The SAFETY Act and Preparedness

by Brian Finch
By Brian FinchIn order to be properly prepared for another terrorist event, homeland-security efforts at all levels of government and in the private sector must have access to safe, reliable, and effective anti-terror tools. Many companies have highly useful products or services to offer, but there often are significant barriers to bringing a product or service to the marketplace.  In the U.S. homeland- security market in particular, the fear of devastating liability being imposed on products or services has caused many companies to reconsider their plans to sell their wares in the homeland security marketplace. Such fears are quite valid given the highly active plaintiffs’ bar in the United States, as well as a number of decisions in U.S. courts holding that entities providing security in a number of events (the 9/11 terrorist attacks, for example, the 1993 World Trade Center bombing, and the 1996 Olympic Park bombing) could be or actually were liable for damages arising out of those events.   To lessen these concerns and at the same time encourage the development and deployment of anti-terror products and services, the U.S. Congress passed, and President Bush signed into law, the Support Anti Terrorism By Fostering Effective Technology Act of 2002 (usually referred to as the “SAFETY Act”).  Under that Act, the U.S. Department of Homeland Security (DHS) was given the authority to award a number of liability protections to the sellers of anti-terror products and services. Understanding what the SAFETY Act provides and how it complements other anti-terror efforts is important for businesses and other entities engaged in preparedness efforts. When they receive SAFETY Act protections, the sellers of anti-terror products and services, and their customers, are given a shield from liability arising out of terrorist attacks. For SAFETY Act-certified technologies, these protections include a presumption that the seller is dismissed immediately from such suits. Various provisions of the Act also postulate that: (a) The seller cannot be sued for punitive damages; (b) the seller cannot be sued in state court, only in federal court; (c) none of the seller’s vendors, subcontractors, suppliers, distributors, or customers can be held liable; (d) these protections apply regardless of whether the sales of these technologies are to governments that are entitled to expedited reviews of their application; and (e) only the seller may be sued (customers and suppliers, however, may not be sued as a matter of law). A Broad Blanket of Immunity It is important to understand that the SAFETY Act’s definition of “anti-terror technologies” includes not only products and services, but also training, information technology, and support services of various types. Essentially, therefore, when a product or service is considered to have some form of an “anti-terror purpose” (that purpose does not have to be solely to defend against acts of terrorism), it will be eligible for the protections provided under the SAFETY Act. Among the many examples of products and services that have been awarded SAFETY Act approval are explosive detection devices, antiterrorism computer data-basing software, airport security services, perimeter security services, vulnerability-assessment services, maintenance services, and night vision equipment. The protections of the SAFETY Act apply regardless of whether the customer is a federal, state, or local government entity, or a commercial user. The protections are awarded, though, only after a thorough review of the seller’s product or service has been conducted by DHS – more specifically, by the department’s Office of SAFETY Act Implementation within the DHS Science & Technology Directorate. The DHS review includes, among other things, not only an examination of what the specific product or technology is designed to do, how it works, and how the seller ensures the quality of the item, but also any evidence that demonstrates that the product or service is effective as an anti-terrorism instrument. After the review has been completed, the DHS under secretary for Science & Technology will make the final determination as to whether the subject of the application should be awarded SAFETY Act approval. Comforts and Reassurances For government as well as private-sector entities in the preparedness community, understanding the benefits of using SAFETY Act-approved products and services should be apparent. The most important benefit, of course, is that, by using SAFETY Act-approved products or services, preparedness entities at all levels of government will be giving themselves an extra layer of liability protection.  This is important because many state and local government entities assume that being a unit of government protects them from all relevant liabilities. That is not the case, however, and liability concerns have grown significantly since the 9/11 attacks. One of the most important recent examples is a decision in New York State holding that the Port Authority of New York/New Jersey was liable in connection with its security efforts related to the first (i.e., 1993) World Trade Center bombing. That decision has caused considerable concern across the country that security efforts conducted by government or quasi-government entities can and will be held liable for conducting inadequate security measures. Using SAFETY Act-approved products and services can ameliorate at least some of these liability concerns. If, for instance, a state government entity were to contract with a SAFETY Act-approved company to provide security-guard services at public buildings, it would enjoy the liability protections offered by the SAFETY Act (e.g., the immediate dismissal of claims arising out of a terrorist attack related to the performance of the security guards). Obtaining such benefits would obviously then lower the liability concerns of a user, and that reassurance would bring with it some measure of financial relief as well.   Additionally, considering that SAFETY Act-approved products and services have gone through a fairly rigorous review process by DHS, contracting for and using those products provides an inherent measure of confidence in their ability to be used as effective anti-terror tools. Although SAFETY Act approval is not and should not be considered an endorsement or a “Good Housekeeping” seal of approval by DHS per se, it can be safely assumed that the department has thoroughly reviewed the item in question and determined that it has met the requirements of the SAFETY Act. This means in turn that the product or service, as it has been described by its seller to DHS, has been determined to be a safe and effective product that could be used in preventing, defending against, and/or responding to acts of terrorism.   Stringent Protections, Judicious Choices Preparedness officials at all levels of government, and in the private sector, may therefore want to consider the implications of such approval in determining what products or services to procure for their anti-terror efforts. Although a SAFETY Act award does not necessarily mean that the product or service is the best in its , it strongly suggests that it is one that has been deemed to qualify for certain well defined and usually stringent liability protections. Moreover, although it is not necessary for a product or service to be SAFETY Act-approved on DHS grant lists (i.e., the Authorized Equipment List), SAFETY Act-approved items eligible for purchase through the use of grant funds would be judicious procurement choices for state and local governments, if only because the purchase of such items will not only convey to the customer the liability benefits provided by the SAFETY Act but also give that same customer the reassurance that the item has been thoroughly reviewed by DHS.    The SAFETY Act is, in short, a powerful liability-mitigation tool that preparedness officials should be well aware of when determining how best to equip themselves and their departments to cope with terrorist events. While government entities may not necessarily themselves apply for SAFETY Act approval, they can take advantage of the protection benefits provided under the Act by procuring SAFETY Act-approved items. By so doing, they will obtain numerous liability protections – and also take some measure of comfort in knowing that those items have already been reviewed in detail by DHS.  The SAFETY Act, therefore, is a measure all preparedness leaders should be aware of and try to use to its fullest extent. Brian Finch is a homeland security attorney at McKenna Long & Aldridge who focuses his practice on SAFETY Act matters and has already successfully represented many companies in obtaining SAFETY Act coverage.  Brian is also a Senior Fellow at the George Washington University Homeland Security Policy Institute.