DOJ Projects Rulemaking on State and Local Government Websites in July 2017

The U.S. Department of Justice (DOJ) recently announced that it is expediting its timetable and expects to issue a Notice of Proposed Rulemaking (NPRM) regarding accessibility of state and local government websites in July of 2017. The comment period for this NPRM would close in September of 2017. The DOJ’s announcement in the Unified Agenda also indicated that it continues to expect the regulations under Title II of the Americans with Disabilities Act to pave the way for the Title III regulations applicable to private businesses’ websites.

This action comes on the heels of the DOJ’s April 2016 withdrawal of the prior Advanced Notice of Proposed Rulemaking for state and local government websites and May 2016 issuance of a Supplemental Advanced Notice of Proposed Rulemaking. The recent projection of relatively swift action by the DOJ indicates that it is interested in moving the needle on this topic; however, a change in administration may thwart this goal. 

While no one can predict what will become of the proposed rulemaking in a Trump administration, implementing new Title II website accessibility regulations is not likely going to be an immediate priority—particularly given Trump’s noted aversion to regulations in general. Agency heads appointed by the Trump administration may also be reluctant to aggressively enforce Title II website accessibility actions, particularly in the absence of regulations on these topics. 

Ironically, the halt of regulations may hurt, not help, private businesses or state and local governments laboring under the current DOJ enforcement position that websites are already under an obligation to be accessible, notwithstanding the absence of specific regulation. Unless the Trump DOJ takes an affirmative and public position on website accessibility that reverses the current position, the absence of regulation is likely to continue to favor those who seek to make websites accessible. It is impossible to know whether the area of website accessibility will gain enough traction to warrant clarifying action of that sort.

In the continuing absence of regulatory clarity, and considering our inability to predict what actions—if any—the Trump DOJ will take in this area, private businesses may want to move forward with plans to make their websites accessible.