Withdrawn: 28 CFR Parts 35 and 36, Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities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