Double Trouble: Navigating ADA and Privacy Compliance in Website Policy Changes

By: Hon. Ruth B Kraft and Daniel J. Gershman, Esq. 

Although New York and California remain epicenters for ADA and privacy-related website litigation, these issues are not confined to those jurisdictions. Plaintiffs’ firms are increasingly filing similar suits in other states, including a notable uptick in Pennsylvania, and activity is expanding nationwide. Organizations with U.S.-facing websites should proactively evaluate accessibility and privacy interfaces for compliance, regardless of their physical location or primary market.

Against this backdrop, steps taken to comply with the Americans with Disabilities Act (ADA),[i] including uploading a revised privacy policy and deploying tools to improve screen reader compatibility, can inadvertently introduce barriers that render a site noncompliant. If not planned, built, and tested with accessibility from inception, these updates can cause regressions (i.e., defects that reintroduce resolved barriers or create new ones), resulting in diminished access for blind and low-vision users who rely on screen readers and keyboard navigation to perceive content, operate controls, and complete tasks comparably to sighted users.

To help organizations meet these challenges, this article explains the relevant ADA framework as applied in New York and California, two of the leading states for ADA website litigation, describes how routine update processes may create risk, highlights common pitfalls, and offers practical safeguards.

ADA Obligations and State Overlays

For private businesses, the ADA’s Title III requires effective communication and equal access to the goods and services of places of public accommodation, which courts and the U.S. Department of Justice commonly evaluate against the Web Content Accessibility Guidelines (WCAG). California law amplifies risk because the Unruh Civil Rights Act[ii] treats ADA violations as violations of state law with statutory damages; California’s privacy regulations further require that consumer-facing notices, including privacy policies and opt-out interfaces, be reasonably accessible, referencing WCAG as the industry standard. In New York, active private litigation and state and city human rights laws create parallel exposure, and courts frequently expect conformance with WCAG even absent the codification of a formal federal rule applicable to private websites.

For public entities, recent federal rulemaking requires state and local government web content to be in accordance with the WCAG standard, signaling the benchmark to which private defendants are held. The net result in both jurisdictions is a dual compliance lens: accessibility duties under the ADA and state civil rights laws; furthermore, there is an explicit accessibility expectation embedded in California’s privacy laws:

• The California Consumer Privacy Act (CCPA),[iii] as amended by the California Privacy Rights Act (CPRA),[iv] governs consumer rights (notice, access, deletion, opt-out of “sale/share,” and sensitive data limits) and requires that notices and opt-out mechanisms be reasonably accessible, with WCAG cited as the prevailing standard in regulations adopted by the California Privacy Protection Agency.
• The California Invasion of Privacy Act (CIPA)[v] prohibits certain forms of wiretapping and eavesdropping, and plaintiffs have applied it to website session recording and third-party tracking technologies; CIPA claims often accompany ADA and CCPA-related suits when disclosures or consent flows are inadequate or inaccessible.

Update Mechanics That Break Accessibility

Commonly, the workflow to publish a new privacy policy introduces changes in routing, content structure, and scripts that disrupt assistive technology. Migrating a policy to a PDF or image-based format can remove semantic HTML, headings, and tags that screen readers rely on, while single-page application updates may change routes without updating page titles, landmarks, or focus, leaving screen reader users stranded. Adding or reconfiguring consent or opt-out modals for California privacy purposes can trap keyboard focus, obscure underlying content without proper Accessible Rich Internet Applications (ARIA) attributes, or time out in ways that block access.  ARIA is a W3C specification that exposes roles, states, and properties to assistive technologies so screen readers and other tools can correctly interpret and interact with dynamic web content. Integrating these so-called “accessibility overlays” or site widgets marketed as screen reader solutions can conflict with native semantics, remap keyboard events, and suppress user agents’ behavior, causing more barriers than they remove. Even benign edits to a policy’s structure or language can unintentionally remove alt text, disrupt heading hierarchy, or introduce low-contrast text, all of which are routine violations under WCAG that translate into ADA exposure.

Common Pitfalls and Technical Challenges to Watch

One of the most common failures involves posting the privacy policy merely as an untagged or poorly tagged PDF because many PDFs lack proper reading order, bookmarks, or table markup. Using modal dialogs for cookie controls or California opt-out flows without robust focus management and ARIA-modal semantics is another, particularly when overlays disable background content for mouse users but leave it reachable by keyboard or screen readers. Dynamic content that is not announced with appropriate ARIA-live regions can hide crucial disclosures; missing or generic link text for “Do Not Sell or Share” or “Privacy” links impairs navigation. Language attributes that are omitted on translated policies mislead screen readers, and contrast regressions after branding updates can make legal text unreadable. Finally, reliance on third-party scripts for analytics or consent that intercept keystrokes or alter tab order often creates defects that are not immediately apparent and which surface only in manual testing using NVDA, Narrator on Windows, JAWS, where enterprise users are expected, VoiceOver on macOS and iOS, or TalkBack on Android.

Practical Recommendations to Maintain Compliance During Updates

We recommend that companies:

• Treat privacy policy updates as accessibility-impacting releases and subject them to the same quality gates as core features.
• Prefer semantic HTML formatting for the primary policy and, if a PDF, ensure it is fully tagged with correct reading order, headings, tables, and alternative text for images and icons; better still, make the HTML version authoritative and prominent.
• Preserve a logical heading structure, ensure descriptive link text (including “Do Not Sell or Share” and “Privacy” links).
• Set the language attribute correctly for each locale and verify sufficient color contrast for all text and controls.
• Implement consent/opt-out flows as accessible dialogs with proper roles, labled controls, clear focus entry/return, keyboard operability, visible focus indicators, and screen reader announcements of state changes.
• Avoid relying on accessibility overlays; if used, treat them only as a temporary aid while remediating source code.
• Require WCAG conformance in vendor contracts, provide audit rights, and incorporate service-level remedies for accessibility defects.

Ongoing Monitoring, Testing, and Governance

While automated scanning can assist in surfacing obvious issues, it is insufficient for ADA compliance.  We recommend:

• Pair automative scanning with a manual keyboard-only navigation and assistive technology testing on common platforms, such as NVDA, JAWS, Narrator, VoiceOver, and TalkBack.
• Integrate accessibility checks into continuous integration/continuous delivery such that changes to the privacy policy, navigation, or consent flows trigger regression suites and block deployment on critical failures.
• Maintain an accessibility statement with a monitored feedback channel, track reports, and remediate within defined timelines.
• Reassess after framework upgrades, vendor changes, rebranding, or legal updates that alter disclosures, or user interface components.
• Schedule periodic third-party audits to provide independent validation and, in California, to demonstrate that disclosures are reasonably accessible pursuant to regulatory expectations.

Conclusion

Updating a privacy policy and improving screen reader compatibility are essential throughout the United States but, in New York and California, they are also moments of heightened legal risk because small technical missteps may create substantive barriers under the ADA and state law. The safest path is to anchor updates in WCAG, treat privacy interfaces as first-class user journeys, and verify changes with manual assistive technology testing rather than relying on overlays or automation alone. Where uncertainty remains, especially with third-party consent tools and PDFs, companies should favor accessible-by-default HTML, negotiate vendor accountability, and re-test after every release. With disciplined process controls and continuous monitoring, organizations can meet both accessibility and privacy obligations without trading one form of compliance for another.

Our team of experienced attorneys, focused on privacy and accessibility issues, understands the complexities involved in navigating data privacy regulations and encourages you to contact us for review of your existing policies and data compliance recommendations. Falcon Rappaport & Berkman is prepared to provide counsel regarding these issues as well as representation for companies facing litigation alleging non-compliance with the ADA or privacy laws. Contact our Corporate & Securities Practice Group at 516-599-0888 or by filling out the form below.

[i] 42 U.S.C. § 12101 et seq.

[ii] Cal. Civ. Code § 51

[iii] Cal. Civ. Code § 1798.100 et seq.

[iv] Id.

[v] Cal. Penal Code §§ 630–638

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