On Tuesday, July 25, 2023, the U.S. Department of Justice (“DOJ”) announced that it has finalized a notice of proposed rulemaking (“NPRM”) under Title II of the Americans with Disabilities Act (“ADA”) to establish clear technical accessibility standards for state and local governments’ websites and mobile applications (“apps”).  Although the text of the proposed rule has not yet been released, according to the White House, it “suggests clear technical standards, like including text descriptions of images so people using screen readers can understand the content, providing captions on videos, and enabling navigation through use of a keyboard instead of a mouse for those with limited use of their hands.”  Note that the proposed rule would apply to state and local government websites and apps only, but as discussed below this rulemaking could have a shadow effect on disputes about the accessibility of commercial websites and apps. 

As various aspects of American’s daily lives have moved online, state and local governments have increasingly begun offering information about and access to critical public services — such as, motor vehicle registration services, transit information, tax filing and payment services, election information and voter registration, public health resources, educational and employment resources, and emergency services — via websites and apps.  The need for social distancing during the COVID-19 pandemic only accelerated the trend toward offering these critical public services online.  This proposed rule seeks to guarantee that these online public services will be accessible to Americans with disabilities and preserve the progress made towards a fully inclusive society since the passage of the ADA over three decades ago.       

This is a major step in the application of the ADA to the Internet, as was underscored by Attorney General Merrick Garland, who explained that “[t]his marks the first time in the history of the Americans with Disabilities Act that the Justice Department has issued a proposed rule on website accessibility.”  While the DOJ has long taken the position that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the Internet, a previous effort during the Obama administration to adopt rules for websites under both Title II — the section of the ADA governing the accessibly of services offered by state and local governments — and Title III — the section of the ADA that applies to “public accommodations” operated by private entities — never made it past the advanced notice of proposed rulemaking stage.  However, just last year, the DOJ published guidance on “how state and local governments and businesses open to the public can make sure that their websites are accessible to people with disabilities as required by the” ADA.  These actions are part of a broader Biden administration agenda to ensure that federal policy helps “achieve a more inclusive, accessible, and equitable country for people with disabilities.” (For example, we recently discussed new rules adopted by the FCC to ensure the accessibility of video conferencing services.)  One issue to watch when the proposed rules are released is the extent to which the rules incorporate the Web Content Accessibility Guidelines (WCAG), which were referenced in the DOJ guidance published last year. 

Broader implications.  Although any rules adopted pursuant to this NPRM will apply only to the websites and apps of state and local governments, they likely will inform any subsequent rulemaking under Title III of ADA that would consider regulations for the websites and apps of private entities that constitute public accommodations.  In addition, to the extent these rules establish a clear technical standard for accessibility, they could have a shadow effect on litigation about whether a commercial website is in fact accessible. Private litigants have brought a broad range of civil claims under the ADA and related state laws against businesses claiming ADA and other violations due to websites with inaccessible features.  Courts have taken divergent approaches in ruling on the jurisdictional basis of such claims, with some courts holding that there must be a nexus to a physical place of public accommodation, while others have held that standalone retail websites can be a place of public accommodation within the meaning of the ADA.  Parties also have disagreed over what makes a website accessible, even if it were subject to the ADA.  Even though this rulemaking will not resolve the scope of the ADA’s application to private online services, it is possible that the standards adopted for state and local government websites and apps could ultimately inform what technical standards are reasonable in future litigation concerning privately operated websites and apps. The NPRM will be published in the Federal Register in the coming weeks.  Once it is published, there will be a 60-day period to file comments on the proposed rule via regulations.gov.