The SAFETY Act (Support Anti-terrorism by Fostering Effective Technologies Act) of 2002 is part of the Homeland Security Act under Public Law 107-296.
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The SAFETY Act is a little known and often misunderstood piece of legislation 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.
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".
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:
The SAFETY Act provides significant discretion in what may be a Designated QATT. Certain products or services may require additional testing i.e. a prototype 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.
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 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 fraudulently or with willful misconduct in the SAFETY Act application process or consideration for Certification
The Act protections apply perpetually to all qualified technologies or services provided during the actual term of Designation SAFETY Act can be deemed to apply to overseas acts of terrorism provided that it causes harm, including financial harm, in the United States The SAFETY Act’s protections do not apply to any loss that is not the result of a terrorist attack The SAFETY Act’s protections do not apply if the technology or service is “Significantly Modified”