DOJ’s recent decision to put regulations concerning the internet and the ADA on indefinite hold has important implications for business, but not all of them are good.* It seems likely this move was prompted by executive orders from the Trump Administration requiring that agencies review proposed regulations and limit those that might increase costs to business. This has not been a notable success in terms of dollars. The savings so far ($22 million per year) amount to only .3% of the cost of regulations issued in the last five years. More important, at least with respect to the ADA, DOJ’s calculation that no regulation saves money ignores the very large cost imposed on business by uncertainty about how to deal with internet accessibility in an age when suing under the ADA is a large and growing industry. The proposed DOJ regulations, while they were absolutely wrong about the scope of the ADA with respect to the internet, at least provided business and the courts with guidance about what might be required. Without the regulations we are left in a wild wild west of conflicting court decisions and no officially sanctioned standard by which to judge internet compliance.
The business-friendly solution to questions about the ADA and the internet would be DOJ regulations finding that business websites are not places of public accommodation and narrowly limiting the situations in which a website is viewed as a service, privilege, advantage or accommodation of a brick-and-mortar store. In particular, a website should be viewed as a service of a traditional place of public accommodation only if it provides a significantly improved means of obtaining access to the goods and services already provided by the physical store. This would exclude websites that merely offer the opportunity to order goods online because this is a new service independent of the ability to buy goods at a physical store. It would also exclude websites that merely provide directions, hours of operation and other information that has long been available from other sources, but online and off. What we need, in general, is a thoughtful approach to the unique problems associated with internet accessibility that reaches the same kind of balances between cost and accessibility that were reflected in the original ADA construction regulations. This means, in particular, a recognition that it is much easier to create a new accessible website than to fix an old one, so that any requirement of website accessibility should apply only to future or significantly updated websites, not existing ones.
For now regulation of the internet under the ADA is dead. It is hardly a reason for business to celebrate though, because the real impetus to accessible websites remains the risk of costly litigation.
* The information can be found by digging through the material at https://www.reginfo.gov/public/do/eAgendaMain