The web accessibility racket

Lawyers publish a warning

In June 2023 two attorneys posted a blog entry, New California Assembly Bill on Website Accessibility Could Result in a Lawsuit Tsunami.

The bill they warned about was AB 1757, Accessibility: internet websites.

In the attorneys’ analysis, the bill, if it became law, would significantly expand the legal liability of business establishments, as well as their third party web developers, for websites and mobile apps that do not conform to WCAG 2.1 AA (by which they refer to level AA of version 2.1 of the Web Content Accessibility Guidelines). Adopting this bill could well open the floodgates of website and mobile app accessibility lawsuits in California, they write. They describe WCAG 2.1 AA as a new standard. Updating a website to conform to that standard is likely to be expensive and take many months. Mandating this would create a hardship for small businesses, which may not have the resources for compliance.

A ripple, not a tsunami

Whenever somebody predicts the outcome of a proposed law, beware. Laws often have effects different from, and even opposite to, the predictions made by experts.

A more plausible prediction is that the adoption of AB 1757 would be a mere pebble dropping into the ocean. The bill proposes to add some new details to the confusing patchwork of local, state, federal, international, commercial, and cultural forces that influence decisions about communication on the Internet, including website accessibility. But the bill would tinker with the status quo, not reimagine or reinvent it.

Web accessibility: a real problem

What is the status quo that AB 1757 would tinker with? Barriers that prevent people from successful engagement in digital communications are a major problem. The elderly, people with disabilities, people with limited or no literacy, people who need to communicate in a language they are not fluent in, and people without much experience using digital hardware and software constitute a majority of humanity. Businesses and governments increasingly offer—and increasingly require—digital communications and digital transactions. They typically design formidable barriers into digital media. Use these media, and you are bound to be confused (What did I just click on?) or to be forced into mendacity (I have read and understood the End User License Agreement).

Web accessibility is about designing digital interactions without such barriers. Accessible websites give you time to think before you act. They tell you clearly what will happen if you follow a link. They accompany drawings and graphs with explanatory text, so even users who cannot see can listen to the same information. When they give you a form to complete, they clearly label each item. If you make a mistake, they help you correct it. They organize each page with a logical outline. They make sure that people who have no use of a mouse can use a keyboard instead.

Although there are widely accepted techniques for accessible web design (including those spelled out in WCAG 2.1), almost all websites today have significant accessibility defects.

Solution alternatives

Web inaccessibility persists, and it contributes to digital inequality and exclusion. It is easy to understand this as a problem in need of a solution. Here are some solution categories:

1. Laissez faire: Accessible websites tend to be easier to use for everybody, especially people with disabilities, so any self-interested business should choose accessibility over inaccessibility, without any external influence. Those that fail at accessibility—or don’t even try—will lose customers to those that succeed. Competition will wipe inaccessibility out.
2. Community organizing: Some promoters of digital accessibility don’t have the patience for—or don’t believe—the laissez-faire solution. So they exercise influence by making accessibility more known, more understood, more loved, and easier to do. The Web Accessibility Initiative, SIGACCESS, the International Association of Accessibility Professionals, and other groups create information, hold conferences, grant certifications of expertise, educate, and promote solidarity in support of accessibility. Many software developers have created free-to-use tools to check websites for accessibility. Experts started to codify digital accessibility in 1998 and have been doing so since then, to make accessibility easier to achieve. Version 2.1 of WCAG became an official recommendation of the World Wide Web Consortium in June 2018. So the standard that the blog authors describe as new is actually 5 years old.
3. State support: Is community organizing insufficient? Governments promote what they favor by teaching it in public schools, subsidizing it with tax rewards and grants, creating facilitative institutions, incorporating it into their business rules, and publicizing it at state expense. Governments can support digital accessibility in all these ways. For example, the United States government requires software it procures from private companies to be accessible.
4. Legal force: Governments also define crimes and civil obligations, enforceable administratively or judicially. Governments around the world have, indeed, done this for digital accessibility. Often they have incorporated a version of WCAG into law, thus mandating conformity to WCAG. The United States has done this to a limited extent, but most U.S. accessibility law is more vague. AB 1757 would not require conformity to WCAG 2.1, at level AA, but would authorize that standard as a defense: A website conforming to it would be presumed accessible until shown otherwise.

The solution mix

The existing array of accessibility solutions is a hybrid. It combines elements of all four of these categories. The fourth category, legal force, is the one that AB 1757 belongs to, and the one that keeps the blogging lawyers in business.

Legal force: a broken category?

The blogging lawyers argued against AB 1757, but they said nothing about the category it belongs to: legal-force solutions. That is no surprise. Without legal-force solutions, their disability law practice would not exist.

So, let us take an independent look at the solution categories. Are legal-force solutions necessary and helpful? Do they make the web accessible, or at least more accessible?

There are abundant reasons to question the value of legal-force solutions for web accessibility:

• Legal force is inefficient. While the cost of many transactions (such as buying shares of stock in a corporation) is a fraction of 1% of the transaction value, the cost of obtaining a decision on whether a website complies with accessibility law is often thousands of times as great as the alleged damage. This inefficiency is partly a property of the legal system and affects litigation on any topic, not only accessibility. But it is also partly a result of how the law defines (or, more accurately, fails to define) digital accessibility.
• Legal force is slow. Many transactions in our increasingly digital world are nearly instantaneous, but a judicial case on digital accessibility, if it goes to trial and is resolved on appeal, typically takes five years or more. Meanwhile, thousands of additional cases are initiated without the benefit of the precedent that the case might someday set.
• Legal enforcement is too late. It is a truism in software engineering that repairing a defect costs many times as much as avoiding that defect. Legal enforcement takes place too late for the defects to be avoided. Moreover, the cost of repairs mandated by a legal judgment is even greater than the cost of ordinary repairs. Software changes by the hour, minute, or second, while the law changes by the year or decade.
• Legal force is ineffective. A legal action for website inaccessibility typically ends with a settlement agreement in which the defendant promises to make website improvements, but there is little evidence of such promises being kept, monitored, or enforced.
• Legal force makes organizations defensive. Organization leaders classify website accessibility as a problem of compliance and litigation risk, because it is. As a result, organizations hesitate to say anything that could be construed as an admission of inaccessibility. They even refrain from putting accessibility problems into writing, for fear of the need to produce the records for a complainant. Customers who report accessibility issues get defensive, legalistic replies, or no replies at all.
• Legal enforcement is coercive. Coercive solutions face resistance from those subjected to actual or feared penalties, and also from courts. Here the wrongdoing that is penalized is speech, which makes a coercive solution even more difficult to engineer. The speech is often, though not always, commercial, but even then there are bases for a defense that would not exist in a case on physical accessibility, such as a wheelchair ramp.
• Legal enforcement is unnecessary. The opportunities for state support (model 3) are massive, but largely unexploited. Sufficient government support for digital accessibility could make the adoption of accessible options no-brainers and the path of least resistance when websites are designed and built. Currently, computer science and engineering curricula usually omit digital accessibility; governments could offer grants for its instruction. Most businesses (or their web contractors) use website construction tools to build websites, but none of the tools makes accessibility easy and automatic; governments could create tools with more iron-clad accessibility guarantees and make those tools available for free public use in website construction. Governments could also offer web accessibility inspections, analogous to building inspections, with certificates of accessibility issued upon success. If the U.S. Department of Agriculture can certify an apple as organic, then the U.S. Access Board can certify a website as accessible.
• The legal-force model nourishes a class of accessibility noncompliance profiteers: companies and professionals that make a living from the fact that legal force is brought to bear for web accessibility.

Who are these profiteers, and what justifies the epithet? Legal enforcement of digital accessibility provides much of the revenue earned by:

• Law firms that file hundreds of accessibility complaints per year
• Law firms that defend clients against accessibility complaints
• Website developers that charge for inaccessible websites and then charge again for correcting their own errors
• Accessibility consultants that verify compliance
• Firms that add alleged instant inaccessibility cures to websites

One basis for this pejorative descriptor is the web accessibility of these entities. If they were dedicated to accessibility rather than to the accessibility business, they would, arguably, ensure that their own websites are accessible. On the contrary, accessibility defects are rampant in the websites of accessibility law firms and the websites of accessibility consultants and accessibility instant-cure companies.

Conclusion

The hybrid accessibility solution mix has not yet produced a universe of accessible websites and does not seem likely ever to do so. The mix is heavy on legal force, while making only sparing use of state support. Legal force for web accessibility can reasonably be interpreted as an irreparably broken solution category, in part because it has created a class of accessibility noncompliance profiteers.

There are, however, major interests that would benefit from a shift of emphasis from legal force to state support. They are the elderly, people with disabilities, the tech-unsavvy, and those who own websites. They are far more numerous than the profiteers. If they coalesced to advance their shared interest, change might happen.