California is considering adopting a new law (AB-1757) that adopts Web Content Accessibility Guidelines (WCAG) 2.1 level AA as the level of accessibility that websites and mobile apps providing products or services must follow. It also expands liability to third-party developers and gives people with disabilities and businesses the ability to sue web developers for creating websites that do not conform to WCAG 2.1 Level AA.
Plaintiffs could recover damages, including statutory damages, attorney’s fees, and injunctive relief. AB 1757 is notable because it would be the first time a U.S. government entity codifies the use of WCAG 2.1 as a standard. This is important because it is unrealistic to expect businesses to create multiple versions of a website for different locations or states. Because most businesses not based in California have customers in California, the law could lead WCAG 2.1 AA to become the national standard for website and mobile accessibility.
Ken Nakata from Converge Accessibility and Equal Entry CEO and founder Thomas Logan talk about this law.
What California Assembly Bill 1757 Means
Ken Nakata: Thomas, this last session at the California Assembly had this bill that was being passed back and forth for quite some time called 1757 that would clarify what businesses had to do for web accessibility. But then it had some very interesting provisions in it.
It’s quite a controversial law because on the one hand, some people say that it increases litigation, and on the other hand, a lot of people say that it was intended to decrease litigation. But I think that one of the interesting things about this law is that it made it easier to sue web developers. What do you think about that?
Thomas Logan: This is going to sound a little bananas, but I think maybe that’s a good thing because when you have that ability to sue developers, you almost also validate America’s insurance industry.
Sometimes as a worker in the digital economy, I’ve wondered, “Why do I need to have insurance for the work that I do?” I think part of it is the same way that if you’re repairing a home and you mess something up and you say, “Don’t install a pipe correctly and you create water damage in the home.”
This is the same thing that is possible in digital accessibility. We have such a different viewpoint in the tech world to try to separate ourselves from that. But maybe this is a good thing where the whole point is a little bit more attention to detail, more attention to specifics.
Ultimately, we’re going to need a lot more specifics for saying something is good or bad for accessibility. But maybe this would have that forcing function. So, maybe litigation would create the rigor needed to have the specificity of “Yes, this consultant did a good job.” or “Yes, this developer did a bad job.”
So I think I have a little bit of an open mind to that in the sense that I do think developers have accountability the same way a general contractor has accountability to building a house. And maybe this is just us moving forward in the digital evolution revolution that, “Hey, you can’t just write code that doesn’t work.” So, maybe it’s a good thing.
How California AB 1757 Could Affect Developers
Ken Nakata: I agree with you, Thomas. In a lot of these civil rights laws, like the Americans with Disabilities Act (ADA), or even under California’s Unruh Civil Rights Act, a company can’t escape liability just by saying that their developer wrote the code, that they ultimately have the responsibility.
For instance, under the ADA, architects could design a building. Even though the ADA says that one of the requirements is that the design half of that building has to meet certain specifications. Ultimately, it’s the business that’s always been held liable. I’ve always thought that that’s unfair because when a person builds a building, they have no idea how wide they have to make the doorways or how high they have to put the counter.
Similarly, when a company hires a company to design its website, it has no idea whether there should be ARIA code inserted in a tab control to make sure that its name, role, and state are conveyed to a screen reader. They have no clue about those sorts of things. I like the idea of holding web developers accountable as well.
Thomas Logan: Yes, and how many times have we seen developer agencies, or at least I have seen developer agencies say, “Yes, we can build you a fully Web Content Accessibility Guideline compliant site. It’s easy to make that claim when there’s no repercussion, but maybe when there are repercussions, say, “No, let’s not just have every company saying they can do it.”
I think a lot of people in the accessibility world, at least in my experience, people think they’ve done one project, “I know how to do that. Yes, I can give you this WCAG site.” But maybe when there’s a little bit more of a legal risk to it, fewer companies would be confident making that claim. Then, the companies that know could make a claim more confidently.
As for the companies that don’t, it’s “Look, you need to spend time learning how to make sure that you’re supplying that. Don’t just say that you’re doing it for the sake of saying you’re doing it.”
Ken, the bill would create a presumption of compliance if someone who has the International Association of Accessibility Professionals (IAAP) Certified Professional in Web Accessibility (CPWA) — if they verify that your site met WCAG A or AA, wouldn’t that create a presumption that someone with that certification can make that claim?
Do you think that’s realistic? And would anyone be willing to make that certification?
Ken Nakata: That’s a great question, Thomas. You’re right. That is what the latest version of the bill encompassed. They added that as a way to make it easier for companies to ensure that their websites met 1757. Then, all you had to do was just have an IAAP-certified tester — a web developer or somebody who holds a CPWA certification — to audit the site and verify that it meets WCAG A and AA.
The problem with that is that it gets unwieldy the moment that your site grows beyond just a couple of web pages. Because there isn’t any way a tester is going to be manually testing every page to make sure that it meets WCAG. That’s what WCAG requires if you’re going to certify that a site meets WCAG 2.1 A and AA for instance.
I don’t think that any reputable tester, particularly one that holds a CPWA certification, would ever verify that a site that has more than just a couple of dozen pages fully meets WCAG. Unless they were hired for hours and got off all amount of time to go ahead and manually test every single page and nobody’s going to do that.
Thomas Logan: I agree. That’s why Equal Entry’s process is much more of this user flow, user scenario idea because I think it’s easier to make the claim on the essential functions and essential flows of the site. It’s not realistic to say someone looked at everything on a 20,000-page website.
It’s just not realistic and that needs to be addressed and thought about and understood by the lawmakers. That’s the practical reality of digital technology. It’s thousands of pages.
Will AB 1757 Create an Avalanche of Lawsuits?
Ken Nakata: Transitioning now, Thomas, some people think that this bill, 1757, would create an avalanche of lawsuits, but others think it does exactly the opposite.
How do you think that came to be, and what do you think the effects are going to be on businesses?
Thomas Logan: Well, as someone who’s not a lawyer, but has worked with a lot of lawyers in the past, I’m not going to vote against the idea that there won’t be an avalanche of lawsuits because just knowing what I’ve learned about the American legal system, without more thought into it, there’s a financial incentive to file a lot of lawsuits.
Without that being addressed or thought about, probably there will be a lot of lawsuits and there will be a lot of discussions. Ultimately, what’s good about the American legal system is after these things make their way through the court, we will get more clarity and definition of what these things mean.
I know we’ve discussed before that it would be great for the Department of Justice or some other organization to make it more clear and make this more objective. But maybe we do have to have this happen to get more of an objective reality. Again, I would expect that there probably will be a lot of lawsuits after this.
Eventually, the court system will work the correct way and make more of a definition and then we won’t have frivolous lawsuits because we will have more of a clear definition of how it should be done.
Ken Nakata: That sounds reasonable. I agree. My understanding of how this all came about is because the realtor associations and the property owner associations in California were getting sick and tired of being sued so often. But they still wanted to have a law that made sure that people with disabilities could bring legitimate lawsuits against companies. And so when this bill started, it started with the intention of limiting lawsuits as opposed to encouraging them.
To get to that, they came up with this idea, “Well, just make sure that your website complies with WCAG 2.1 A and AA, and that would do it.” Instead of the kinds of complaints that the organizations were getting, whether it denied access to a person with a disability, which is hard to measure.
They thought that using WCAG would give them some clarity on when they could be sued, which I think is wild in retrospect because I don’t think that they realized just how difficult that assertion was.
Is WCAG 2.1 AA Realistic?
Thomas Logan: Well, that’s what I wanted to ask you, Ken. Like, is WCAG AA meaningful and achievable, and maybe the right way to go about this means what they’ve come up with, but what do you think as far as is practical?
Ken Nakata: This goes back to one of my pet peeves with using WCAG as a measure of compliance for websites. As we talked about earlier, the problem is that you can’t say that the WCAG of a website as a whole fully complies with WCAG A and AA unless you’ve manually tested every single page on that website.
That’s what the W3C says, that if you want to certify a site, you’ve got to make sure that every single page on that site complies which is never going to happen. Because websites are so complicated and so large and so ever-changing if you could do it, it wouldn’t mean anything because the site is going to change in 15 minutes anyway.
We’ve talked about this before, Thomas, and this is a big issue for the industry that we need a better way of measuring what I call “substantial conformance” for accessibility. To me, that’s not so much just a technical standard. It would have to include things like processes.
For instance, that could look like something like creating an accessibility statement that creates an alternate means of accessing the goods and services of an organization, such as a telephone number, what is posted with the hours of operation, and it could also include a listing of key use cases and a statement that verifies that each of those pages in that use case has been thoroughly tested using manual testing and may have been manually audited.
Also, give users a way to report issues that they’ve found on the web page and a reasonable timeframe for correcting those web pages.
To me, those processes give a better view of the organization’s maturity and digital accessibility. I think that over time, they’re the only kinds of assurances that can be maintained or sustained by an organization over time. What do you think?
Thomas Logan: I think I concur. I think that the realm we need to get this to is some type of definition of core functions. Definitely reporting an issue and responding to an issue has to be somehow more documented and understood in the process because we know that the potential of issues is huge on digital technologies.
I completely agree that specifically the use case of, “Well, how do I notify you that there’s a problem? And then how do you respond to my notification?” There’s a problem that needs to be delineated. Then I think for the flows, I have an open mind, like, as I’ve said, for my company, my process is to work on working with the company directly to say, “What are the things people need to use on your site? What do people do?”
I guess that is working from a trust honor system of hoping that the people who work most closely with the technology know what people are doing most frequently on the site. But I do think somehow that idea needs to be put into the legislation because we have to work with every industry on what we care about.
You can’t just say, “These are the five things they need to care about for this type of technology.” Because it depends on whether it’s a library or it’s an educational institution. It’s a bank. It’s a shopping mall. They’re going to be different things.
It’s not easy to just write in black and white what people have to do. But some way to write out the priority scenarios and use cases and give weight to those I think are important to think about in the future versus one page out of 50,000 pages has a problem.
It’s still a violation. That’s not going to work and it’s not realistic.
Ken Nakata: That sounds reasonable. I think that everybody would agree with that, except for the plaintiff’s bars. They would probably prefer it to have strict compliance. That way they could find that one out of 10,000 pages and bring a lawsuit.
Thomas Logan: I’m sure automated scanning companies that build these tools that scan websites would like that too.
Well, we discussed a lot today, Ken, and I think there’s a lot more to think about on this topic. We’d like to discuss this more with you, leave a comment or a question.
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