Senators Call On DOJ To Restart Rulemaking Process Under ADA To Support Online Protections For People With Disabilities

Washington (July 11, 2022) – Senator Edward J. Markey (D-Mass.) today joined a group of senators led by Senator Brian Schatz (D-Hawai‘i) in calling on the Department of Justice (DOJ) to support online protections for Americans with disabilities. The senators asked DOJ to restart a rulemaking process under the Americans with Disabilities Act (ADA) to establish new rules ensuring that the ADA applies to the Internet.

“The United States has invested billions of dollars to develop technology and provide connectivity to all parts of the country, but it is of little value to the Americans who are unable to access the online services that the rest of us so heavily rely on,” the senators wrote to Assistant Attorney General Kristen Clarke, who leads DOJ’s Civil Rights Division. “When Congress enacted the Americans with Disabilities Act in 1990, the Internet and digital technologies were at a nascent stage. More than thirty years later, these technologies are now ubiquitous and we rely on them for daily activities—such as communicating with friends and family, conducting business, accessing government resources, and obtaining health care. New rules are necessary so that individuals with disabilities are provided equal access to the digital world.”

In addition to Senator Markey, the letter led by Senator Schatz was also signed by Senators Tammy Duckworth (D-Ill.), Richard Blumenthal (D-Conn.), Bob Casey (D-Penn.), Patty Murray (D-Wash.), Ben Ray Lujan (D-N.M.), Dick Durbin (D-Ill.), Jeff Merkley (D-Ore.), Ron Wyden (D-Ore.), Sheldon Whitehouse (D-R.I.), and Elizabeth Warren (D-Mass.).

In their letter, the senators cited a study analyzing the top one million most-visited websites which found the overwhelming majority of these websites were inaccessible in some way to people with disabilities. More than 4,000 cases were filed in federal and state courts referencing ADA compliance last year, but their verdicts remain uncertain without DOJ regulations.

The full text of the letter follows and is available here.

Dear Assistant Attorney General Clarke:

We are writing to you to urge the Department of Justice to restart the rulemaking process under Titles II and III of the American with Disabilities Act (ADA) and ensure that it includes protections to stop the persistent exclusion of people with disabilities from the Internet. The United States has invested billions of dollars to develop technology and provide connectivity to all parts of the country, but it is of little value to the Americans who are unable to access the online services that the rest of us so heavily rely on.

The ADA is landmark civil rights legislation that guarantees people with disabilities have an equal right to employment, commerce, and government services. Unfortunately, the digital world has not granted these protections consistent with the physical world. An analysis of the top one million visited web sites found that the overwhelming majority are inaccessible in some way. Even the largest and most successful online companies have failed to incorporate basic features, such as alt text, to make their products accessible.

The Department of Justice has the authority and ability to initiate a rulemaking and establish rules that make it clear that the ADA applies to the Internet. We appreciate the Department’s stated position on the issue and the recently published guidelines on “Web Accessibility and the ADA”. However, without rules from the Department, courts have had differing interpretations on when and how the ADA should apply to the Internet. Over 4,000 cases were filed in federal and state courts referencing ADA compliance in 2021, but their verdicts are uncertain without the Department’s regulations.

As you are aware, a similar rulemaking to the one we are urging you to prepare was initiated in 2010 under the Obama administration, but rules were never issued and the Trump administration withdrew the proposed rulemaking. It is critical that the Department restart the rulemaking and include strong protections clarifying the applicability of the ADA to the Internet. Individuals with disabilities cannot afford to wait any longer for the Department to affirm their civil rights.

When Congress enacted the Americans with Disabilities Act in 1990, the Internet and digital technologies were at a nascent stage. More than thirty years later, these technologies are now ubiquitous and we rely on them for daily activities—such as communicating with friends and family, conducting business, accessing government resources, and obtaining health care. New rules are necessary so that individuals with disabilities are provided equal access to the digital world.

Thank you for your attention to this important matter.

Sincerely,

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