SAFETY Act

As part of the Homeland Security Act, Congress enacted the SAFETY Act, which creates liability protections for sellers of qualified anti-terrorism technologies. The SAFETY Act provides incentives for the development and deployment of anti-terrorism technologies by limiting liability through a system of risk and litigation management. The purpose of the SAFETY Act is to ensure that the threat of liability does not deter potential sellers of anti-terrorism technologies from developing, deploying, and commercializing technologies that could save lives. The SAFETY Act gives liability protection to both sellers of qualified anti-terrorism technology and their customers, and applies to all types of enterprises that develop, sell, or use anti-terrorism technologies.

The SAFETY Act applies to a broad range of technologies, including products, services, and software, or combinations thereof, as well as technology firms and providers of security services. The SAFETY Act protects those businesses and their customers and contractors by providing a series of liability protections if their products or services are found to be effective by the Secretary of Homeland Security. Additionally, if the Secretary certifies the technology under the SAFETY Act (i.e., that the technology actually performs as it is intended to do and conforms to certain seller specifications), the seller is afforded a complete defense in litigation related to the performance of the technology in preventing, detecting, or deterring terrorist acts or deployment to recover from one.

Those technologies that have been “certified” are placed on an Approved Product List for Homeland Security that is available at www.safetyact.gov.

A clear benefit of the SAFETY Act is that a cause of action may be brought only against the seller of the Qualified Anti-Terrorism Technology and may not be brought against the buyer(s), their contractors, or downstream users of the Qualified Anti-Terrorism Technology, or against the seller’s suppliers or contractors. This stipulation includes CIKR owners and operators.

CIKR facility owners and operators are encouraged to examine the SAFETY Act closely because: (1) CIKR owners (if purchasers of qualified technologies) will enjoy the liability protections that flow from using qualified SAFETY Act technologies, and (2) CIKR owners will also have a level of assurance that the qualified products and services that they are utilizing have been vetted by DHS. Lower liability insurance burdens for those using qualified technologies are another potential outcome.

In these ways, the SAFETY Act is a valuable tool that can enhance the ability of owners and operators to protect our Nation’s CIKR.

Source
Department of Homeland Security, National Infrastructure Protection Plan 89 (2009).