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As we head toward 2020, expect significant public debate relating to smartphone applications designed to increase turnout and participation in upcoming elections. The Democratic Party has dipped its toe in the water by announcing in July plans to allow telephone voting in lieu of appearing for neighborhood caucus meetings in the key early primary states of Iowa and Nevada.
Given concerns regarding security and reliability of submitting votes over the internet, jurisdictions around the country have begun to test solutions involving blockchain technology to allow absentee voters to submit voting ballots. Following initial pilot programs in Denver and West Virginia, Utah County, Utah will be the next jurisdiction to utilize a blockchain-based mobile in connection with its upcoming municipal primary and general elections.
The pilot program, which will utilize the mobile voting application “Voatz”, will allow active-duty military, their eligible dependents and overseas voters to cast absentee ballots. Eligible voters will need to apply for an absentee ballot with the county clerk and then download the mobile application. The ballot itself will be unlocked using the smartphone’s biometric data (i.e., a fingerprint or facial recognition) and then will be distributed into the blockchain framework for tabulation.
Technological Revolutions are quiet and astonishing. Step by step new technological applications are pushing existing paradigms and changing the way business is transacted by consumers, companies and in society. In the past, electricity and printing had a revolutionary role in social development, shifting all sectors of life. These days, the Internet of Things (IoT) is pivotal in creating quick, profound and quiet transformations.
According to the Committee on Digital Economy Policy of Directorate for Science, Technology and Innovation of OCED:
The Internet of Things (IoT) could soon be as commonplace as electricity in the everyday lives of people in OECD countries. As such, it will play a fundamental role in economic and social development in ways that would have been challenging to predict as recently as two or three decades ago[1].
In 2008-2009, according to Cisco IBSG – Internet Business Solutions, there were more connected objects, such as smartphones, tablets and computers, than the world’s population. Therefore, this period is considered the year that IoT was born[2]. In 2008, Rob Van Kranemburg published “The Internet of Things”, which addresses a new paradigm in which objects produce information.
Supporting CISCO’s statement, the chart below of Google Trends shows the period of time during which popularity in searches on Google increased. In the last 5 years, IoT has sharply rocketed as a very attractive subject in the general mind of the people on the internet[3]:
Interest Over Time (2004-2019) As Search Item
Digging deeper we can see that IoT popularity is not only relevant to internet users or to some futuristic curiosity on Google, it is a real and concrete “combination of network connectivity, widespread sensor placement, and sophisticated data analysis techniques” which enables“applications to aggregate and act on large amounts of data generated by IoT devices in homes, public spaces, industry and the natural world”[4].
The potential benefits of this kind of connectivity are immense: real-time monitoring and more accurate metrics, the ability to remotely control various actions, interconnectivity and automation, plus the ease of handling a variety of devices that can be centralized on just one smartphone. Nonetheless, this technological avalanche also brings risks and vulnerabilities to users, such as increased vigilance over our habits, exposure of our personal data, hacking vulnerabilities, global or cascading failures, among others.
In the last two years, a set of supporting policy actions have been adopted by the European Commission to accelerate the take-up of IoT and to unleash its potential in Europe for the benefit of European citizens and businesses[5]. These policy actions and statements are not only a guess or shallow forecast, they are a serious result of data and market analysis that came from several studies which found impressive numbers such as 11 billion connected ‘things’ in 2018[6]. This could be as many as 20 billion connections by 2020[7], about 6 billion of which will be in Europe[8]. Of these, 60-65% are consumer devices.
According to the Centre for the Promotion of Imports (CBI) more than 65% of businesses are expected to use IoT products by 2020, compared to 30% in 2017. Europe accounts for more than a third of global Industrial IoT investments by 2020. The market is expected to grow at an impressive average annual rate of 22%. Reaching a value of €287 billion in 2020, Industrial IoT is Europe’s largest IoT market[9].
Seizing the Benefits and Addressing the Challenges
The Centre for the Promotion of Imports (CBI), an Agency of the Netherland’s Ministry of Foreign Affairs and part of the development cooperation effort of the foreign relations of the Netherlands conducted research on the IoT in Europe in January 2019. It concluded:
The European market for Internet of Things (IoT) solutions is growing. Western and Northern Europe are especially promising. Both consumer and business IoT offer opportunities, but specialisation may give you a competitive advantage. The home, health and finance sectors are front runners. National and European initiatives are working to stimulate the roll-out of Industrial IoT solutions and lower barriers. The shortage of skilled specialists continues to drive outsourcing[10].
Apart from an advantageous and “smart” business opportunity, IoT can facilitate innovation in the private sector supporting a wide range of innovative businesses, not only raising the productivity level but increasing the accountability and responsiveness of companies and its employees, improving the client confidence.
Thus, IoT can work to facilitate Private Sector Innovation by so-called industrial Internet, Next Production Revolution (NPR)[11], autonomous machines and big data[12] and automotive industry[13]. On the other hand, innovative Public Sector Delivery with IoT applications could provide smart cities[14], smart governments, smart street lighting[15]and traffic flow optimization[16], innovation in healthcare practice and delivery[17]. IoT technologies are, therefore, expected to play a major role in improving the management of transport, energy use, water services, education, employment, health, crime prevention, by making society more efficient, innovative, safe, sustainable, and inclusive[18].
Regardless of all the benefits, there are many challenges and risks associated with IoT digital security, such as cyber attacks, digital incidents and privacy challenges. Furthermore, bad outcomes can happen causing physical consequences in case of the wrongdoing of autonomous vehicles, health care tools or industrial machines.
The Vision of IoT in 2020
First of all, the 2020 scenario might be approached by a combination of the Cloud and Big Data. Nowadays the hyperconnectivity[19] of society drives IoT to be “The Next Big Thing” in business. According to OECD this next big thing will be related to “a sophisticated industry ecosystem consisting of vendors (providing components), suppliers (creating solutions), service providers, and enterprise users in all sectors of the economy” that will be “measured in billions of Euro in Europe alone, and that will extend across the world too”[20].
Could expectations be too high? Maybe not, because of the following points: I) the centrality of IoT in the upcoming years is corroborated by the sheer number of connections that are expected to be in place by 2020; II) IoT ecosystem will have grown to encompass not only the traditional supply-side actors, but also a rising number of businesses and organizations serving and using IoT; III) hyper-connected society will be an established reality by 2020, as most of the “things” that can be connected, will be by then.
In 2018, the World Economic Forum (WEF) published a study considering initiatives on the future of production. Essentially, it gives an insight into: i) Solution-driven: technology can tackle and solve challenges that have previously been insurmountable; ii) Human-centric: technology can unlock human potential by unleashing creativity, innovation and productivity in new ways; iii) Sustainable: technology can promote sound production processes that minimize negative environmental impact, conserve energy and resources and enable carbon neutrality; iv) Inclusive: employees, companies and countries at different stages of development benefit from Fourth Industrial Revolution technologies and the transformation of production systems[21].
One of its conclusions is that in the coming years, the IoT market is expected to grow across Europe. Most of the front runners are Western European countries, which have traditionally invested more in IT. And together, six countries make up more than 75% of the European IoT market, this makes them especially promising target markets for 2020.
Chart 2. IoT Market Size in Europe
Further, apart from the geographic localization of the opportunities arising, to have a real and concrete overview it is important to be aware of the market size and 2020 forecast by sector. By 2020, industrial IoT is predicted to consist of:
60% cross-industry devices – used in multiple industries, mainly to save costs;
40% vertical-specific devices – used in a specific industry to improve efficiency/accuracy.
Industrial IoT also offers good opportunities, as the average spending per device is much higher in this sector. This makes total spending on consumer and industrial IoT about equal by 2020[22].
Chart 3: IoT Market Size Per Sector
Based on the US Dollar: Euro exchange rates in October 2018, the global average spending on IoT devices is expected to be:
€102 per consumer device;
€114 per cross-industry business device;
€239 per vertical-specific business device.
Finally, electronic sensors are now everywhere – in smartphones, cars, home electronic systems, healthcare devices, fitness monitors and in the workplace. It has been estimated that, by 2020, over 200 billion sensor devices will be inter-connected, creating a market size that, by 2025, will be between $2.7 trillion and $3 trillion a year[23].
At the same time, the market opportunity will bring regulatory challenges. The next section of this report will analyze by specific studies the impact of regulatory requirements on IoT devices and deployment.
[1] OCDE. Committee on Digital Economy Policy of Directorate for Science, Technology and Innovation. The Internet of Things: Seizing the Benefits and Addressing the Challenges. Background Report for Ministerial Panel 2.2. English Version. 24 May 2016. P. 5. Available here.
[2] MANCINI, Monica. Internet das Coisas: História, Conceitos, Aplicações e Desafios. Available here.
[3] Interest over time. Numbers represent search interest relative to the highest point on the chart for the given region and time. A value of 100 is the peak popularity for the term. A value of 50 means that the term is half as popular. A score of 0 means there was not enough data for this term. The information is available here.
[4] Idem, p. 5.
[5] European Commission. Digital Single Market. Policies: Internet of Things. Available here.
[6] Gartner, Inc. Press Release. Gartner Says 8.4 Billion Connected “Things” Will Be in Use in 2017, Up 31 Percent From 2016. February 2017. Available here.
[7] Idem, Leading the IoT. Gartner Insights on How to Lead in a Connected World. 2017. P. 2.
[8] European Commission. Definition of a Research and Innovation Policy Leveraging Cloud Computing and IoT Combination. FINAL REPORT. A study prepared for the European Commission. DG Communications Networks, Content & Technology. Digital Agenda for Europe. Available here.
[9] Netherlands Ministry of Foreign Affairs. Centre for the Promotion of Imports (CBI). January 2019. Available here.
[10] Netherlands Ministry of Foreign Affairs. Centre for the Promotion of Imports (CBI). January 2019. Available here.
[11] (NPR) entails a confluence of technologies ranging from a variety of digital technologies (e.g. 3D printing, the Internet of Things [IoT] and advanced robotics) to new materials (e.g. bio- or nano-based) to new processes (e.g. data-driven production, artificial intelligence [AI] and synthetic biology). The Next Production Revolution. A Report to G20. OECD, 2017. Available here.
[12] Autonomous machines and the use of big data are increasingly present in agriculture. Robots can now sort plants based on optical recognition, harvest lettuce and recognise rotten apples. Idem, Ibidem.
[13] The automotive industry is one of the sectors most affected by interconnectivity and enhanced efficiency in both production and operation of vehicles. Idem, Ibidem.
[14] “Smart city plans explore the ability to process huge masses of data coming from devices such as video cameras, parking sensors and air-quality monitors to help local governments achieve goals in terms of increased public safety, improved environment and better quality of life. In: OCDE. Committee on Digital Economy Policy of Directorate for Science, Technology and Innovation. The Internet of Things: Seizing the Benefits and Addressing the Challenges. Background Report for Ministerial Panel 2.2. English Version. 24 May 2016. P. 16.
[15]“Dublin (Ireland), Oslo (Norway) and Chattanooga, Tennessee in the United States have started to use smart street lighting systems.29 Often triggered by replacing municipal lighting with LED solutions to save on energy costs, smart street lighting can offer combined savings of up to USD 100 per streetlight per year”. Idem, Ibidem.
[16]“The SCOOT system developed by Transport for London uses data on road usage with real-time control of traffic lights in the city to deliver on average a 12% improvement in traffic flow. Other large cities, like Beijing, São Paulo, Toronto or Preston have introduced SCOOT”. Idem, Ibidem.
[17] “Smaller sensors, smartphone assisted readouts, big data analysis and continuous remote monitoring can enable new ways of managing care. Such a digital health feedback system includes wearable and that work together to gather information about medication-taking, activity and rest patterns. Idem. p.15.
[18] UN General Assembly, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, A/HRC/32/38 (2016), P.12.
[19] A term invented by Canadian social scientists Anabel Quan-Haase and Barry Wellman, it refers to the use of multiple means of communication, such as email, instant messaging, telephone, face-to-face contact and Web 2.0 information services.
[20] OCDE. Committee on Digital Economy Policy of Directorate for Science, Technology and Innovation. The Internet of Things: Seizing the Benefits and Addressing the Challenges. Background Report for Ministerial Panel 2.2. English Version. 24 May 2016. P. 24.
[21] World Economic Forum. Insight Report. Readiness for the Future of Production. Report 2018. Available here.
[22] Netherlands Ministry of Foreign Affairs. Centre for the Promotion of Imports (CBI). January 2019. Available here.
[23] Russo et al. Exploring regulations and scope of the Internet of Things in contemporary companies: a first literature analysis. Journal of Innovation and Entrepreneurship, 2015, P. 5.
After four years of policy debate, rulemaking, testing, and approval, medical marijuana became available for purchase at nine Louisiana pharmacies yesterday.
Passed in 2015, the Therapeutic Use of Marijuana Act allows specially licensed Louisiana physicians to recommend medicinal marijuana for therapeutic use to Louisiana residents suffering from debilitating medical conditions. The Louisiana Legislature, the Louisiana State Board of Medical Examiners, the Louisiana Board of Pharmacy, and the Department of Agriculture have worked together over the past four years to clearly define the parameters in which the alternative medical treatment can be manufactured, prescribed, sold, and used.
The problem, however, is that Louisiana’s medical marijuana law fails to address the employment relationship, and thus creates a potential cause of action against employers who discriminate against medical marijuana users. Put simply, we don’t know for sure whether Louisiana law requires employers to accommodate medical marijuana use by employees with qualified disabilities.
While current marijuana users are excluded from federal protections under the Americans with Disabilities Act, some state courts have determined that employers must accommodate medical marijuana users who occupy non-safety sensitive positions. This is a very fact-intensive issue that requires consideration of both the industry and state in which the employer operates, as well as the specific duties of the employee. Eventually, the issue will be addressed by a Louisiana court. Until then, Louisiana employers can take steps to avoid potential liability by contacting counsel, evaluating their current policies, and clearly defining their safety-sensitive positions.
USCIS is on its way to revising and updating the Naturalization Test. It will start with a pilot test involving about 1,400 volunteers this fall, then a second field testing pilot in spring 2020.
Last updated in 2008, the new Naturalization Test is expected to be implemented as soon as late-2020.
Recent issues surrounding the Administration’s attempt to add a citizenship question to the 2020 census and delays in processing naturalization applications have prompted the Acting Director of USCIS, Ken Cuccinelli, to tell the Washington Post that paranoia regarding the reason for these changes is not warranted. People who are paranoid will be “sorely disappointed when [the new test] looks like another version of the [current] exam.” Decennial revisions are proposed to “ensure that the civics education requirements remain a meaningful aspect of the naturalization process.”
The working group revising the test includes staff from across USCIS. The group is “soliciting the input of experts in the field of adult education to ensure that this process is fair and transparent.”
Currently, naturalization applicants are asked 10 randomly selected questions from a list of 100 (the list is available on the USCIS website). The questions are on American government, history, and civics and reflect middle school and high school curricula. To pass, 6 of the 10 questions must be answered correctly. There is a 90% pass rate among applicants. A 2018 survey by the Woodrow Wilson National Fellowship Foundation showed the pass rate among U.S. citizens was only 36%. Citizens over the age of 65 had the highest pass rate: 74%.
Test yourself. Answer the following (answers are at the bottom of this post)
Why did the colonists fight the British?
When was the Declaration of Independence adopted?
How many amendments does the Constitution have?
Along with changes to the civics test, the agency also is considering changes to the English language proficiency test. According to the naturalization statute, applicants must read and write “simple words and phrases” and “no extraordinary or unreasonable condition shall be imposed upon the applicant.”
When Francis Cissna, then-Director of USCIS, announced the revision he noted that the new tests would continue to provide “special consideration” to those over 65 who have lived in the U.S. as green card holders for at least 20 years. He also stated that “due consideration” would be given to “applicants’ education, background, age, length of residence in the United States, opportunities available and efforts made to acquire the requisite knowledge, and any other elements or factors relevant to an appraisal of the adequacy of the applicant’s knowledge and understanding.”
Last year, 750,000 applicants were naturalized. In the years preceding presidential elections, the application levels typically increase.
****
The answers:
Because of high taxes (taxation without representation), because the British army stayed in their houses (i.e., boarding and quartering), or because they did not have self-government
These companies engaged in “grading,” a process where they review supposedly anonymized recordings of conversations people had with voice assistant program like Siri. A recent Guardian article revealed that these recordings were being passed on to service providers around the world to evaluate whether the voice assistant program was prompted intentionally, and the appropriateness of their responses to the questions users asked.
These recordings can include a user’s most private interactions and are vulnerable to being exposed. Google acknowledged “misconduct” regarding a leak of Dutch language conversation by one of its language experts contracted to refine its Google Assistant program.
Reports indicate around 1,000 conversations, captured by Google Assistant (available in Google Home smart speakers, Android devices and Chromebooks) being leaked to Belgian news outlet VRT NWS. Google audio snippets are not associated with particular user accounts as part of the review process, but some of those messages revealed sensitive information such as medical conditions and customer addresses.
Google will suspend using humans to review these recordings for at least three months, according to the Associated Press. This is yet another friendly reminder to Google Assistant users that they can turn off storing audio data to their Google account completely, or choose to auto-delete data after every three months or 18 months. Apple is also suspending grading and will review their process to improve their privacy practice.
Despite Google and Apple’s recent announcement, enforcement authorities are still looking to take action. German regulator, the Hamburg Commissioner for Data Protection and Freedom of Information, notified Google of their plan to use Article 66 powers of the General Data Protection Regulation (GDPR) to begin an “urgency procedure.” Since the GDPR’s implementation, we haven’t seen this enforcement action utilized, but its impact is significant as it allows the enforcement authorities to halt data processing when there is “an urgent need to act in order to protect the rights and freedoms of data subjects.”
While Google allows users to opt out of some uses of their recordings; Apple has not provided users that ability other than by disabling Siri entirely. Neither privacy policy explicitly warned users of these recordings but do reserve the right to use the information collected to improve their services. Apple, however, disclosed that they will soon provide a software update to allow Siri users opt-out of participation in grading.
Since we’re talking about Google Assistant and Siri, we have to mention the third member of the voice assistant triumvirate, Amazon’s Alexa. Amazon employs temporary workers to transcribe the voice commands of its Alexa. Users can opt out of “Help[ing] Improve Amazon Services and Develop New Features” and allowing their voice recordings to be evaluated.
Spoiler alert – this article doesn’t have anything to do with cats. But it is about something you hear all the time from employment attorneys. You have to be consistent when it comes to enforcing your attendance policies and plant rules. You have to treat all employees the same. If you don’t, there is a huge risk you won’t be successful in defending your disciplinary decisions in labor arbitrations and employment litigation. As a general rule, this is excellent advice.
Does this mean, though, that you absolutely have to be consistent 100% of the time? If you make an exception to your attendance policy by giving a particular employee one last chance (other than for reasons relating to the ADA or the FMLA), will that be the end of your ability to enforce the policy?
Will excusing a violation of a plant rule in one instance mean you can never enforce it? Will your company be a victim of the “no good deed goes unpunished” rule?
The answer is that if you make exceptions sparingly, and wisely, you will probably be okay. Here are some tips that will put you in a better position to defend the (very) occasional exception:
Make sure you have a compelling reason for making an exception, something that really makes this employee’s situation very different from other cases (e.g., some combination of a long service employee, an otherwise outstanding overall record, and a believable and sympathetic explanation from the employee as to why there was a problem and why it won’t be repeated).
Document why you made an exception. Two years from now, when you are defending an employment litigation and the plaintiff is pointing out how he/she was treated “worse” than the employee for whom you made an exception, you will be in a far better position to remember and explain why you made the exception, and have a judge or jury decide the exception shouldn’t be held against you, if you have contemporaneous documentation explaining the exception.
Be extremely judicious in your use of exceptions. If lack of consistency becomes the rule, rather than the exception, you are going to have a very hard time enforcing your policies and rules.
Make sure the circumstance in front of you today (when you are not making an exception) really is different from the circumstance where you made an exception two years ago. In other words, if the employee you are considering disciplining now is in substantially the same boat as the employee for whom you made an exception, you should rethink whether to impose the discipline.
None of this is meant to minimize the problems that can be caused by inconsistent treatment. Even the EEOC, however, recognizes that there are circumstances where disparate treatment is justifiable. Enforce your rules and policies consistently, but don’t be afraid to make an exception where circumstances, and fairness, demand it.
This is reflected in the composition of the UK Parliament and has resulted in an impasse, with Parliament rejecting both the transitional ‘deal’ to leave the EU negotiated by former Prime Minister Theresa May at the end of 2018 and the prospect of leaving the EU without a deal – a ‘no deal’ Brexit. The election of Boris Johnson as the new UK prime minister and his appointment of a government leaning firmly towards leaving the EU, with or without a deal on October 31, 2019, throws up some distinctive legal challenges: If a new deal cannot be struck with the EU, is a no-deal Brexit inevitable, or can the remainer MPs stop it?
Concluding a new deal with the EU by October 31 is challenging, not least given the limited time available for negotiating it and having it approved by the European and UK Parliaments. This is compounded by the complexity of the issues the UK government seeks to renegotiate, particularly the Irish backstop, and the EU’s no-renegotiation stance – although it has indicated willingness to revisit the nature of the future relationship between the EU and UK.
The legal position on a no-deal Brexit is set out in the European Union (Withdrawal) Act 2018, as amended in April 2019. This Act sets Brexit date at October 31, 2019. It also requires Parliament to approve any withdrawal agreement with the EU. What it does not require is that there should, in fact, be a withdrawal agreement. Consequently, the Act does not require parliamentary consent for a ‘no deal’ Brexit. Prime Minister Johnson does not, accordingly, need to secure any parliamentary majority for this. And since the Act will prevail over any parliamentary vote to reject a no-deal Brexit, he does not have to comply with any vote passed to the contrary.
The first legal route open to remainer MPs is to seek to amend the 2018 Act. The problem that they would have is timing. Parliament is in recess until September 3. There is usually a further recess from mid-September to the second week in October for the party conference season. Even if the second recess were to be abandoned, there is insufficient time for an amending bill to be passed before October 31 using normal parliamentary procedures. There is provision for emergency legislation to be passed very quickly, but this would require a consensus among all parties and the support of the government, both of which seem unlikely given the split between remainers and leavers within the main parties and the new government’s express intention to achieve Brexit by October 31.
The second legal route open to remainer MPs is to force a general election. Under the terms of the UK Fixed-term Parliaments Act 2011, Leader of the Opposition Jeremy Corbyn would need to propose a motion of no confidence in Prime Minister Johnson’s government. At present, the Conservatives have a majority of one in Parliament, but only with the support of the Democratic Unionist Party from Northern Ireland. However, a number of Conservative MPs have indicated that they would be prepared to bring their own government down on this issue. An unknown factor is whether leaver MPs in the Labour Party are prepared to abstain or even vote against such a motion.
A motion of no confidence under the 2011 Act requires only a simple majority of MPs voting in favour. However, there are still timing issues. The earliest that such a motion can be proposed is September 3. If passed, it would trigger a cooling-off period of 14 days for an alternative government to be formed. At the end of this period, if, as he would be entitled to do, Mr Johnson were to remain prime minister, UK electoral law would require him to announce the date for a general election within a further 25 days. However, there is no requirement for the election actually to be held within a particular time. Although the Queen must be consulted about the date, this is a formality. Prime Minister Johnson would, therefore, be within his constitutional rights to call an election only after the October 31 Brexit deadline has passed and the UK has left the EU.
Remain supporters have indicated that their strategy, if they are able to force an election, would be to rely on the legal status of the ‘standstill’ or status quo convention to prevent a no-deal Brexit on October 31. When an election is called, the government immediately becomes a caretaker administration. By parliamentary convention (‘convention’ in the sense of accepted practice), this administration should not embark on any major new projects and may not use the UK civil service for such a purpose. Cabinet Secretary Sir Mark Sedwill, the head of the civil service, is reported as having expressed the view that the ‘standstill’ in this situation would be that the UK remains in the EU. However, government spokespersons have said that this would involve the civil service effectively acting in contravention of the 2018 Withdrawal Act.
It seems likely, if this scenario develops, that the matter will be referred to the UK Supreme Court. The British constitution is not written down and relies on many traditions and convention, some of considerable antiquity. However, there is precedent in a December 2018 Supreme Court case, which decided that the legislative consent motions passed by the Scottish Parliament under the Scotland Act 1998 could not be used to affect the validity of the 2018 Withdrawal Act. It had been argued that the convention requiring the Scottish government to be consulted on any UK legislation that involved matters devolved to Scotland was absolute. The Supreme Court disagreed, on the basis that a convention could not take precedence over a statute. On this basis, any reference to the Supreme Court seeking to block the operation of the 2018 Act through convention would likely fail.
It is often said ‘a week is a very long time in politics’. Prime Minister Johnson may be able to secure some last-minute concessions from the EU negotiators enabling a withdrawal agreement to be approved by Parliament, but this looks challenging. Legal routes to block Brexit are also likely to meet several hurdles. Consequently, at this stage, Britain’s exit from the EU on October 31 looks the more likely outcome. Whether that means an abrupt departure from the EU, or whether a managed ‘no-deal’ Brexit could be achieved through negotiation and agreement on key matters, remains to be seen.
If you have never asked yourself whether your website is “accessible,” or think that this issue doesn’t apply to your company, read on to learn why website accessibility litigation is on the rise, what actions lawmakers and the courts are taking to try to stem the tide, how to manage litigation risk, what steps you can take to bring your company’s website into compliance, and how to handle customer feedback on issues of accessibility.
The Growing Risk of Website Accessibility Litigation
In recent years, there has been a nationwide explosion of website accessibility lawsuits as both individual lawsuits and class actions. Plaintiffs have brought these claims in federal court under Title III of the Americans with Disabilities Act (ADA) and, in some cases, under similar state and local laws as well. In 2018, the number of federally-filed website accessibility cases skyrocketed to 2,285, up from 815 in the year prior. In the first half of 2019, these cases have increased 51.7% over the prior year’s comparable six-month period, with total filings for 2019 on pace to break last year’s record by reaching over 3,200.
Why Website Accessibility Litigation is on the Rise
The ADA was enacted in 1990 to prevent discrimination against people with disabilities in locations generally open to the public (known as public accommodations). The ADA specified the duties of businesses and property owners to make their locations accessible for people with disabilities, but it was enacted before conducting business transactions over the internet became commonplace. With the rapid growth of internet use, lawsuits emerged arguing that websites were places of public accommodation under the meaning of the ADA.
These claims have presented serious questions about whether, when, and how website owners must comply with the ADA. There is no legislation that directly sets out the technical requirements for website accessibility. And while the U.S. Department of Justice (DOJ) has stated that “the ADA applies to public accommodations’ websites,” it has not clarified exactly what standards websites must meet to comply with the law. In the absence of clear guidance, courts considering the question have frequently looked to the Web Content Accessibility Guidelines (WCAG), first developed by the World Wide Web Consortium (W3C) in 1999, but most recently updated in 2018.
In 2017, federal district courts in Florida and New York ruled that business websites failing to meet WCAG guidelines can violate Title III of the ADA, opening the door for litigants to bring an onslaught of claims in these courts. As a result, the rate at which these suits have been filed has skyrocketed, especially in New York and Florida, reaching businesses based throughout the U.S. and internationally. With the pace of these suits showing no signs of slowing, it is critical that every business operating a website consider how to manage the growing risk of litigation.
A Future Fix?
Some recent developments suggest that lawmakers or courts may soon stem the tide. Congress may decide to enact precise standards, or the DOJ might give clarification or promulgate new rules. At the state level, lawmakers in New York have announced plans to address website accessibility suits based on an outcry from the business community.
Recent decisions in the Southern District of New York and the Fourth Circuit suggest that companies can successfully move to dismiss accessibility suits after mooting claims by taking swift remedial action or by showing that the plaintiff was neither eligible nor in a location to receive the goods or services provided on the website. In addition, the Eleventh Circuit and the Supreme Court may soon weigh in on whether Title III of the ADA categorically applies to all websites and apps.
How to Manage Litigation Risk for Website Accessibility
Knowing your level of exposure is an important first step. Individual risk is currently based on three factors:
Location: Brick and mortar locations, the delivery of products, or the performance of services in New York or Florida heighten a company’s exposure.
Industry: The present trend shows that retail, food service, hospitality, banking, entertainment industries, and educational institutions are especially at risk.
Currentwebsite structure: Sites with e-commerce functions or purchased from third-party developers not currently in compliance with WCAG standards are popular targets.
Unfortunately, it is often difficult to predict the cost and complexity of bringing a website into WCAG compliance-based simply on viewing it. An audit of the source code is often required. That said, you can start with a review of your site and develop plans and processes for accessibility. The first steps can include:
Assess current compliance: Use free online tools like wave and chrome vox and/or enlist a third-party audit to help you understand your current level of accessibility.
Plan for future compliance: Create an overall plan for achieving accessibility on a timeline that makes business sense.
Take immediate action: Adopt first-step improvements that can be implemented immediately, and create a process for considering accessibility before all future implementations.
Bringing your business into compliance with WCAG web standards does not need to be a standalone project. By integrating accessibility into regular updates, redesigns, and new pages, you can make meaningful improvements as part of your existing process. And if you don’t have a process for ongoing maintenance and updates on your website, consider whether your website is still looking fresh and modern and if it is still an accurate expression of your corporate brand.
Include in-house and third-party development teams as stakeholders in the process. Make accessibility a discussion in all new engagements and set expectations for accessibility going forward for new and existing teams:
Increase accessibility awareness: Make accessibility the topic of the next all-hands meeting with all stakeholders.
Ask third-party developers and vendors: Specifically, discuss your website’s current accessibility and which site options are readily available.
Integrate accessibility in projects: Ensure that agreements for ongoing and future site additions and upgrades incorporate accessibility. Seek representations, ask about compliance levels, and consider seeking warranties and indemnification.
Good customer care is always good business, but making thoughtful use of feedback on your website is a critical step to reducing your risk of an accessibility lawsuit. Everyone on the customer care team should be trained on the risk posed by non-compliance, and they should be empowered to carefully consider and respond to website feedback. The development team should also ensure that the site, whatever its level of WCAG compliance:
Encourages feedback: Provide a way for users to give feedback on and receive assistance with accessibility.
Supports engagement with feedback: Document, consider, and carefully respond to user feedback.
Reflects expert input: When receiving feedback, notices, complaints, or threatened litigation, consult with legal counsel and website accessibility experts as early as possible to ensure that your next steps limit potential liability.
Website accessibility is a fast-moving area of law that is primed for reform. With an increasing number of conflicting decisions and the possibility of new legislation or Supreme Court guidance, we will be closely monitoring this topic in the coming years.
On July 25, 2019, U.S. Representative Ilhan Omar (D-MN) introduced the Zero Waste Act, which intends to create a federal grant program to invest in solutions that address waste. The bill, if passed, will go towards recycling infrastructure or the creation of partnerships with local businesses focused on waste reduction. Representative Omar believes the bill will not only create jobs, but also reduce greenhouse gas (GHG) emissions, grow domestic manufacturing, clean waterways, save energy, ensure safety from health hazards, and grow the U.S. economy.
Omar’s bill has been endorsed by several organizations, including the City of Minneapolis, Eureka Recycling, Climate Generation, and Surfrider Foundation, among others. Presenting this bill through the lens that waste is an environmental justice issue, Representative Omar stated that “[a]ddressing the waste crisis is critical to preventing further damage to our climate—it is integral to racial justice and a clean, equitable future.” At a time where climate change debates have been of high interest to the U.S. population, in particular as the presidential candidate debates continue, it will be interesting to see whether this bill is passed. The full text of the bill can be accessed here.
The lawsuit alleges that Louisiana State University (“LSU”) treats Greek organizations for men and women differently. The Plaintiffs allege that four fraternity pledges have died during hazing incidents at LSU since 1979, whereby hazing of sorority pledges is virtually non-existent due to restrictions and strict oversight provided by LSU. By not offering these same protections to the men involved in Greek organizations, the lawsuit states LSU has violated Title IX.
According to USA Today,Title IX has never been tested in hazing cases. As stated in that story, the lawsuit pushes the boundaries of Title IX enforcement. If successful, the litigation could set a precedent that drastically changes college disciplinary systems nationwide. Colleges and universities would have to ensure that they treat fraternities and sororities similarly when enforcing anti-hazing laws.
This lawsuit could also help shape new legislation. Florida recently enacted legislation that enables prosecutors to bring charges against fraternity and sorority members who weren’t present for hazing activities, but helped plan the events. Similar legislation is likely to be proposed elsewhere.
As the new academic year begins, institutions should take steps to enforce anti-hazing laws uniformly among fraternities and sororities in order to minimize the risk of similar claims based on Title IX.
