SAFETY Act Decreases Private Sector Risk and Liability

By on December 21, 2018

Executive Summary of an article written by
Joseph I. Lieberman, Clarine Nardi Riddle and Mark J. Robertson, Kasowitz Benson Torres LLP

The Support Anti-Terrorism by Fostering Effective Technologies (SAFETY) Act of 2002 was passed as part of the Homeland Security Act. The SAFETY Act removes a major obstacle for companies to deploy technologies helpful to homeland security — the catastrophic liability that could result if their technology becomes the subject of litigation. Under the SAFETY Act, a firm has protections against civil liability if its product or service failed to perform as intended in the event of a terror attack.

The SAFETY Act offers protections up and down the supply chain, in both government and private markets. Users and suppliers of anti-terrorism technologies are protected if their technology has been “Designated” or “Certified” by the Department of Homeland Security (DHS). There are two classes of protection. First, products or services may be designated as a Qualified Anti-Terrorism Technology (QATT). The second class of protection is SAFETY Act certification, which entails a stricter review, provides all the benefits of QATT designation and adds one more layer of liability protection. A “Seller” of a certified QATT is entitled to assert the Government Contractor Defense (GCD) in litigation arising from an act of terrorism.

The SAFETY Act is a valuable tool for litigation and risk management for companies developing and fielding security technologies. It furthers private interests to the benefit of the common good by enhancing our nation’s security and resilience against a terror attack. In-house and outside industry counsel can support these goals by promoting the use and understanding of the SAFETY Act.

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