Episode 9 – Compliance & Your Face

Mark Miller: I am Mark Miller and this is. man, that was the best one. Every week we pay tribute to those who stand out to us as leading by accessibility by picking three topics that strike us in some way. This week we’re gonna talk about two topics that fall under sort of the legal compliance category. This is a little bit deviant for us, but I think there’s some really important things to talk about here. So the first one.

Justin Stockton: Just in Stockton.

Mark Miller: We’re gonna talk about this Pharmavite ADA Web Accessibility Class Action Settlement that’s going on. And from there we’re gonna go into a legal update. It’s just it’s called legal update May 2026, but it’s by Ken Nakata. I don’t know if that’s how you pronounce it. That’s all that’s okay, Ken. Yep. and then those are gonna be the our two kind of legal ones that we’re gonna talk about. And you know, disclaimer.

Justin Stockton: Yeah. So I’d say it.

Mark Miller: Justin and I are not lawyers, so we’re talking about this from the perspective of accessibility consultants and experts. so don’t take anything that we cover in this episode as legal advice. and then speaking of legal, if anybody knows her legal stuff, it’s Sheri Byrne-Haber And I said that wrong, didn’t I?

Justin Stockton: No, I think you got it all right, but there was an odd pause between Sheri and took the wrong spot to take a breath.

Mark Miller: An odd pause. Sorry, Sheri.

Mark Miller: It’s just no worries, Sheri. That hyphenated name throws me off. but anyways, Sheri is an incredible voice in accessibility in general, but her one of the many things that makes her incredible is that she is that she has a is that she’s she’s a lawyer by trade, so she has a legal component down. However, oddly that her contribution is completely different.

Mark Miller: This time around, she wrote this really cool article called The Faces Age Verification Cannot Read. The Faces Age Verification Cannot Read. So this is a really cool deep dive into this phenomenon that we kind of have going on right now of facial recognition. It’s becoming super, super popular and being used for

Mark Miller: multiple things, but of course there are things to be considered from an accessibility standpoint that Sheri dives into and and and it’s kind of a it’s kind of a not just a warning but it highlights some of the issues that we’re we’re having currently. so let’s get into this class action lawsuit. So this is Pharmavite ADA web accessibility class action settlement.

Mark Miller: The article that we’re going to link you out to is written by Danielle Toth. And this is a class action lawsuit that involves a handful of companies, pharmative LLC, food state LLC, pharmative direct, and bona fide health. All all health, pharmaceutical health related. in

Mark Miller: Essentially what the lawsuit is, and and one of our reasons, by the way, for diving into this is because, you know, we were thinking about it with all of the the Title II, HHS, the extensions that are occurring, and I think that that can falsely cause organizations to kind of think that they don’t have anything to worry about for a year. Right? That’s the that’s a bit of a the danger, and then

Justin Stockton: Okay.

Mark Miller: us who are paying attention to things that are happening, we’re like, look at this class action lawsuit and all these other lawsuits and stuff that are still going on. So one, you may, you know, you may be looking at Title II thinking like, this applies to us and this is what we have to worry about. Well, there may be other things you have to worry about too, like Title III, or Section 508 or Section 504 or whatever. so don’t just settle on Title II and think that there’s a

Mark Miller: year you may want to consider how these things affect you overall. but nothing it’s it’s not really stopping. And even if even from that Title II perspective, if you’ve listened to us in the past, you Title II requires that you’re accessible right now. The big thing is is that is tying how you do that or demonstrate that to the WCG 2.1 level AA guidelines. That is sort of the big component to the new rule that was just extended. So

Mark Miller: Anyways, this is just another way that we’re we’re we were looking at this to say that hey, risk exists out there and don’t get too don’t become comfortable because you think you have a year necessarily. so this class action lawsuit covers US residents with blindness or visual disabilities that use an assistive technology, which is a fancy way of saying screen reader users, right? and access, attempted to access, or were

Mark Miller: Deterred from accessing these websites that we just mentioned. the interesting, and this is I don’t know, Justin, if you have any insights here, but I don’t know enough about class action settlements and lawsuits, everything, but there’s no cash payments. There’s a literally like it’s class action, but the cure, I hope I’m using that correctly, is for the company to fix their website so to make it conformant to.

Justin Stockton: Yeah.

Mark Miller: to WCAG. So I’m not quite sure how that that in I wish Sheri were here. We should have Sheri on as a guest, but I would love an explanation. So if you listen to this and you have one for us, as to kind of like why a class action suit if it’s just

Mark Miller: If if the you know what I mean? Does that make sense?

Justin Stockton: I don’t know. Yeah, I know that th like this this idea of a class action suit against a store or legal some sort of legal entity res and re having it result in a commitment from that organization to achieve accessibility some level of accessibility. It goes all the way back to like the target like the initial target lawsuit. like I don’t think that there was any

Mark Miller: Mm-hmm.

Mark Miller: Yeah. But was that a class ac was that a clash action?

Justin Stockton: necessarily many money exchanged hands. There’s no damages. It was we promised to do better. And

Mark Miller: But is is that a class action though? Or is that just a settlement from a lawsuit? Because my understanding of class action is it’s like, all right, anybody that was affected by this can can get a piece of the cure, whatever it is. Like every you know, everybody gets whatever, you know, I don’t know.

Justin Stockton: Yeah. I think it could be

Justin Stockton: Yeah, it can go on all the way.

Justin Stockton: Yeah. Like every once in a while I get like an email like, if you used Verizon Wireless between these dates, you are part of a class action lawsuit because they forgot to they didn’t do X, or Z. So

Mark Miller: Right.

Mark Miller: So anyways, that’s a big that’s a big so if somebody listening knows what that is, we’d love to see that comment. I don’t understand why this would be a class action suit in the way that it’s structured otherwise. So I’m sure there’s somebody, Sheri, maybe you hear this and you can you can we’ll have her on as a guest and she can be like the what do you call that when you that we do with news articles where you would put an update on an article. Like if you made a mistake or

Justin Stockton: like when you editorialize or when you do like a a retraction?

Mark Miller: Well, or if you made a mistake and you would correct a mistake. I don’t know. Maybe I’m thinking of another word. If you know the word I’m trying to think of, maybe you can give that to us as well. It’s you the you know, they suggest playing charades on a podcast. It usually goes over really, really well. Particularly if people are listening in their cars, you know. That silence when you’re doing the charade stuff is great.

Justin Stockton: Two words, first word sounds like

Justin Stockton: Right. Let’s just stop talking and we’ll go look up the word.

Mark Miller: We’re yeah, we’ll call right. Hold hold for a second. play played music. but anyways, so this is in and this of course was brought up by a particular individual. I think that individual actually is a a class, a monetary settlement out of it. but

Mark Miller: But i again, this is this is recent, right? This is something that just came up with the past couple of weeks. So demonstrating that hey, don’t don’t just put your feet up and relax. Stuff’s happening out there. a couple of other things is that they people have until August thirteenth of this year to object, right? So if you whatever.

Mark Miller: and then there’s a final fairness hearing on September twenty-ninth for this. But again

Mark Miller: the what this group of people has to do is make their website conformant to the WCG or websites conformant to the WCG guidelines. So it’s very much in line with with the the titles two stuff. So

Justin Stockton: Yeah, in this case it’s six different websites that all ha they’re all underneath this umbrella.

Mark Miller: Yeah, I know I didn’t mention all six of them. I mentioned four of them, but there’s six of them total. And we’ll link you out too so you can take look at the case if if if you want to. all right. You want to move on to Ken’s article or does there anything else you want to say about the the okay, so so Ken Nakata, in his legal update, talks about some very interesting things and a lot of these things start to circle around standing.

Justin Stockton: Sure, yeah.

Mark Miller: which is a interesting concept in the law if you’re not filiar familiar with it. and what’s interesting here and in the way that it relates to this cali ca class action lawsuit is that they’re starting to look at these lawsuits that are sort of done by serial plaintiffs. So some of the lawsuits that Ken mentions here

Mark Miller: The same law firm and the same plaintiff, so person with a disability, are involved in multiple cases. And there’s been some recent backlash where and to me this is really interesting, Justin, right? There’s backlash in where the DOJ and and and other folks are coming out with these rulings and these states are coming out with these rulings and they’re like, hey.

Mark Miller: you can’t just, you know, they’re they’re trying to control coming in and just throwing lawsuits at companies because they can and the extent to the extent to which the company can kind of has to react to these the companies have to react to these things. So long-winded way of saying there’s pushback in this area right now. Right. And this

Justin Stockton: Because they can’t.

Justin Stockton: Well, and it’s not just pushback, and this is what Ken talks about in his article, is that there’s an existing kind of dis there was an existing legal decision from years ago, Calcano referred to as the Calcano decision. And what that

Mark Miller: Yes. Mm-hmm.

Mark Miller: The Calcano, yeah. Calcano versus Swarviski. Swarovski.

Justin Stockton: The Skorovsky. The crystals, you know, the little crystals and stuff that you see in like, I don’t know, overpriced tourist places. That’s what I always think of them as. But yeah, but with Kalkano, what he’s what he describes, and again, not a lawyer, but I found I really liked Ken’s article because it kind of gave me a little bit more backstory. Like it was really well w written.

Mark Miller: But yeah, but go ahead. You’re talking about this this precedent that’s that’s already existing.

Mark Miller: Exactly. It was it was l you said this earlier before we heated the mics, it was accessible from a little A standpoint so us folks who are not lawyers could kind of understand how some of the stuff works. So it’s that’s why that’s why we pulled this article, I would I would say.

Justin Stockton: Yeah. But what Calcano did is it said, you know, you can’t sue for damages if you don’t ever intend to ever revisit that place again. Like you can’t say, like, I was disenfranchised, I was this. If you never intend to go back there, like if it’s a place that you depend on and you are un and you’re barred from entering it or you’re barred from using it, then yeah, there’s damages and you’ve got to be able to have the right to return there. But if someone says,

Justin Stockton: Like, I’m not gonna ever, I have no intention of ever being there. Well, it’s kind of hard to like award you damages if you never really intend to get there. But then you get into an interesting chicken egg when this decision is applied to accessibility, because then it’s I would I would return if it was accessible, but if it’s not accessible, why would I ever return? And so there’s a weird, they’re starting to apply this this, you know.

Mark Miller: Mm-hmm.

Justin Stockton: kind of legal thought to accessibility. And I get both sides of it. Like I totally get you you at the same one way you don’t want the drive-by lawyers to come in and just like start randomly suing organizations. At the same time, if those places aren’t accessible to someone, who’s ever gonna go?

Mark Miller: Mm-hmm. It’s a it’s a huge chicken and egg thing. And so just to reel back, so what this is what we’re talking about. So this is everything Justin just described is in my understanding falls under this category of standing. So you in order for a case to move forward, it has to have standing, right? That’s why standing is important. So this Calcano ruling standing analysis is rooted in Article 3, which are the injury requirements. So it says that a plaintiff must show a concrete actual or

Justin Stockton: Yeah.

Mark Miller: imminent injury. So in web accessibility terms, that means what what you are saying, Justin, about this real intent to return and complete a transaction. So in in in in some of these physical terms, one of the other things that starts to become and and this is I think it this was in the Mercedes versus Rest the Restaurant Management Inc. that this came about is that

Mark Miller: It can’t be according to this, it can’t be like, I was thinking about showing up again someday. But that’s where the chicken and egg comes in. It’s like, well, yeah, you were thinking about showing up again someday. And if it’s not going to be accessible, you’re probably not going to show up. And I think that that also shows up in let me look this up. It was the one Sears and somebody Fasor, F-E-Z-O-R versus Sears. But

Mark Miller: It so one of the reasons why they lost standing was because they kind of said that. They were like, Yeah, we’re thinking about showing up again one day. It was kind of this. And the argument was that you the there wasn’t a clear, to your point, like they didn’t have to show up and there wasn’t a clear intent. Like we’re coming back on Thursday to try and do this again because it’s so important. It was like, well, we’d show up if it were accessible.

Mark Miller: So it’s that that’s that’s where that standing argument or that that’s the precedent that these standing arguments are are leaning on. And again, it’s hard to pull it apart. Like, is that really truly like it makes sense on one hand, and then on the other hand, it’s like, yeah, but it we know from being in this industry, lots of times the reasons why people with disabilities are kind of wishy-washy for a better term, about what they’re going to do is.

Mark Miller: Because of the lack of accessibility in the first place. So it’s almost like the opportunity to create real reasons to show up or to have that be the place that you buy your X, Y, or Z, whatever the case might be. It w you know, there’s not the an equal opportunity for that to develop. And s so it’s

Mark Miller: Just in my opinion, it’s it’s very interesting. And if you’re if you’re kind of scratching your head over this and you’re wondering, read Ken’s article because I think it really does outline this to the lay person in a way that makes you think about it. And you know, I’m a both sides person. I try to understand both sides instead of just being like, you know, I’m an accessibility guy. Let’s get you know, I should lean on this way or that way. That’s where I tend to lean, but

Justin Stockton: Yeah, well, I have I mean, like I have to understand both sides because in order for me to do it’s you know, Sun Tzu, it’s in order for me to defend my side, I have to know how the other side works, how they’re thinking, what arguments are they making. So I mean, you know, I advocate for everyone making the web inclusive and accessible to everyone. So, but I understand from a legal perspective, we have these existing

Mark Miller: Yeah.

Mark Miller: Okay.

Justin Stockton: decisions that some courts may use, some courts may not, based on, you know, all the circuit courts and all that s all the that information. But which that’s another thing I need to look into.

Mark Miller: Mm-hmm.

Mark Miller: Well, this falls under the Ninth Circuit. all these cases I believe fall under or were in the Ninth Circuit. And to give you an idea of the Ninth Circuit, that covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. and so the in in Kalcano was pr pro

Justin Stockton: Yeah, or more in the ninth.

Mark Miller: Pervasive in the ninth ninth circuit. So you’ll

Justin Stockton: No, Calcano is actually in the second circuit. I remember that from Ken’s article because it’s just now starting to be used. it could it’s starting to be referenced in California, in some of the California cases which fall in the ninth, but it was actually Calcano was from the second circuit.

Mark Miller: But I think the point is that it wasn’t very persuasive in the Second Circuit for some reason. And now it’s persuasive in the Ninth Circuit. So there’s also this Fraser versus Sears, which backs it up. Anyways, again, we’re a bit out of our depth trying to pull this apart, but thanks to Ken, it’s a little bit more it’s a little bit more clear how all these nuanced things work. The other the other thing I just want to say about standing, I think of love analogies, right? And I was looking at standing and

Mark Miller: one of the things that I thought of is it’s like it’s it’s like the calling BS of the legal world, right? That’s what standing is. So it’s like, damages and I’ve suffered, I’ve suffered. And standing is there to be like, I’m calling BS. Like you you live five mile, you know, five hours away from that. I don’t think you ever tried to show up and suffered, you know. So it’s a it’s a it’s a way to kind of be like, let’s let’s get let’s get real here. Now whether or not that works out well in every

Mark Miller: circumstance is arguable. But that’s

Justin Stockton: Well, how do you do that for a digital property?

Mark Miller: It’s so hard with yeah, so hard with digital property. But anyways, that’s what went through my mind when I was like digging into this. I’m like, it’s just the ability to call BS Like right away on the lawsuit. I mean, I guess that’s what the lawsuit is like arguing the the lawsuit or the defendant side of the lawsuit is calling BS on it in general, but this is like a quick, quick look into that. All right. for fear of

Justin Stockton: Yeah.

Justin Stockton: Yeah.

Mark Miller: butchering the legal stuff any further than we already have. Thanks, Ken. I just want to say thanks, Ken, for at least bringing us this far along with the legal stuff. And Sheri, I think we need you on the next discussion. But is there anything else you want to add before we move on?

Justin Stockton: I do want to say one of the other things that I like

Justin Stockton: Well, I do want to say one of the cool things that I liked about so we pulled this the snippet that we kind of talked about here was really out of their this newsletter that Ken does, I think once a month or so. At least this one was May 2026. but it was a legal update. And we all love Laney Feingold’s update at Seesawn and we’ve you know, we pay attention to it. but there was a legal update. He has a bill tracker on on his

Mark Miller: that’s right. Yeah.

Justin Stockton: on his update. And I thought that was really cool because he’s giving you updates on some of the bills that are moving both at the federal level, but also some of the individual states. so I was very excited to see Colorado mentioned in the list there and that they Colorado just s passed and signed at the end of May a new law that requires the insertion of the language

Mark Miller: Yeah.

Justin Stockton: for vendor to hold vendors liable for inaccessible IT sold to public schools. So what’s cool about that is that even if the actual contract did not specifically call out accessible the requirement for accessibility, that it gets it’s it’s in by default as well as like security and some other aspects. So it’s always there, it’s always underlined, even if it’s not specifically called out and it’s going to hold vendors liable.

Mark Miller: yep. that’s a really good point. And I remember seeing that bill. it was a cool thing. So just a little more about Ken. He’s Converge accessibility, accessibility, like really good, reputable accessibility consultant in his own right. So we’ll link you to his page, but just so that you know who he is. And I think that that hit the quality of head of of

Justin Stockton: That’s really

Mark Miller: his work is apparent by the content that he puts out. Like it’s very thoughtful, useful content, right? so we appreciate that. We aspire to do the same thing ourselves. but check out check out this article for sure and and in doing that you’ll you’ll be led to his website. You can check out Ken in general. All right. Do you want to talk about are you good? Are you good stuff? Yeah. Okay. So

Justin Stockton: Yeah, yeah, yeah.

Mark Miller: Let’s talk about Sheri’s article. And So this was this was interesting. So the name of the article is I I gotta be careful how I read this because it sounds funny if you don’t read it in the right cadence. But it sounds perfect if you read I think that’s right. the f

Justin Stockton: Put a comma after faces.

Mark Miller: The faces age verification cannot read. The faces age veri verification cannot read. So that just in the title, you can kind of understand where Sheri’s going with this, and that is that we have this facial recognition software. We’re starting to rely on it so much. She points out her exact words in the article is that facial recognition.

Mark Miller: recognition and age verification are having a moment, right? Which which I agree with because it’s everything. My phone, everything is like, do you want to recognize by your face? And I’m like, I’m I’m I’m good. Like I actually I actually kind of like typing in the for num. You know, like I’ve got a four digit code. I type in and I like that. Although my phone does recognize my face, so I shouldn’t complain too much about it. It’s on device. It’s different. Yeah. But the point is is kind of everywhere now, right? It’s everywhere now. But

Justin Stockton: That’s on device though. This is yeah. Yeah.

Mark Miller: That people with for for all sorts of reasons and and Sheri goes into but that they’re that these are trained on the the software is trained on faces that don’t necessarily represent disabilities. So in what in the really interesting point and this is what this is what kind of caught me and was like the learning moment for me here too, is that one of the big

Mark Miller: problems is that we’re starting to use this for age verification and certain disabilities and other things can really flip flop. It can make a young face look very old or an old face look very young. So now if you’re relying on that as the age verification in one direction or another, there’s a good chance that you’re

Justin Stockton: Yeah. Or the the third case that she mentions is that it may not be able to determine either way. And when you go to try to resolve that issue, the people on the other end that are trying to maybe like manually resolve this in some way or trying to figure out what to do next have not been trained on how to handle these types of situations. you also have to do it, there’s also cases where

Mark Miller: That’s kind of the first.

Justin Stockton: like take Roblox. my eight-year-old loves Roblox and I drives me nuts. but the age verification this is built into there. And so you might have a kid who’s just trying to do it. Yes. Yeah. This is why this is why I I really like it really freaks me out. Like there’s the accessibility side of it, but there’s a security aspect of this of

Mark Miller: Is that a facial facial Okay. All right.

Mark Miller: Yeah.

Justin Stockton: Like we should not be taking pictures of kids’ faces and storing them in centralized locations. Like that’s just a disaster waiting to happen.

Mark Miller: But if you have if so I’m assuming the age verification on that is to keep people who are older and maybe have nefarious intentions out of it. Yes? So what’s stopping me from having a picture of a kid on a tablet and holding that up to my it it just seems too easy.

Justin Stockton: Yes.

Justin Stockton: Well, when you do the age verification, you have to do a 3D scan. so we opted my son out. I did the age verification. So there’s there can be two parts to the age verification. Like as a child, you can do try to do the age verification to say, I am a child and I’m going to I want to identify as a child, in which case the points that Sheri brings up in her article apply. Someone could be could appear much younger or they could appear much older.

Justin Stockton: But two, in order for an adult to do the approval, the adult has to go through. So the adult, maybe the adult has some sort of facial features that make them appear older or younger or whatever. So you can really kind of for when kids are involved in this type of thing, like with with an app like Roblox, you kind of get the double whammy. or you have the potential for the double whammy. And yeah, it’s not great. But really we should not be doing

Mark Miller: Right, right.

Mark Miller: Hello, I

Justin Stockton: a face based age verification at all. Like it’s bad idea.

Mark Miller: Well think that the Yeah, and and I think that

Mark Miller: So

Mark Miller: In reading this article, it wasn’t like Sheri came up and said like all this stuff and then here’s the answer, right? I I think that the intent was we need to keep exploring. Right. That we can’t just fall back on this and be like, this is the way it is. Not only because of the problems that exist with facial recognition, but also because the current alternatives are not accessible. And this is creating legal and privacy risks on top of it. So

Mark Miller: You may look at it and go like, okay, well, you know, I don’t have to use face recognition. I can use my pen code. I can use this. And that’s all well and good, but that all needs to be accessible as well. So we need to continue to explore ways of doing this important verification. Age verification is important for all the reasons that we just talked about, right? Which is why it can’t settle where it is right now.

Mark Miller: and it needs to be explored further and it needs to be made accessible to people with disabilities. And we need to make sure that we’re considering the way that

Mark Miller: faces may not be what we the you know, the the like is the the faces that these are trained on are the faces that you would consider to be, you know, in air quotes average or whatever, aren’t representative of everybody and so it’s it’s problematic. So

Justin Stockton: Well, I don’t know. If you put on your bad actor hat, then you know, it’s probably even possible that a bad actor who wants to gain access could use one of the loopholes of an of in a of an inaccessible age face scanning to identify as someone that or an age that they’re not supposed to be.

Mark Miller: A hundred percent. Yeah.

Mark Miller: I think Yeah. And and I think the thing that we’re talking about here is that, you know, we’ve all watched these spy movies for years where the cool secure tech was biometrics, right? It’s like, you know, like you you get in there and you’re I need a thumbprint, I need a handprint, I need you know, to scan my face. And the Hollywood answer has been cut off the guy’s finger or you know

Justin Stockton: Right.

Mark Miller: go through this complicated process. I think even one of the Missions Impossible did it where it like the the you know, they took a mold of the face, like all this stuff. And it’s like, actually it’s not that hard, right? Like a lot of fingerprint stuff is you just need the person’s fingerprint. And then you can take that, lift it, and use that to get past that biometric. Pictures of faces have been used easily.

Justin Stockton: Mm-hmm.

Mark Miller: My favorite is when the person is like, you know, knocked out cold and they just hold the phone up to their face, right?

Justin Stockton: yeah, you see like you see that on Instagram all the time. Like the little kid like don’t want more screen time just holds it up to like their mom sleeping on the couch.

Mark Miller: Okay.

Mark Miller: Mom’s face while she’s sleeping or whatever. But but if you go back to like the four digit pen, you can cut my fingers off, you can hold it up to my sleeping face, you can knock me out.

Mark Miller: The pin’s harder to get. You know what mean? So it’s this default too that because it’s a biometric, that it’s somehow more secure and it’s that’s Hollywood, man. It’s not necessarily more secure. AI can make mistakes. Always check for accuracy.