Since its introduction into the U.S. House of Representatives on October 2 by Congressmen Lou Correa (D-CA) and Ted Budd (R-NC), the Online Accessibility Act has received a lukewarm reception.

Myriad questions, misgivings and objections have already arisen over the Act, which seeks to add a Title VI to the Americans with Disabilities Act (ADA) focused entirely on the accessibility of consumer-facing websites and mobile applications.

Most of these concerns appear to revolve around the imposition of lengthy administrative processes of up to nine months before legal redress can be sought and the resource capacity of the Department of Justice (DOJ) to investigate thousands of complaints on an annual basis.

Lawrence Shaw is CEO of AAAtraq a website compliance identification and management service and Sitemorse, which offers a diagnostic website accessibility testing tool.

He has almost two decades of experience working in digital accessibility, including collaborating with the European Union on the drafting of regulations and consulting on best-practice with blue-chip organizations such as Deloitte and IBM.

Shaw firmly believes that a future where there is effective and efficient digital policing delivering justice and access to disabled website users is infinitely possible.

However, despite its intentions to achieve those outcomes, he is wholly unconvinced they can be delivered through the Online Accessibility Act in its present form.

“What we are looking at with the Online Accessibility Act,” says Shaw, “is an antiquated application of the law against things that are moving far faster.

“The lawmakers are constrained in their mindset because they are thinking about how to solve digital policing through overburdened courts in a traditional manner, rather than starting with a blank sheet of paper and focusing on marrying the evolving digital world with historic needs regulation.”

Shaw’s vision of policing our digital future is one in which website accessibility complaints can be, in the first instance, submitted and assessed automatically.

This would involve a rapid-response automated website testing protocol immediately kicking in upon receipt of any complaint, which would then be run and notified to website owners against a slimmed-down, more transparent version of the Web Content Accessibility Guidelines (WCAG 2.0).

This simplified template is referred to by Shaw as the “accountable standard” and would initially encompass the 10-20 most common website accessibility fails, including missing alt text on images, heading structures and labels to identify form controls.

Presently, the Act talks about “substantial compliance” with WCAG 2.0. This is problematic. For a start, WCAG 2.0 is outdated, having been updated to WCAG 2.1 in 2018 to more suitably address a mobile-first digital landscape.

Secondly, “substantial compliance” leaves the door open to subjective interpretation and drawn-out legal wrangling.

For some, who have worked in web accessibility for a long time, “automation” is a dirty word, as it is associated with what many view as false promises by software vendors.

These companies market plugin solutions that claim to permanently fix ongoing accessibility errors and maintain legal compliance without website owners needing to lift a finger.

What is being imagined here, however, is the simple use of automation for processing and assessing the initial stages of website inaccessibility complaints at scale.

The front end of such a system could also be used to permit users to submit complaints to the DOJ or other federal agencies without recourse to expensive litigation and valuable human resources.

Accountability across the digital supply chain  

In fact, when it comes to those marketing automated accessibility fixes and compliance, Shaw would like to see greater vendor accountability brought into the legislation.

“I think the Act should be looking to incorporate culpable liability,” says Shaw.

“So, under basic contract law, if a website is being sued for accessibility failure, the owner should retain the right to sue third party suppliers, such as accessibility plugin and CMS vendors.

“A major problem within our industry,” continues Shaw, “is that you have plenty of people paying lip service to compliance and a lot of suppliers marketing the promise of compliance to people who don’t understand enough about the subject and have to trust their vendors.”

Another industry-wide criticism of the Online Accessibility Act is that the potential financial penalties that can be imposed, currently proposed at $20,000 for a first offense and up to $50,000 for subsequent indiscretions, are significantly lower than those potentially achievable through the Americans With Disabilities Act.

Under Title III of the ADA, the corresponding amounts stand at $55,000 and $110,000 respectively.

Shaw wishes to see stricter penalties still, for serial non-compliance.

“This may appear controversial,” he says, “but if after more detailed investigations, a website fails three times in the same year, I think it should have its domain suspended.”

For the Online Accessibility Act, the devil truly lies in its detail. it is the case that once one scratches below the surface, countless problems are exposed, posing more questions than providing answers.

Taking a birds’ eye view, the underlying intention of the Act is noble if the aim is to construct a more robust, predictable and universal legal framework for digital accessibility, whilst, at the same time, providing clarity to businesses on an area shrouded in uncertainty.

However, web accessibility is unlike other aspects of the civil rights movement. It is less about marching in the streets and more about disabled users sitting quietly at home, particularly during the pandemic, simply hoping to enjoy equal access to information, education and employment opportunities, as well as goods and services.

Speed and efficiency of redress, rather than moral crusades and legal battles, are always going to represent the key aspects for users with disabilities.

Any legislation designed to promote digital equality would do well to maintain those components at its heart.