Support Anti-Terrorism by Fostering Effective Technologies Act (SAFETY Act) of 2002
Encyclopedia
The SAFETY Act
of 2002
is part of the Homeland Security Act
under Public Law 107-296.
that can protect an entity from the truly "enterprise threatening" liability they could face following a terrorist event
. This liability can come from an attack on their own facilities or an attack on a third party where products, technologies, advice or services were provided. The Act's protection can apply to a physical attack on persons or property or to acts of cyber-terrorism
that cause physical and/or financial harm.
The SAFETY Act was enacted by Congress
as a part of the Homeland Security Act of 2002 (Public Law 107-296). SAFETY Act is actually an acronym for the section of the Homeland Security Act titled the “Support Anti-terrorism by Fostering Effective Technologies Act”.
The Act’s purpose is to ensure that the threat of potential liability
suits does not limit or deter the development, manufacture, deployment, use or commercialization
of products, technologies, procedures, software, system integration
, advice and/or services that could prevent or mitigate a terrorist attack.
The Act provides unprecedented immunities, liability protections, caps and other incentives for approved entities who use, supply, design, manufacture, provide or are otherwise involved in preventing, deterring, mitigating, responding to or recovering from a terrorism event.
SAFETY Act protections apply to a certified act of terrorism when the qualified or "Designated" product, service or technology was used, deployed or otherwise alleged to be involved. The Act's protections can apply to "hard" products as well as to services, procedures, integration of multiple anti-terror tactics, overall facility protection, software, advice, etc. The law applies to products and services provided to, or used by, either the government
or civilian
sector.
Once “designated”, the applicant, now deemed the “seller”, is automatically protected under the applicable SAFETY Act provisions. The seller has the option of listing their product, technology or service under “Designations for Homeland Security” on the SAFETY Act website.
Benefits provided under SAFETY Act designation include:
with successful lab testing but still requires field testing to validate its safety and efficacy. SAFETY Act protection may be afforded to this product or service but will it include limitations on its use and/or deployment. DT&E Designations remain terminable at-will by the DHS should any concerns on the safety of technology
come to light. DT&E Designations will be issued for a reasonable period as needed for testing or evaluating but not longer than 36 months. The Seller has the option of listing their product, technology or service under “D,T & E Designations for Homeland Security” on the SAFETY Act website.
A Certified party can invoke the “government contractor
defense” for covered claims arising out of the designated QATT. The successful assertion of this defense potentially eliminates any and all liability on the part of that Seller.
Unique to SAFETY Act, once a product, technology or service is Certified, the approved applicant or "Seller" can invoke the Government Contractor Defense regardless if the claim results from sales to the Federal Government or sales entirely between non-governmental entities.
While the SAFETY Act does not specifically delineate the scope of the GCD, its legislative and precedent history clearly demonstrate its scope is very broad.
For example, based on case law, it appears clear that under the government contractor defense, a SAFETY Act Certified entity could not be held liable for:
Design defects, or
Duty to warn or failure to warn claims, unless the Seller acted fraud
ulently or with willful misconduct
in the SAFETY Act application process or consideration for Certification
of 2002
is part of the Homeland Security Act
Homeland Security Act
The Homeland Security Act of 2002, , 116 Stat. 2135 was introduced in the aftermath of the September 11 attacks and subsequent mailings of anthrax spores. The HSA was cosponsored by 118 members of Congress. It was signed into law by President George W...
under Public Law 107-296.
What is the SAFETY Act?
The SAFETY Act is a little known and often misunderstood piece of legislationLegislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
that can protect an entity from the truly "enterprise threatening" liability they could face following a terrorist event
Terrorism
Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...
. This liability can come from an attack on their own facilities or an attack on a third party where products, technologies, advice or services were provided. The Act's protection can apply to a physical attack on persons or property or to acts of cyber-terrorism
Cyber-terrorism
Cyberterrorism is the use of Internet based attacks in terrorist activities, including acts of deliberate, large-scale disruption of computer networks, especially of personal computers attached to the Internet, by the means of tools such as computer viruses....
that cause physical and/or financial harm.
The SAFETY Act was enacted by Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
as a part of the Homeland Security Act of 2002 (Public Law 107-296). SAFETY Act is actually an acronym for the section of the Homeland Security Act titled the “Support Anti-terrorism by Fostering Effective Technologies Act”.
The Act’s purpose is to ensure that the threat of potential liability
Liability
A liability can mean something that is a hindrance or puts an individual or group at a disadvantage, or something that someone is responsible for, or something that increases the chance of something occurring ....
suits does not limit or deter the development, manufacture, deployment, use or commercialization
Commercialization
Commercialization is the process or cycle of introducing a new product or production method into the market. The actual launch of a new product is the final stage of new product development, and the one where the most money will have to be spent for advertising, sales promotion, and other marketing...
of products, technologies, procedures, software, system integration
System integration
In engineering, system integration is the bringing together of the component subsystems into one system and ensuring that the subsystems function together as a system...
, advice and/or services that could prevent or mitigate a terrorist attack.
The Act provides unprecedented immunities, liability protections, caps and other incentives for approved entities who use, supply, design, manufacture, provide or are otherwise involved in preventing, deterring, mitigating, responding to or recovering from a terrorism event.
SAFETY Act protections apply to a certified act of terrorism when the qualified or "Designated" product, service or technology was used, deployed or otherwise alleged to be involved. The Act's protections can apply to "hard" products as well as to services, procedures, integration of multiple anti-terror tactics, overall facility protection, software, advice, etc. The law applies to products and services provided to, or used by, either the government
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
or civilian
Civilian
A civilian under international humanitarian law is a person who is not a member of his or her country's armed forces or other militia. Civilians are distinct from combatants. They are afforded a degree of legal protection from the effects of war and military occupation...
sector.
Protections Automatically Granted Under SAFETY Act
There are three different “levels” of SAFETY Act protection that can be granted to the applicant - Designation, D T & E and the highest level, "Certification".Designation
The designation “label” actually applies to the product or service that the DHS has approved as the qualified anti-terrorism technology or “QATT”.Once “designated”, the applicant, now deemed the “seller”, is automatically protected under the applicable SAFETY Act provisions. The seller has the option of listing their product, technology or service under “Designations for Homeland Security” on the SAFETY Act website.
Benefits provided under SAFETY Act designation include:
- A limitation, or “cap” on a parties liability equal to the amount of liability insuranceLiability insuranceLiability insurance is a part of the general insurance system of risk financing to protect the purchaser from the risks of liabilities imposed by lawsuits and similar claims. It protects the insured in the event he or she is sued for claims that come within the coverage of the insurance policy...
coverage that party is required to carry by the DHS. - Exclusive jurisdiction in Federal court for all related suits.
- Punitive damage claimsPunitive damagesPunitive damages or exemplary damages are damages intended to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit...
are barred. - Non-compensatory damages are barred.
- Non-economic damages are barred unless the plaintiffPlaintiffA plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
was physically harmed. Non-economic damages include things such as pain and suffering, mental anguish, loss of consortiumLoss of consortiumLoss of consortium is a term used in the law of torts that refers to the deprivation of the benefits of a family relationship due to injuries caused by a tortfeasor. Loss of consortium arising from personal injuries was recognized under the English common law...
etc. - Pre-judgment interest is barred. Pre-judgment interest is interest on an award normally imposed by the court from the date of the event until the date the ultimate award is determined.
- A prohibition on joint and several liabilities for non-economic damages. Only that percentage of the ultimate claim amount that is directly attributed to the given defendantDefendantA defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
’s negligenceNegligenceNegligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
can be recovered. - Credit for other plaintiff recoveries. The seller’s liability would be reduced for other compensation that may be available to the claimant from collateral sources such as insurance recoveries or other defendants.
Developmental, Testing & Evaluation Designation or "DTED"
The SAFETY Act provides significant discretion in what may be a Designated QATT. Certain products or services may require additional testing i.e. a prototypePrototype
A prototype is an early sample or model built to test a concept or process or to act as a thing to be replicated or learned from.The word prototype derives from the Greek πρωτότυπον , "primitive form", neutral of πρωτότυπος , "original, primitive", from πρῶτος , "first" and τύπος ,...
with successful lab testing but still requires field testing to validate its safety and efficacy. SAFETY Act protection may be afforded to this product or service but will it include limitations on its use and/or deployment. DT&E Designations remain terminable at-will by the DHS should any concerns on the safety of technology
Technology
Technology is the making, usage, and knowledge of tools, machines, techniques, crafts, systems or methods of organization in order to solve a problem or perform a specific function. It can also refer to the collection of such tools, machinery, and procedures. The word technology comes ;...
come to light. DT&E Designations will be issued for a reasonable period as needed for testing or evaluating but not longer than 36 months. The Seller has the option of listing their product, technology or service under “D,T & E Designations for Homeland Security” on the SAFETY Act website.
Certification
Once a product or service is “Designated”, the Seller becomes eligible for “Certification”. The Certification process is separate and distinct from the “Designation” process and requires a more detailed application form and higher level of review by DHS. Once Certified, the product, technology or service is required to be listed as an “Approved Product for Homeland Security” on the SAFETY Act's website.A Certified party can invoke the “government contractor
Government contractor
A government contractor is a private company that produces goods or services under contract for the government. Often the terms of the contract specify cost plus – i.e., the contractor gets paid for its costs, plus a specified profit margin. Laws often require governments to award contracts...
defense” for covered claims arising out of the designated QATT. The successful assertion of this defense potentially eliminates any and all liability on the part of that Seller.
Unique to SAFETY Act, once a product, technology or service is Certified, the approved applicant or "Seller" can invoke the Government Contractor Defense regardless if the claim results from sales to the Federal Government or sales entirely between non-governmental entities.
While the SAFETY Act does not specifically delineate the scope of the GCD, its legislative and precedent history clearly demonstrate its scope is very broad.
For example, based on case law, it appears clear that under the government contractor defense, a SAFETY Act Certified entity could not be held liable for:
Design defects, or
Duty to warn or failure to warn claims, unless the Seller acted fraud
Fraud
In criminal law, a fraud is an intentional deception made for personal gain or to damage another individual; the related adjective is fraudulent. The specific legal definition varies by legal jurisdiction. Fraud is a crime, and also a civil law violation...
ulently or with willful misconduct
Misconduct
A misconduct is a legal term meaning a wrongful, improper, or unlawful conduct motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one's acts....
in the SAFETY Act application process or consideration for Certification