Drive-by demand letters and lawsuit threats do not help advance accessibility
Over the last 18 months, a handful of law firms in the United States have been sending out demand letters to website owners threatening to sue over web accessibility. The trend for this activity was started by the law firm Carson & Lynch out of Pennsylvania and has gathered enough attention that it has been discussed on this blog numerous times. It has also gathered enough attention that other law firms have started playing this game.
Basically, the pattern goes like this: Law firm sends over a demand letter. The demand letter features several well-worded arguments establishing their case. It is often also worded ahead of time as a “Settlement Agreement”. From there, the recipient of the letter has the choice to fight, settle, or do something in-between. In the vast majority of cases, the settlements set forth a number of requirements that include fixing the website (obviously), paying some sort of settlment fee, and paying attorney’s fees.
In my opinion, everything in the above paragraph makes sense. If you have an inaccessible website, you should fix it. If you do not fix your site, you are discriminating against users with disabilities by preventing them from having equal access to your products and services. If a user needs to use your site and cannot do so, they should be able to levy a complaint against you. If you still do not fix your site, the discrimination persists and therefore they should be able to sue you. Settling this matter out of the courts should – at the very least – require that the website be fixed, that it remain accessible moving forward, and that you reimburse the complainant’s costs for attorney’s fees. I think all of this makes sense and at least in the case of Carson & Lynch, this is what they require.
But there’s another reality to this, which is that these attorneys are playing a dangerous game of chicken. The Americans with Disabilities Act does not define the Web as a place of Public Accommodation. The only place where the ADA says that websites must be accessible is when referencing the requirements for state & local governments. The DOJ has gotten involved in past lawsuits and stated that their position is that the Web is a place of Public Accomodation. But, that is not the same as having it stated in the ADA regulation itself. Issuing an Amicus Brief or joining on as a co-plaintiff in a lawsuit is not, strictly speaking, the same as having it written into law that Title III of the ADA applies to the Web.
The DOJ knows this is a problem and has known it for years. In July 2010, the DOJ issued an Advanced Notice of Proposed Rulemaking (ANPRM) which signified what many hoped would be the first steps in clarifying this once and for all. Unfortunately, it seems that they’ve since commenced kicking the can down the road. Like the much-delayed 508 Refresh, this has far-reaching consequences that go beyond mere uncertainty. It could even backfire. In fact, it already has.
The Court chastised the DOJ for failing to follow through on its July 2010 pronouncement to regulate website accommodation for public accommodation…
See, for traditional ADA “trolling” of physical spaces, a person merely need drive through a parking lot, observe the fact that there’s no accessible ramp or no reserved parking spaces, and fire off a demand letter. The ability to fire off scores of demand letters each day is easy in these cases and a small but noticeable number of people do exactly this. Case law here is well-established and the law & associated standards are very clear. This is not the case for the Web, as I’ve already discussed.
There’s a very clear and important distinction between advocacy and trolling. Most importantly, advocacy requires actively working to make things better. It requires a lot more than signing an agreement and accepting a settlement payment. True advocacy involves collaboration. The collaborative approach of Lainey Feingold and Linda Dardarian – called Structured Negotiations – delivers real results. Using this method, Lainey and her co-counsel have negotiated more than 60 settlement agreements without filing a single lawsuit., says Lainey’s “About” page.
The recent trend of firing off demand letters – and filing lawsuits when website owners fight back – risks harming the effectiveness of real advocates. Over the past 8 years, the DOJ under President Obama was very active in supporting the rights of people with disabilities. We now have a new President who has mocked people with disabilities and a new Attorney General at the helm of the DOJ who has slammed the UN CRPD and IDEA.
“We have created a complex system of federal regulations and laws that have created lawsuit after lawsuit, special treatment for certain children, and that are big factor in accelerating the decline in civility and discipline in classrooms all over America. I say that very sincerely,” Sessions said at the time.
I feel that we’re now witnessing what will become a game of chicken that threatens the effectiveness of real advocates. I’m skeptical that we’ll see any positive movement toward clarifying Title III’s application for the web and that we may see more decisions like the one I referenced at the beginning of this post. The volume of legal threat letters being sent out simply raises the probability that we will see more lawsuit filings when companies start to fight back which, in turn, raises the likelihood that we will see more decisions referencing Title III’s lack of clarity. What will the DOJ under Jeff Sessions do in these cases? Given his previous record on social issues, I’m not optimistic about what the new DOJ’s position will become.
Regardless of whether or not you agree with the ethics of using legal threats to advance accessibility, it does have the very real and almost immediate effect of causing websites to become more accessible. Unfortunately we’re almost certainly facing four years of uncertainty around Title III. The risk that presents itself as a consequence is that more judges may cite this uncertainty as a reason to dismiss a suit – especially one brought about by an obvious troll. Meanwhile the hard work and effectiveness of true Disability Rights Advocates is threatened at the expense of trolls looking for a quick payday.