Reviving Negotiated Rulemaking for an Accessible Internet

Julie Moroney* May, 2021

Web accessibility requires designing and developing websites so that people with disabilities can use them without barriers. While the internet has become central to daily life, websites have overwhelmingly remained inaccessible to the millions of users who have disabilities. Congress enacted the Americans with Disabilities Act (ADA) to combat discrimination against people with disabilities. Passed in 1990, it lacks any specific mention of the internet. Courts are split as to whether the ADA applies to websites, and if so, what actions businesses must take to comply with the law. Further complicating matters, the Department of Justice (DOJ) initiated the rulemaking process for web accessibility in 2010, only to terminate it seven years later without issuing a rule—leaving the disability community without meaningful online access and businesses without clear standards. Meanwhile, complaints about the accessibility of websites have flooded federal agencies and the courts. Against that backdrop, this Note calls for the DOJ to use negotiated rulemaking, a regulatory innovation from the 1980s that has since faded in use, to achieve web accessibility. Given that the Supreme Court has declined to resolve whether the ADA’s protections apply to the internet, the business and disability communities should come together through negotiated rulemaking to build consensus on web accessibility.

Introduction

The COVID-19 global pandemic moved daily life inside and online. School and nonessential work were conducted over video conferencing software.¹ Groceries and takeout, ordered online, were delivered without contact.² Quarantines required time spent with friends to happen virtually. Even workouts and church services moved online.³

But in this virtual world, access is everything. Video conferencing programs without captioning services make it harder for deaf employees to perform their jobs.⁴ Grocery-store websites without text descriptions of their product photos make it harder for blind customers who use screen readers to buy food and other essential items. News outlets with poor color contrasting or missing link text make it harder for readers with disabilities to stay informed. And this is not a small problem, as an estimated forty million people in the United States have disabilities.⁵

The coronavirus pandemic may have heightened the internet’s central role in daily life, but it exposed inequalities that already existed. When online goods, services, and programs are not accessible, people with disabilities face discrimination and isolation in a society that—for better or worse—cannot exist without the internet.⁶ Some things will likely never move back offline after COVID-19, which only increases the urgency for an accessible internet.⁷

Unfortunately, as commerce and activity continue to move online, businesses have largely failed to make their online offerings as accessible as their physical counterparts.⁸ The federal government has failed to provide businesses much direction, let alone encouragement, to make their online presences accessible to those with disabilities, while courts are divided on whether and how the Americans with Disabilities Act (ADA), the major antidiscrimination law guaranteeing equal access for people with disabilities, applies to websites.⁹ Passed in 1990, the ADA prohibits discrimination in any “place of public accommodation” but does not mention the internet.¹⁰ Courts are split on whether this phrase covers websites, resulting in uncertainty for businesses that want to comply with the law and for people with disabilities who want to use the internet.

This Note argues that the Department of Justice (DOJ) should revive the use of negotiated rulemaking, an alternative to traditional rulemaking, to bring together the business and disability communities so that they can agree on clearer guidelines for web accessibility.¹¹ Part I provides background on the ADA and its relationship with the internet. Part II discusses the open legal questions raised by the increase in web accessibility litigation, including the resurrection of a longstanding disagreement among circuit courts over the meaning of “place of public accommodation” in the ADA.¹² Part III examines negotiated rulemaking, ultimately arguing that it is the proper procedural device for the DOJ to use in making the internet more accessible.

I. The ADA and the Internet

This Part provides an overview of the current state of web accessibility, which largely leaves decisions to private actors given the lack of federal guidelines. Section I.A discusses the ADA and its applicability to the internet. Section I.B examines the DOJ’s failure to promulgate web accessibility regulations. Section I.C explains the nongovernmental web accessibility standards that are frequently used in the absence of government standards.

A. Discrimination on the Basis of Disability

The ADA is the major civil rights law that prohibits discrimination on the basis of disability.¹³ Congress passed the ADA to provide “clear, strong, consistent, enforceable standards” that addressed discrimination faced by people with disabilities.¹⁴ The statute addresses discrimination by employers,¹⁵ state and local governments,¹⁶ and private entities.¹⁷ Congress created general guidelines for eliminating discrimination and guaranteeing access, and it vested the DOJ with the authority to promulgate more specific regulations to implement those general guidelines.¹⁸

In Title III—the part of the statute that addresses discrimination by private entities—the ADA prohibits discrimination on the basis of disability in the “full and equal enjoyment of the goods, services, [and] facilities . . . of any place of public accommodation.”¹⁹ The Act lists twelve broad categories of entities that are considered places of public accommodation, ranging from restaurants to hotels to day care centers.²⁰ Each category also contains a catchall phrase, making the list of places of public accommodation open to some interpretation.²¹

Because Title III was enacted as a compromise between civil rights groups and business interests, the broad coverage of Title III’s “place of public accommodation” came at the cost of including defenses, exemptions, and limited remedies alongside the affirmative obligations.²²Under Title III, covered entities must make “reasonable modifications” to their policies and practices to ensure their goods and services are available to people with disabilities, except where such modifications would “fundamentally alter” the nature of the good or service.²³ Covered entities must take “such steps as may be necessary” to ensure that people with disabilities are not excluded, denied services, or treated differently, except where such steps would amount to an “undue burden.”²⁴

The internet is noticeably absent from the text of the ADA. This is unsurprising, given that the ADA was enacted in 1990, the year before the World Wide Web was invented.²⁵ Congress did not foresee this “information revolution.”²⁶ By 2005, over 400 million people used the internet, and by 2019, over half of the world’s population was on the web.²⁷ This technological explosion—and the internet’s growing importance to daily life—has altered what people understand to be a “place of public accommodation.”²⁸ Though it makes sense that the internet was not referenced in the original ADA, it is harder to understand why public actors have failed to incorporate such an important part of daily life into the ADA or the regulations the DOJ promulgated to implement it. Despite having approximately thirty years to do so, Congress has not amended the ADA to explicitly bring the internet within its scope. The DOJ, charged with implementing the ADA, has likewise failed to update its existing regulations or add new ones specifically for website accessibility.²⁹

B. The DOJ’s Action (and Inaction)

Despite its failure to promulgate web accessibility regulations, the DOJ has consistently maintained that Title III requires a “place of public accommodation” to make its online presence accessible.³⁰ It first took this position over twenty years ago in a letter to Senator Tom Harkin, concluding that entities covered by the ADA that use the internet for communications “must be prepared to offer those communications through accessible means.”³¹ In 2000, the DOJ filed an amicus brief in a suit against an online gaming site, arguing that the ADA applied to the online content offered by places of public accommodation.³² The DOJ has since filed briefs and statements in support of this position in several private actions.³³

In July 2010, the DOJ took its first step toward promulgating specific regulations on web accessibility by publishing an Advance Notice of Proposed Rulemaking (ANPRM).³⁴ The ANPRM solicited comments from the public on various issues, including the guidelines that the DOJ should adopt, the material to which the regulations should apply, the feasible time frame for compliance, and other costs, benefits, and alternatives that the DOJ should consider.³⁵ The 2010 ANPRM signaled that the DOJ—at least at that time—understood that regulations were needed to bring about an accessible internet.

After publishing the ANPRM in 2010, the DOJ received hundreds of comments but continued to postpone the next phase of rulemaking.³⁶ This inaction, especially under an administration friendly to civil rights, indicates the complexity and breadth of the task set out by the ANPRM. In December 2017 under the Trump administration, the DOJ withdrew the 2010 ANPRM.³⁷ In explaining the withdrawal, the DOJ stated that it was evaluating whether promulgating regulations about web accessibility is “necessary and appropriate” and would “continue to assess whether specific technical standards” are needed.³⁸ After withdrawing the ANPRM, however, the DOJ again affirmed its position in September 2018 that the ADA applies to the websites of places of public accommodation and emphasized that the absence of specific regulations is not a basis for noncompliance.³⁹

C. Nongovernmental Standards

Even without specific regulations from the DOJ, businesses do have a set of standards they can follow. The World Wide Web Consortium (W3C) is an international standards-setting organization that aims to develop various sets of web standards that can be used around the world.⁴⁰ The W3C developed the Web Content Accessibility Guidelines (WCAG), a set of consensus-based, comprehensive accessibility standards.⁴¹ The WCAG are widely used.⁴²

The WCAG confer significant benefits, particularly in the absence of any governmental standards. W3C continues to update them, so governments that have adopted them do not have to worry about maintenance costs.⁴³ The WCAG are structured more like best practices than detailed, technical rules, allowing the guidelines to be flexible as technology develops and changes over time.⁴⁴ The WCAG are also backwards compatible, meaning that content that conforms to the newest version also conforms to older versions.⁴⁵ To make it easy for businesses to benchmark their websites’ accessibility, the WCAG are organized into compliance levels with testable success criteria.⁴⁶ Although the WCAG are the de facto global standard, they are not binding standards promulgated by a federal agency. Because of this, businesses have fought—and courts have been wary of—conflating ADA and WCAG compliance.⁴⁷

II. Conflicting Interpretations of the ADA’s Digital Reach

Both Congress’s and the DOJ’s failures to address web accessibility have resulted in several unanswered questions for the courts. The most significant is one of threshold: whether the ADA even applies to websites. Title III prohibits discrimination on the basis of disability in the full and equal enjoyment of the goods and services of any “place of public accommodation.”⁴⁸ But it is unclear whether a business’s website qualifies as a place of public accommodation. If it does, the business must make “reasonable modifications” and take “such steps as may be necessary” to ensure that people with disabilities are not excluded from and can fully access the business’s website.⁴⁹ This Part surveys the conflicting interpretations of the ADA’s digital reach. Section II.A begins with a discussion of a longstanding circuit split from the early days of the ADA. Section II.B then examines how courts have recently resurrected this split by applying it to web accessibility cases. Finally, Section II.C identifies other legal questions surrounding ADA web accessibility litigation and the consequences of leaving these questions unaddressed.

A. Diverging Definitions of Place

Some of the earliest cases interpreting the “place of public accommodation” language of Title III involved ADA challenges to discriminatory insurance policies. In deciding these cases, courts of appeals were divided on whether and to what extent the ADA covered the contents of insurance policies. While all courts of appeals agreed that the insurers’ physical offices were places of public accommodation, they disagreed about whether the insurance company itself was a place of public accommodation, and thus whether the policies it offered were covered by the ADA regardless of where and how the policy was purchased.⁵⁰ In other words, courts agreed that the ADA required insurance companies to grant people with disabilities equal access to their offices but not necessarily equal access to their plans.

1. First, Second, and Seventh Circuits

The First, Second, and Seventh Circuits held that places of public accommodation are not restricted to physical places and do not require a connection to one. In Carparts Distribution Center, Inc. v. Automotive Wholesaler’s Ass’n of New England, the estate of an employee who died from AIDS alleged that the defendant violated the ADA by capping AIDS-related benefits in its insurance plans.⁵¹ The First Circuit held that places of public accommodation were not limited to physical structures after examining the list of twelve categories of public accommodation Congress provided in the statute.⁵² The court reasoned that certain terms in the list, such as “travel service” and “service establishment,” did not require a physical outpost.⁵³ Moreover, it would be an “absurd result” for the ADA to protect someone who bought an insurance policy at the insurance office but not someone who purchased it over the phone.⁵⁴ The court also determined that a broad interpretation of “place of public accommodation” aligned with the overarching purpose of the ADA as a “comprehensive national mandate for the elimination of discrimination” against people with disabilities.⁵⁵ Thus, for the court, Congress contemplated that places of public accommodation meant more than physical structures.

The Second Circuit joined the First Circuit a few years later. In Pallozi v. Allstate Life Insurance Co., a couple sued their insurer for refusing to issue them joint life insurance because of their mental disabilities.⁵⁶ The court affirmed that places of public accommodation were not limited to physical places, concluding that it did not matter where the goods or services were sold.⁵⁷ Pointing to the text of the ADA, the court reasoned that Title III applied to services of a place of public accommodation, not in a place of public accommodation.⁵⁸ It also emphasized the ADA’s purpose, suggesting that the statute was meant to guarantee people with disabilities more than “mere physical access.”⁵⁹

Following suit in Morgan v. Joint Administrative Board, the Seventh Circuit declined to interpret “place of public accommodation” as requiring a physical place.⁶⁰ It held that the site of the sale was irrelevant to the ADA’s goal of granting people with disabilities equal access, and instead the important factor was that the good or service was offered to the public.⁶¹ In endorsing this broader reading of places of public accommodation, the First, Second, and Seventh Circuits relied more on the ADA’s purpose than on the text of the statute itself.

2. Third, Sixth, and Ninth Circuits

The Third, Sixth, and Ninth Circuits, however, did not take such a broad view. Instead, their interpretation of “place of public accommodation” is limited to physical places. All three circuits heard challenges under Title III to insurance policies that extended different benefits to people with physical rather than mental disabilities.⁶²

In Parker v. Metropolitan Life Insurance Co., the Sixth Circuit relied on the text of the DOJ’s regulations implementing the ADA to conclude that places of public accommodation must be physical places.⁶³ These regulations, promulgated by the DOJ soon after the ADA was enacted, attempted to define terms used in the statute and explain what is required of entities covered under Title III.⁶⁴ The regulations define a place of public accommodation as a “facility operated by a private entity whose operations affect commerce” and fall within one of the ADA’s twelve categories.⁶⁵ Because “facility” is later defined in these regulations as “all or any portion of buildings, structures, sites, complexes . . . or other real or personal property, including the site where the building, property, structure, or equipment is located,” the Sixth Circuit interpreted facility, and in turn “place of public accommodation,” to require a physical place.⁶⁶

In Ford v. Schering-Plough Corp., the Third Circuit joined the Sixth in interpreting place of public accommodations to mean a physical place.⁶⁷ Drawing on the text of the ADA, the Third Circuit noted that Congress enumerated a list of particularized categories to describe a place of public accommodation, and all of them seemingly describe physical places.⁶⁸ Rather than be swayed by Congress’s inclusion of ambiguous terms in the list like the First Circuit in Carparts, the Third Circuit applied the noscitur a sociis canon to find that “place of public accommodation” and any other ambiguous terms in the list should be interpreted by reference to nearby words, which are physical places.⁶⁹The Ninth Circuit endorsed the approach of the Sixth and Third Circuits a few years later in Weyer v. Twentieth Century Fox Film Corp.⁷⁰

While these courts of appeals held that places of public accommodation are limited to physical places, they seemed to agree that plaintiffs could still bring a viable claim under Title III by showing a sufficient “nexus” between the discriminatory conduct and a physical place.⁷¹For example, the Sixth Circuit in Parker explained that because the plaintiff accessed her benefits from her employer rather than from the defendant’s physical insurance office, there was “no nexus” between the disparity in benefits and the services offered from the physical office.⁷² In the decades after these insurance cases were decided, the passing reference to a nexus by these courts of appeals has developed into a full-fledged nexus test for web accessibility cases.⁷³ In looking for a nexus, lower courts seem to consider how the plaintiff accessed the good or service, whether they could have accessed it from a physical place, and whether the defendant made the goods and services available to the public.

The circuit split on the interpretation of “place of public accommodation” is primarily one of purpose versus text. The First, Second, and Seventh Circuits emphasized the purpose of the ADA and Congress’s goal of eliminating discrimination against people with disabilities. These courts took a broad view of “place,” looking for equal access, rather than physical access, to the goods and services offered by the place of public accommodation. In contrast, the Third, Sixth, and Ninth Circuits took a textual approach. These courts examined the language of the statute and the DOJ’s original regulations implementing it to employ a literal interpretation that required a place of public accommodation to be a physical place or have some nexus to one.

B. Resurrecting the Split

Over time, the disagreement about whether places of public accommodation must be physical places has expanded beyond insurance litigation. Web accessibility cases raise the same difficult question of whether Title III covers business conducted outside of physical spaces.⁷⁴ While overwhelmingly relying on the same arguments rooted in either the ADA’s purpose or its text, some courts have added arguments specific to web accessibility or technology, bringing this disagreement into the twenty-first century.

1. District Courts

Most of the cases addressing web accessibility have occurred at the district court level. Access Now, Inc. v. Southwest Airlines, Co., for example, concerned a challenge to the inaccessibility of Southwest Airlines’ website.⁷⁵ The court found that the website was not a place of public accommodation, reasoning, in part, that the plain language of the ADA and its regulations did not mention the internet or websites.⁷⁶ On the other hand, in National Federation of the Blind v. Scribd Inc., the court held that the website of an online-only business was a place of public accommodation, pointing to the legislative history of the ADA indicating that Congress intended the ADA to adapt to changes in technology.⁷⁷

Web accessibility cases have also fueled criticism of the ADA nexus test used by the Third, Sixth, and Ninth Circuits.⁷⁸ Specifically, opponents argue that the nexus test has a propensity to produce inconsistent or absurd results when applied to websites. For instance, under the nexus test, the websites of competitors offering the same products can be subject to different standards. Target, because of its brick-and-mortar stores, would be required to make its website accessible, while Amazon would not because it lacks physical customer-facing stores.⁷⁹ The cost of web accessibility might then be reflected in the price of the goods, giving an unfair advantage to businesses that do not operate physical stores.⁸⁰

Applying the nexus test can also result in uneven accessibility across a single company’s website, as only those parts of the site that are connected to the physical store would need to be made accessible online.⁸¹ For example, the district court in Andrews v. Blick Art Materials, LLC refused to apply the nexus test, reasoning that it would require Blick to only make its website accessible for products available in store but not for online exclusives.⁸² The ability of the nexus test to produce inconsistent or absurd results for similar websites or within the same website hearkens back to the First Circuit’s warning about absurd results in Carparts, when it said that the ADA should not be construed to only protect those who bought insurance in store.⁸³ Despite this criticism of the nexus test, many district courts continue to look for a sufficient nexus between the inaccessible website being challenged and the defendant’s physical stores.⁸⁴

2. Appellate Courts

While the resurrection of the split on whether a place of public accommodation must be a physical place has mostly taken place at the district level, two federal courts of appeals have recently addressed the question. In 2018, the Eleventh Circuit weighed in but did not pick a side of the split. In Haynes v. Dunkin’ Donuts LLC, rather than decide whether the business’s website was a place of public accommodation, the court held that it was covered by the ADA because it was a service that facilitated access to the goods and services Dunkin’ Donuts offered.⁸⁵ Though this conclusion resembles the view taken by the Third, Sixth, and Ninth Circuits, the Eleventh Circuit declined to fully embrace the nexus test used by those courts. It did not use the word “nexus,” even though it reversed the district court’s judgment that the plaintiff failed to allege one.⁸⁶ It also did not mention any other circuit opinions, instead relying on its own opinion in Rendon v. Valleycrest Productions, Ltd., in which it said that the Third, Sixth, and Ninth Circuit insurance coverage cases were inapposite.⁸⁷ The Haynes decision left many confused, including district courts within the Eleventh Circuit. When applying Haynes, these courts have issued conflicting opinions regarding whether websites are places of public accommodations or require a nexus to a physical place.⁸⁸

In stark contrast to the Eleventh Circuit’s ambiguity, the Ninth Circuit clearly embraced the nexus test in a web accessibility case six months later, becoming the first federal appellate court to consider whether websites are places of public accommodation in a published opinion. In Robles v. Domino’s Pizza, LLC, a blind customer sued Domino’s, alleging its inaccessible website and mobile application violated the ADA.⁸⁹ Reasoning that the website and application satisfied the nexus test, the Ninth Circuit held that the ADA applied to both.⁹⁰ Domino’s filed a petition for certiorari, but the Supreme Court denied it in October 2019, leaving unanswered the threshold question of whether and when the ADA reaches websites.⁹¹

3. The Supreme Court

Although the Supreme Court denied certiorari in Domino’s, it recently took up a different physical versus virtual presence question. In the 2018 Commerce Clause case South Dakota v. Wayfair, Inc., the Court held that states can require companies that have a sufficient virtual presence in the state to pay sales tax.⁹² Wayfair overruled the Court’s 1992 holding in Quill Corp. v. North Dakota, which required a company to have a physical presence in a state for the imposition of sales taxes.⁹³ The Court explained that when it decided Quill, it did not know the ways in which the internet “revolution” would change society and transform the national economy.⁹⁴ The Court’s change of course in Wayfair indicates at least some willingness to interpret a law so as to adapt it to the changes brought by the internet.

And much has changed since Congress enacted the ADA in 1990.⁹⁵ Technology continues to be developed that requires the courts of appeals to weigh in on what constitutes a place of public accommodation.⁹⁶ By denying certiorari in Domino’s, the Supreme Court all but guaranteed that web accessibility issues would continue to be litigated extensively, with courts often reaching incongruent results. From 2016 to 2019, web accessibility lawsuits filed in federal courts under Title III of the ADA have increased by over 750 percent.⁹⁷

C. The Supreme Court’s Silence

The Supreme Court’s unwillingness to answer the threshold question not only delays resolving the other open legal questions raised by web accessibility litigation. It also creates problems for businesses that want to comply with the ADA and people with disabilities who want to use the internet without barriers.

1. Open Legal Questions

Domino’s presented only one of several important questions implicating web accessibility and the ADA. Many companies operate mobile applications in addition to websites, but courts disagree on whether these applications must comply with Title III.⁹⁸ Since the Ninth Circuit answered this in the affirmative, this is another question the Supreme Court could have resolved if it had granted certiorari in Domino’s as it was included in the petition for certiorari.⁹⁹ Another open question is whether web accessibility regulations should apply to online marketplaces like Craigslist, or links on businesses’ websites that take customers to inaccessible third-party web pages, such as payment portals.¹⁰⁰ And the meteoric rise of social media raises the question of whether covered entities should be liable for inaccessible content posted to their sites by individual users.¹⁰¹ While these issues have not been litigated to the same extent as the threshold question, they are important topics that will become prominent as web accessibility lawsuits continue to surge.

2. Impact on Affected Communities

The DOJ’s failure to promulgate specific web accessibility regulations, the courts’ conflicting interpretations of the ADA, and the Supreme Court’s silence create problems for the communities the ADA is supposed to serve. The disability community faces serious problems from the lack of federal action on web accessibility. While the disability community has enjoyed success with agency resolutions,¹⁰² court decisions,¹⁰³ and settlement agreements,¹⁰⁴ taken together, these outcomes create a patchwork approach to addressing a complex, widespread problem affecting the daily lives of millions of people. People with disabilities should not have to file a lawsuit to ensure meaningful access to each individual website they want to use. As evidenced by the growth of web accessibility cases, however, that is what they are resorting to in the face of government inaction.

The DOJ’s general stance that websites of entities covered under Title III must be accessible, without any more specific guidance, is not enough to push businesses to actually make their websites accessible for these users.¹⁰⁵ A report analyzing one million popular websites found that just 3 percent of those sites met the WCAG 2.0 standards for accessible websites.¹⁰⁶ Similarly, a study of the top one hundred companies in the United States. found that fewer than 10 percent had accessible homepages.¹⁰⁷ In the face of the DOJ’s failure to promulgate web accessibility regulations, the internet has become overwhelmingly inaccessible to people with disabilities.

An inaccessible internet creates problems for people beyond the disability community as well. Businesses suffer from the lack of federal web accessibility guidelines, too. Although the business community might appear to benefit from the lack of regulation, because the DOJ has repeatedly said that businesses still have a general obligation under the ADA to make their websites accessible, the status quo results in unfavorable outcomes for businesses. First, companies can be subject to inconsistent rulings about whether their website needs to be accessible and if so, which parts of that website must comply with the ADA. In the same year, one district court concluded that Netflix’s online streaming services must be accessible, while another held the opposite.¹⁰⁸ For companies with operations that extend outside of one jurisdiction, this is an unworkable result that pushes them to settlements.¹⁰⁹

Second, there is no safe harbor to shield companies from liability as they begin the process of making their websites accessible. This is particularly troubling because, even if a company agrees to make its website accessible under the terms of a settlement with one plaintiff, the company is still open to liability in a suit brought by another plaintiff until that accessibility update is complete.¹¹⁰ This phenomenon is relatively common, as nearly half of the largest retailers in the U.S. faced multiple web accessibility lawsuits from 2017 to 2019.¹¹¹ This exposure to duplicative lawsuits increases litigation costs for businesses and diverts resources away from actually implementing the accessibility that these companies promised in previous settlements.¹¹²

Third, businesses claim that the lack of concrete federal guidance about web accessibility violates their due process rights.¹¹³ While most courts have rejected this argument, it highlights the problems of fundamental fairness that have resulted from the DOJ telling businesses that their websites must comply with the ADA without telling them how to comply.¹¹⁴ Judging by the proactive steps many businesses are taking to increase the accessibility of their goods and services, businesses seem more frustrated by the lack of clear federal guidelines than the general demand for web accessibility.¹¹⁵

The ADA was initially enacted as a compromise between the business and disability communities,¹¹⁶ but the way that it is currently applied—or not applied—to websites fails to properly serve the needs of either community. The next Part identifies the parties best able to reform the web accessibility landscape and discusses what that reform should look like. Change is needed.

III. Negotiated Rulemaking as a Vehicle for Web Accessibility

The current approach to web accessibility is not working. The proliferation of web accessibility lawsuits, the inconsistent responses from the judiciary, and the lack of engagement from the federal government have left all actors unsatisfied. In an ideal world, Congress would celebrate the ADA’s thirtieth birthday by giving it a facelift—amending it to explicitly require covered entities to make their online presence accessible—and the DOJ would follow by promulgating regulations to implement this mandate.

That is not the world we live in. Over the past thirty years, Congress has repeatedly failed to take action, and the Supreme Court does not seem any more eager to intervene. This leads one to ask, what is the path forward? This problem is too important to leave unresolved, as the internet will only become more central to daily life. The number of people with disabilities will continue to rise as the population ages.¹¹⁷ The flood of complaints filed with agencies and courts will continue to surge, especially after the denial of certiorari in Domino’s.

This Part proposes using negotiated rulemaking to bring the business and disability communities together to build consensus for web accessibility. Section III.A explores negotiated rulemaking by explaining the history, benefits, and ebb in use of this regulatory tool. Section III.B identifies the characteristics that make negotiated rulemaking a good fit for web accessibility. Section III.C concludes with a discussion of next steps and specific recommendations for achieving web accessibility using a negotiated rulemaking approach.

A. Overview of Negotiated Rulemaking

Negotiated rulemaking arose as an alternative to traditional notice-and-comment rulemaking. Philip Harter first popularized this term in a 1982 law review article, proposing negotiated rulemaking as a cure for the “malaise” in administrative law and the ossification of rulemaking.¹¹⁸ Under traditional notice-and-comment rulemaking, as governed by the Administrative Procedure Act, the agency makes the initial policy determination, and then responds to comments from industry and public interest groups.¹¹⁹ Negotiated rulemaking flips this script, bringing together these groups before a rule is announced in order to build consensus, engage in give-and-take, and develop a proposed rule to then pass on to the agency.¹²⁰ As the product of negotiated rulemaking is intended to eventually be adopted by the agency through notice-and-comment rulemaking, negotiated rulemaking is more accurately understood as a supplement, rather than an alternative, to notice-and-comment rulemaking.¹²¹

Congress first endorsed negotiated rulemaking by passing the Negotiated Rulemaking Act (NRA) in 1990, coincidentally the same year it passed the ADA.¹²² The NRA provides a statutory framework to guide agencies when using negotiated rulemaking. It requires the agency to provide public notice in the Federal Register announcing its intention to use negotiated rulemaking and a list of parties who will participate on the negotiating committee.¹²³ Anyone who believes their interest is not adequately represented on the committee may apply for membership, but the agency is not required to add them.¹²⁴ Other than the public-notice requirement, most of the NRA is phrased in permissive language.¹²⁵ For instance, the NRA permits but does not require the agency to publish the committee’s consensus as a rule, though most agencies do.¹²⁶ The NRA explicitly leaves space for innovation and experimentation by parties.¹²⁷

Use of this regulatory innovation comes with benefits. Negotiated rulemaking saves time and expense from the overall rulemaking process by bringing together groups representing disparate interests from the start, so that concerns can be identified before a rule is developed.¹²⁸ These early discussions aim to reduce the number of comments agencies receive on the back end, thereby decreasing the agency’s workload in handling and responding to comments.¹²⁹ Negotiated rulemaking also reduces time-consuming and expensive post-rulemaking litigation by having stakeholders develop the rule.¹³⁰ Getting parties to buy in from the beginning offers the additional benefit of increased compliance rates and a decreased need for enforcement actions from the agency, again reducing costs.¹³¹

Negotiated rulemaking adds legitimacy to the process as well.¹³² It infuses technical expertise into the development of the rule, rather than having groups provide information to the agency after the fact.¹³³ It allows industry representatives, public interest groups, and the agency to interact with each other in a direct, dynamic, and iterative way.¹³⁴ This process also promotes more reasonable and moderate decisionmaking. Under the static notice-and-comment rulemaking process, parties only have one opportunity to influence decisionmakers, so they often take extreme positions believing the agency will develop a regulation somewhere in the middle.¹³⁵ And even if the outcome of negotiated rulemaking does not objectively favor their side, merely being involved in the process enhances satisfaction and perceptions of legitimacy among participants.¹³⁶

Even with these benefits, negotiated rulemaking has drawn criticism. Scholars disagree as to whether negotiated rulemaking in practice has actually achieved the reductions in time, cost, and litigation it promised.¹³⁷ Another point of contention is whether negotiated rulemaking leads to agency capture or the exclusion of certain stakeholders from the process.¹³⁸

While the debate between supporters and critics of negotiated rulemaking continues, the actual use of negotiated rulemaking has waned in recent years.¹³⁹ Professor Lubbers attributes this decline to a number of factors. First, the academic criticism described above has thrown the benefits of negotiated rulemaking into question.¹⁴⁰ Second, the Administrative Conference of the United States, the entity Congress chose to serve as a clearinghouse for negotiated rulemaking, suffered from a lack of funding and eventually disbanded.¹⁴¹ Third, negotiated rulemaking requires upfront costs, which can discourage agencies from using it even though it would likely reduce the overall cost of rulemaking.¹⁴² Fourth, the executive branch entity tasked with reviewing regulations, the Office of Information and Regulatory Affairs (OIRA), disfavors negotiated rulemaking because it removes some of OIRA’s leverage.¹⁴³ By the time OIRA receives the rule to review, a consensus has already been reached by the negotiating committee, making it harder for OIRA to then seek changes.¹⁴⁴ Finally, some agencies have started using what Lubbers calls “reg-neg lite,” a more informal version of negotiated rulemaking, to determine the views of stakeholders without having to follow specific procedures.¹⁴⁵ Other agencies have reverted to traditional rulemaking or turned to other regulatory alternatives.¹⁴⁶ Those agencies that continue to use negotiated rulemaking are usually required to do so by statute.¹⁴⁷ Though negotiated rulemaking has fallen out of vogue in the administrative law world, this Note calls for its revival because it is particularly well suited to address the need for web accessibility.

B. Fit for Web Accessibility

While negotiated rulemaking is not suitable for every situation calling for an agency rule, it is a good fit for web accessibility, where traditional avenues for reform have failed and the parties have already demonstrated an ability and willingness to negotiate.

1. Failure of Traditional Avenues

Agencies have had success using negotiated rulemaking in important legal areas that Congress has failed to address or has been slow to address.¹⁴⁸ For instance, in response to Congress’s failure to pass legislation addressing the risks accompanying the rise in rail transport of crude oil, agencies including the Federal Railroad Administration and the Pipeline and Hazardous Materials Safety Administration relied on aspects of negotiated rulemaking.¹⁴⁹ Though perhaps not as tangible as the railroad safety risks those agencies faced, the consequences of an inaccessible internet are very real for people with disabilities.

Web accessibility is also a good candidate for negotiated rulemaking because the DOJ already tried, unsuccessfully, to address this issue on its own through traditional notice-and-comment rulemaking.¹⁵⁰ The DOJ’s 2010 ANPRM—and subsequent seven years of silence—demonstrates the difficulty of resolving the questions raised by web accessibility through traditional rulemaking. Negotiated rulemaking would provide an alternative format for the DOJ to pursue this regulatory goal, and one that requires consensus building by the interested parties to move the process forward. Rather than issue an open-ended ANPRM and have to respond to thousands of comments, the DOJ could have business and disability groups come together, rank and compare priorities, make concessions, and agree to guidelines.

Of course, after failing to promulgate web accessibility regulations last decade, the DOJ might not want to engage with this issue again. But the DOJ is facing increased pressure to do something about web accessibility. Members of Congress have repeatedly sent letters, with increasing urgency, to the DOJ inquiring about its plans to address web accessibility.¹⁵¹ In addition to receiving political pressure from Congress, federal agencies are also facing logistical pressure from the explosion of web accessibility complaints.¹⁵² These pressures create incentives for the DOJ to turn to alternatives like negotiated rulemaking to facilitate clearer guidelines.¹⁵³ Taken together, the failure of Congress and the DOJ to address this issue through traditional avenues makes negotiated rulemaking an attractive alternative.

2. Historical Willingness to Negotiate

Negotiated rulemaking is a particularly promising proposal for business and disability groups because they have agreed to negotiate standards before. In the last ten years, the disability rights and business communities have already come together to agree on guidelines to make movie theaters more accessible to customers who are blind or deaf. The disability community had been fighting movie theaters to provide captioning for deaf customers and video description for blind customers since the early 2000s.¹⁵⁴ In 2010, the Ninth Circuit held that the ADA required all movie theaters to show movies with closed captioning and video description.¹⁵⁵ A few months later, the DOJ issued an ANPRM for movie captioning, but it proposed that only 50 percent of theaters had to be equipped for captioning and video description.¹⁵⁶ Many in the disability community were pleased to see the DOJ get involved, but they were also disappointed by the lower standard.¹⁵⁷

In response to the DOJ’s ANPRM, four deaf-rights organizations met with the National Association of Theater Owners (NATO) in August 2014 to negotiate a joint recommendation.¹⁵⁸ They reached a consensus where the advocacy organizations compromised on the number of captioning and description devices theaters should have on hand in return for NATO agreeing to support equipping 100 percent of screens for captioning.¹⁵⁹ In their joint comment, NATO and the advocacy organizations also agreed to certain commitments. For example, NATO agreed to work with movie distributors and device equipment manufacturers to drive compliance on the supply side.¹⁶⁰ In 2016, the DOJ released its final rule that required every screen to be equipped to support captioning and description, and in its press release it recognized the joint comment submitted by NATO and the deaf rights organizations.¹⁶¹ Because the parties rather than the DOJ initiated this negotiation, it is not technically an example of negotiated rulemaking. It does, however, demonstrate that disability and business groups are willing and able to come together and use negotiation to influence the DOJ’s ultimate rule.

C. Next Steps for Web Accessibility

Of course, there are significant differences between making movies accessible and making the internet accessible. The negotiation process for movie theater captioning involved fewer players and only one industry group. It also involved fewer and more concrete questions, such as the number of screens to make accessible or the number and type of devices that theaters should have on hand. And the negotiation happened organically, within the confines of traditional notice-and-comment rulemaking, rather than through negotiated rulemaking. But these differences need not dissuade the DOJ from applying negotiated rulemaking to web accessibility. This section addresses those differences and discusses the specific next steps for achieving web accessibility through negotiated rulemaking.

1. Composition of the Committee

Under negotiated rulemaking, one of the first decisions the DOJ would have to make is which parties to include in the negotiating committee. Web accessibility touches virtually every industry, and the DOJ would be unable to convene a committee of unlimited size. To limit the players involved, “Big Tech,” which refers to Google, Facebook, Amazon, Microsoft, and Apple, should take the lead in representing business and industry groups, like NATO did in the movie captioning process.¹⁶² Big Tech is well positioned to play this role. Many of the big technology companies view accessibility as a competitive edge and an opportunity to increase their user bases.¹⁶³ Since Big Tech will stand to benefit, they should be the ones with the responsibility of driving the process forward. Further, Big Tech has the clout and market power to set standards that others must follow.¹⁶⁴ And Big Tech has already demonstrated its ability to use this clout and market power in a coordinated fashion to bring about political change by removing users, including President Trump, after the insurrection at the U.S. Capitol in January 2021.¹⁶⁵

These companies also have the resources to make web accessibility a reality. From a headcount perspective, they have robust global accessibility teams, many with employees already participating in the W3C process to maintain and update the WCAG.¹⁶⁶ From a software perspective, they have the infrastructure to create accessible technology and tools that have downstream impact, making it easier for smaller companies and individual developers to create accessible content of their own.¹⁶⁷ Like NATO, Big Tech could agree to commitments to increase the accessibility on the supply side, such as agreeing to build open-source tools that would make it easier for smaller companies to comply with any specific rules derived from negotiated rulemaking. If Big Tech pledged to create free tools that could be used by small businesses to make their websites accessible, this evening of the playing field would assuage the concern of lawmakers who are worried about the disparate impact of web accessibility requirements on small businesses, which have fewer resources and developers to throw at the problem.¹⁶⁸

And Big Tech taking the lead in negotiating for the business side does not necessarily require the exclusion of other business groups. Small businesses could be represented on the negotiating committee by national organizations like the U.S. Chamber of Commerce, which raised concerns about the impact of the rules on small businesses in the 2010 ANPRM.¹⁶⁹

Negotiated rulemaking between Big Tech and stakeholders from the disability community could serve as a floor, not a ceiling, for achieving web accessibility. After these groups met and made initial high-level agreements, the DOJ could encourage separate sector-by-sector negotiation for any industry groups that sought industry-specific commitments. Subsequent sector-by-sector negotiation could enable stakeholders to focus on more specific and concrete commitments just as the advocates and NATO were able to do. For example, social media platforms could agree on specific requirements for content uploaded by individual users. News organizations could agree to acceptable timelines for captioning to be added to news videos. Disability advocacy organizations already target companies by industry in their litigation and negotiation efforts.¹⁷⁰ Negotiated rulemaking could simply serve as a starting point for more comprehensive negotiation among industry and disability groups.

2. Substantive Proposals

While this Note focuses on advocating for a particular approach to reform rather than a specific outcome, there are a few concrete proposals that the group negotiating a consensus should adopt. The consensus should recognize compliance with the WCAG as a safe harbor, meaning that any website complying with the WCAG would meet its affirmative obligation under the ADA.¹⁷¹ This safe harbor would match state law initiatives and provide companies clamoring for clear guidelines with a set of specific standards to follow.¹⁷² A safe harbor provision would also free the group from the difficult task of setting technical guidelines, which would become quickly outdated as new technology evolved. Helpfully, the W3C takes care of updating the WCAG guidelines, so neither the DOJ nor the negotiating committee would have to devote resources to updating them.¹⁷³

The negotiators should also agree to exempt businesses from website accessibility requirements if those businesses can show that such requirements would unduly burden them. This exemption would bring small businesses to the table and assuage the concerns of the members of Congress who wrote to the DOJ.¹⁷⁴ It is also consistent with the overarching architecture of the ADA, under which entities can point to an undue burden to avoid captioning movies or building ramps.¹⁷⁵ That said, the negotiators should clearly define what counts as an “undue burden” in the web accessibility context in order to avoid the disputes over the term’s meaning that arise in other areas of ADA litigation.¹⁷⁶

Finally, the negotiated rulemaking committee should agree to specific timelines for achieving web accessibility. In the 2010 ANPRM, the DOJ suggested an effective date of six months for the publication of any new website and two years for existing websites.¹⁷⁷ A bifurcated approach that gives more time to existing websites than new websites to comply would be reasonable, given that costs are lower for making a new website accessible than for retrofitting an old one.¹⁷⁸ This “old” versus “new” distinction aligns with the ADA’s approach to physical accessibility, which treated new and existing construction differently when the Act was enacted.¹⁷⁹ An extended timeline for existing content would also reduce incentives for companies to simply remove rather than update older material.¹⁸⁰

The committee might also consider using a sliding scale that would impose different timelines for different categories of covered entities based on page views. This would enable a local restaurant to have more time to make its website accessible than a national chain, a fairness concern raised in the ANPRM by commenters representing small businesses.¹⁸¹ While the disability community may view a sliding scale approach to effective dates as a significant concession to businesses, it is a preferable option to another decade without national reform.¹⁸²

Conclusion

Web accessibility is critical for people with disabilities to fully participate in modern society. There is mounting pressure to do something about web accessibility, but little consensus about what should be done and by whom. The COVID-19 pandemic and its effects on daily life have further highlighted the need for an accessible internet. Despite the issue’s importance, all branches of the federal government have repeatedly declined to directly address the issue. Members of Congress, receiving pressure from people with disabilities and businesses alike, have been asking the DOJ to take action. The DOJ, after initiating an ANPRM and then withdrawing it seven years later, has opted to let the judiciary answer. Meanwhile, the Supreme Court seems content to leave the lower courts divided, even while they are being inundated with web accessibility complaints. In the face of this uncertainty and inaction, this Note argues for reviving negotiated rulemaking, a regulatory innovation from the 1980s, to work toward web accessibility. Negotiated rulemaking presents an attractive procedural path for the DOJ to drive the process forward, while empowering the groups most impacted to build consensus for a more accessible internet.

* J.D. Candidate, May 2021, University of Michigan Law School. I would like to thank Professors Samuel Bagenstos, Daniel Deacon, and Nicole Buonocore Porter for their thoughtful feedback. Thanks also to the Michigan Law Review Notes Office for seeing the potential in this piece, and to my family for the support and encouragement during quarantine as I wrote and rewrote it. And I must also express my gratitude to all who agreed to be interviewed, as your perspectives enriched my writing. Finally, to my former employer, Amazon: you showed me what a tech company is capable of achieving if and when it commits to doing good. But I know you can (and must) do more. We all can. I hope this piece encourages a more inclusive world.