Category: Cyber Crime

Legal Distortion: How ADA Web Lawsuits Mimic Cybercrime – Part One

Introduction

In recent years, a surge of Americans with Disabilities Act of 1990 (“ADA”) Title III website accessibility complaints has flooded the federal court system. While the ADA is a critical tool for ensuring equitable access, many of these cases lack genuine merit. Instead, they exploit legal ambiguities, overwhelming small businesses, as well as the federal courts, with predatory lawsuits. A prime example of this is Primitivo Robles v. The Other Side Dispensary, LLC, a case emblematic of the broader issue of invalid ADA website complaints. This paper explores this case to highlight how these lawsuits pose a threat not only to legitimate accessibility advocacy but also to emerging industries like cannabis in New York and New Jersey. Further, it argues that ADA website complaints have a significant cybersecurity and cybercrime dimension.  This paper is broken down into three sections which (a) explains what and how a website should be accessible and what does it mean not to be, (b) looks at a case through the lens of the Robles claim, and finally (c) concludes with one of several recommendations to resolve the cybersecurity loophole.  

ADA Title III 

The ADA was enacted to prohibit discrimination against individuals based on their disabilities. The ADA defines disability as “a physical or mental impairment that substantially limits one or more major life activities.” Some of those major life activities are seeing, hearing, speaking, learning, communicating, and walking. While enacting this legislation, Congress declared that “physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination.” In the physical world this is bathroom stalls that are not wheelchair accessible or a lack of handicap parking.  In the virtual world, From the ratification of the ADA until 2017, Title III offenses were limited to physical structures and to the limited list of private entities whose operations affect commerce that are classified by one of its twelve definitions.  Each definition encompasses a number of business types that provide similar services, such as “(B) a restaurant, bar, or other establishment serving food or drink;” “(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;” or even “(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a healthcare provider, hospital, or other service establishment.”  Examples of (B) would be Five Guys, Hooters, Domino’s Pizza, or a local diner.  Examples of (E) would be a Winn-Dixie, Hobby Lobby, or local flower shop.  Examples of (F) Winn-Dixie’s Pharmacy,  Metropolitan Life Insurance, or any lawyer’s office.  To state a claim for relief under Title III of the ADA, a plaintiff “must allege (1) that [he] is disabled within the meaning of the ADA; (2) that defendants own, lease, or operate a place of public accommodation; and (3) that defendants discriminated against [him] by denying [him] a full and equal opportunity to enjoy the services defendants provide.”

Appellate courts are split as to whether the provisions of the ADA, mainly those involving places of public accommodation under Title III, apply to online technology such as websites.  The Third, Sixth, Ninth, and Eleventh Circuits follow the approach that Title III applies to the services of a place of public accommodation and not limited to services only in the place of accommodation. In other words, Title III applies if there is sufficient nexus between the website and the physical location. However, if the physical location is not a place of public accommodation, then neither need be its website.  This is in contrast to the First and Seventh Circuit which broadly applies the ADA and does not limit its interpretation to a physical structure. The United States District Court, Southern District of New York, has started leaning toward following the First Circuit, but in the September, 2024 decision handed down by Laura Taylor Swain, Chief United States District Judge, in Meija v. HIgh Brew Coffee, Inc, this trend has been restrained.  In her decision, Judge Swain stated the “Second Circuit has not squarely addressed the question of whether a website, absent a connection to a physical location, constitutes a place of public accommodation.” She then ruled “the Court finds that a stand-alone website is not a place of public accommodation under Title III of the ADA. Plaintiff thus fails to state a claim on which relief may be granted under the ADA. Because Plaintiff fails to state a claim under the ADA, Count III’s request for declaratory relief is also dismissed.”  This is the latest precedent in New York federal courts, and although not controlling is strongly influential in what circumstances must a website be considered a place of public accommodation in New York.

ADA website litigation has evolved into a form of legal and financial exploitation that parallels cybercrime. These cases are frequently initiated by high-volume plaintiffs or law firms relying on automated tools to identify “violations.” This strategy mirrors the methodology of cybercriminals, who deploy bots to find vulnerabilities in software or systems.  

Just as cybercriminals exploit software loopholes, opportunistic litigants exploit the lack of detailed federal regulations on website accessibility standards under the ADA.  ADA Title III website accessibility claims have grown exponentially with over 4,000/year since 2021, and New York eclipsing all other states.  In September 2024, there were 342 Lawsuits filed, with 65% of them filed in New York.  More importantly, these claims are filed by a handful of plaintiffs and firms. A small group of plaintiffs is responsible for a significant portion of lawsuits filed under the Americans with Disabilities Act (ADA), 31 Plaintiff Firms File 50% of ADA Website Accessibility Lawsuits.  Many ADA lawsuits are resolved through settlements because defending these cases can cost small businesses tens of thousands of dollars. This “settle or go bankrupt” dynamic is akin to ransomware attacks. Emerging markets, such as the cannabis industry in NY and NJ, are disproportionately affected due to their limited resources and regulatory challenges. These businesses already navigate complex state and federal laws, making them prime targets for predatory litigation.  Even with settlements under $25,000, that would still mean that these cases will cost approximately $100 million. Although small compared to the $42 billion from ransomware attacks in the United States, it is yet another potential cyber attack vector that businesses and their IT staff has to worry about.

As I outlined in my 2021 paper “The ADA and website accessibility: a technical problem without a technical understanding,” website accessibility  cases are rarely decided on the merits of the claim.  The courts have consistently taken the position as was indicated in the Winn-Dixie 2017 court, stating that “[r]emediation measures in conformity with the WCAG 2.0 Guidelines will provide Gil and other visually impaired consumers the ability to access Winn-Dixie’s website and permit full and equal enjoyment of the services, facilities, privileges, advantages, and accommodations provided through Winn-Dixie’s website.”

WCAG

Web Content Accessibility Guidelines (“WCAG”) 2 is developed through the World Wide Web Consortium (“W3C”) in cooperation with individuals and organizations around the world, with a goal of providing a single shared standard for web content accessibility that meets the needs of individuals, organizations, and governments internationally.  The guidelines are a set of internationally recognized standards developed through the Web Accessibility Initiative (“WAI”). WCAG provides guidelines for making web content more accessible to people with disabilities, including those with visual, auditory, cognitive, and motor impairments. WCAG is often referenced in legal frameworks, including: (a) 

Americans with Disabilities Act (“ADA”) in the U.S. (as applied to websites via case law), (b) Section 508 of the Rehabilitation Act (this applies to U.S. federal agencies and contractors), (c) European Accessibility Act (EAA) and EN 301 549 (European Union), and (d) other national and regional accessibility laws worldwide.

Key aspects of WCAG focus on being (a) perceivable, (b) operable, (c) understandable, and (d) robust.

  • Perceivable – Content must be presented in a way that users can perceive, including alternatives for non-text content (e.g., captions for videos, text descriptions for images).
  • Operable – Users must be able to interact with and navigate the content, ensuring functionality via a keyboard and providing sufficient time for interactions.
  • Understandable – Information and user interface components must be clear and predictable.
  • Robust – Content must be accessible across various technologies, including assistive devices.

Despite these guidelines, there is no set standard for how compatible a website has to be in order to be ADA compliant.  What appears in complaints are elements or attributes that are missing or incomplete.  In some cases, the lack of these elements or attributes are very detrimental to a disabled person’s use of a site because their screen readers cannot extract conveyable information without these values. An example of this is a picture (“image” in HTML) that does not contain the title attribute. This attribute contains the text description of the picture that appears when a visual user mouses over the image, it is lao what screen readers use to describe the picture in audio.  However, there are also many references to elements or attributes missing that may or may not create issues for the screen readers.  One such HTML construct is the ARIA attributes.  Accessible Rich Internet Applications (ARIA) is a set of roles and attributes that define ways to make web content and web applications (especially those developed with JavaScript) more accessible to people with disabilities.  Based on this definition, it should be obvious that it should be used without fail, and many website accessibility evaluation services like Google Lighthouse and WAVE will report on these when missing.  Ironically, the first rule of ARIA use is “If you can use a native HTML element or attribute with the semantics and behavior you require already built in, instead of re-purposing an element and adding an ARIA role, state or property to make it accessible, then do so.”  

These claims do contain accessibility evaluation reports that reflect the count of missing parts in order to support the claim that the site is not accessible to their plaintiff on the day in question. This is a step forward in making the claims more substantive, but it does not actually prove the site was not accessible as the plaintiff claims.  The real world equivalent would be similar to indicating that NOT ALL of the parking spots are handicap accessible. In the real world, with the rare exception of less than 10 spots, the number of accessible spots does not exceed 10%.  So to indicate that certain elements and attributes are not present is equivalent to pointing out the non-accessible spots with no regard to the number or nearness of the accessible ones.

Come back soon to read Part Two

North Korean Hacker Indictment

Today Federal prosecutors in California unsealed an indictment against North Korean members of Lazarus Group and APT38 alleging $1.3 billion in theft and extortion. The Indictment is notable for the scale of the nation-state sponsored economic criminal activity it describes.

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Categorized as Cyber Crime

The Virus and Ransomware

In the middle of the pandemic, things we used to take for granted feel frightening.  A trip to the grocery store, taken only when truly necessary, seems like stepping onto the set of a post-apocalyptic movie, as shoppers eye each other suspiciously from behind face masks while picking over thinly-stocked shelves.  Cyber criminals, unfortunately, know how to prey on these fears.  From early in the COVID-19 crisis, cybersecurity experts have warned about a rise of social engineering attacks, such as phishing emails, spoofed websites impersonating public health authorities such as the World Health Organization and the U.S. Centers for Disease Control, and fake coronavirus mobile apps.   

Some of these social engineering campaigns have been linked to ransomware attacks on health care facilities, financial services providers, and other essential businesses.  A study done by Carbon Black, for example, showed a 148% increase in ransomware attacks between February and March 2020.  Another study released by Checkpoint Research on April 16, 2020, found that ransomware attackers are increasingly engaging in “double extortion.”  This kind of attack begins as a typical ransomware incident:  the attacker encrypts the victim’s data and demands a ransom to decrypt it.  It also adds a second stage:  the attacker makes a copy of sensitive data and then, after receiving the decryption ransom, demands a second payment to prevent public disclosure of the stolen data.

Although the COVID-19 crisis creates fear, it also prompts generosity and altruism – ranging from the heroism of front-line health care workers to everyday acts of kindness like checking in virtually on friends and neighbors.  At the start of the crisis, leading ransomware groups such as DoppelPayemer and Maze seemed to join this wave of altruism by promising to avoid attacks on health care facilities.  These groups try to position themselves as modern-day cyber Robin Hoods, stealing from wealthy banks and other for-profit companies while avoiding entities such as healthcare facilities that serve the poor. 

Almost immediately after this promise, however, Maze hit Hammersmith Medicines Research, a British company that may serve as a COVID-19 vaccine test center.  The truth is that these are ruthless organized crime operations that will not hesitate to take advantage of this crisis.

Now more than ever, even as we practice social distancing to flatten the curve of the coronavirus infection, we need to practice good cyber hygiene to flatten the curve of cyber attacks.  It’s a good time to remind employees working from home of some basic principles: 

  • Be wary of texts or emails that seem unusually alarmist or urgent, particularly if they purport to originate from high-level government or corporate sources.

  • Avoid apps and websites that claim to offer some inside information or cures beyond what is being reported by official government sources and reputable news outlets.

  • If presented with a request for information that seems suspicious, use recognized channels, including a phone call to the supposed source, to confirm whether the request is authentic.

  • Notify the appropriate persons in your organization of contacts that appear to be social engineering scams.

Microsoft and the Law of the Cloud: to the Supreme Court

Last year I wrote about Microsoft’s Stored Communications Act litigation.  The dispute has now worked its way up to the Supreme Court.  Andrew Keane Woods offers a good primer on the case on the Lawfare Blog.  I generally agree with Andrew’s take:  (1) the extraterritoriality issues do not seem to raise major sovereignty concerns; and (2) it is not really a “privacy” case.  It’s also interesting, as Andrew notes, that Silicone Valley seems uncertain about how to approach this dispute.  But here’s where I might go a bit further than Andrew:  the extraterritoriality issues do not raise major sovereignty concerns unless you think the cloud is really something different.  The Supreme Court continues to make Internet-exceptionalist noises, such as Justice Kennedy’s ode to the Net in the Packingham case last year:

While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow.

Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017).  The cloud, of course, is just a marketing term for storing stuff and running apps on the Internet.  In my view, the Court should avoid rhapsodizing about the cloud or the Internet in the Stored Communications Act context, apply ordinary principles of extraterritoriality to find that Microsoft was required to produce the records in this case, and leave further tinkering with the statutory framework to Congress.

The FTC, Ransomware, and You

150px-us-federaltradecommission-seal-svg“Ransomware” is malicious software that enables attackers to hold computer data or a computer network hostage until a ransom is paid.  Ransomware often encrypts all the files on a system, making them unusable until the attacker supplies an encryption key.  An FBI Alert issued last week stated that ransomware infections are at an “all-time high.”  According to the FBI Alert, just one recent strain of ransomware infected about 100,000 computers per day.  Id.  Commenting on the Alert, security expert Brian Krebs said “[w]hat we can expect is not only more targeted and destructive attacks, but also ransom demands that vary based on the attacker’s estimation of the value of the data being held hostage and/or the ability of the victim to pay some approximation of what it might be worth.”

The ransomware threat is troubling from the perspective of business continuity, lost productivity, lost data, and possible ransom payment costs.  The threat is also troubling from a legal perspective because in public comments earlier this month, FTC Chairwoman Edith Ramirez suggested that failure to address vulnerabilities that could be exploited by ransomware can comprise an FTC Act violation.  This means companies now face two kinds of liabilities from ransomware:  business costs, and civil liability to the FTC and perhaps private litigants.

The Federal Trade Commission has no specific statutory mandate over cybersecurity compliance.  Nevertheless, the FTC has made cybersecurity enforcement central to its institutional mission.  Legal challenges to the FTC’s authority over cybersecurity so far have failed.  In FTC v. Wyndham Worldwide, 799 F.3d 236 (3rd Cir. 2015), for example, the Third Circuit held the FTC’s statutory mandate under the Federal Trade Commission Act, 16 U.S.C. § 45(a), to prevent “unfair methods of competition in commerce” encompasses cybersecurity policies and requirements relating to a company’s customer data.  And the FTC recently concluded that the FTC Act’s general balancing test for determining if an act or practice is “unfair” applies to cybersecurity issues.  See In the Matter of LabMD, Docket No. 9257, Opinion of the Commission (July 29, 2016).

These risks are particularly difficult to manage because of the FTC Act’s standard of liability and the nature of ransomware.  Under Section 5(2) of the FTC Act, an act or practice is “unfair” only if

(1) it “causes or is likely to cause substantial injury to consumers;”

(2) the injury “is not reasonably avoidable by consumers themselves”; and

(3) the injury is “not outweighed by countervailing benefits to consumers or competition.”

In the Matter of LabMD, at 9 (quoting 15 U.S.C. § 45(n)).  In LabMD, the Commission stated that “’[t]he touchstone of the Commission’s approach to data security is reasonableness.’”  Id. at 11 (quoting Commission Statement Marking the FT’s 50th Data Security Settlement, at 1 (Jan. 31, 2014)).  While a “reasonableness” standard sounds reasonable, the statutory test essentially encodes a kind of “negligence balancing test” in which “reasonableness” is measured by the risk and probability of harm in comparison to the burden of taking precautions.  Most of us will remember – with varying degrees of fondness – this test from Judge Learned Hand’s famous opinion in U.S. v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947):  B >< PL.

The problem with this kind of test in relation to cybersecurity is that the probability of some loss is very high and the scope of the loss could be enormous.  This means just about any kind of precaution could be considered reasonable.  Indeed, in LabMD, the Commission found that LabMD “did not employ basic risk management techniques or safeguards such as automated intrusion detection systems, file integrity monitoring, or penetration testing.”  In the Matter of LabMD, at 11.   “Penetration testing,” which involves employing “white hat” hackers to probe a network for vulnerabilities, can be a valuable part of a cybersecurity hygiene program, but it is a stretch to suggest that penetration testing should always be employed by every entity on every kind of network.  See SANS Institute InfoSec Reading Room, Penetration Testing:  Assessing Your Overall Security Risks Before Attackers Do (June 2006).

The U.S. Department of Justice has published an interagency technical guidance document on protecting networks from ransomware that could serve as a useful rough measure of reasonable care.  According to the Justice Department guide, preventive measures against ransomware should include a number of specific technological measures together with an “awareness and training program.”  Id. at 3-4.  The guide notes that “[b]ecause end users are targets, employees and individuals should be aware of the threat of ransomware and how it is delivered.”  Id. at 3.  The DOJ’s guide also includes lists of instructions for business continuity and for incident response if infected with ransomware.  See id. at 4-5.

The growth in ransomware and other cybersecurity threats and the FTC’s aggressive enforcement posture suggest that companies should carefully consider their preparations for ransomware and other malware attacks in conjunction with legal counsel.  And even with what seem like reasonable preparations, companies of every size must prepare for an adverse incident.  In this regard, the following DOJ recommendations for incident response is particularly noteworthy:

Contact law enforcement immediately. We strongly encourage you to contact a local field office of the Federal Bureau of Investigation (FBI) or U.S. Secret Service immediately upon discovery to report a ransomware event and request assistance

Id. at 5 (emphasis in original).

Contacting the FBI or Secret Service might be a good idea, because ransomware attackers often are connected to foreign criminal syndicates and might even help finance terrorism.  However, companies should keep in mind the FTC’s commitment to enforcing its broad unfairness standard against companies suffering from ransomware attacks.  In addition, companies sometimes decide to pay the ransom quietly in order to regain access to their data.  Brian Krebs, for example, describes an incident in which a company’s finance department “didn’t bat an eyelash when asked to authorize several payments of $600 to satisfy the Bitcoin ransom demanded by the intruders: After all, . . . the data on one of the infected systems was worth millions — possibly tens of millions — of dollars, but for whatever reason the company didn’t have backups of it.” Once the government is involved, a quiet ransom payment might not be possible – if it is even considered lawful under the circumstances.  Any investigation of the incident, and particularly any coordination with the FBI, should involve legal counsel to protect privilege and limit liability as much as possible.

xDedic Marketplace

Kaspersky Lab released a report on June 15 on the “XDedic” marketplace.  According to the report,

“xDedic” is a trading platform where cybercriminals can purchase any of over 70,000 hacked servers from all around the internet. It appears to be run by a Russian-speaking group of hackers.

The report includes screenshots of the XDedic user dashboard, which includes information about price to obtain access to the server, the server’s location and speed, and other details.

xdedic

Kaspersky’s investigation suggests that the servers are first accessed through password brute-force attacks, after which a malware (Trojan) client is installed that makes the server available on the XDedic network.  Another program is also installed that uses the compromised server to mine bitcoins.  Access to some of the servers available on this marketplace can be gained for as little as $8.

This report underscores both the technological and commercial sophistication of the cybercrime underworld.

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