Homeland Security Department Proposes Liability Protection for Anti-Terrorism Technologies The Department of Homeland Security has issued proposed regulations to give technology contractors limited protection from liability and to allow vendors to register their products as “qualified anti-terrorism technologies.” The proposed rule, published in the July 11 Federal Register, would implement the Support Antiterrorism by Fostering Effective Technologies Act, known as the SAFETY Act. It is part of the Homeland Security Act of 2002. “The SAFETY Act is designed to encourage the development and rapid deployment of life-saving anti-terrorism technologies by providing manufacturers or sellers with limited liability risks,” the department said in its announcement. “Without the Act, many companies may not invest in potential life-saving technologies to protect Americans.” DHS plans to begin accepting applications for SAFETY Act protections on September 1. Products and services that are approved by the department as “qualified anti-terrorism technologies” would enjoy limited protection from lawsuits if they are used by federal, state or local agencies or private-sector customers. The DHS designation amounts to a sort of “Good Housekeeping Seal of Approval,” insulating a company from liability if its product failed to protect against a terrorist attack, as long as the company was not negligent. Among the protections provided by the law: •Vendors will be allowed to use the “government contractor defense” against any lawsuit. That defense shields a company from liability as long as it supplies a product that meets government specifications and does not conceal any defects or other safety problems. •Lawsuits against contractors will be tried in federal court. That prevents plaintiffs from shopping for a friendly state judge or jury. •Punitive damages are not permitted. To win certification from DHS, companies are required to carry liability insurance, but the proposed rule does not specify the amount of insurance. DHS said a “one-size-fits-all” rule would not work; instead different levels of coverage will be set for different categories of products and services. The Professional Services Council, a trade group representing contractors, said that and other provisions of the proposed rule are too vague. While agreeing that one size does not fit all, the Council added, “given the critical role that insurance coverage plays in the law, greater details regarding the estimated type and amounts of coverage that would be sufficient under the regulations for specific technologies or categories of services would be significantly beneficial.” In publishing the proposed rule, DHS put it on a fast track. Public comments will be accepted for 30 days, then an interim rule may be issued while the department continues to refine the final version. The proposed rule is FR Doc 03-17561 in the July 11 Federal Register.