In April 2024, the Federal Register published the US Department of Justice’s final rule on Title II of the Americans with Disabilities Act (ADA). The rule includes specific requirements for state and local governments to ensure that web content and mobile applications are accessible to people with disabilities. My question is related to the applicability of Title II to the online collections of public academic libraries, and more specifically, to born-digital archival collections, i.e., archival collections consisting of materials originating in a computer environment.
According to the rule, state and local entities must follow the technical standard outlined in the Web Content Accessibility Guidelines (WCAG) 2.1 level AA. However, this rule allows for five exceptions: https://www.ecfr.gov/current/title-28/section-35.201.
I understand the updated regulation does not override the existing obligations under Title II to make reasonable modifications on an individual basis, but it is unclear if Title II applies to born-digital archival collections, or if these collections fall under the exceptions linked above.
Thank you for such a thoughtful (and complex) question.
To answer it, I am going to respond in the form of a dialogue between a lawyer and librarian that will allow other Ask the Lawyer readers at public institutions to assess if their born-digital archives must comply, too.
After establishing the criteria for applicability, the end of dialogue will address this question: Do the new Title II regulations apply to “born-digital” archival collections, and if so, is there any exception for non-compliant content?
Let’s go!
Lawyer: Hello! I see you want to figure out if your library’s archive of “born-digital” content has to follow the new Title II regs.
Let’s start with an easy question:
Is your institution a “public entity” (or part of a public entity) as governed by 42 U.S.C. 1213(1)?
Librarian: Yes / No / I don’t know!
Lawyer: If you don’t know, or want to double-check your answer, here is the definition of a “public entity”[1] in ADA Title II:
(1) Public entity
The term “public entity“ means—
(A) any State or local government;
(B) any department, agency, special purpose district, or other instrumentality of a State or States or local government; and
(C) the National Railroad Passenger Corporation, and any commuter authority (as defined in section 24102(4) [1] of title 49).
Librarian: Aha! / Huh?
Lawyer: If you are still unsure, here is another hint: the term “instrumentality of a state,” as used in 42 U.S.C. § 12131(1)(B), refers to governmental units or units created by them (like town libraries, school district public libraries, community colleges, SUNY, etc.).
Librarian: Okay, I get it. / Ugh, I’ll ask our library’s lawyer.
[Note: If you are a “public entity,” keep reading this dialogue. If aren’t a public entity… Stop! This dialogue is not for you.]
Lawyer: Okay, with just public entities going forward, it’s time for another soul-searching exploration into your institution’s identity. Is the “total population” of your entity over or under 50,000, making you a “large public entity”?
If you’re over 50,000, then your “Start Date” for these regulations is April 24, 2026.
If you’re under 50,000, then your “Start Date” is April 26, 2027.[2]
Librarian: How does a school or library even have a “population?”
Lawyer: This can get tricky for academic libraries, but here are three examples from the new regulations to help you:
- The total population of a county library is the population of the county of which the library is an instrumentality.
- A public state university located in a town of 20,000 within a state with a population of 5 million would be considered a large public entity for the purposes of this part because it is an instrumentality of the state.
- A county community college in the same state where the county has a population of 35,000 would be considered a “small public entity” for the purposes of this part, because the community college is an instrumentality of the county.
Now that you know if you have to follow this, and if so, when you have to follow it, here are the new requirements for web and mobile accessibility:
Web content and mobile apps that your entity provides or makes available directly or through contractual, licensing, or other arrangements must comply with Level A and Level AA success criteria and conformance requirements specified in WCAG 2.1.
Librarian: Got it! / Uh, what does “WCAG 2.1” mean?
Lawyer: WCAG 2.1 is a standard of accessibility that makes sure web content and mobile apps work are compatible with adaptive technology. If you need more information on it, you can check it out at https://www.w3.org/WAI/standards-guidelines/wcag/glance/.
Librarian: Okay, but isn’t this question about exceptions to this rule for “born-digital “content in library archives?
Lawyer: Yes, it is! But to talk about exceptions, it is helpful to talk about requirements.
Librarian: Okay, I get it. But like the question says, aren’t there some exceptions?
Lawyer: Indeed, there are exceptions. Here are some of them from the section[3] quoted by the member:
(1) archived web content;
(2) preexisting conventional electronic documents, unless such documents are currently used to apply for, gain access to, or participate in the public entity's services, programs, or activities;
(3) content posted by a third party, unless the third party is posting due to contractual, licensing, or other arrangements with the public entity;
(4) conventional electronic documents that are about a specific individual, their property, or their account and that are password-protected or otherwise secured; and
(5) preexisting social media posts.
Librarian: Aha! Does “archived web content” cover anything in a public entity’s born-digital archive going forward?
Lawyer: No.
Librarian: Oh. Why not?
Lawyer: Because of how “archived web content” is defined in the new regulations.
With a few modifications for brevity, here are the criteria for archived web content:
(1) Was created before your Start Date, reproduces paper documents created before your Start Date, or reproduces the contents of other physical media created before your Start Date;
(2) Is retained exclusively for reference, research, or recordkeeping;
(3) Is not altered or updated after the date of archiving; and
(4) Is organized and stored in a dedicated area or areas clearly identified as being archived.
Of great importance to the question, this definition does not allow non-compliant born-digital content created after your Start Date, even if it is only on your website or mobile app because it is part of the archive.
Librarian: Okay, but is there another way non-compliant born-digital materials created after our Start Date could be in our online archive?
Lawyer: Yes! The regulations have another exception in a different subsection.[4]
This subsection provides that born-digital content generated by a third party does not have to comply (unless your institution contracted with the third party to provide it).
Here’s an example of how this works:
Let’s say your institution wants to create the archive “Born in Digital Shame: Non-WCAG 2.1-Compliant Materials posted by Public Entities.” You then gathered a bunch of non-WCAG 2.1-compliant content from other public entities, generated after their Start Date, and put it in your archive.
That would be fine. It would be a gallery of non-compliance, but it would be fine.
Librarian: Okay. Can we answer the question now?
Lawyer: Yes, we can now answer the fateful QUESTION: Do the new Title II regulations apply to “born-digital” archival collections, and if so, is there any exception for non-compliant content?
ANSWER: Yes, the new Title II regulations apply to born-digital content, with only the following two exceptions:
1) the content pre-dates your Start Date; or
2) it is from a third party and is on your website only as archival content.[5]
Librarian: That makes sense!
Lawyer: Yes, sometimes federal regulations do make sense… even if you have to write a Socratic dialogue to make sense of them.
Librarian: I need a beverage now![6]
Lawyer: Thank you for a great question!
[1] Definition is at 42 U.S.C. § 12131(1)(B).
[5] This is important. The functional part or your archive—the metadata, the search function, the display, will all have to be WCAG 2.1 compliant by your Start Date. But the material you are archiving does not.
[6] I have found that green tea mixed with a soothing herbal tea is a great blend for ploughing through federal regulations. What I drink after is between me and my bartender.