DHS sets final SAFETY Act rule

The Homeland Security Department has issued a final rule protecting companies that make anti-terrorism technologies from some legal liability. The rule, issued June 2, finalizes the implementation of the Support Anti-terrorism by Fostering Effective Technologies Act of 2002, better known as the SAFETY Act.

The final rule replaces the interim one that had been in place since October 2003. Industry had viewed the implementation of the act as slow and uncertain due to the lack of a final rule, according to a Professional Services Council statement applauding the new rule.

According to the statement, DHS has been getting better at making use of the SAFETY Act. Between October 2003, when the interim rule was issued, and February 2005, only six technologies were designated as qualified anti-terrorism technologies suitable for protection under the law's provisions. Due to internal process improvements, DHS has designated another 68 products for protection since March 2005.

'The final rule is a critical step forward and gives clear guidance to Department of Homeland Security officials, other government agencies, and the companies that are encouraged to promote the development and deployment of anti-terrorism technologies,' said Alan Chvotkin, PSC's senior vice president and counsel.

The protection afforded by the SAFETY Act is not absolute, but does provide liability limitations to providers of qualified technologies. Among its provisions:

* Federal courts have exclusive jurisdictions for lawsuits against the sellers of qualified technologies.

* Liability is limited to an amount of insurance specified individually for a given qualified technology. The DHS secretary is responsible to ensure that the amount of insurance carried is enough to satisfy claims arising from acts of terrorism that happen while the technology is deployed.

* Sellers can only be liable for the percentage of non-economic damages proportionate to their responsibility in causing the damages.

* Punitive damages and prejudgment interest are completely barred.

* Some sellers of qualified technology are entitiled to cite their role as a government contractor as a defense in any litigation.

The SAFETY Act final rule addresses most of the issues industry has raised during the past three years, Chvotkin said.

'This will be a continuous learning process and the department has expressed a willingness to make further adjustments based on the collective experience of all stakeholders," he said.

About the Author

Technology journalist Michael Hardy is a former FCW editor.

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