJ settlement agreements addressing accessible technology have included modifications to both desktop websites and mobile applications.

To date, those settlements have referenced the same compliance standard for both desktop and mobile websites and applications; WCAG 2.0 at Levels A and AA.  This is notwithstanding the fact that as currently written WCAG 2.0 does not directly incorporate mobile applications.  While the W3C has stated that a large number of existing WCAG 2.0 techniques can be applied to mobile content, a separate list of mobile-related guidelines is not currently available (though the W3C’s Mobile Accessibility Task Force is working to develop WCAG 2.0 Techniques that directly address emerging mobile accessibility challenges such as small screens, touch and gesture interface, and changing screen orientation for use with the WCAG).   In the interim, the W3C has published a working draft document titled “Mobile Accessibility:  How WCAG 2.0 and Other W3C/WAI Guidelines Apply to Mobile” that is intended to help mobile app developers apply the current WCAG 2.0 requirements to mobile applications.

However, a recent settlement between Netflix Inc. and the American Council of the Blind and Bay State Council of the Blind took a somewhat different approach.  While relying upon WCAG 2.0 Levels A and AA for the desktop website obligations, for mobile applicable devices, the agreement instead referenced the British Broadcasting Corporation’s Mobile Accessibility Standards and Guidelines version 1.0 (the “BBC Mobile Requirements”).

The BBC Mobile Requirements are a set of best practices for mobile web content and applications.  Instead of attempting to apply the desktop website requirements of the WCAG 2.0 to mobile applications, the BBC Mobile Requirements provide mobile application developers with a list of accessibility requirements for 11 topics that are specifically geared to enhance the accessibility of mobile applications.  The BBC Mobile Requirements were developed to:  (i) more accurately reflect the technology used by mobile applications; (ii) provide testing criteria that can be specifically applied to mobile devices; and (iii) provide developers of the two most pervasive mobile application platforms – iOS (Apple) and Android – with specific guidance for providing accessibility where one technique may not be applicable to both platforms.  They are categorized as:  (i) “Standards,” which are identified by the words, “Must” or “Must Not”; and (ii) “Guidelines,” which are identified by the words, “Should” or “Should Not.”  Per the BBC Mobile Requirements website, “In general, standards are best practices that can easily be tested with specific criteria that is not subjective and is technologically possible to achieve with current assistive technology on mobile devices.  Guidelines are less testable but considered core to accessible mobile website and apps.”

For the most part, the BBC Mobile Requirements reflect existing WCAG 2.0 requirements.  For example, the BBC Mobile Requirements state that mobile application content requiring user input (e.g., forms to sign up for email alerts) should have explicit labels describing the type of user input that is required.  This is similar to WCAG 2.0 Level A Guideline 3.3.2 – Labels or Instructions, requiring that, “Labels or instructions are provided when content requires user input.”  Additionally, in some instances, the BBC Mobile Requirements directly reference the WCAG 2.0.  For example, the BBC Mobile Requirements’ Standard for color contrast states that developers should “… use the WCAG 2.0 Level AA contrast ratio of at least 4.5:1.”  However, there are some BBC Mobile Requirements, such as “Touch target size” (requiring mobile application content to be structured so that it is large enough for a user to tap the target area comfortable with one finger), that do not have an equivalent WCAG 2.0 requirement at this time.

Given the challenges some businesses have cited in directly applying all WCAG 2.0 guidelines to certain aspects of mobile applications, the BBC Mobile Requirements offer another possible consideration.  However, the lack of clarity with respect to this issue only underscores why DOJ’s most recent additional regulatory delay is the sources of considerable frustration for most businesses.

As always, keep following EBG’s blogs for updates regarding ongoing developments in accessible technology.