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California’s AB 1757 is a Website Killer

by | Jul 17, 2023 | ADA |

The text of AB 1757 – with its latest and likely final amendment (as of August 16, 2023) can be found on our website here: AB 1757 text as of Aug 16

The California Legislature is attempting to bring some clarity to thousands of ADA website cases being filed statewide, most of which are filed in California State Court for alleged violations of the Federal ADA with added damages under the California Unruh Act.  Unfortunately, the proposed bill, AB 1757, destroys the very thing it is attempting to protect, namely, the availability of websites for everyone.  Here’s why:

AB 1757 does two things, both of which assume that websites can be objectively measured for conformity with a set of guidelines that has been developed by an international, mostly foreign, organization.  These guide lines are  called WCAG 2.1, which is short for the Web Content Accessibility Guidelines.  Note that the developers themselves call them “guidelines” and not hard and fast rules that can be clearly tested. The same developers of WCAG acknowledge that there is no simple, objective test for compliance with their suggested guidelines, and we at the Karlin Law Firm have confirmed this after personally testing a thousand or more websites using various testing programs all of which often  show “false positives,” i.e., stating there are “errors” that are not errors and/or have no effect on the accessibility of a website.

This bill would require anyone who sets up or maintains a website for a business to adhere to a foreign “standard” (which is not a “standard” because compliance or conformity with it cannot be objectively measured) and will and the bill would impose liability on anyone who sets up or maintains a website, if the website does not meet this “standard” that cannot be measured.

Because there is no objective way to measure conformity, and because it will only give Plaintiff’s lawyers their attorney’s fees, this bill will open the floodgates of even more litigation over how websites appear and claims that the website is not sufficiently accessible to Plaintiffs who claim some aspect of the the website is not sufficiently accessible to them because some information on the website could have been presented in a better way.   This bill will undoubtedly cause many businesses to give up their websites and cause small website providers to go out of business or to move out of state because there is no way to measure if the website does or does not conform to these guidelines.  As a result, small businesses will find it hard to find a provider willing to be exposed to the new liability created by this bill.  The latest amendment adds another presumptive harbor, but one that can only be used by large corporations, who can afford to spend tens of thousands of dollars to hire the type of person who can run high level testing and development of websites.  Ironically, this will allow the largest corporations a way out of the ADA website lawsuit war against websites, and forces the smallest of businesses to pay the money sought by serial ADA website filers.  As a result, more and more small and micro businesses will be targeted as serial plaintiffs become aware of the “presumptive harbors” that will now be used by the largest corporations that can afford these extremely expensive defensive reviews by highly paid professionals.

As a side note, the bill would also set up a “presumption” that, if the website conforms to the guidelines, the business will meet its requirement for accessibility.  However, as noted above, because meeting these guidelines cannot be objectively measured, the presumption has no value to businesses faced with the current lawsuits.  Why, because of the lack of simple objective tests, it would take years of litigation and expert opinion testimony to determine if the website conformed to the guidelines.  Which is exactly the situation now with litigation to determine if a website meets any Federal ADA website accessibility requirement.  So even this aspect of the bill fails to do anything and gives the illusion that it will improve the current situation.

Sadly, the Legislature is being misled.  They are being told by the promoters of the bill only that it only creates a harmless presumption (which or the reasons noted above does nothing), and astonishingly they are being told that the business community is in favor of the bill.  They are not being told about the website-killing aspects of the bill and new liability for those who set up and maintain websites.  The Legislature needs to understand that there is no objective test for conformity — which makes this a Website Killing Bill , and  that the bill will have devastating consequences for businesses, website providers, and consumers alike.

The Karlin Law Firm has been attempting to reach out to the California Legislature to educate them on the dangers of passing the proposed AB 1751, set for final hearing in the State Senate ‘s Appropriations Committee.   The bill is now heading to the final review of the financial aspects in the California Senate Appropriations Committee in Mid-August. Opposition should be received well before that date.  Every member of the State Legislature as well as the Governor need to hear from the business community and consumers alike why this bill is a website killing bill which will have disastrous consequence for everyone in this state.

By way of background, the Karlin Law firm has handled over 3,000 ADA claims and consulted on another 1,500 claims, for a total of 4,500 ADA cases to date.  In addition to ADA litigation services our firm provides consulting services advising on ADA compliance, particularly ADA website compliance, and how best to make websites accessible to the disabled community. We are the largest provider in the country of such services, serving large, medium, small, and very tiny “micro” family businesses. What follows is an overview of major concerns with the proposed bill, which bill we strongly oppose as currently drafted.

 Executive Summary of Major Concerns with AB 1757

–           WCAG cannot be objectively tested. There are no objective verifiable tests that will show if a website meets or conforms to any version of WCAG.  The bill falsely assumes that compliance with or conformity to WCAG 2.1 (or any other version of WCAG) Can be objectively tested.   This is an entirely false assumption.  We understand this, but the promoters of the bill either don’t understand this or they are not disclosing this important fact.   Simply stated, there are no simple or objective methods to test a website for compliance with WCAG.  Why? Because these suggestions have always been written as a set of “guidelines” and conformity to such guidelines is often a matter of opinion.  Given current state of testing methods (using Wave.webaim.com, or Google’s Lighthouse, or Powermapper.com) there is almost no website in the United States that our firm could not “argue” meets or conforms to any WCAG success criteria. Without simple, objective methods to test conformance, AB 1757 will invite endless litigation against businesses and web developers, with each case requiring years of litigation, including dueling testimony from expensive “expert” witnesses.  Put another way, a web developer or business has no way to “test” their website before it goes live to ensure their website conforms to WCAG 2.1 (or any other version of WCAG).

–           Reference to WCAG Will Not Be a Safe Harbor and Will Not Reduce Lawsuits.  As a “safe harbor,” reference to WCAG falls short. It will not reduce the number of ADA website filings, given that over 99% of websites will show some type of real or “apparent” errors when one of the current testing programs is used.   For example, images with any information are to have a description which can be read out loud by an automated “screen reader” to help blind persons.  A business that sells a poster of the Mona Lisa painting can describe the poster a thousand different ways such as a poster of a woman, a poster of a woman in a brown dress, a poster with a woman which a unique smile, with a window behind the woman, etc. etc.  Anyone can argue that they do not like the description for a thousand different reasons.  Plaintiffs can and will claim they do not like some aspect of how a website is shown or described.  They will also continue to use these very crude and often inaccurate automated tests as an excuse to file a lawsuit, and this will continue at the same levels as before, since no objective automated tests exist.

Someone may argue that after years of litigation if an “expert” convinces a judge that the website conforms to WCAG, then that will be a deterrent to filing a weak case.  Not so.  That’s the same situation that exists today.  Because only the Plaintiff (if he or she prevails) is entitled to attorney’s fees, but not the business if they prevail, i.e. the Plaintiff does not have to reimburse the business if the business shows the lawsuit lacks merit (or the website conformed to some version of WCAG), the Plaintiff is still in the same “no lose” position as before, and therefore the Plaintiff will continue to file very week cases despite the so-called new “safe harbor.”  Therefore, what may appear to some to be a safe harbor, does nothing to stop the growing number of ADA website lawsuits being filed in California, most of which are filed in California state court and often do not show up in the statistics that only track federal case filings.

–           ADA Website Lawsuits Will Increase. In fact, we believe lawsuits will go up should the bill become law because the bill will now give plaintiffs an excuse to use these inaccurate testing methods to file even more lawsuits and will make it easier for both existing law firms and new law firms not currently filing cases to file a massive number of new cases, since almost all websites are arguably not compliant with WCAG 2.1.   What is more, given that web developers and website providers are now going to be added as additional defendants along with the website owners in these cases, Plaintiff’s attorneys now will seek even larger settlements for the “extra time” in adding and dealing with the new defendant now allowed under AB 1757.

–           New Web Developer Liability Will Increase Litigation and Increase Costs for Website Owners and including Costs to the Courts.  The new liability provisions of the bill that make a web developers and website providers liable for creating or maintaining  websites that are arguably not in “conformity with” WCAG 2.1 will substantially increase litigation by adding web developers and providers into the litigation either directly as a defendant or as cross-defendant.  This will result in even higher settlements sought by Plaintiffs given the increase in the number of parties to the litigations and prolong the litigation. This will drive up litigation costs not only for the business and web developers and website providers, but also for the courts as they process cases these more complex cases that are not settled early on.  Since there no simple objective methods of testing compliance or conformance has yet been developed, cases will now be filed against web developers that will take years to litigate, forcing settlements of cases without merit, simply because it will be too expensive to litigate.

–         Web Developers will be driven out of business in California. There are reported to be anywhere from 500,000 to 1 million web developers in the United States. That would mean that 35,000 to 70,000 web developers are located in California.  Given that any website can be claimed to not conform to WCAG 2.1 (or any other version of the WCAG guidelines), if AB 1757 were to become law, no California web developer or website provider will want to be exposed to a lawsuit (or multiple lawsuits) every time they create, add on to, or maintain a website.  They chose to either go out of business, or a few will move out of state.  Does this Senate really want to be known as the Senate which killed the web development business in California?  

–           Web Developer Liability Substantially Increases Costs to Small Business and Minorities.  The provisions that make web developers liable will substantially increase the cost of creating and maintaining websites for small, tiny, and micro businesses, which are disproportionately owned by minorities. The increased costs to the smallest businesses will result from web developers either not wanting to set up or maintain California websites, or if they were to do so, they will need to substantially raise their prices to guard against years of litigation.  A brief look at insurance options for web developers shows that insurance is not available that would cover compliance with WCAG.

–           The Higher Costs Resulting from Web Developer Liability Will Substantially Hurt Consumers. As a result of the added costs, many small businesses will decide to shut down their websites, which will result in loss of business to them and result in consumers not having access to information about the goods and services of the business, all to the detriment of the consumer.  We know of numerous small businesses that have already shut down their websites even without AB 1757 becoming law.  It will be far worse if AB 1757 were to become law, not only to detriment of consumers, including consumers with disabilities, but also to businesses, especially micro businesses disproportionally owned by minorities.

–           There Will Be Major Loss of Revenue to the State as Websites are Shut Down or as Website Providers Move Out of State.   With small businesses finding it harder to find web developers and website providers willing to take the new risk of liability to create or maintain a websites, we can expect to see thousands of small businesses shutting down their websites or deciding not to put up a planned website.  This will be a loss of revenue generated by these websites, and a loss of major sale tax revenue to the state.  In addition, with fewer in-state web developers and providers leaving California to avoid liability,  many businesses will hire out-of-state or out-of-country website providers, with a resulting loss of income tax revenue from these providers who will now be working in other states or abroad.

Where do we go from here? 

  1.  Educate the state representatives about why AB 1757 is a Website Killing Bill that will harm every California business as well as consumers’ access to websites after websites shut down or only put up a few pages of text with no images;
  2.  Advocate instead for the establishment of a commission to try to establish simple objective tests to establish that a website has reasonably met any federal requirements under the federal ADA.  Any test should be simple to use, provide a test score and give guidance for everyone including the business in question, the website developer, and the consumer, and
  3. The commission should also allow for alternative methods that can be measured, such as an Accessibility Hotline to provide information on the website that might not be easily seen even with reasonable efforts to make the website more compatible with screen reading software.   Now that’s a true win-win-win for the disabled, for consumers and for businesses alike.

 

 

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