Withdrawn: 28 CFR Parts 35 and 36, Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations (ANPRM)

III. Background

A. Statutory and rulemaking history

On July 26, 1990, President George H.W. Bush signed into law the ADA, a comprehensive civil rights law prohibiting discrimination on the basis of disability. The ADA broadly protects the rights of individuals with disabilities in employment, access to State and local government services, places of public accommodation, transportation, and other important areas of American life. The ADA also requires newly designed and constructed or altered State and local government facilities, public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities. 42 U.S.C. 12101 et seq. Section 204 (a) of title II and section 306(b) of title III direct the Attorney General to promulgate regulations to carry out the provisions of titles II and III, other than certain provisions dealing specifically with transportation. 42 U.S.C. 12134; 42 U.S.C. 12186(b).

Title II applies to State and local government entities, and, in Subtitle A, protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by State and local government entities. Title II extends the prohibition on discrimination established by section 504 of the Rehabilitation Act of 1973, as amended, 29U.S.C. 794 (section 504), to all activities of State and local governments regardless of whether these entities receive Federal financial assistance. 42 U.S.C. 12131–65.

Title III prohibits discrimination on the basis of disability in the activities of places of public accommodation (private entities 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) and requires newly constructed or altered places of public accommodation––as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)––to comply with the ADA Standards. 42U.S.C. 12181–89.

On July 26, 1991, the Department issued its final rules implementing title II and title III, which are codified at 28 CFR part 35 (Title II) and part 36 (Title III). Appendix A of the title III regulation, at 28 CFR part 36, app. A, contains the ADA Standards for Accessible Design. On September, 30, 2004, the Department published an advance notice of proposed rulemaking (2004 ANPRM) to begin the process of updating the 1991 regulations to adopt revised ADA Standards based on the relevant parts of the 2004 ADA/ABA Guidelines. 69 FR 58768. On June 17, 2008, the Department issued a notice of proposed rulemaking (NPRM) to adopt the revised 2004 ADA Standards and revise the title II and title III regulations. 73 FR 34466. The NPRM addressed the issues raised in the public´s comments to the ANPRM and sought additional comment. Although the Department did not propose to include Web accessibility provisions in the 2004 ANPRM or the 2008 NPRM, the Department received numerous comments urging the Department to issue Web accessibility regulations under the ADA. Based on these comments and the reasons detailed below, the Department has decided to begin the process of soliciting comments and suggestions with respect to what an NPRM regarding Web access should contain.

B. Legal foundation for Web accessibility

When the ADA was enacted in 1990, the Internet as we know it today—the ubiquitous infrastructure for information and commerce—did not exist. Today the Internet, most notably the sites of the Web, plays a critical role in the daily personal, professional, civic, and business life of Americans. Increasingly, private entities are providing goods and services to the public through websites that operate as places of public accommodation under title III of the ADA. Similarly, many public entities under title II are using websites to provide the public access to their programs, services, and activities. Many websites of public accommodations and governmental entities, however, render use by individuals with disabilities difficult or impossible due to barriers posed by websites designed without accessible features.

Being unable to access websites puts individuals at a great disadvantage in today´s society, which is driven by a dynamic electronic marketplace and unprecedented access to information. On the economic front, electronic commerce, or "e-commerce," often offers consumers a wider selection and lower prices than traditional, "brick-and-mortar" storefronts, with the added convenience of not having to leave one´s home to obtain goods and services. For individuals with disabilities who experience barriers to their ability to travel or to leave their homes, the Internet may be their only way to access certain goods and services.

Beyond goods and services, information available on the Internet has become a gateway to education. Schools at all levels are increasingly offering programs and classroom instruction through websites. Many colleges and universities offer degree programs online; some universities exist exclusively on the Internet. Even if they do not offer degree programs online, most colleges and universities today rely on websites and other Internet-related technologies in the application process for prospective students, for housing eligibility and on-campus living assignments, course registration, assignments and discussion groups, and for a wide variety of administrative and logistical functions in which students and staff must participate. Similarly, in the elementary- and secondary-school settings, communications via the Internet are increasingly becoming the way teachers and administrators communicate grades, assignments, and administrative matters to parents and students.

The Internet is also dramatically changing the way that governmental entities serve the public. Public entities are increasingly providing their constituents access to government services and programs through their websites. Through government websites, the public can obtain information or correspond with local officials without having to wait in line or be placed on hold. They can also pay fines, apply for benefits, renew State-issued identification, register to vote, file taxes, request copies of vital records, and complete numerous other everyday tasks. The availability of these services and information online not only makes life easier for the public, but also enables governmental entities to operate more efficiently and at a lower cost.

The Internet also is changing the way individuals socialize and seek entertainment. Social networks and other online meeting places provide a unique way for individuals to meet and fraternize. These networks allow individuals to meet others with similar interests and connect with friends, business colleagues, elected officials, and businesses. They also provide an effective networking opportunity for entrepreneurs, artists, and others seeking to put their skills and talents to use. Websites also bring a myriad of entertainment and information options for Internet users—from games and music to news and videos. With the Internet, individuals can find countless ways to entertain themselves without ever leaving home.

More and more, individuals are also turning to the Internet to obtain healthcare information. Individuals use the Internet to research diagnoses they have received or symptoms that they are experiencing. There are a myriad of websites that provide information about causes, risk factors, complications, test and diagnosis, treatment and drugs, prevention, and alternative therapies for just about any disease or illness. Moreover, healthcare and insurance providers are increasingly offering patients the ability to access their healthcare records electronically via websites. As use of the Internet to provide and obtain healthcare information increases, the inability of individuals with disabilities to also access this information can potentially have a significant adverse effect on their health

The ADA´s promise to provide an equal opportunity for individuals with disabilities to participate in and benefit from all aspects of American civic and economic life will be achieved in today´s technologically advanced society only if it is clear to State and local governments, businesses, educators, and other public accommodations that their websites must be accessible. Consequently, the Department is considering amending its title II and title III regulations to require public entities and public accommodations that provide products or services to the public through websites on the Internet to make their sites accessible to and usable by individuals with disabilities under the legal framework established by the ADA.

i. Barriers to Web accessibility

Millions of individuals in the United States have disabilities that affect their use of the Web. Many of these individuals use assistive technology to enable them to navigate websites or access information contained on those sites. For example, individuals who do not have use of their hands may use speech recognition software to navigate a website, while individuals who are blind may rely on a screen reader to convert the visual information on a website into speech. Many websites fail to incorporate or activate features that enable users with disabilities to access all the site´s information or elements. For instance, individuals who are deaf are unable to access information in Web videos and other multimedia presentations that do not have captions. Individuals with low vision may be unable to read websites that do not allow the font size or the color contrast of the site´s page to be modified. Individuals with limited manual dexterity who may use assistive technology that enables them to interact with websites cannot access sites that do not support keyboard alternatives for mouse commands. These same individuals, along with individuals with intellectual and vision disabilities, often encounter difficulty using portions of websites that require timed responses from users but do not give users the ability to indicate that they need more time to respond.

Individuals who are blind or have low vision often confront significant barriers to Web access. This is because many websites provide information visually without features that allow screen readers or other assistive technology to retrieve information on the site so it can be presented in an accessible manner. The most common barrier to website accessibility is an image or photograph without corresponding text describing the image. A screen reader or similar assistive technology cannot "read" an image, leaving individuals who are blind with no way of independently knowing what information the image conveys (e.g., a simple graphic or a link to another page). Similarly, complex websites often lack navigational headings or links that would facilitate navigation using a screen reader or may contain tables with header and row identifiers that display data, but fail to provide associated cells for each header and row so that the table information can be interpreted by a screen reader.

Online forms, which are an essential part of accessing goods and services on many websites, are often inaccessible to individuals with disabilities. For example, field elements on forms—the empty boxes that hold specific pieces of information, such as a last name or telephone number—that lack clear labels, and visual CAPTCHAs ("Completely Automated Public Turing Test To Tell Computers and Humans Apart")—distorted text that must be inputted by a website user to verify that a Web submission is being completed by a human rather than a computer—make it difficult for persons using screen readers to make purchases, submit donations, and otherwise interact with a website. These barriers greatly impede the ability of individuals with disabilities to fully enjoy the goods, services, and programs offered by covered entities on the Web.

In most instances, removing these and other website barriers is neither difficult nor especially costly, and in most cases providing accessibility will not result in changes to the format or appearance of a site. The addition of invisible attributes known as alt (alternate) text or tags to an image will help keep an individual using a screen reader oriented and allow him or her to gain access to the information on the website. Associating form labels to form input fields and locating form labels adjacent to form input fields will allow an individual using a screen reader to access the information and form elements necessary to complete and submit a form on the website. Moreover, Web designers can easily add headings, which facilitate page navigation using a screen reader, to their Web pages. They can also add cues to ensure the proper functioning of keyboard commands and set up their programs to respond to assistive technology, such as voice recognition technology.

ii. Web accessibility under the ADA

The Internet as it is known today did not exist when Congress enacted the ADA and, therefore, neither the ADA nor the regulations the Department promulgated under the ADA specifically address access to websites. But the statute´s broad and expansive nondiscrimination mandate reaches goods and services provided by covered entities on websites over the Internet. Title III of the ADA provides that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. 12182(a). Title III of the ADA and its corresponding regulations define a "place of public accommodation" as a facility whose operations affect commerce and that falls within at least one of the following 12 categories:

(1) An inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of the establishment as the residence of the proprietor;

(2) A restaurant, bar, or other establishment serving food or drink;

(3) A motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;

(4) An auditorium, convention center, lecture hall, or other place of public gathering;

(5) A bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;

(6) A laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;

(7) A terminal, depot, or other station used for specified public transportation;

(8) A museum, library, gallery, or other place of public display or collection;

(9) A park, zoo, amusement park, or other place of recreation;

(10) A nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;

(11) A day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and

(12) A gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.

42 U.S.C. 12181(7); 28 CFR36.104. Congress contemplated that the Department would apply the statute in a manner that evolved over time, and it delegated authority to the Attorney General to promulgate regulations to carry out the Act´s broad mandate. See H.R. Rep. No. 101-485(II), 101st Cong., 2d Sess. 108 (1990); 42 U.S.C. 12186(b). Consistent with this approach, the Department stated in the preamble to the original 1991 ADA regulations that the regulations should be interpreted to keep pace with developing technologies. 28 CFR part 36, app. B.

Section 12182 of title III provides that no person "who owns, leases (or leases to), or operates a place of public accommodation" may discriminate "on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation." 42 U.S.C. 12182(a) (emphasis added). Similarly, title II provides that qualified individuals with disabilities shall not be excluded from "participation in or be denied the benefits of the services, programs, or activities of a public entity." 42 U.S.C. 12132 (emphasis added). The plain language of these statutory provisions applies to discrimination in offering the goods and services "of" a place of public accommodation or the services, programs, and activities "of" a public entity, rather than being limited to those goods and services provided "at" or "in" a place of public accommodation or facility of a public entity. See National Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946, 953 (N.D. Cal. 2006) (finding in a website-access case that "[t]o limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute"); Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279 (11th Cir. 2002) (finding that discrimination did not have to occur on-site in order to violate the ADA); see also Carparts Distribution Ctr., 37 F.3d 12 (concluding that title III is not limited to provision of goods and services provided in physical structures, but also covers access to goods and services offered by a place of public accommodation through other mediums, such as telephone or mail). But see Access Now, Inc. v.Southwest Airlines, Co., 227 F. Supp. 2d 1312 (S.D. Fla. 2002)(finding a website is only covered if it affects access to a physical place of public accommodation); See Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114-16 (9th Cir. 2000) (requiring some connection between the goods or services complained of and an actual physical place); Ford v. Schering-Plough Corp., 145 F.3d 601, 612-13 (3d Cir. 1998) (finding no nexus between challenged insurance policy and services offered to the public from insurance office). Instead, the ADA mandate for "full and equal enjoyment" requires nondiscrimination by a place of public accommodation in the offering of all its goods and services, including those offered via websites.

iii. Need for Department action

The Internet has been governed by a variety of voluntary standards or structures developed through nonprofit organizations using multinational collaborative efforts. For example, domain names are issued and administered through the Internet Corporation for Assigned Names and Numbers (ICANN), the Internet Society (ISOC) publishes computer security policies and procedures for sites, and the World Wide Web Consortium (W3C^¨) develops a variety of technical standards and guidelines ranging from issues related to mobile devices and privacy to internationalization of technology. In the area of accessibility, the Web Accessibility Initiative (WAI) of the W3C^¨ has created the Web Content Accessibility Guidelines (WCAG).

It has been the policy of the United States to encourage self-regulation with regard to the Internet wherever possible and to regulate only where self-regulation is insufficient and government involvement may be necessary. See Memorandum on Electronic Commerce, 33 WCPD 1006, 1006-1010 (July 1, 1997), available at http://www.gpo.gov/fdsys/pkg/WCPD-1997-07-07/html/WCPD-1997-07-07-Pg1006-2.htm (last visited June 29, 2010); A Framework for Global Electronic Commerce,http://clinton4.nara.gov/WH/New/Commerce (last visited June 29, 2010).

Voluntary standards have generally proved to be sufficient where obvious business incentives align with discretionary governing standards as, for example, with respect to privacy and security standards designed to increase consumer confidence in e-commerce. There has not, however, been equal success in the area of accessibility. The WAI leadership has recognized this challenge and has stated that in order to improve and accelerate Web accessibility it is important to "communicat[e] the applicability of the ADA to the Web more clearly, with updated guidance * * * ." Achieving the Promise of the Americans with Disabilities Act in the Digital Age – Current Issues, Challenges, and Opportunities: Hearing Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties, H. Comm. On the Judiciary, 111th Cong. (Apr. 22, 2010) (statement of Judy Brewer, Director, Web Accessibility Initiative at the W3C^¨). It is clear that the system of voluntary compliance has proved inadequate in providing website accessibility to individuals with disabilities. See, e.g., National Council on Disability, The Need for Federal Legislation and Regulation Prohibiting Telecommunications and Information Services Discrimination(Dec. 19, 2006), available at www.ncd.gov/newsroom/publications/2006/discrimination.htm (last visited June 29, 2010) (discussing how competitive market forces have not proven sufficient to provide individual with disabilities access to telecommunications and information services.)

There is no doubt that the websites of state and local government entities are covered by title II of the ADA. See 28 CFR 35.102 (providing that the title II regulation "applies to all services, programs, and activities provided or made available by public entities"). Similarly, there seems to be little debate that the websites of recipients of federal financial assistance are covered by section 504 of the Rehabilitation Act. The Department has affirmed the application of these statutes to websites in a technical assistance publication, Accessibility of State and Local Government Websites to People with Disabilities (available at http://www.ada.gov/websites2.htm), and in numerous agreements with State and local governments and recipients of Federal financial assistance.

The Department has also repeatedly affirmed the application of title III to websites of public accommodations. The Department first made this position public in a 1996 letter from Assistant Attorney General Deval Patrick responding to an inquiry by Senator Tom Harkin regarding the accessibility of websites to individuals with visual disabilities. See Letter from Deval L. Patrick, Assistant Attorney General, Civil Rights Division, Department of Justice, to Tom Harkin, U.S. Senator (Sept. 9, 1996), available at www.justice.gov/crt/foia/tal712.txt. The letter has been widely cited as a statement of the Department´s position. The letter does not, however, state whether entities doing business exclusively on the Internet are covered by the ADA.

In 2000, the Department filed an amicus brief in the Fifth Circuit in Hooks v. OKbridge, Inc., which involved a Web-only business. The Department´s brief explained that a business providing services solely over the Internet is subject to the ADA´s prohibitions on discrimination on the basis of disability. SeeBrief of the United States as Amicus Curiae in Support of Appellant, 232 F.3d 208 (5th Cir. 2000) (No. 99-50891), 1999 WL 33806215, available at www.justice.gov/crt/briefs/hooks.htm. In a 2002 amicus brief in the Eleventh Circuit in Rendon v. Valleycrest Productions, Inc., the Department argued against a requirement, imposed outside of the Internet context by some Federal courts of appeals, that there be a nexus between a challenged activity and a private entity´s "brick-and-mortar" facility to obtain coverage under title III. See Brief for the United States as Amicus Curiae in Support of Appellant, 294 F.3d 1279 (11th Cir. 2002) (No. 01-11197), 2001 WL 34094038, available at www.justice.gov/crt/briefs/rendon.htm. Although Rendon did not involve website access, the Department´s brief argued that title III applies to any activity or service offered by a public accommodation, on or off the premises.

For years, businesses and individuals with disabilities alike have urged the Department to provide guidance on the accessibility of websites of entities covered by the ADA. While some actions have been brought regarding access to websites under the ADA that have resulted in courts finding liability or in the parties agreeing to a settlement to make the subject websites accessible, a clear requirement that provides the disability community consistent access to websites and covered entities clear guidance on what is required under the ADA does not exist. See generally, Target, 452 F. Supp. 2d 946; Amazon.com and National Federation of the Blind Join Forces to Develop and Promote Web Accessibility (Mar. 28, 2007),www.nfb.org/nfb/NewsBot.asp?MODE=VIEW&ID=174 (last visited June 29, 2010); Spitzer Agreement to Make Web Sites Accessible to the Blind and Visually Impaired (Aug. 2004),www.ag.ny.gov/media_center/2004/aug/aug19a_04.html (last visited June 29, 2010). Two independent Federal agencies have also formally called on the Department to revise its regulations to make clear that the websites of entities covered under title III are subject to the ADA. See Federal Communications Commission, Recommendation 9.10, National Broadband Plan (Mar. 16, 2010), available at www.broadband.gov/plan (last visited June 29, 2010) ("The DOJ should amend its regulations to clarify the obligations of commercial establishments under title III of the Americans with Disabilities Act with respect to commercial websites"); National Council on Disability, The Need for Federal Legislation and Regulation Prohibiting Telecommunications and Information Services Discrimination (Dec. 19, 2006), available at www.ncd.gov/newsroom/publications/2006/discrimination.htm (last visited June 29, 2010) (urging the Department to clarify the ADA´s coverage of websites of title III entities). Although the Department has been clear that the ADA applies to websites of private entities that meet the definition of "public accommodations," inconsistent court decisions, differing standards for determining Web accessibility, and repeated calls for Department action indicate remaining uncertainty regarding the applicability of the ADA to websites of entities covered by title III. For these reasons, the Department is exploring what regulatory guidance it can propose to make clear to entities covered by the ADA their obligations to make their websites accessible. Despite the need for action, the Department appreciates the need to move forward deliberatively. Any regulations the Department adopts must provide specific guidance to help ensure Web access for individuals with disabilities without hampering innovation and technological advancement on the Web.