Looking Back as We Move Forward: The Past, Present, and Future of Federal Website Accessibility Regulations
by Sanho Steele-Louchart and Kyle Walls
From the Editor: Website accessibility has been an issue for blind people since the creation of the web in the first attempt of screen reading software to present it to us. Whether or not it is covered by the Americans with Disabilities Act has been a subject of considerable litigation and speculation. Business claims that it is under an obligation it doesn’t understand because there are no clear regulations. The Department of Justice claims that the intent of the ADA is clear, that businesses are covered, and there is sufficient information already out there for them to comply. In an attempt to put an end to or at least reduce the controversy, the Federation has pressed the Department of Justice to issue regulations. To say that it has done so kicking and screaming might not be fair to those within the department who worked hard on it, but from the outside, it has taken a very long time. Here is some good news in this regard provided by two of our most competent members who also serve on our staff:
More than thirty years ago, on July 26, 1990, the Americans with Disabilities Act was signed into law by then president George H. W. Bush on the South Lawn of the White House. The landmark legislation required increased accessibility in many aspects of life in the United States. However, one area in which the law was not explicitly clear was the internet, and it’s easy to understand why.
Imagine, if you will, an era before social media, before rideshares, before the ability to order anything on a whim from Amazon, before smartphones, and for most Americans, before having a laptop or personal computer in their home. The internet, as the immense research, social connection, communication, and consumer tool for the masses as we know it today, was barely in its infancy on that hot July day in 1990.
Many of the lawmakers who passed the law probably had no idea what it even was, let alone had it at the top of their mind when they cast their votes. Nevertheless, that infant grew into an all-encompassing and ever-connected leviathan that the vast majority of Americans use every single day.
Unfortunately, the regulations concerning the accessibility of the internet did not keep pace, leaving millions of blind and disabled Americans unable to access all of the things non-disabled peers accessed with ease. To combat this accessibility gap, on July 26, 2010, President Barack Obama, on the same South Lawn as President Bush exactly twenty years earlier, held a ceremony to announce the publication of an Advance Notice of Proposed Rulemaking (ANPRM) to address the shortcomings in the accessibility of the websites of public entities (ADA Title II) and private companies (ADA Title III). This marked the first step toward making the digital world more accessible for people with disabilities.
It would take another six years before the next meaningful step was taken toward website accessibility with the release of a supplementary Advance Notice of Proposed Rulemaking. Notably, this supplementary notice separated the Title II and Title III regulations, choosing to focus exclusively on Title II. It also posed more than 120 questions about digital accessibility. It wasn’t exactly what we were hoping for, but finally, six years after the announcement of forthcoming digital accessibility regulations, there was real movement toward making the online world accessible to people with disabilities.
Unfortunately, and to the surprise of many, the ANPRM would be withdrawn by the Department of Justice a little over a year later in December of 2017, but the Federation never stopped advocating for website accessibility regulations. In the years after the ANPRM was withdrawn, we drafted legislation and got it introduced in both the 117th and 118th Congresses; we wrote a letter to the assistant attorney general for civil rights; and we passed two separate convention resolutions regarding website accessibility. We had no intention of letting this issue, which affects nearly everyone, be quietly swept under the proverbial rug.
And so, after years of tireless advocacy, six years after the withdrawal of the ANPRM, and thirteen years after it was first released, the Department of Justice finally published the notice of proposed rulemaking (NPRM) on August 4, 2023. For those unfamiliar with the regulatory process, the NPRM is the penultimate step before the final rule is published. We had some pretty significant reservations about the content of the NPRM, namely the exceptions for certain kinds of digital files that the rule would be introducing into the law, so we submitted our formal comments to the Department. Just a little over seven months later, on April 24, 2024, the Department of Justice published the final rule in the Federal Register.
The final rule, while imperfect, is a massive step forward for disability justice. Although it is true that the included exceptions build on the existing defenses of undue burden and fundamental alteration, it is also true that codifying our right to digital accessibility guarantees a legal foundation that government actors can’t merely wish away. The rule requires state and local governments with fifty thousand citizens or more to be in full compliance by April 24, 2026. Special district governments and governments with fewer than fifty thousand citizens have until April 26, 2027. Cities and other local governments will use the same population numbers to determine their mandatory compliance date. Compliance with the rule will be assessed using WCAG 2.1 Level AA, which we hope will be updated as the guidelines progress.
It is understandable that members of our community would be particularly concerned about the five exemptions to the rule. These five exemptions are archived web content, preexisting conventional electronic documents, content posted by a third party not subject to contract or other legal arrangement with the covered entity, individualized documents that are password protected, and preexisting social media posts. The NFB applauds the Department of Justice for having heeded our call to remove some of the proposed rule’s most egregious exemptions such as a carve-out for digital content owned by public schools and universities. Similarly, the NFB recognizes that the Department of Justice tightened its exemptions considerably after we published our response. The five exceptions included in the final rule are as follows:
Archived web content is that material created before the covered entity’s mandatory compliance date, kept only for reference, research, or recordkeeping, kept in a special area for archived content, and that has not been changed since it was archived.
The preexisting electronic documents exception applies to materials such as Word documents, PDF’s, presentations, and spreadsheets that were available on the website before the agency’s mandatory compliance date and are not still being used to access that agency’s activities, programs, or services.
The third-party web content exception pertains specifically to content posted to a covered entity’s webpage or social media account, but which they have little to no control over due to having no preexisting legal relationship with the poster. That is, content posted by an agency’s vendor, contractor, or subcontractor would need to be WCAG 2.1 compliant. Material posted by a member of the public would not.
Individualized documents that are password protected are those documents that are word processing, presentation, PDF, or spreadsheet files (as in the archived web content exception above), about a specific person, property, or account, and password-protected or otherwise secured.
Finally, the exception regarding a covered entity’s preexisting social media posts simply means that the covered entity is not required to make their social media posts conform with WCAG 2.1 Level AA guidelines until that entity’s mandatory compliance date.
In all of these cases, the Department of Justice stresses that the long-standing processes by which someone requests and receives a reasonable accommodation will continue to apply. A disabled American may make a written or verbal request for an accessible copy of a document, and only if providing such an accommodation would constitute either an undue burden or a fundamental alteration may the entity deny the request. Entities who fail to fully comply with the new rule after their mandatory compliance date, including the requirement to review and grant requests for reasonable accommodations, may face litigation from a private individual and/or prosecution from the United States Department of Justice. Such lawsuits often result in both injunctive relief as well as considerable financial penalties. One factor in determining compliance, however, is whether a covered entity can show that a breach of this rule is immaterial, meaning that it is so insignificant a breach that it could not realistically harm a disabled person’s ability to access the entity’s programs, services, or activities. An example of this may be a single unlabeled graphic or a level of contrast that although technically not up to code, was essentially irrelevant. Only those barriers determined to materially harm a disabled person’s equitable access to an entity’s programs, services, or activities will be considered for further action.
This sea-change in the legal landscape raises one obvious question: What about private businesses? The Department of Justice tells us that we can expect an NPRM for Title III-covered entities sometime in the future. The NFB urges the Department to issue the NPRM as soon as is practicable so that disabled Americans can enjoy equity not just as it relates to government materials, but to those materials available in the private sector, as well.
This rule is by no means a panacea. Government actors will still get it wrong from time to time, and disabled Americans will still need to advocate when they do. It is our sincere belief, however, that this rule moves the Overton window further toward the side of accessibility and equity than it has ever been. We will still face access barriers, but those barriers will be fewer in number and more easily corrected. The National Federation of the Blind stands strong in its commitment to advance accessibility and equity for all—be it through education, legislation, or litigation as the case requires. We know that accessibility, not disability, is the problem. Blindness need not hold us back.