Web accessibility law

Introduction

Web developers are expected to obey rules of programming languages, libraries, frameworks, and tools. If they don’t, their products crash, fail, or misbehave. But web developers are also expected to obey statutes and regulations, which govern things impacted by their code, including safety, security, privacy, discrimination, patents, copyright, defamation, accessibility, taxation, and commerce.

A simplistic idea about the origin of laws is that the people elect representatives, and the representatives write and adopt the laws.

This idea is not entirely true, because elected representatives often adopt laws written by others.

For example, the laws that dictate how buildings are built typically adopt in their entirety codes created by the International Code Council, a California nonprofit corporation with dues-paying voting members. And laws of many kinds are often written by lobbyists from organizations that those laws most directly affect.

Accessibility law

Web accessibility has come to be, in part, law-governed. That is to be expected, since web accessibility is a protection from disability discrimination, and other disability-discrimination prohibitions and requirements for disabled-friendly facilities have become written into law. As the web becomes increasingly the interface between businesses and customers, and between governments and citizens, the motivation to mandate an accessible web becomes more obvious. More generally, digital interfaces, including mobile apps, digital documents, email messages, and text messages, are also exposed to accessibility regulation.

Many governments have adopted laws imposing accessibility requirements on digital interfaces. These include subnational governments, such as California. In some cases, the laws regulate governments’ own interfaces. In others, laws require nongovernmental interfaces, too, to be accessible. And there are hybrids: interfaces developed by nongovernmental entities for governments, or under government grants.

Governments typically do not write these laws. In almost all cases, governments adopt requirements that others have defined.

By far the most common creator of governmentally adopted web-accessibility requirements is the Accessibility Guidelines Working Group (AGWG). As of February 2021 it had 161 official participants (including Invited Experts). Membership is by invitation.

The largest contingent (13) in the AGWG was from Deque Systems, Inc. That firm sells products and services that evaluate the accessibility of websites, apps, and documents, and make those resources more accessible. Deque also creates and publishes free documentation about web accessibility and a free open-source tool for testing websites for accessibility. Other major participants of this kind were Paciello Group with 10 and Level Access (formerly SSB Bart Group) with 6 persons in the AGWG.

Conflict of interest?

It is reasonable to ask whether there is a conflict of interest here. Companies that make money by helping customers satisfy government requirements participate in drafting those very requirements. The tougher the laws, the greater the demand for the company’s services.

The conflict is obvious, and it exists in many domains. It is analogous to the engineering industry writing the codes that require engineers to make buildings safe, mentioned above. In the case of web accessibility, the conflict may work to the advantage of persons with disabilities, by making the laws stricter than they would have been if legislative staffs had drafted the laws.

Is the AGWG, then, consistently biased in favor of draconian legislation? Not necessarily. It does include participants from governments, academia, and some information-technology companies (e.g., IBM, Microsoft, Google, Oracle), and some of those organizations might be burdened by accessibility mandates.

The deference of legislatures around the world to the preeminent private code writers seems clearly to promote uniformity. By adopting the formulations of a single standardization organization, legislatures tend to make the entire world a single compliance zone. Make your site accessible in Israel, and you’ve made it accessible in Hong Kong. That seems likely to promote compliance and make compliance less expensive.

What laws borrow

What requirements, then, do accessibility laws adopt from the AGWG? Generally they adopt the Group’s Web Content Accessibility Guidelines. WCAG identifies only certain disabilities that it is aimed at helping to overcome. These are blindness and low vision, deafness and hearing loss, learning disabilities, cognitive limitations, limited movement, speech disabilities, photosensitivity, and combinations of these. But the AGWG also argues that measures making web content accessible to users with these disabilities also tend to help older individuals with changing abilities due to aging and, more generally, all users. Still, persons with other disabilities that feel unprotected by current laws know that the AGWG is their one-stop target for lobbying (or direct participation).

Enforcement

Web accessibility law is enforced in complex ways.

Sometimes it is courts that enforce. In the United States, the Americans with Disabilities Act permits private parties to file suits in federal court claiming disability discrimination, and more than 2,000 lawsuits for web accessibility are filed in U.S. federal courts annually. Such suits sometimes result in court-approved settlements, such as the one that required tax-preparation firm H&R Block to make its websites and mobile applications accessible.

Some statutes that regulate entities receiving government funds, and entities selling software to governments, require that any user interfaces be accessible. Then it may be government agencies, rather than courts, that enforce accessibility law.

Conclusion

The private creation of public law is pervasive, and accessibility law fits the pattern. Voters typically influence which industry standards are incorporated into law, but unelected, often volunteer, specialists create those standards.