REVIVING NEGOTIATED RULEMAKING FOR AN ACCESSIBLE INTERNET.

• Author: Moroney, Julie

TABLE OF CONTENTS INTRODUCTION I. THE ADA AND THE INTERNET A. Discrimination on the Basis of Disability B. The DOJ's Action (and Inaction) C. Nongovernmental Standards II. CONFLICTING INTERPRETATIONS OF THE ADA'S DIGITAL REACH A. Diverging Definitions of Place 1. First, Second, and Seventh Circuits 2. Third, Sixth, and Ninth Circuits B. Resurrecting the Split 1. District Courts 2. Appellate Courts 3. The Supreme Court C. The Supreme Court's Silence 1. open Legal Questions 2. Impact on Affected Communities III. NEGOTIATED RULEMAKING AS A VEHICLE FOR WEB ACCESSIBILITY A. Overview of Negotiated Rulemaking B. Fit for Web Accessibility 1. Failure of Traditional Avenues 2. Historical Willingness to Negotiate C. Next Steps for Web Accessibility 1. Composition of the Committee 2. substantive proposals CONCLUSION 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.

1. 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.

   1. 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. (22) Under 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)

   2. 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)

   3. 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...