Understanding Digital Accessibility Regulations and Enforcement

Global Accessibility Awareness Day Legal Overview May 15, 2025 Trevor Finneman UC Legal

Disclaimer This presentation is provided for informational purposes only and is not to be construed as legal advice. Neither this presentation nor your attendance is intended to create an attorney-client relationship. Further, this presentation has not been written to recommend any particular course of action.

Agenda 1. Brief recap of past enforcement of digital accessibility obligations. a) Private plaintiff enforcement. b) Government enforcement. 2. Digital Access Regulations. a) Scope, compliance deadline. b) Technical Standard. i. Covered Content type and poster. c) Five Exceptions. d) Other regulatory flexibility.

Digital Access Past Enforcement Long history of legal actions to ensure online content is accessible. Both (a) lawsuits brought by private litigants and (b) government enforcement actions over last 15 years. Enforcement pre-dates digital access regulations. Private Litigants Federal Government Enforcement 1. National Association of the Deaf v. Netflix (2011). 2. National Association of the Deaf v. Harvard / MIT. 3. Robles v. Dominos (2019). Ninth Circuit affirmed need to ensure online access to services. 1. City of Virginia Beach. 2. Upton County, Texas. 3. Mass Transit District in Illinois. 4. City of Killeen, Texas.

Digital Access Regulations General Overview New federal guidance for digital accessibility o Title II of the Americans with Disabilities Act (public entities). Effective June 24, 2024. o Section 504 Department of Health and Human Services (HHS funding recipients). Effective July 9, 2024.

Digital Access Regulations General Overview Compliance Deadlines: two- or three-year grace period. o Title II April 2026 (population 50,000 or more) or April 2027 (<50,000 population). o Section 504 May 2026 (15 or more employees) or May 2027 (<15 employees). o Title II and Section 504 generally identical requirements (except kiosks).

Technical Standard for Accessibility Both Title II and Section 504 set the same technical standard. o Web Content Accessibility Guidelines 2.1 at Level AA success criteria. 2018 Standard.

Technical Standard Scope Two types of digital content must comply with WCAG 2.1 AA if PROVIDED or MADE AVAILABLE online: o Web content text, images, sounds, videos, controls, animations, and conventional electronic documents accessed via web browsers, media players, plug-ins, and other programs including assistive technologies that help in retrieving, rendering, and interacting with web content. o Mobile Applications.

Conventional Electronic Documents Explicitly defined as web content. Exhaustive list: o Portable document formats ( PDF ), o Word processor file formats, o Presentation file formats, and o Spreadsheet file formats.

Provides or Makes Available Technical Standard applies to web content / mobile applications entity provides or makes available (1) directly and (2) contractual, licensing, or other arrangements. Directly o o Via Contractual, Licensing, or Other Arrangements. o Essentially when third-party is used to provide entity s service, program, or activity. Content and mobile applications created by entity. Procured content / apps procured by entity.

Contractual, Licensing, or Other Arrangements. Examples: Content below must conform to WCAG 2.1 AA. o City contracts with third-party mobile application to allow public to pay for parking in city parking lots. o County park webpage designed, updated, and maintained by third-party.

Exceptions Five Exceptions: categories of content that does not need to comply with the technical standard. 1. Archived web content; 2. Preexisting conventional electronic documents; 3. Content posted by a third party; 4. Individualized, password-protected (or otherwise secured) conventional electronic documents; 5. Preexisting social media posts posted before compliance deadline.

Archived Web Content Archived web content is defined as web content that 1. Was created before compliance deadline, reproduces paper documents created before compliance deadline, or reproduces the contents of other physical media created before compliance deadline; 2. Is retained exclusively for reference, research, or recordkeeping; 3. Is not altered or updated after the date of archiving; and 4. Is organized and stored in a dedicated area or areas clearly identified as being archived. *Examples of physical media: Videotapes, audiotapes, film negatives, CD ROMs, and DVDs. *Must meet all four elements for exception to apply.

Preexisting Conventional Electronic Documents Definition: o Conventional electronic documents, o Available before compliance deadline, o That are NOT currently used to apply for, gain access to, or participate in the entity's services, programs, or activities. Example 1:In 2018, a town posts a PDF flyer for a Thanksgiving Day parade that November on its website. EXCEPTION APPLIES, so content does not need to meet WCAG 2.1 AA.

Preexisting Conventional Electronic Documents Example 2: A state posted a PDF version of a business license application on its website in 2020. In 2028, members of the public still use that PDF to apply for a business license. EXCEPTION does NOT APPLY because PDF is still used to apply for / access service, program, activity. Example 3: In 2028, city updates a Microsoft Word document that was first posted on its website in 2020 to include the city s new contact information. EXCEPTION does NOT APPLY because the Microsoft Word document is updated after city s compliance deadline.

Content Posted by a Third Party Content posted by a third party does not need to conform to WCAG 2.1 AA, unless the party is posting due to contractual, licensing, or other arrangements. Example 4: City resident post on an online city message board. EXCEPTION APPLIES to resident s post, but likely not the city s message board platform. Example 5: State contracts with a technology company to develop a third-party website with a reservation system for state s parks and recreation facilities. EXCEPTION does NOT apply because third-party is posting due to a contractual obligation. o

Individualized, Password-Protected Documents Documents meeting all three elements do not need to meet WCAG 2.1 AA: 1. Word processing, presentation, PDF, or spreadsheet files, AND 2. Documents are about a specific person, property, or account, AND 3. Documents are password-protected or otherwise secured. Example 6: PDF version of a water bill for a person s home that is available in that person s secure account on a city s website. EXCEPTION APPLIES (1) conventional electronic document, (2) individualized, and (3) secured. But city website must meet WCAG 2.1 AA. Example 7: PDF document on a password-protected website about an upcoming rate increase for all customers. o EXCEPTION does NOT apply because document is not about a specific person, property, or account.

Preexisting Social Media Posts Social media posts before entity s compliance deadline do not need to conform to WCAG 2.1 AA. Social media posts after compliance deadline = WCAG 2.1AA. For ALL EXCEPTIONS (except third party content), must still provide access upon request. Preexisting Social Media Example: Blind individual requests access to a picture a city posted on social media in 2023. o Solution: provide alt text description of image to individual.

Regulatory Flexibility Conforming Alternate Versions two versions of same content, one not accessible and the other accessible. o Allowed in very limited circumstances: technical or legal limitation that prevents inaccessible web content or mobile apps from being made accessible. Equivalent Facilitation o Technical standard flexibility. Entity may conform content to WCAG 2.2AA. o But cannot rely on phone line instead of making web content accessible.

Thank you.