[Stop AB950 - A woman appears on screen in a black shirt.]
Website accessibility is the ability for everyone, including those of us with disabilities to easily use and access information on a website or an app.
Unfortunately, California Assembly Bill 950 (AB 950) will hurt small businesses across the state and beyond by making them vulnerable to more predatory “click-by” lawsuits from plaintiff law firms and their roster of clients who browse the internet looking for websites to sue.
Everyone knows how important it is for a business or service provider to have a website in today's economy, and those businesses should know how to best accommodate those of us with disabilities. But AB 950 will significantly increase the costs and legal risks for anyone starting or owning a small business and it will disproportionately harm entrepreneurs, especially minorities, people of color, the disabled, and the elderly who need the internet to make an honest living.
Consider the following real-life examples.
A Mexican American family restaurant in Santa Monica adds a widget to enable online ordering on their website.
An Indian American Jewelry store in Artesia adds an email newsletter pop-up on their home page.
An African American retired veteran in Sacramento builds a website to sell vintage t-shirts using a ready-made theme on Shopify.
A daughter in Temecula creates a WordPress website for her father’s auto repair business and installs a pre-built contact form.
A young college student in Antelope Valley makes a website banner for a weekend special for his neighbor’s car wash.
A disabled son who has MS builds a website for his family’s small vineyard in Napa using a template. He even installs an accessibility widget, but there is a small bug on the navigation menu. That he can’t control.
Under AB 950, all these businesses can be sued for “intentional discrimination” if the underlying code or the content of their website fails any one of the hundreds of technical guidelines known as the Web Content Accessibility Guidelines (W-C-A-G) 2.1 AA level written by the W3C.
A small business owner using drag-and-drop platforms usually has limited to no control over their code. And therefore, couldn’t fix any of them even if they knew how.
This bill will get each of them sued.
To make matters worse, under this bill, any website that currently has a video on its website could be sued. Think about that. Every website with a video on it would fail because they don’t have an audio description.
Websites are like living organisms. They change and evolve, they get updated frequently, and they are prone to the same bugs and threats that humans face. Just like when humans get sick, we need time to cure, businesses also need time to fix any issues that may be affecting the accessibility of their digital storefronts for no fault of their own, or no intention to exclude anyone from enjoying their goods and services.
The bill provides no safe harbors or opportunity to cure unintentional technical bugs and some of the requirements are simply impractical or unnecessary with today’s powerful AI technology.
Even if a business does its best to be “compliant” and pass all the proposed bill’s standards every testing tool available gives varying test results and often false negatives and false positives.
If a website fails a test, the business no matter the size, could be sued with claims of intentional discrimination and would have to pay statutory damages of $4000 per infraction to a serial plaintiff, plus their attorney’s fees, and have their own cost of defense, all of which can add up to tens of thousands of dollars.
Now multiply that scenario by the 4 million businesses in the state and imagine the frenzy that will happen. It will be an even bigger nightmare to do business in or with customers in California because this bill affects every business that has customers in California. That’s right, a mom-pop business with a website from Wyoming could be sued in California state court.
Just in the last two years, over ten thousand small businesses have already been sued or received demand letters which almost always result in secret payments to plaintiff lawyers. What this bill does is legalize extortion and is nothing but the transfer of wealth from hard-working mom-and-pop businesses over to shady law firms.
Nobody acting in good faith would believe that a business with technical errors is intentionally discriminating. So, let’s find solutions to making the web more accessible to everyone no matter their ability without hurting small businesses and enriching serial plaintiff attorneys who have been acting in bad faith for years.
We need a more accessible world, but this bill will ultimately hurt those efforts by distracting from the issue at hand and turning the focus on predatory lawsuits that will be amped up by the passing of this bill.
We need your help to stop this bill.
Anyone who genuinely supports disability rights and small businesses should join our fight.
Please sign our petition and contact your local representatives in California to urge them to vote no on AB 950.
Spread the word on social media and urge your business groups, local chambers of commerce, and associates to stop this dangerous bill.
Sign the petition at www.stopab950.com
AB 1757 - Update September 2023
With your support and the voices of grass roots opposition, the authors of AB 1757 have decided to hold the bill in 2023 and turn it into a two-year bill. They are giving more time to consider the significant impact of the proposed law on businesses.
Stay tuned for updates.
Together, we can ensure transparency, fairness, and a brighter future for small businesses and innovation.
Here is a letter we sent to members of the California legislature prior to the appropriations committee hearing.
August 4, 2023
Subject: Opposition to AB 1757 – Significant Fiscal Impact
Dear Senators Portantino, Jones, Ashby, Jones, Weiner, and Wahab,
I write to you to express my first hand knowledge and serious concerns about AB 1757 (formerly AB 950) regarding web accessibility, and its potential financial impact on our state.
AB 950 was halted in the Assembly Appropriations Committee, only to be reincarnated as AB 1757 via a Gut & Amend. This bill, if passed, could inflict billions of dollars in annual costs on small businesses and communities, particularly affecting marginalized groups and startups.
Creating and maintaining websites to strictly comply with the proposed standards and subjective testing it would require is excessively costly and a job killer.
Here’s a brief overview of the potential costs involved:
- Small Business Website Creation: Costs could rise from around $900 to $3000+
- Routine Maintenance: Typical costs could skyrocket from $100 to over $1000+
- Testing: The accessibility testing of a simple website ranges from $3,000 to $10,000+
- Certification: Amended Bill requires professional review from a CPWA certified member of IAAP. There are only 557 certified professionals globally; most tied to big corporations/universities. Cost to certify: Over $10,000+ for small to midsize businesses.
- DOJ rule-making in progress – The US Department of Justice is currently in the rule-making phase for its Title II Proposal, specifically targeting government websites. The anticipated upfront cost for this initiative stands at an enormous $15.8 billion. When broken down, with Title II impacting 91,489 websites, this translates to a fresh expenditure of approximately $172,698 for each individual site.
- Given these high projections, one can’t help but question: How could a small business in California possibly shoulder even a tenth of such an exorbitant amount, both for the initial setup and the ongoing maintenance of their website?
- Remediation: The bill ignores websites and content created in the past. Costs to remediate or rebuild every website in the state, as per the new standards, are exorbitant.
- Video Remediation: Addition of “Audio Description” to all videos will cost hundreds or thousands of dollars per video.
- PDF Remediation: Testing and remediation of all PDFs will cost hundreds or thousands of dollars.
- Image Remediation: Rebuilding graphics, checking and adding alt-text, which is subjective, to all images could cost hundreds or thousands of dollars per website.
Industry professionals have recently created an accessibility cost estimator which is publicly available here: https://www.digitala11y.com/cost/
Additional implications of AB 1757 include:
- Overburdening the Court System: In the past year, there were over 1000 website accessibility lawsuits filed against businesses in California State Court, more than any other state. This bill opens the gateway for plaintiffs to also sue the business’ web resource providers – a first in the nation. This would result in protracted litigation with multiple parties and cross-complaints and a create a massive windfall for opportunistic plaintiff attorneys.
- Assembly appropriations analysis estimated that it costs the state $8000 per case for a single day’s proceedings. The overall costs of this bill to California’s overburdened court system would be in the tens of millions of dollars.
- Sales Tax Revenue Loss: Out of state businesses will geofence California, blocking access to their website for California customers. The result will be lost sales tax revenue.
- Job Market Impact: Small businesses in the website sector will leave the state or stop serving California-based clients due to increased litigation risk and costs, leading to a decrease in employment opportunities and income tax revenue. This bill will send even more website creation and ancillary tech jobs offshore.
The state’s own website, www.ca.gov, doesn’t meet the standards prescribed in this bill, which leads us to question the feasibility of this bill’s “presumption” defense. The websites of every Senator and Assemblymember, and every supporting group do not meet the standards set forth in this bill. Voting “aye” for this bill would be sheer hypocrisy.
Considering these concerns, I implore the committee to vote NO or suspend AB 1757.
While I am committed to working with the author’s office to shape a bill that works for all stakeholders, increases accessibility while decreasing lawsuits, the bill in its present form will only increase litigation against small businesses and their web resource providers.
I would like to voice my opposition in person, virtually, or by phone. Thank you for your time and consideration.
Take Action Now - This Bill is Set for a California Senate Appropriations Committee Hearing on August 14, 2023
Please use the above template or write your own Opposition letter to AB 1757 and send it to the below email addresses
Members of the California State Appropriations Committee:
California Senate Appropriations Committee Staff: Matthew Fleming- Matthew.email@example.com
Senators / Staff:
California Governor’s Office – Christine Aurre, Legislative Aide – Email: firstname.lastname@example.org
Author / Analyst of the Bill: Alison Merrilees, Counsel, Assembly Judiciary Committee – Email email@example.com
News and Media about AB 1757
I just published a new article on my Medium column.
The title is AB.
1757 New California Bill Would Increase Website Accessibility lawsuits Across US.
So I have this article pulled up on the screen and I am going to provide commentary on the article and bring forward a few points that I haven't in my previous videos on the new California bill.
The first note is this bill was originally about port consolidation.
It had nothing to do with digital accessibility, but then it was amended to be all about accessibility.
So it's basically a new bill.
It's curious to me how that came about or why the original bill was completely deleted and then a new one is inserted.
But that's what we have in front of us.
The law as it stands, or the proposed law as it stands.
It would only inflame serial digital accessibility.
And I use the word digital because this is going to be about much more than websites.
Currently, litigation primarily concerns website accessibility.
And so I would say 97% plus of the lawsuits that I come across are about website accessibility.
I think if this law were to be approved, or if this bill were to be approved and become law, then we would see lawsuits concerning software, of course, mobile apps, we'd see more digital assets in play.
And I'm going to go ahead and read from the Quick Takeaways and summarize the Quick Takeaways from the bill that I have in the article.
So here's a bullet point list applies to websites, mobile apps, and potentially more digital assets.
Requires WCAG 2.1 AA, conformance, website app, etc.
Owner operators can be sued, so can developers, designers, digital asset sellers, etc.
Entities from other states and potentially other countries could be sued on that last bullet point.
Although this is a California state law, because websites and mobile apps and other digital assets can be accessed from the state of California, it potentially implicates people and entities from other places besides California.
So the next section is the standard, and I write that this law would be difficult to defend against.
So the standard incorporated into the law is WCAG 2.1 AA. So that's the technical standard.
And plaintiffs lawyers will absolutely feast on this because what can happen is they can construe any technical deviation, however minor that deviation is, from full conformance with the Web Content Accessibility Guidelines.
They can construe that deviation into a plausible means for bringing a claim for discrimination.
And all they have to do is have their client make one of the two following arguments.
And this will take me several seconds to read, but this is important. It says.
This is from the bill.
To be entitled to statutory damages for Internet website accessibility, a plaintiff must prove one of the following one that the plaintiff personally encountered a barrier that caused the plaintiff to experience a difference in their ability to access or use the website as compared to other users, such that the plaintiff was unable to acquire the same information, engage in the same interactions, or enjoy the same services with substantially equivalent ease of use, or to have the same level of privacy and independence as others who are not disabled.
That's going to be extremely difficult to defend against because the emphasis here is on what the plaintiff experienced.
And so it reads again that the plaintiff personally encountered a barrier that caused the plaintiff to experience a difference in their ability to access or use the website.
So it's difficult to counter what someone experienced.
We can't tell someone what they experienced and so the plaintiff can put forth that they did indeed experience a difference in their ability to access.
So this is a rather subjective standard for one.
Now let's read two.
And again, the prompt here is to be entitled to statutory damages for internet website accessibility, a plaintiff must prove and then the second is that the plaintiff was deterred from accessing all or part of the website or the content of the website because of the website's failure to provide equally effective communication, etc
So number two would be especially difficult to defend against because all someone would need to do is argue that they were deterred from accessing all or part of the website or the content of the website.
So it's very difficult to defend against someone who claims that they were deterred because of for any reason, right?
And any reason could be any deviation from the WCAG 2.1 AA standards.
Now, these standards are fairly objective, but there are success criteria.
So there are these different requirements that are called success criteria under the technical standards and there are 50 different success criteria.
So some of these success criteria are arguable, right?
We can argue whether there was a sufficient description or whether there wasn't.
But the problem is that if we initiate litigation and we are making that argument in litigation, it becomes very costly, especially for those that are defending against the litigation.
So it's very time consuming, it's very costly.
But the point is that it's fairly easy to have an argument that in some way that there was a deterrent from accessing all or part of the website.
So again, we're looking to these mostly objective standards.
But if there is one way in which you don't meet one of the 50 success criteria, then it gives rise to a potential claim.
So this is why it is so easy to envision a scenario where this bill, if it is approved and becomes law, they're so easy to envision a scenario where litigation really ramps up even more than it already is.
I think we would see more California plaintiffs law firms enter the space and we would see those firms and the firms that are already in this industry increase the number, the amount of litigation that they're involved in.
So because the way that damages can be established is so subjective.
I think that this bill is problematic on its face.
And so we want to have something more objective where we are looking at the website and whether the website reasonably provide access or whether there was meaningful access.
So to illustrate, imagine if we were to go onto Amazon.
Can we go onto Amazon and choose a product, learn about that product or any number of products, add one or more of those products to the cart, and then successfully check out without any significant barriers to access or any notable impediments to access, etc
So is that possible?
If we adhere to these strict technical standards and we apply them in the strictest sense, there can potentially be many ways in which someone can initiate litigation and have a claim for damages.
So I wanted to emphasize that in this video and how the subjectivity here, even though we have these technical standards, that we're looking to the subjectivity in applying those standards and determining when someone can bring a claim that will really increase litigation.
So who can be sued?
It's important to note that this is not just about the owner operators of websites or mobile apps.
It's also the people who designed the website, who developed the app, who built the platform, who created the plugin, and so on.
And so those developers and designers, they can be sued not only by the plaintiff, so not only by the plaintiff who has a disability, but also by the owner operators of the websites and mobile apps.
So again, we can see there being more litigation from an indemnification point of view, right?
If the website or mobile app owner is sued, then they will in turn likely sue whoever provided them that website or mobile app, or maybe it was the website builder platform, etc
So let's take some language from the bill.
It says it is unlawful for any resource provider, keep that in mind, any resource provider or any resource service provider, in exchange for money to intentionally or knowingly construct, license, distribute or maintain for online use an internet website that fails to comply with the internet website related accessibility standard.
And then later a resource service provider is defined.
A resource service provider is a person or entity that in exchange for money, constructs, licenses, distributes or maintains for online use any internet website or resource to be used within or in conjunction with an internet website.
Note that language or resource to be used within or in conjunction with.
So this could mean that plugins are implicated.
This could mean that email captures right from email service providers, those could potentially be a resource service provider.
So anything that you can integrate into your website or add to your website or use in conjunction with your website, those providers, those service providers could all be potentially liable under this new proposed bill.
And so I put emphasis on that because there's just so much fallout from that.
There are so many broad reaching consequences from that.
Another note I wanted to make is that the bill says Internet website includes all Internet web based technology, including, but not limited to a mobile application or app that can be accessed by a mobile device.
So, first of all, what this is getting at is when they say website, they don't mean just a website.
Internet website encompasses multiple things, and they're saying includes all web based technology, internet web based technology.
So keep that in mind.
So that could be an email client, for example, for example, Gmail, but also note that they put in their mobile application or app.
But not all apps are web based.
Some apps are native mobile apps, some are hybrid apps.
So I thought that language was interesting, and that was a question I would raise about this bill.
And then I conclude by then talking about how, according to Safe Art Shaw and their blog post, and I will link to that in the YouTube description as well.
This bill is three months away from potentially being approved.
Again, it is not law yet, it may never be, but in a few months it's possible that it could be.
I don't know, however likely or unlikely that is, but the very fact that this could potentially become law should spur anybody, any entity, any organization, nonprofit, for profit association, membership entrepreneur, small business, multinational corporation, whoever you are.
This should spur accessibility.
It's not like there already isn't an ongoing, rampant serial litigation surrounding website accessibility.
So this should already be on your radar.
But if you haven't already embraced accessibility and incorporating the Web Content Accessibility Guidelines, this should now be spurring you to start action, start training your digital personnel, your digital team, on making sure that all content incorporates the Web Content Accessibility Guidelines and is accessible.
Right? So accessibility should be a priority.
If it hasn't been already, it should be now.
But this is something that you can turn into an advantage.
You can be a first mover in this space and become the first provider in your space to embrace accessibility and to ensure WCAG conformance in all of your digital assets that you produce and sell, provide services for, etc
So that is what I think the takeaway from here is, whether or not this becomes law, there will be at some point another digital accessibility law, and you will need to be in compliance with that.
So it's better just to embrace it.
Start training now.
I have a course called the WCAG Course.
I will link to that below.
I will link to my ADA compliance course below as well.
And those are great starting points to help you with training and reducing the risk of litigation.
But for now, start working in accessibility.
There's so much upside, there's so little downside.
So I highly recommend that everyone start embracing accessibility.
If AB 1757 were to become law, it would be an absolute gold rush for California plaintiffs lawyers.
And so on the screen with me is a document.
The title is AB 1757 Millionaires California plaintiffs lawyers would feast on new legislation.
And so the reason why all we have to do is look to the bill language itself.
It is broad, far reaching, subjective, and it incorporates WCAG 2.1 AA without qualification.
So what that means is more people can be sued, a wider range of assets, digital assets, is at risk and it's easier to make a claim of inaccessibility and therefore non compliance with the law.
So as it stands, plaintiffs lawyers in California are already doing quite well.
There have been a few recent decisions in court that have now basically limited California plaintiffs lawyers to websites tied to physical locations.
However, they're still printing money for every case that is settled.
The settlements are usually ranging between $5000 to $12,000 in California with this new bill, only one technical deviation from WCAG 2.1 AA could potentially is needed to potentially give rise to litigation.
So if a website were non-conformant with WCAG 2.1 AA, the plaintiff's law firm could argue that their client either experienced plaintiff to encounter a barrier that caused plaintiff to experience a difference in their ability to access the website compared to other users.
Or in the alternative, they could argue that the plaintiff was deterred from accessing all or part of the website or the content of the website because of this non-conformance.
So those are two very subjective ways to establish a cause for statutory damages and that is difficult to defend against.
It's difficult to defend against that level of subjectivity which is baked into the legislation.
Again, we look at plaintiff caused plaintiff to encounter a barrier that caused plaintiff to experience a difference in their ability to access the website.
So plaintiff's experience alternatively, plaintiff was deterred from accessing all or part of the website or the content of the website.
So again, whether or not someone is deterred is really up to that person.
So it's subjective.
So it's very difficult to defend against that level of subjectivity.
And I'm going to now read through I'm going to scroll down, I'm going to read through some of the language from the bill.
Internet website includes all internet web based technology, including but not limited to a mobile application that can be accessed by a mobile device.
So, setting aside that mobile apps include native mobile apps and hybrid mobile apps which aren't web based or completely web based, that is very broad language.
So all internet web based technology and it's including but not limited to mobile apps.
Also continuing on, it is unlawful for any resource service provider in exchange for money or any other form of remuneration to intentionally or knowingly construct, license, distribute or maintain for online use an internet website that fails to comply with the Internet website related accessibility standards.
So that fails to and it should be conformed with the Web Content Accessibility Guidelines version 2.1 conformance level AA.
So you can see now how any nonconformance, any deviation from those technical standards could give rise to litigation.
Also, resource Service provider is defined as a person or entity that in exchange for money or any other form of remuneration constructs, licenses, distributes or maintains for online use any Internet website or resource to be used within or in conjunction with an Internet website.
So notice how that language is extremely broad and extremely expansive and extremely inclusive of so many potential digital assets or integrations in so many different people who are involved with these digital assets.
So it's not just the website, it's not just the mobile app. It's not just the other digital asset.
It's everything that's used within or in conjunction with it.
So this language is extremely broad and it's really welcoming favorable to plaintiffs law firms.
And with any new law, we don't need to enrich plaintiffs law firms to make digital assets accessible.
What we need to do is we need to set a precedent.
So new legislation is needed.
AB 1757, as it is currently written is insufficient.
It's a bad proposed law.
We need legislation that sets a precedent that provides notice that is written so as to prevent serial litigation and only encourages genuine claims of inaccessibility.
As it stands with this law, with this proposed law, hundreds of millions of dollars would go to plaintiffs law firms, and that money could go to accessibility.
So we need to leave plaintiffs lawyers out of the equation.
And we definitely don't want to enrich plaintiffs law firms in the name of accessibility.
They really don't need to be a part of the equation.
But what we do need to have is a formal precedent.
Any new legislation needs to be written carefully and constructed carefully so that we're not inviting litigation en masse, which is currently the situation we are in.
But this bill, if it became law, would only exacerbate that.
So this bill is potentially a gold rush for plaintiffs law firms.
And that is why this should not become law.
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