Significant Implications of California Bill AB 1757 (WCAG) for W3C Members

Hello fellow W3C members, Board, and team,

I bring to your attention California Bill AB1757 - Website Accessibility <https://legiscan.com/CA/text/AB1757/id/3009172/California-2023-AB1757-Amended.html>, that has been re-introduced in the California legislature on 6/12/24. This bill creates massive impact and potential for stiff liabilities for most members of the W3C and other stakeholders in the business and tech community.

While the bill aims to help/force the web to be more accessible and provide businesses some recourse against web resource providers, it also opens the floodgate even wider for litigation by plaintiff attorneys notorious for filing thousands of web accessibility lawsuits each year in the US primarily against small businesses. Note: This bill does NOT only impact California-based businesses but any person or entity that provides service to a website that is viewable to a resident of California.

Here is a clean version of AB1757 <https://docs.google.com/document/d/e/2PACX-1vRNMOT-yWpBPQdUA01iVS7YjRLKIdGP43lla5Lh7CpqwIumi4LLedKN6BG1nGPssiPmWyRgJ4d4xvcD/pub> as the California legislature page of the bill has so many strikethroughs that it may be difficult to read. You can assess how it may impact you, your employer / business.

Some Key Points:

Increased Liability: Businesses and their technology providers can be held liable if their websites have accessibility barriers (i.e., conform to WCAG 2.2 AA starting Jan 1, 2025) and makes it unlawful for resource providers to knowingly, intentionally, recklessly, or negligently create or maintain inaccessible websites that do not conform to WCAG 2.2 AA, or make claims that they do so. (Note: There are huge parts of the WCAG that require human judgement.) Web resource providers also cannot shift their liability contractually, which may make it hard to get insurance as well for smaller entities.

Litigation: The bill allows businesses, individuals (end users), an organization(s) representing a person with a disability, and attorney general(s) to directly sue the Web Resource Providers involved in the website / app for statutory damages ($4000 per violation + attorneys fees) and injunctive relief. The result will be that settlements in California which tend to be in the $12,000 to $20,000 range will now be for much larger amounts as practically no such accessibility lawsuits ever see the inside of a courtroom.

Exceeding Federal Standards: The bill exceeds the language / protections of the ADA and Federal Government's recently released rules and timelines for public entities covered by Title II of the ADA and creates yet another state-by-state scenario, much like what is happening with privacy mandates in the US.

What’s Next:

The bill is up for a hearing on June 24 in the California Senate Appropriations Committee <https://sapro.senate.ca.gov/> after which it will be voted on by the State Senate and the State House in the summer. If you wish to submit a position (support or opposition), you can do so on that link by clicking "Submit Position Letter" at the bottom of the page (by the end of this week or earlier) or appear at the hearing. 

I am in contact with the bill’s author Alison Merrilees, Chief Counsel, Judiciary, CA Assembly, and am replying with my / other’s concerns and proposed amendments. I can share Alison’s info. Please email me or look it up on the CA Assembly’s website. You can also reach out to Assembly Member Ash Kalra (San Jose, CA) office.

W3C:
From what I understand, while the W3C itself does not “get involved in litigation or legislation,” as a not-for-profit, it does / should have a responsibility to ensure that it’s work / guidance do not create unreasonable liability or harm. The WCAG, which are a voluntary set of guidelines were not created as an enforceable “legal standard” but they are currently being used for these purposes. 

As a possible solution to various aspects of the legislation / litigation issue, some stakeholders, attorneys and I have been working on a some proposed draft of language to help clarify the intent of the WCAG and safe harbors, so that it can be used without creating undue burdens for people with disabilities and businesses / technology providers or possible liability for the organization itself in the future. We plan to share that very soon with the Board, W3C leadership, and the AGWG.

Note:

This email is not intended to be a “lobbying” effort, and I am sharing this information and opinions in my personal capacity as a concerned member to other W3C members who may wish to voice their positions as it will have a fundamental impact on them, and to pass this on to peers and internally within respective corporate structures. Kindly reply and let me know if you would like to discuss further or have questions.

Thank you.

Best Regards,

Nayan Padrai
President
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