Several other sources have reported on recent legislation in California that would establish WCAG 2.1 AA as the minimum accessibility requirement for websites that do business in California.¹ The bill is a disaster in many ways, but rather than look at its many individual flaws I think it is useful to ask whether the entire law is invalid as an improper attempt to regulate interstate commerce. That’s right, the “dormant commerce clause” could make this and any similar effort by other states invalid.
The dormant commerce clause, for those who did not take Constitutional Law at some point in their lives, is a kind of mirror image of the Commerce Clause. The Commerce Clause – Article 1, Section 8, Clause 3 of the U.S. Constitution – gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The dormant commerce clause interprets this to mean that states cannot make laws that excessively burden interstate commerce; that is, only Congress can regulate interstate commerce and state laws that have the effect of regulating it are not valid.
The reach of the dormant commerce clause has been the subject of many Supreme Court decisions, so summarizing its reach is almost impossible. However, it would seem that it certainly includes any effort by the states to establish minimum accessibility requirements for websites. Here’s what the Supreme Court observed in 1989 about the dormant commerce clause:
First, the “Commerce Clause … precludes the application of a state statute to commerce that takes place wholly outside of the State’s borders, whether or not the commerce has effects within the State,” . . . and, specifically, a State may not adopt legislation that has the practical effect of establishing “a scale of prices for use in other states,” . . . Second, a statute that directly controls commerce occurring wholly outside the boundaries of a State exceeds the inherent limits of the enacting State’s authority and is invalid regardless of whether the statute’s extraterritorial reach was intended by the legislature. The critical inquiry is whether the practical effect of the regulation is to control conduct beyond the boundaries of the State . . . . Third, the practical effect of the statute must be evaluated not only by considering the consequences of the statute itself, but also by considering how the challenged statute may interact with the legitimate regulatory regimes of other States and what effect would arise if not one, but many or every, State adopted similar legislation. Generally speaking, the Commerce Clause protects against inconsistent legislation arising from the projection of one state regulatory regime into the jurisdiction of another State.
Healy v. Beer Inst., Inc., 491 U.S. 324, 336 (1989). Taking these up one at a time, the California bill would certainly affect commerce taking place outside the State of California, not only because it regulates websites that are available in other states, but also because it regulates the design and development of websites that might take place outside the State of California. More important, the bill will almost certainly interact with the legitimate regulatory regimes of other States, because if California can decide what it means for a website to be accessible then other States can certainly do the same. Websites would potentially be subject to fifty different accessibility standards as well as whatever regulatory standard the Department of Justice ultimately chooses for the ADA.
Despite the obvious extraterritorial effects of internet regulation the Ninth Circuit and other courts have suggested the dormant commerce clause does not forbid such regulations. In Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc., 742 F.3d 414, 433 (9th Cir. 2014) the Court held that even if California’s Disabled Persons Act required captioning videos on the internet the law did not interfere with interstate commerce because:
Even though CNN.com is a single website, the record before us shows that CNN could enable a captioning option for California visitors to its site, leave the remainder unchanged, and thereby avoid the potential for extraterritorial application of the DPA.
This followed the rationale in one of the very first internet accessibility cases, Natl. Fedn. of the Blind v. Target Corp., 452 F. Supp. 2d 946, 961 (N.D. Cal. 2006). The assumption in both cases is that because websites can be targeted to particular geographic areas any website owner can comply with a state regulation by just creating a separate website for that state..
Despite the notion that websites can simply target their content to particular states courts have held that content regulation violates the dormant commerce clause. For example, a Vermont law forbidding internet transmission of pornography to minors violated the dormant commerce clause because, given the interstate nature of the internet, it inevitably regulated activities that were wholly outside the state. Am. Booksellers Found. v. Dean, 342 F.3d 96, 104 (2d Cir. 2003). The same was true of a California law that forbade the display of information about state legislators on websites that were run and viewed outside the state. Publius v. Boyer-Vine, 237 F. Supp. 3d 997, 1023 (E.D. Cal. 2017).
The difference in these two lines of cases seems to be whether the court has a real appreciation of just how expensive it would be to create fifty different websites to comply with fifty different sets of state regulation and then make sure that users in one state only had access to their state’s website. While that might be possible for CNN or Target, it certainly isn’t possible for the hundreds of thousands of small e-commerce websites and blogs run by individuals or small businesses that do not have the resources to make one website perfectly conform to WCAG 2.1 AA, let alone make sure that their non-conforming website could not be reached by someone in California. The internet has, in many ways, begun to erase the difference between local and interstate commerce that is central to the analysis of commerce clause issues and it has done so for businesses with very small amounts of revenue. As a practical matter regulating internet accessibility is always going to be a burden on interstate commerce that has the potential to destroy hundreds of thousands of businesses.
This doesn’t mean accessibility regulation is impossible; only that it has to be the exclusive province of Congress or the DOJ and that it must be implemented with sensitivity to the costs it imposes on small internet businesses.² There isn’t any evidence that DOJ is capable of such sensitive regulation, but the pending bill in California proves that state legislatures certainly cannot do so.
¹ The most thorough analysis is found in “New California Assembly Bill on Website Accessibility Could Result in a Lawsuit Tsunami” published by Seyfarth Shaw.
² There is an argument to be made that the ADA will preempt any state laws concerning website accessibility as soon as DOJ adopts accessibility standards applicable in all fifty states. That argument seems to be at least a few years away given DOJ’s very slow movement toward adoption such regulations.