The Dangerous New Legal Scam Targeting Your Website

By Mike DuBose and Blake DuBose with Andy McCormick

 

The legal threat came to one of DuBose Web Group’s customers via Federal Express. It consisted of a letter from a law firm and 20 pages of customized documents alleging that their website violated the Americans with Disabilities Act (ADA), and it gave the client a short time frame of just 15 calendar days to respond. When we contacted other local web firms, we learned that some of their customers had received an identical letter from the same law firm! We knew we had followed the ADA law constructing our client’s website, so it seemed to us that the letter must be a scam. We soon learned that it was part of a trend of unethical law firms taking advantage of legal ambiguities to wring money out of unsuspecting businesses and other organizations—and although unscrupulous, it was perfectly legal for them to do so!

When the Americans with Disabilities Act was written in 1986, the Internet had not yet become a part of daily life for the vast majority of Americans. Thus, it didn’t register as a consideration for laws like the ADA, which was intended to remove barriers that would keep disabled individuals from enjoying areas of “public accommodation”—places where people gather, like sports arenas or shopping malls. Although the ADA lists 54 different examples of “public accommodation” where the law would apply, nowhere in the text of the law does it mention the Internet or websites.

In the thirty years after the ADA was introduced, society has undergone major changes. Now, people shop, learn, and interact socially on the Internet as much (or more) as they do face-to-face. In fact, a 2016 Nielsen survey found that American adults spend a whopping 10 hours a day looking at screens of some sort, including computers, smartphones, and televisions. As younger generations who have grown up alongside technology mature, these numbers will likely continue to rise.

Progress has left some areas behind, however. Notably, three decades later, the federal government still has not established any legal standards for how the ADA should apply to the Internet. The US Department of Justice (DOJ), which oversees the enforcement of the ADA, was expected to announce rules in 2010 providing businesses with specific guidance on how to develop compliant websites. However, the DOJ has delayed releasing these directions multiple times, most recently pushing them back until 2018, leaving web companies, governments, non-profits, and end users alike with many unanswered questions.

Most companies would love for their websites to be ADA compliant; they just don’t have a clear path to making them that way. Not only would it expand their potential customer base and increase site traffic to include visually challenged users, it would also be morally and ethically preferable. “For those with disabilities, an inaccessible website puts them at a great disadvantage and further perpetuates a feeling of dependence and reliance on others,” said U.S. Attorney Carmen M. Ortiz in a Justice Department press release. “With thoughtful and proper web design, businesses and organizations can have a great impact on the daily lives of people with disabilities who, like everyone else, seek to enjoy the benefits of technology.”

However, the questions of how far to go to make a website ADA compliant and what determines that a site is accessible both remain up in the air. “In the web industry, there are currently no specific ADA website ‘standards,’ only ‘guidelines,’” said Blake DuBose, president of DuBose Web Group. “These guidelines are ambiguous, making it difficult for companies like ours to implement truly ‘ADA compliant’ websites. Until clear regulations pass, business owners and others will face uncertainty and different interpretations to ADA compliance.”

While many law firms are respectable organizations that work on legitimate cases, there are practices which have made it their business to profit off of technicalities within the law. Back in 2013, we saw this firsthand when all our companies received a letter from a “patent troll” law firm accusing our businesses of violating obscure patents by using technologies that came built into our fax machines and copiers! Similarly, some unethical attorneys are taking advantage of the “gray area” that websites fall into in regards to the ADA. Despite a lack of explicitly defined legal standards from the federal government, these shady lawyers charge that the ADA should apply not only to the accessibility of physical locations of retailers, banks, hotels, and restaurants, but also to their websites…and they’re willing to sue over it.

A few firms in particular have become well-known for sending out hundreds—if not thousands—of form letters to retailers, hotels, banks, restaurants, and other organizations that conduct business online, alleging that their websites are not meeting “accessibility standards” under the ADA…despite the fact that no such standards exist for websites. (In fact, the ADA Title III blog reported that a single law firm alone was responsible for 43% of ADA website lawsuits between January 2015 and September 2016.) In the letters, these firms pressure the recipients to utilize their services to update their websites, as well as pay damages and legal fees. Despite the fact that organizations could have up to two years to become compliant once the DOJ finally releases its new guidelines, these firms demand a response in a matter of days or, at most, a few weeks. Shockingly, when these cases go to court, these “ADA trolls” sometime win!

To comprehend the basis behind such lawsuits, it helps to understand the ADA. The act, which was signed by President H.W. Bush in 1990, protects the rights of disabled people to participate in the same activities as their peers—things like enjoying a movie, shopping at a grocery store, or going to the post office. The ADA “is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all public and private places that are open to the general public,” according to the ADA National Network, which is funded by the US Department of Health and Human Services. The conditions covered as disabilities under the act include deafness, blindness, intellectual disability, partially or completely missing limbs, mobility impairments requiring the use of a wheelchair, and some mental and physical illnesses.

The ADA is divided into five sections, called “titles,” each of which addresses a different area of life: jobs, transportation, public accommodations, telecommunications, and government services. Title III addresses discrimination by public accommodations, which include “privately-owned, leased or operated facilities like hotels, restaurants, retail merchants, doctor’s offices, golf courses, private schools, day care centers, health clubs, sports stadiums, movie theaters, and so on,” according to the ADA National Network. Part of Title III states, “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation.”

The argument that some law firms are making is that websites—not just physical spaces—are also places of public accommodation, and that many of them are violating the ADA in relation to blind users. To use the Internet and websites, visually impaired individuals often use special software that either reads website text aloud to them or sends it to a Braille device that uses pads with special, changeable bumps to represent different letters and words. Users can navigate through websites using their keyboards, and the software will read (or translate into Braille) the text as they move throughout the page. Some of the more sophisticated programs can even identify text formatting, including font styles, sizes, and colors!

Beyond text, however, problems arise. The software cannot “look” at an image and describe it to the user, unless the website has been specially coded with text that describes what the image is. If it is just a simple picture, the reading software may deliver garbled numbers and symbols representing HTML (website programming code) that do not make sense to the user, or simply the word “image.” If a blind person were trying to buy a shirt online, for example, neither of these options would be helpful in telling them the color or style of the shirt. Problems also arise when visually impaired users need to enter information into a website—often, the software will just say “text box,” and they will have to guess what information they need to enter.

Although the Department of Justice has not released any official laws regarding websites and ADA compliance, it has determined that Title III should cover website accessibility, and some court decisions have reinforced this idea. One major instance took place in 2006, when the National Federation of the Blind filed a class action lawsuit against popular retailer Target in federal court. The district’s Chief Judge used Title III as the basis to rule in favor of the National Federation of the Blind (despite Target’s arguments that the title should only apply to brick-and-mortar stores) and awarded a $6 million settlement to be distributed to members of the class action suit. Since then, such lawsuits have continuously grown in popularity. In 2015, more than 240 businesses were sued in federal court for issues regarding accessibility for blind users, according to a November 2016 Wall Street Journal article by Sarah Randazzo, and that excludes any organizations that settled out of court!

Lawyers who are leading website ADA compliance cases frame their actions as a pursuit of equal rights, but attorneys charged with defending the companies say it’s a cash grab that plays on ambiguities within the law. Many organizations panic when served with legal papers, and some firms take advantage of that fear, noting in their letters that they are willing to come to agreements outside of court (for a substantial payout, of course!). Others mistakenly ignore the legal threat and don’t respond, which inflames the problem further. The lawyers cited in Randazzo’s article said that most ADA lawsuits are quickly settled out of court for $10,000 to $75,000.

Targeted companies also must pay to have their websites updated to become compatible with screen reading software, which can represent a significant expense. As Joe Palazzolo reported in a Wall Street Journal article, “the costs of making a website accessible varies based on the complexity of a website, and it is much cheaper to build accessibility features into a new site than to retrofit an old one.”

But how can you make your website “compliant” if there are no legal standards to comply with? According to Andy McCormick of DuBose Web Group, “One non-governmental set of compliance guidelines is gaining traction in the absence of official government rules: World Wide Web Consortium’s Web Content Accessibility Guidelines, also known as WCAG 2.0. There are three levels of compliance within this standard: A, AA, and AAA.”

Although they are not official government regulations, the DOJ has favored the AA version of WCAG 2.0 when it participates in settlement agreements, and it has even requested public input on whether it should adopt these guidelines as law. Therefore, organizations that want to be on the safe side can look to WCAG 2.0 AA for cues on how to preventatively protect their websites against legal attacks.

What should you do if your business receives a letter alleging that your website violates the ADA? First and foremost, don’t ignore it! Contact an attorney with knowledge and experience in ADA law and the Internet right away for advice on how to move forward. You can typically find such lawyers in well-known practices, such as Nelson Mullins Riley & Scarborough in Columbia, SC. If you don’t already have a lawyer you trust, contact your state’s bar association for recommendations. Your attorney can advise you on how to respond to and fight the legal threat. Before meeting with your attorney, we suggest educating yourself of the problem by Googling the words “ADA Website Trolls” to understand how the scam works and the law firms that are often involved. After speaking with a lawyer, of course, you’ll want to consult with a competent web company with experience in the ADA for their assistance in making changes to your website to prevent the issue from reoccurring.

If you have not yet received a letter, it’s best to be proactive. If you’re considering developing a new web presence for your organization or upgrading your current website, ask your web company about their approach to compliance to ensure that it conforms to WCAG 2.0 AA, just to be on the safe side. Also, note that “it’s not enough for a company to roll out new webpages that comply with the ADA, they also have to be sure the old ones do,” according to legal expert Lynn Calkins, who was interviewed by Adrianna Gardella for a 2015 Forbes article. Calkins recommended seeking guidance from the United States Access Board, a federal agency that provides some standards on websites and technology.

Competent web companies should also be able to perform an assessment of your current website and advise you what can be changed…before you receive a letter from a lawyer demanding it! The added cost will be inconvenient, but ultimately, it could save your money, time, and mental health from being drained by a lawsuit.

The bottom line: As time moves forward and technology develops, new territory is being charted. But although the Internet has given us many conveniences, it can also bring legal threats to businesses and other organizations in the form of ADA compliance lawsuits! We recommend following Ben Franklin’s wise advice: “An ounce of prevention is worth a pound of cure.” Take any actions you can to prevent against lawsuits now, and you’ll reap the benefits later!

 

About the Authors: Our corporate and personal purpose is to “create opportunities to improve lives” by sharing our knowledge, research, experiences, successes, and mistakes. You can e-mail us at [email protected].

Blake DuBose graduated from Newberry College’s Schools of Business and Psychology and is president of DuBose Web Group (www.duboseweb.com).

Mike DuBose received his graduate degree from the University of South Carolina and is the author of The Art of Building a Great Business. He has been in business since 1981 and is the owner of Research Associates, The Evaluation Group, Columbia Conference Center, and DuBose Fitness Center. Visit his nonprofit website www.mikedubose.com for a free copy of his book and additional business, travel, and personal articles, as well as health articles written with Dr. Surb Guram, MD.

Andy McCormick is a graduate of the University of South Carolina and has been actively involved in the web industry since 2008. He currently serves as Director of Operations and Programming for DuBose Web Group.

Katie Beck serves as Director of Communications for the DuBose family of companies. She graduated from the USC School of Journalism and Honors College.

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