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DoJ restarts the rulemaking process for websites
Almost a year to the day after announcing the rulemaking process for ADA Title II digital accessibility regulations would be restarting, the Department of Justice issued the Notice of Proposed Rulemaking on July 25, 2023. It will be open to the public for review and comment until October 3, 2023.
According to the announcement, “It would help people with disabilities know what their rights are, and it would also help state and local governments understand what they have to do to comply with the ADA and ensure that their services are accessible to people with disabilities.”
After years of lawsuits, conflicting court decisions, appeals, and pleas from businesses and Congress alike, the rulemaking process that was dropped in 2017 will begin again.
History of digital accessibility rules
The Americans with Disabilities Act (ADA) was signed into law in 1990. At that time, the internet was a new idea, and no one knew how integrated into our daily lives it would become. So there is no specific mention of digital accessibility in the ADA.
Despite this, the DoJ has stated that websites qualify as “places of public accommodation,” which means they do fall under the ADA.
In 2003, the DoJ published a notice entitled Accessibility of State and Local Government Websites to People with Disabilities. This implied that government websites should be made accessible to people with disabilities, without being an actual “regulation.”
Around 2010 the number of digital accessibility lawsuits began to rise. In the last few years, these have risen dramatically, with 3,255 digital accessibility lawsuits filed in 2022. Numerous pleas from congress and private organizations to produce clear regulations applying to websites and digital information have been submitted to the DoJ. The DoJ has sporadically issued statements supporting the idea that digital accessibility is covered under the ADA, but the regulations have never been issued. Businesses still aren’t clear on how to go about making their websites and digital documents accessible.
In 2010, the Obama administration attempted to restart the digital accessibility rulemaking process, but these were withdrawn again in 2017 by the Trump administration. This year, the Biden administration’s DoJ released some guidance in March, and now has taken the next step to announce the restart of the rulemaking process for digital accessibility.
Organizations should welcome new rules
Organizations, corporations, and Congresspeople, on their behalf, have been requesting clear regulations regarding digital accessibility for years. The sheer number of lawsuits (over 13,000 in the last 5 years) around this issue illustrates how organizations are falling short and don’t know how to properly address digital accessibility.
The publication of clear rules and policies that define what digital accessibility should look like will make it easier for organizations to comply. Lack of clear direction means many organizations don’t address digital accessibility correctly or don’t address it at all.
Once the regulations are in place, there will be no reason not to make websites and digital content accessible for everyone to use.
What happens next?
The Notice of Proposed Rulemaking (NPRM) is now officially issued and will be available soon on the Federal Register website. The DoJ will accept public comments about what digital accessibility regulations should look like. Normally there is quite a lot of public comment in great detail from interested stakeholders. In this case, stakeholders will include a variety of disability groups. Submitted comments are intended to ensure that the needs of people with a variety of disabilities will be met by these regulations. Public comment will need to be received no later than 60 days after the rule is published.
If the regulations are approved and published, it is likely that Title III regulations for private entities will follow, possibly quite quickly with existing Title II regulations to work from.
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Tammy Albee
Tammy Albee | Director of Marketing | Equidox Tammy joined Equidox after four years of experience working at the National Federation of the Blind. She firmly maintains that accessibility is about reaching everyone, regardless of ability, and boosting your market share in the process. "Nobody should be barred from accessing information. It's what drives our modern society."