Posts Tagged ‘Department of Justice’

Getting ready for ADA website regulations

As I’ve said more than once, I view the Department of Justice’s much-delayed plans to mandate “accessibility” of websites under the Americans with Disabilities Act (ADA) as perhaps the single most under-reported and alarming regulation that I know of in the federal pipeline. Here is a June rundown from Porter Wright attorneys Bob Morgan and Melissa Barnett of the state of play on the issue. It notes, as has our coverage, that even without getting around to issuing regs, DoJ is busy using ADA settlements to impose its views of accessibility on businesses it sues.

The article affords some glimpses of the staggering hassles that lie ahead for those who sell or promote products or services online, including for many the likely need to hire not just consulting help but full-time web accessibility specialists. Just one excerpt:

…making a website accessible to disabled users centers on design and functionality. The complexity of achieving this objective varies by the “type of content, the size and complexity of the site, and the development tools and environment,” according to the World Wide Web Consortium. But hundreds of design options exist to make a website accessible; WGAC 2.0 [the Web Content Accessibility Guidelines] alone provides 206 options. These include, but are not limited to, providing links to definitions, removing time limits for activities, providing spoken word versions of text, and ensuring keyboard control for all website functions.

One wording in this passage strikes me as a bit peculiar. To say that WGAC “alone provides 206 options” might suggest that achieving legal compliance is a snap — look, there are 206 options to comply, just pick one. But it doesn’t mean that, does it? Just because you’ve arranged to “provide spoken word versions of text” to fend off a lawsuit on behalf of blind users doesn’t mean you can get out of a lawsuit representing persons lacking fine hand motor control for not “ensuring keyboard control for all website functions” (i.e., disabling any mouse-only functions and patching any failures this generates in your current design). And even if you can do both those things along with fifty more, you may still be exposed to a lawsuit if you haven’t gotten around to “removing time limits for activities.”

According to Porter Wright’s Morgan and Barnett the Department of Justice is now expected to release its new rule in April 2016. Do not count on Congress to save the day; its record in the past under both Republican and Democratic leadership has been one of stepping in to expand the scope of the ADA, not rein in its more extreme applications. A better hope is the courts, which, despite some recent erosion, have not overturned some noteworthy precedents in which judges declined to extend ADA regulation wholesale from physical to virtual “space.”

Police and prosecution roundup

  • mr-district-attorneySheriff’s group wants Facebook to ax “hate speech against police,” “anti-police rhetoric”: what could go wrong? [WDIV, Daily Caller]
  • The “Mr. District Attorney” comic book cover at right is from Jim Dedman at Abnormal Use, who as part of his Friday links roundup for years now has featured great law-related comic book covers related to law, crime, and justice. Check out his archive;
  • “Under the Microscope: The FBI Hair Cases,” on a major forensic fiasco [Al-Jazeera America documentary, auto-plays, via Scott Greenfield]
  • Knock and announce: in case from Eastern Shore of Maryland, Fourth Amendment got SWATted by militarized police [Ilya Shapiro and Randal John Meyer, Newsweek and Cato]
  • Of course the intersection of civil asset forfeiture with sex panic is one big disaster area for liberty [Elizabeth Nolan Brown] “Should Prostitution Be Legalized?” [David Boaz, Cato; Reason panel on “sex trafficking” goes on despite threatened activist disruptions]
  • Doctrine of qualified immunity shields police officers (and other public employees) from most civil liability. How does it work? [Nathan Burney at Radley Balko]
  • The U.S. Department of Justice regularly settles complaints against local police departments by extracting a promise to abide by future negotiated constraints. Federalism and constitutional concerns aside, how well do these consent decrees actually work in reforming conduct? [Marshall Project]

“GM will pay $900M to end US criminal probe over ignition-switch issues”

Details at ABA Journal. The settlement inevitably invites comparison with Toyota’s agreement to pay the federal government $1.2 billion to settle criminal charges over alleged coverup on the sudden acceleration issue. One difference that comes to mind is that GM’s use of a flimsy ignition switch was a genuine design flaw that appears to have contributed to numerous accidents and deaths, while the Toyota “flaw” was imaginary.

P.S. “Apparently, there is no Vice President In Charge Of Going To Jail at General Motors.” [Daniel Fisher]

Barry Bonds: “obstruction of justice” trail peters out

“After more than a decade of wasted tax dollars in the name of ‘justice’ the government has officially dropped its case against the embattled slugger. [Last week] the federal government informed the Ninth Circuit Court of Appeals that it would not ask the U.S. Supreme Court to overturn a ruling that reversed Bonds’ obstruction of justice conviction.” [The Legal Blitz/Above the Law RedLine; earlier on Barry Bonds]

“Judge Kozinski: Time to Rein in Prosecutors”

“In the latest issue of Georgetown Law Journal, Judge Alex Kozinski of the Ninth U.S. Circuit Court of Appeals turns a critical gaze toward America’s criminal justice system. …one of [the essay’s] major themes is prosecutorial advantage, both in federal and state courtrooms.” Among his topics: judges’ and federal authorities’ reluctance to name or charge misbehaving prosecutors. He thinks the U.S. Department of Justice should drop its opposition to “a bill proposed by Republican Sen. Lisa Murkowski of Alaska in 2012 — called the Fairness in Disclosure of Evidence Act — that would require federal prosecutors to disclose any evidence ‘that may reasonably appear to be favorable to the defendant in a criminal prosecution.'” (The Department currently follows a less demanding standard on disclosure of adverse evidence). Kozinski also “favors abolishing state judicial elections, among other recommendations.” [Jacob Gershman, WSJ Law Blog; Alex Kozinski, “Preface,” Georgetown Law Journal Annual Review of Criminal Procedure 2015]

Banking and finance roundup

  • Critics say by naming payment processors in massive enforcement action over debt collection practices, CFPB is implementing its own version of Operation Choke Point [Kent Hoover/Business Journals; Barbara Mishkin, Ballard Spahr; Iain Murray, CEI]
  • Green sprout in Amish country: “Bank of Bird-in-Hand is the only new bank to open in the U.S. since 2010, when the Dodd-Frank law was passed” [WSJ via Tyler Cowen; Kevin Funnell on smothering of new (de novo) bank formation; Ira Stoll (auto-plays ad) on growth of non-bank lenders]
  • “Quicken Loans Sues DOJ; Claims ‘Political Agenda’ Driving Pressure to Settle” [W$J; J.C. Reindl, Detroit Free Press]
  • Shocker: after years of Sen. Warren’s tongue-lashings, some banks consider not giving to Democrats. Is that even legal? [Reuters] “Elizabeth Warren’s Extraordinarily Bad Idea For A Financial Transactions Tax” [Tim Worstall]
  • Still raging on: Delaware debate about fee-shifting corporate bylaws as deterrent to low-value shareholder litigation [Prof. Bainbridge first, second, third posts]
  • “How a Business Owner Becomes Criminally Liable for How Customers Spend ATM Withdrawals” [Elizabeth Nolan Brown, Reason]
  • New York financial regulator pushes to install government monitors at firms where no misconduct has been legally established [Robert Anello, Forbes]

Senate confirms Loretta Lynch as Attorney General

One always hopes for the best, but there are multiple reasons to think that Loretta Lynch will be even less friendly toward liberty issues than predecessor Eric Holder, himself no favorite of this space. “Loretta Lynch zealously defended civil asset forfeiture during her confirmation hearings, and was a devoted practitioner of it as a U.S. Attorney in New York.” She’s a staunch Drug Warrior, too. [Adam Bates, Cato]

P.S. The Leadership Conference on Civil Rights, which bills itself as a “civil and human rights coalition,” worries not about Lynch’s record on police power or, really, any of these issues [Ed Krayewski, Reason]

“FBI overstated forensic hair matches in nearly all trials before 2000”

“The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.” The overstatement of forensic matches favored prosecutors. “The cases include those of 32 defendants sentenced to death,” of whom 14 have either died in prison or been executed. “The FBI errors alone do not mean there was not other evidence of a convict’s guilt.” [Spencer Hsu, Washington Post]

Ferguson: Maybe the other guy had a point

Courageous “I was wrong” column by Jonathan Capehart in the Washington Post on having prejudged the Brown-Wilson confrontation in Ferguson, Mo.:

But this month, the Justice Department released two must-read investigations connected to the killing of Brown that filled in blanks, corrected the record and brought sunlight to dark places by revealing ugly practices that institutionalized racism and hardship. They have also forced me to deal with two uncomfortable truths: Brown never surrendered with his hands up, and Wilson was justified in shooting Brown. …

…it is imperative that we continue marching for and giving voice to those killed in racially charged incidents at the hands of police and others. But we must never allow ourselves to march under the banner of a false narrative on behalf of someone who would otherwise offend our sense of right and wrong. And when we discover that we have, we must acknowledge it, admit our error and keep on marching. That’s what I’ve done here.

Meanwhile, in recent days, writers at National Review and Red State have taken a look at DoJ’s Ferguson report (our earlier post on it) and say conservatives should be in the forefront of criticizing and calling for reform of the police and municipal-court abuses it exposes. [summarized by Conor Friedersdorf at the Atlantic; see also Charles Cooke, National Review, on race and conservatives]

Left and right admitting that the other side had a point on some aspects of Ferguson? It seems as unlikely yet welcome as the sun coming out to shine after this past Northeastern winter.