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Web Battles Raise Uncertainties

Privacy, accessibility, pay-to-play—engaging home buyers and sellers online is getting complicated.

July - August
2018

The World Wide Web is no longer the Wild West. Changing rules on data privacy, accessibility for disabled people, and net neutrality are throwing hurdles in your efforts to reach customers online.

In May, a European Union law took effect that is changing what’s considered acceptable practice in how you disclose your privacy policy and how you collect and store data on your customers. The General Data Protection Regulation makes it a crime to collect data on any person who lives in the 31 countries of the European Economic Area without first getting their permission. It also requires you to delete their data if they request it.

The good news for you, from a compliance perspective, is that the law is expected to have a significant effect on your business only if you focus your marketing on European consumers, says Finley Maxson, NAR senior counsel, noting that regulators have not yet released formal guidelines.

Still, compliance is a smart risk management strategy, says Maxson. At least one state—California—is advancing its own GDPR-like law, and others could follow. As more major American businesses with global web properties adopt privacy and security standards that conform to GDPR, consumers will start expecting the same from you. That means, if you’re not disclosing up front your policy on how you use cookies and store data, you could be called out by consumers for those omissions.

Accessibility Battle

Another flashpoint is website accessibility. In 2010, the U.S. Department of Justice released a notice about its intentions to extend the accessibility requirements under the Americans with Disabilities Act to websites. The rationale is that commercial websites are places of public accommodation just as commercial buildings are.

The department also weighed in on the issue in court, most recently in a case involving the big retailer Winn-Dixie. In that instance, it stated that websites that are public accommodations should be accessible to the disabled. Despite its demonstrated interest in the issue, the DOJ never followed up with final rules, muddying the legal picture and leaving the door open to lawsuits and demand letters from lawyers seeking changes for disabled clients.

In 2017, plaintiffs’ lawyers sent 815 of the letters, 16 percent more than in the previous year, to businesses, including real estate brokerages. “Absent rulemaking from the DOJ to clarify the ADA’s application to websites, businesses continue to be confused about what constitutes an accessible website,” says NAR Deputy General Counsel Lesley Muchow.

The cases by and large have been settled with the businesses agreeing to modify their websites based on standards called the Web Content Accessibility Guidelines 2.0, developed by a group of business, nonprofit, and government representatives. The standards say websites must be perceivable, operable, and understandable to people with impairments and robust enough so that software aids that people use are compatible with the sites. The standards outline a dozen concrete steps website developers can take, including captioning photos and videos and adding a feature for enlarging text. “In the absence of the DOJ promulgating rules, courts have been left to create them themselves,” says Andrew Grant, an attorney with DLA Piper in Washington.

NAR General Counsel Katie Johnson recommends working with a website provider knowledgeable about the WCAG 2.0 standards, and to seek indemnification from the website provider related to accessibility issues.

What’s needed are final rules from the federal government, but they’re unlikely to appear soon. In January, the Justice Department deprioritized the rules, which effectively takes them off the table for the foreseeable future. NAR is working with a coalition of industry groups on this issue, and several members of Congress are preparing a letter urging the department to issue guidance on website accessibility to stem these lawsuits.

Skirmish Over Internet Lanes

On top of these challenges, your real estate website is now facing the possibility of getting hit with pay-to-play schemes to stay competitive. The Federal Communications Commission earlier this year ended net neutrality rules that had been put in place in 2015. Net neutrality required internet service providers like Comcast, Verizon, and AT&T to treat all online traffic the same. But since the rules were terminated officially on June 11, ISPs are now free to monetize web traffic by offering speedier service to sites willing to pay for it.

That’s something the association continues to oppose. “NAR has concerns that the FCC’s decision to roll back net neutrality could negatively impact the way consumers search for homes or how real estate is transacted,” says NAR President Elizabeth Mendenhall. “We are still urging Congress and the FCC to work to ensure the internet remains a fair and open platform in which our 1.3 million members can freely share lawful content.”

In their public statements, ISPs have said they don’t plan to divide up internet traffic into fast and slow lanes, but there are skeptics. “At some point, the lines are going to be drawn by the major providers,” says longtime MLS executive David Charron, who chairs the Council of Multiple Listing Services. “The beast is going to have to be fed, so shareholders of these major corporations can benefit.”

The concern for real estate is that ISPs can offer premium plans to listing aggregation sites that are willing to pay the cost, giving them a leg up over competitors’ sites and reducing consumer choice.

Legal challenges are underway, including a suit against the FCC filed by almost half of the states’ attorneys general. In May, the Senate passed legislation calling for the restoration of net neutrality. In the House, it faces a higher climb, and the White House is unlikely to support its return, NAR analysts say.

The range of battles affecting your engagement with people online attests to the internet’s central place in the business world and modern life. The days of ISPs as upstart, marginal players are over. For real estate pros coping with a range of web uncertainties, adopting best practices in data protection and website accessibility will help you with risk management and ensure you’re meeting consumers’ changing expectations. The broader fight over net neutrality—and who’s controlling your access—will be waged in the courts, Congress, or both, for some time to come. The venerable warning from the analog age still applies: Don’t touch that dial.

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