SAFETY Act protection is available for technologies used to prevent, detect, respond to or limit damage caused by a terrorist attack.
What is the SAFETY Act?
The Support Anti-terrorism by Fostering Effective Technologies Act (SAFETY Act) was enacted by Congress in 2002 as part of the Homeland Security Act, and was intended to ensure that fear of liability does not prevent companies from developing and selling technologies that could save lives by preventing terrorist attacks or minimizing the harm caused in the event of a terrorist attack. It does so by providing significant liability protections for claims arising from an act of terrorism for technologies that are either "designated" or "certified" by the Department of Homeland Security (DHS).
Designation by DHS confers the following benefits:
Exclusive jurisdiction in U.S. federal court for suits against sellers of the technology
Limitation on the liability to an amount of liability insurance coverage specified by DHS
Prohibition on joint and several liability for noneconomic damages
Complete bar on punitive damages and prejudgment interest
Reduction of plaintiffs' recovery by amounts that plaintiffs receive from collateral sources
Sellers of technologies that are "certified" by DHS are entitled to an additional benefit—the presumption of the government contractor defense, which immunizes sellers from liability for claims brought in a suit arising from an act of terrorism where the certified technology has been deployed.
What kinds of technologies are eligible for SAFETY Act protection?
SAFETY Act protection is available for a wide range of technologies used to prevent, detect, respond to or limit damage caused by a terrorist attack. This includes both products and services. Examples of eligible technologies include: threat and vulnerability assessment services, detection systems, blast mitigation materials, screening services, sensors and sensor integration, decision support software, security services and crisis management services.
How do companies obtain SAFETY Act protection?
Sellers of technology seeking SAFETY Act protection must file an application with DHS containing comprehensive information about the technology, including:
A detailed description of the technology, how it works and its component parts
Evidence of the technology's effectiveness and utility, such as internal or external test results or operational data
A list of past sales and ongoing procurements
Insurance information
Company financial information, including revenue projection for the technology
DHS typically provides a decision within four months.
While the process of compiling the information and documentation in support of the application can be time-consuming, the benefits of obtaining SAFETY Act protection are significant.
The McDermott Difference
McDermott Will & Emery has experience working through the SAFETY Act application process with clients, including drafting the application, interfacing with DHS, and providing advice regarding the benefits and limitations of SAFETY Act protection. Our depth of experience and reach across 16 global offices enable us to serve every regulatory need of our clients.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
