American Legal System’s Indecisiveness Towards Web Accessibility

By Rosemary Musachio, Ruh Global Communications, Chief Accessibility Officer

According to the Americans with Disabilities Act (ADA), a public accommodation is “a private entity that whose operations affect commerce and that fall  into one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreational facilities, and doctors´ offices” (Advanced Order of Proposed Rulemaking, Department of Justice).  According to the USLegal.com Definitions, an entity is “an organization like a business or government unit that has an identity apart from its members”.  The definitions do not mention that a public entity or accommodation is a physical place.

 So, the definitions and thus the ADA apply to the Internet since operations that affect commerce are conducted there.  In fact, the U.S. Department of Justice (DOJ) deemed the Internet as a service "of", not "at", a place of accommodation.  The DOJ issued an Advanced Notice of Proposed Rulemaking (ANPR) in July 2010, stating that new regulations under Title III of the ADA will clearly explain the role of the Internet and ensure that websites are accessible.  Based on WCAG 2.0, the regulations were expected to take effect in 2016. 

However, this past April the Justice Department once again delayed officially including web accessibility under the ADA.  The DOJ issued a Supplemental Advanced Notice of Proposed Rulemaking (SANPR) requesting comments on web accessibility issues and the costs for remediating them.  The SANPR was published presumably to ensure the new rules would cover how emerging technologies affect web accessibility. 

Over 120 questions are included in SANPR, which are directed to businesses who qualify as places of public accommodations under Title III of the ADA.  A few questions are included below, along with possible answers:

1. Should the Department consider adopting accessibility requirements for mobile software applications to ensure that services, programs, and activities offered by public entities via mobile apps are accessible?

1. Accessibility requirements definitely should be adopted for mobile application software since 44% of screen reader users use mobile devices according to the Web Aim Screen Reader Survey.  In another survey conducted by Wireless Rehabilitation Engineering Research Center, 90% of persons with disabilities use mobile devices.

1. Are there additional issues that the Department should take into consideration with regard to linked third-party Web content?

1. Graphic user interfaces of third-party content must have text alternatives so screen reader users can know their purpose.  If a third-party app has menus, they should be able to open by pressing the Enter key and then tabbing to the desired menu item.

1. Should the DOJ consider exempting archived content from the accessibility standards and, if so, how should “archived content” be defined?

1. Archived content should not be exempt from accessibility guidelines if it is in the public domain.  For instance, if past issues of a newsletter are available on a website, then they should made accessible. 

These and the other questions in the SANPR are not difficult to answer, for the DOJ could research the answers themselves to save time.  Regardless, the DOJ is accepting comments until August 2016.  It claims the web accessibility rules will take effect in 2018.  Hopefully, business lobbyists won’t try to block it, saying adhering to these regulations would cost too much or would be too difficult to implement.  Another hope is that the DOJ won’t discover at the last minute once again that it still needs further information before web accessibility regulations can be weaved into the ADA.  I think we all would like to see this happens before the Internet becomes archaic.

Learn more about our work at www.RuhGlobal.com or follow us on Social Media @rosemusachio, @debraruh and @ruhglobal on most channels. 

#AXSChat: Join Debra Ruh, Neil Milliken, and Antonio Santos for a weekly Twitter Chat on Disability Inclusion, ICT Accessibility, Built Environment, CRPD, Empowerment and Employment. Just search the hashtag #AXSChat at 3pmEST and join the conversation.  You can learn more about AXSChat at www.AXSChat.com.