DOJ Enters Into Landmark Web and Mobile App Consent Decree

March 7, 2014 |
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Yesterday (March 6), the U.S. Department of Justice (DOJ or Justice) entered into a consent decree with H&R Block over Web and mobile app accessibility.  The case (National Federation of the Blind v. HRB Digital LLC) represents the first time that Justice intervened in and required a consent decree in a lawsuit based only on Web and mobile app accessibility.  Under the consent decree (cite to http://www.ada.gov/hrb-cd.htm), H&R Block must undertake a number of stringent requirements including:

  • Make its web content conform to the Web Content Accessibility Guidelines (WCAG) 2.0 level AA by January 2015.
  • Make its mobile apps conform to the Web Content Accessibility Guidelines (WCAG) 2.0 level AA by January 2016.
  • Appoint a Web Accessibility Coordinator to ensure compliance with the consent decree, create a detailed (and publicly posted) Web Accessibility Policy, create a Web Accessibility Committee, solicit Web Accessibility Feedback from its customers, provide special escalated customer assistance for customers with disabilities,
  • Provide mandatory annual accessibility training for anyone developing web content or mobile apps for H&R Block
  • Conduct automated testing of H&R Block’s web content
  • Retain a Web accessibility consultant and provide reports to NFB and DOJ on H&R Block’s conformance (or nonconformance) with the Consent Decree
  • Pay $45,000 in damages to private plaintiffs and $55,000 in civil penalties to Justice.

Wow!  This is the first time that my former colleagues at DOJ have taken Web accessibility to this extent.  As I used to work alongside the individuals who worked on this case, I’d like to add a few of my own comments about why this consent decree is such a big deal.

  • It’s Justice and it’s the ADA.  Most importantly, this is the first time that the Department of Justice has gone this far in case purely addressing Web and mobile app accessibility.  This is a big step because Justice has always been wary about the subtle nuances in the language of the ADA, which ties liability to “places” of public accommodation (recall that the $6 million Target case relied mostly on California’s Unruh law instead of the ADA).  It’s important to note that this case was in Massachusetts where the First Circuit takes a much more liberal view of the “place” requirement than the Ninth Circuit where Target took place.  I think DOJ would have been a lot more hesitant about taking part in a case outside the First Circuit.
  • It’s an Intervention and Consent Decree. Justice is very picky about the cases it files in Federal court—it basically has to be pretty certain it’s going to win.  Same thing goes for “intervening”– a legal maneuver where a person or organization asks the court to make them an official “party” in a case that’s already been filed.  Most of the time, DOJ files an amicus curiae brief if it supports a case but thinks there are risks.  Also, a consent decree is much bigger deal than a plain old settlement agreement.  It needs to be approved by the court and, if a party violates a consent decree, they are in contempt of a court order.  By contrast, a settlement agreement is like a contract that requires a lot more effort to enforce.  In my experience, corporations don’t like to enter consent decrees if they can avoid them.
  • H&R Block is Subject to Independent Monitoring.  In its bigger and more complicated cases, DOJ often requires independent monitoring.  This is usually a sore topic for corporate defendants, so I couldn’t help but notice that the monitor is termed a “consultant” in the consent decree.  Nevertheless, the effect is the same—a company has someone looking over their shoulder to independently assess how they are doing.  Justice also usually doesn’t require this unless they are very clear about the remedies that they want.
  • They’re Looking at Mobile Apps.  As we all know, apps and web pages are two very different things.  While there is certainly a blurry area where web pages have programmatic content and look like apps (and vice versa), grossly oversimplified one is software and the other is just a bunch of markup.   While the W3C has tinkered with applying WCAG 2.0 to non-web content (http://www.w3.org/TR/wcag2ict/), the idea of a WCAG 2.0 AA app is still a very new one.  The fact that Justice is requiring it is definitely pushing the envelope.
  • Justice Demanded Penalties!  This is a very big deal.  When I was at Justice, we didn’t require defendants to pay penalties except in egregious cases—such as where the defendant was particularly noncompliant or where they were “on notice” for years about what they had to do but ignored the warnings.  The language of the ADA gives a hint: civil penalties are reserved to “vindicate the public interest.”  So either H&R Block must have been particularly obstreperous (which I find a bit hard to believe) or DOJ has had enough with companies that aren’t taking Web accessibility seriously.

If I were a company that has an inaccessible website or inaccessible mobile, I’d be a little worried right now.  This may be a sign that things are going to get very interesting soon.

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Ken Nakata

Ken Nakata, JD, CIPP/US is the one of the most well-known attorneys in the area of IT accessibility and is the Director of HiSoftware’s Accessibility Consulting Practice (ACP). Nakata’s work focuses on Web and software accessibility from both a legal and technical perspective. Nakata’s ACP team helps organizations manage the change towards accessibility in all aspects, providing consulting services aimed at shaping their accessibility policies and practices, and evaluating the overall state of their Web properties leveraging HiSoftware’s accessibility solutions. He is also a board member for the International Association of Accessibility Professionals (IAAP),of which HiSoftware is a founding member.

Nakata worked for twelve years as a Senior Trial Attorney with the U.S. Department of Justice. He has argued on behalf of the United States government many times before the federal courts and has helped shape the government’s policies for the Americans with Disabilities Act and Section 508 of the Rehabilitation Act. Nakata also worked as Director of Accessibility and Government Compliance at BayFirst Solutions, a Washington, DC consulting firm.

In 2000, Attorney General Janet Reno presented Nakata with the Attorney General’s Award for Excellence in Information Technology. In addition to practicing law, Nakata is active in software and web-based technologies, including Java, JavaScript, SQL, and ColdFusion. In July 2001, he was certified by Sun Microsystems as a programmer for the Java 2 Platform. Nakata is a frequent speaker on both law and technology and is equally adept at conducting one-on-one workshops with programmers and developers as well as explaining law and policy to large audiences. He holds a Bachelors of Art degree in mathematics from John Hopkins University and a Juris Doctor degree from the University of Pennsylvania Law School, and is admitted to the bars of New York, the District of Columbia, Pennsylvania and Washington.

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