To address private sector concerns about liability in the face of terrorist attacks, Congress established the Support Anti-terrorism by Fostering Effective Technologies Act of 2002 (SAFETY Act). The SAFETY Act creates a framework for risk and litigation management to ensure that the threat of liability does not deter businesses from developing or using innovative, potentially life-saving technologies. To minimize risks stemming from acts of terrorism (including cyber attacks), companies should consider applying for protection under the SAFETY Act.
What is the SAFETY Act program?
The DHS SAFETY Act eases financial and liability burdens for numerous types of entities when faced with a terrorist attack. The Act offers important legal liability protections to users and providers of Qualified Anti-Terrorism Technologies. It also encourages businesses to develop and deploy effective anti-terrorism products and services by providing liability protections.
The voluntary SAFETY Act Program is designed to give incentives for deploying effective anti-terrorism technologies, services, and capabilities. The program is administered by the Office of SAFETY Act Implementation (OSAI) in the Science and Technology Directorate of the U.S. Department of Homeland Security.
Who benefits from the SAFETY Act?
The SAFETY Act provides protections for any organization that could be affected by terrorism. It covers a range of anti-terror technologies, which helps businesses stay ahead of evolving threats.
Companies that develop security technologies to mitigate or prevent terrorist attacks can benefit from the SAFETY Act. This includes those working on Threat & Vulnerability Assessment Services, Detection Systems, Sensors and Sensor Integration, Blast Mitigation Materials, Screening Services, Cyber Security & Networking Software, Decision Support Software, Security Plans/Services, Crisis Management Systems, and Venue Security.
Entities using these technologies also benefit from the SAFETY Act. For example, a company purchasing security technologies from a vendor can gain protections. This includes high-profile venues vulnerable to physical attacks, such as sports and entertainment facilities, colleges, and universities.
What are the benefits of SAFETY Actfor technologies or venues?
The three primary benefits of a SAFETY Act Designation are:
- Risk Management: When working with a contractor with a SAFETY Act Designation, there is certainty that these products and services passed the Department of Homeland Security’s stringent scrutiny and demonstrated efficiency.
- Litigation Management: The designation limits liability for a company that develops or deploys covered, security technologies. This includes liability limitations for downstream users of a SAFETY Act designated product or service. Therefore, in the event of an act of terrorism, the liability immunity extends to a company deploying SAFETY Act technologies, whether they developed those technologies themselves or purchased them from others.
- Potential Insurance Cost Savings: One significant benefit can be insurance cost savings. As a result of the liability limitations a facility receives under the SAFETY Act, they could see immediate, lower insurance costs under your insurance program. For facilities such as sports stadiums or data centers, these cost savings could make a meaningful impact on your earnings.
What is considered a security “technology” under the SAFETY Act?
The term “technology” is broadly defined under the SAFETY Act. It includes not only new devices—such as weapons detectors or surveillance equipment—but also includes security services (including support services), venue security, consulting services, software, program management and integration services, threat assessments, and vulnerability studies.
Who can apply for a DHS SAFETY Act approval?
Entities can apply for the SAFETY Act if they offer or deploy products or services that aid in the following ways:
- Prevent terrorist attacks
- Respond to terrorist acts
- Recovery from terrorist acts
- Limits the harm from a terrorist act
The SAFETY Act isn’t limited to security providers. Companies, venues, stadiums, and sports franchises can benefit from Certifications or Designations. Any organization that could be affected by terrorism should consider how they can limit their liability under the SAFETY Act.
What are the different levels of protections?
The SAFETY Act provides two levels of liability protection:
- Designation: DHS awards this level of approval after considering a number of criteria, the most important of which is whether the product or service has been shown to be effective. The legal protection associated with this approval caps a seller’s potential liability in the event of an act of terrorism at the level of insurance that DHS deems appropriate during the application process. The Designation also provides several other legal protections.
- Certification: This level of approval is achieved when DHS concludes that it has “high confidence” that the service or product will continue to be effective. The protection associated with Certification allows the company to assert a legal defense known as the “Government Contractor Defense,” that can remove all liability for claims that arise.
Which type of DHS SAFETY Act approval should applicants consider?
There are three different types of application:
- Developmental Testing & Evaluation (DT&E) Designation: This application is for those with technology that has not been tested or used in an operational setting. This is the appropriate application for prototypes that show existing potential.
- Designation: This is the application type for technologies with some operational information and past use. The technology has proven effectiveness with repeatable results.
- Certification: This the best application for technologies with substantial use and consistent proven effectiveness. There needs to be high confidence that the technology will work as intended each time.
How long does the DHS SAFETY Act designation last?
The term of a SAFETY Act Designation and Certification is typically five years and must be renewed with the DHS each subsequent term. A DT&E Designation is valid for up to 3 years. SAFETY Act approvals can be renewed beginning 24 months prior to the date of expiration.
What is the SAFETY Act application process?
The application process is time consuming and takes much preparation. The OSAI recommends you take your time filling out the application, and make sure your submission is clear, concise, and well organized.
Application process in steps:
- Assess the scope and effectiveness of your current security services and/or products
- Register with Office of SAFETY Act Implementation (OSAI)
- Request Pre-Application Consultation (this is optional, and may be useful in some contexts)
- Submit the appropriate application
- Respond to inquiries from OSAI during the review process
How does the SAFETY Act define an “Act of Terrorism”?
U.S. law contains multiple definitions of terrorism, but the SAFETY Act contains a specific definition that applies for its purposes. That act defines “act of terrorism” as any act that the Secretary of Homeland Security determines meets the following requirements:
- the attack is unlawful;
- the attack causes harm to a person, property or entity in the U.S.; and
- the attack uses or attempts to use weapons, instruments, or other methods designed or intended to cause mass destruction, injury or other loss to citizens or institutions of the United States.
This definition covers many of the domestic attacks that have occurred in the United States after 9/11, including the many mass shooting attacks.
If an event or incident does not qualify as an act of terrorism, how can the SAFETY Act help the vendor or venue?
There are some attacks—such as those that are personal in nature and that target a single individual at the workplace—that may not qualify as a terrorist attack. In those situations, the SAFETY Act would not provide liability protection.
Obtaining SAFETY Act approval is similar to obtaining insurance coverage: the person who obtains it hopes that it will never need to be used. But in the event that the horrible occurs, and some person wreaks havoc that causes harm to life and property—the liability costs of which can easily reach multi-millions of dollars—the SAFETY Act can provide important financial protection. A company that has taken responsible precautions could have the importance of those precautions recognized by the protections of the SAFETY Act.
Interested in SAFETY Act approval?
The importance of proactively addressing the risks associated with terrorism cannot be overstated. By seeking designation or certification under the SAFETY Act, companies can significantly mitigate potential financial liabilities that may arise from such catastrophic events.
Nixon Peabody’s National Security and Resilience team leverages deep legal and regulatory knowledge, along with hands-on experience in key public safety and national security roles, to bolster our clients’ products and operations against high-risk threats. We can help with the SAFETY Act application process, guiding businesses through the intricate assessment, application, compliance and renewal processes.
